State v. C.B.

• Decision Date: 01 May 2020
• Docket Number: DOCKET NO. A-5090-17T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. C.B., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. C.B., Defendant-Appellant.

DOCKET NO. A-5090-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 13, 2020

May 1, 2020

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 17-06-0969.

Moriarty Law Firm, attorneys for appellant (Charles Moriarty, of counsel; Timothy C. Moriarty, on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel; Roberta DiBiase, Supervising Assistant Prosecutor, on the brief).

PER CURIAM

Defendant C.B. was charged in a nine-count indictment after his daughter, W.B.,¹ reported to the Ocean County Prosecutor's Office in November 2016 that he had sexually assaulted her on numerous occasions between 2005 and 2012 when she was between the ages of six and twelve.² Defendant appeals from his conviction by jury for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one, four and seven); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts two, five and eight); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1)(counts three, six and nine). On appeal, he argues:

[POINT I]

V.H. AND J.M. SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY BECAUSE THEIR TESTIMONY DID NOT MEET THE REQUIREMENTS OF THE FRESH-COMPLAINT EXCEPTION TO THE HEARSAY RULE.

[POINT II]

DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE THE TRIAL COURT IMPROPERLY PERMITTED HEARSAY EVIDENCE BY NUMEROUS WITNESSES, AND IMPROPERLY

ALLOWED EVIDENCE AND TESTIMONY THAT WAS MORE PREJUDICIAL THEN PROBATIVE.

A. Testimony by Detective Alexander Regarding Defendant Purchasing Airline Tickets to Brazil and Defendant Traveling to Various States Outside of New Jersey.

B. Court Improperly Permitted the State to Introduce Recorded Telephone Conversation Between W.B. and Defendant over the Defense's Objection to Same.

[POINT III]

THE PROSECUTOR IMPROPERLY VOUCHED FOR THE TESTIMONY OF A KEY WITNESS IN THE CASE DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

[POINT IV]

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND THE TRIAL COURT'S DETERMINATIONS AND FINDINGS AS TO THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS ARE CLEARLY ERRONEOUS AND NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE; THEREFORE, DEFENDANT'S SENTENCE MUST BE VACATED.

A. The Trial Court Engaged in Impermissible Double-Counting in Finding Aggravating Factor Two Applied to Defendant.

B. The Trial Court Improperly Evaluated Defendant's Risk to Reoffend and the Trial Court's Determination that Aggravating Factor Three Applied is Not Supported by Competent Credible Evidence.

C. The Trial Court's Findings with Respect to Aggravating Factor Nine Are Not Supported by Competent Credible Evidence.

D. The Court's Imposition of a Sentence at the Upper Limits Cannot Stand as the Court Improperly Determined the Aggravating Factors Outweighed the Mitigating Factors.

We affirm but remand for resentencing.

I.

Following the State's in limine motion to admit the testimony of two witnesses to whom W.B. had disclosed defendant's actions, and defendant's cross-motions to bar those witnesses' testimony, the trial court heard testimony at an N.J.R.E. 104 hearing from both witnesses. Defendant argues the court erred in ruling their testimony was admissible as fresh complaint; both testified at trial, as did W.B.³

We review a trial court's decision to introduce fresh-complaint testimony at trial for an abuse of discretion. See State v. Bethune, 121 N.J. 137, 145-48 (1990). "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003). As such, "[a] reviewing court should overrule a trial court's evidentiary ruling only where 'a clear error of judgment' is established." State v. Loftin, 146 N.J. 295, 357 (1996) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)).

Although an out-of-court statement offered to prove the truth of the matter asserted therein is inadmissible hearsay, N.J.R.E. 801, fresh-complaint testimony by the victim of a sexual offense is admissible for a narrow purpose: "to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated," State v. R.K., 220 N.J. 444, 455 (2015). "[T]o qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, [and] to a person the victim would ordinarily turn to for support." Ibid. "A witness may testify only to the general nature of the complaint, and unnecessary details of what happened should not be repeated." State v. W.B., 205 N.J. 588, 617 (2011). Because fresh complaint evidence cannot be used to bolster the victim's credibility, R.K., 220 N.J. at 456, trial courts "may, but need not,exclude cumulative fresh-complaint testimony that is prejudicial[,]" Hill, 121 N.J. at 170.

