State v. Gares
| Docket Number | A-2296-22 |
| Decision Date | 14 June 2023 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Appellant, v. JOSEPH GARES, Defendant-Respondent. |
| Court | New Jersey Superior Court — 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.
Submitted May 31, 2023
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Warren County, Indictment No 22-03-0132.
James L. Pfeiffer, Warren County Prosecutor, attorney for appellant (Gloria Rispoli, Assistant Prosecutor, on the brief).
DeMasi & Williams, attorneys for respondent (Chad R. Williams on the brief).
Before Judges Messano and Rose.
By leave granted, the State appeals from a February 14, 2023 Law Division order denying its application to admit fresh complaint evidence at the trial of defendant Joseph Gares. Because the record supports the motion judge's decision that the alleged victim's disclosures were not made within a reasonable time after the alleged sexual abuse, we affirm.
We commence our review with the governing legal principles to give context to the issues raised on appeal. The fresh complaint doctrine's "narrow purpose," State v. Hill, 121 N.J. 150, 163 (1990), permits "evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, 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). In Hill, our Supreme Court established a three-part test that out-of-court statements must satisfy to qualify as admissible fresh-complaint testimony, i.e., the statements by the victim must be: (1) "to someone she would ordinarily turn to for support"; (2) "made within a reasonable time after the alleged assault"; and (3) "spontaneous and voluntary." 121 N.J. at 163; see also State v. W.B., 205 N.J. 588, 616 (2011).
"These requirements are relaxed when they are applied to juvenile victims." R.K., 220 N.J. at 455. Relevant here, our Supreme Court has long recognized "children may be too frightened and embarrassed to talk about sexual abuse" thus warranting relaxation of the fresh complaint requirements. State v. Bethune, 121 N.J. 137, 144 (1990); see also R.K., 220 N.J. at 455 (). Whether a victim voiced a complaint within a reasonable period after a sexual assault must be decided on a case-by-case basis with the court "[s]triking the appropriate balance between a defendant's right to confrontation and society's interest in adjudicatory reliability." State v. P.H., 178 N.J. 378, 390 (2004).
Defendant is charged in a nine-count Warren County indictment that alleges multiple acts of sexual abuse upon his stepson's daughter, L.F. (Lauren),[1]born February 15, 2004, at defendant's home in Phillipsburg. The abuse allegedly occurred between May 11, 2012, and February 24, 2016, when Lauren was between the ages of eight and eleven. The pending charges are: two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); one count of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(a)(1); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); and one count of fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1).
The State's allegations are set forth at length in the motion judge's written decision that accompanied the order under review and need not be reiterated here in the same level of detail.[2] In essence, the allegations were reported to the authorities in March 2018, following Lauren's disclosure to her mother, C.K. (Connie). Lauren, then fourteen years old, "disclosed inappropriate touching that occurred in Pennsylvania's jurisdiction," and "acts of sexual abuse that occurred at [defendant]'s residence in Phillipsburg." The State further claimed Lauren previously reported the abuse to her father, B.F. (Bill), in July or August 2017. Bill told Connie, but neither parent reported the abuse to the authorities. By that time, Bill and Connie had separated; Lauren was living with Bill in New York; and Lauren's sister, A.F. (Anna), born November 2, 2006, was living with Connie in Pennsylvania.
The fresh complaint testimony the State seeks to introduce are the separate conversations between Lauren and Bill in July or August 2017,[3] and Lauren and Connie in March 2018. The motion judge conducted an N.J.R.E. 104 hearing on the admissibility of the parents' fresh complaint testimony on September 28, 2022, and January 4, 2023.[4]
Bill testified that on an unspecified date when Lauren was fourteen years old, Lauren said: "Poppy did things to her." Lauren "was crying" when she made the disclosure. She provided no further details, but Bill inferred Lauren was sexually abused by his stepfather, whom she called, "Poppy." The conversation occurred in Bill's car outside his house after he had "pick[ed Lauren] up from school." Bill called Connie and told her about Lauren's disclosure. Bill then "went off the deep end for a little while, . . . calling [defendant] and threatening him." Bill did not contact the authorities.
According to Connie, Bill called her in July 2017 and said defendant "has been touching [Lauren]." Connie told Bill "to go ahead and get ahold of somebody." Connie confronted Bill's mother, D.G. (Doris) about Lauren's accusations via a Facebook message; Doris responded that "they didn't believe L[auren]." The message exchange, dated July 26, 2017, was admitted in evidence at the hearing. Connie said she was unaware that Bill never notified the authorities.
Connie further testified that in February 2018, Lauren's school contacted her about the child's hygiene issues, weight loss, and failing grades. Connie threatened to call child protection services if Bill did not agree to relinquish residential custody of Lauren.
The following month, Connie and Lauren argued about Lauren's desire to return to Bill's home. After the argument Lauren approached Connie, who was watching "Criminal Minds," and asked "if [defendant] was ever going to get in trouble." Connie responded: Connie inquired whether Bill had reported the abuse and Lauren answered, "no."
Connie explained the family lived with defendant and Doris at various times but ultimately moved out in April 2015, shortly after Connie refused to permit Lauren's participation in a sleepover in the living room of defendant's home. According to the State's trial and appellate briefs, Lauren told detectives the abuse continued when the family "visited [d]efendant during the summer, on special occasions and/or for holidays."
Connie also testified about domestic violence when she and Bill were married. The abuse was both physical and verbal. She described their relationship as "toxic." The couple separated in March 2017 and divorced in November 2017.
The motion judge held oral argument on February 1, 2023. Citing W.B., State v. Hummel, 132 N.J.Super. 412 (App. Div. 1975), and State v. R.E.B., 385 N.J.Super. 72 (App. Div. 2006), the State argued Lauren's delay in reporting the abuse was "more than within the time frame as prescribed by our case law." Noting the indictment reflects the last act of abuse occurred in February 2016, the initial report to Bill was July 25, 2017, as reflected in the messages between Connie and Doris, and the second report to Connie was in March 2018, the State contended Lauren's disclosure was "a year and a half to approximately two years after the last acts of sexual abuse."
During colloquy with the prosecutor, the judge rhetorically asked: "Don't all the cases that you cite that have that large gap, . . . have some aura of intimidation component to the delay, in that the disclosures were typically made within a couple of weeks to a couple of months after removal from the situation or the aura of intimidation?" The State disagreed that an aura of intimidation was required but contended that Lauren still had contact with defendant after the family moved out of his home because the family "regularly visited[e]d" defendant. In addition, Lauren and Anna "spen[t] summers with . . . defendant." The State also cited "the history of domestic violence that the child was exposed to and ongoing issues with [defendant]."
The motion judge denied the State's application in its entirety. Citing the relevant law, the judge acknowledged the timeframe is relaxed for sexual abuse reported by a child. However, the judge distinguished the present matter from the circumstances described in the cases cited by the State, where the disclosures were made from eighteen months to three years after the sexual abuse had occurred, concluding those cases involved an ongoing "aura of intimidation," which explained the delay. See State v. L.P., 352 N.J.Super. 369, 374 (App. Div. 2002).
For example, the judge noted in L.P., we upheld the admission of fresh complaint testimony where the victim reported sexual abuse by her adoptive father "nearly a year after the last of the alleged assaults." Id. at 374. In L.P., however, the defendant threatened to kill the victim if she disclosed the abuse, and she did so around four months after she left the defendant's home. Ibid.
Similarly in Hummel, we upheld the admission of fresh complaint evidence, where both foster children were between the ages of twelve and fifteen when they were allegedly abused in the defendant's home, and one complainant disclosed the abuse three years...
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