W.B. made a non-specific disclosure that defendant "had done things to her which was implied in a sexual manner . . . [and] that he would hold her down in his bed," to her lifelong, close friend, V.H., when they were younger than ten years of age—and while defendant's sexual assaults of W.B. were ongoing. Defendant does not claim that disclosure did not meet the criteria for admission as fresh complaint. Defendant argues V.H.'s testimony was unreliable because her version of events differed significantly from W.B.'s recollection and included "force, fear and violence" never mentioned by W.B. Defendant further contends a subsequent conversation between W.B. and V.H. "as [fifteen]-year-olds," and an inquiry of V.H. by W.B.'s mother, K.B., if W.B. had ever said anything about defendant, tainted the initial fresh complaint.

These bald assertions do not render V.H.'s testimony inadmissible. Defendant concedes in his merits brief:

V.H. never revealed what W.B. said to her on the second occasion other than that "she had told me she told her boyfriend about [the sexual assaults]." . . . V.H. never delineated what information she received from W.B. on that second occasion, what additional details she gleaned from the second conversation, and how that information may have caused her to revise herunderstanding of the sexual abuse W.B. was alleging to have experienced.

Not only is defendant's argument unsupported by the record, it fails to consider that fresh-complaint testimony "is not evidence that the sexual offense actually occurred, or that [a victim] is credible. It merely serves to negate any inference that because of [a victim's] assumed silence, the offense did not occur." Model Jury Charges (Criminal), "Fresh Complaint" (rev. Feb. 5, 2007). Thus, because fresh-complaint testimony "does not prove the underlying truth of the sexual offense," ibid., and the account of the disclosure is limited to "the general nature of the complaint," avoiding "unnecessary details of what happened," W.B., 205 N.J. at 617, it is of no moment that V.H.'s testimony may have differed from W.B.'s full disclosure. The State did not introduce, and the jury did not hear, detailed testimony from V.H., including her statement about "force, fear and violence." The trial court did not abuse its discretion in admitting V.H.'s fresh-complaint testimony.

J.M. was W.B.'s boyfriend of approximately four to five months in the summer of 2016. Defendant also argues the trial court erred in allowing J.M.'s fresh-complaint testimony that W.B. and he were "talking on the phone one night and she was very clearly upset"—"crying, very anxious [and] scared"—causing him to ask "repeatedly," "a few times" "what the problem was" "because[he] could see very clearly that it was not nothing wrong or not something that should be taken lightly." W.B. finally told him her father had "molested her" from the time she was six-years-old until she was twelve.⁴ J.M testified he did not ask W.B. if she "was sexually abused by her father." J.M. said he immediately drove to W.B.'s home and continued the conversation; W.B. told J.M. what her father made her do "and that this was probably a huge cause of all of her anxiety."

Defendant contends J.M.'s testimony did not meet the fresh-complaint criteria for admissibility because he repeatedly questioned W.B. before she disclosed and that disclosure was made approximately four years after the defendant's last alleged assault in 2012. We disagree. As the trial court found, J.M. repeated his questions without knowing "anything about an alleged complaint or problem that the victim had with . . . defendant." The court discounted J.M.'s prior statement to a detective that he "pushed [W.B.'s disclosure] out of her," finding from his testimony "that that was really not the proper explanation as to what happened," and that J.M. did not interrogate or force W.B. to disclose her father's abuse. Indeed, J.M.'s repeated questions tohis distraught girlfriend were aimed at finding out what was upsetting her. "[G]eneral, non-coercive questions do not rob a complaint of its admissibility under the fresh-complaint rule." Bethune, 121 N.J. at 144 (holding questions such as, "what's wrong?" and "[d]id he do something to you?" did not constitute a coercive line of questioning (quoting People v. Evans, 173 Ill. App. 3d 186, 191 (1988))).

The disclosure, some four years after the last alleged act, bears close scrutiny. Notwithstanding that fresh complaints of sexual assault must be made within a reasonable time, that requirement "must be 'applied more flexibly in cases involving children than in [cases] involving adults.'" W.B., 205 N.J. at 618 (alteration in original...