State v. Hobgen
| Docket Number | A-3501-19 |
| Decision Date | 01 August 2023 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. FUQUAN HOBGEN, Defendant-Appellant. |
| 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 April 25, 2023
On appeal from the Superior Court of New Jersey, Law Division Camden County, Indictment No. 17-10-2900.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin Finckenauer, Assistant Deputy Public Defender, of counsel and on the briefs).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sumners and Susswein.
Defendant Fuquan Hobgen appeals from his jury trial convictions for multiple sexual offenses perpetrated against a child. He contends he was deprived of a fair trial, claiming: (1) the prosecutor committed misconduct by mischaracterizing the strength of the State's DNA evidence; (2) the testimony of State witnesses included inadmissible hearsay statements (3) the State improperly admitted defendant's birth certificate; and (4) the trial court erred in not sanitizing defendant's prior convictions. He also argues the trial court erred in not merging the sexual assault and sexual assault of a minor convictions and by imposing a discretionary persistent offender extended term of imprisonment.
After carefully reviewing the record in light of the governing legal principles, we affirm defendant's convictions. We also affirm the sentence that was imposed, with one caveat. We conclude the convictions for sexual assault and sexual assault of a minor-which were committed at the same time against the same victim-should have been merged for sentencing purposes. We therefore remand for the limited purpose of correcting the judgment of conviction to reflect that merger.
In October 2017, defendant was charged by indictment with second-degree sexual assault by use of physical force (sexual assault by force), N.J.S.A. 2C:14-2(c)(1); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and second-degree sexual assault for an act of sexual penetration against a victim at least thirteen but younger than sixteen (sexual assault of a minor), N.J.S.A. 2C:14-2(c)(4).
Defendant was tried before a jury between October and November 2019. The jury found defendant guilty on all counts. At sentencing, the trial court merged the sexual assault by force, endangering, and criminal sexual contact convictions and imposed an extended term of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with Megan's Law requirements, N.J.S.A. 2C:7-2, and parole supervision for life. The court imposed a concurrent eight-year prison term on the sexual assault of a minor charge. Defendant was also ordered to pay restitution, fines, and fees.
We discern the following facts from the trial record. The crimes occurred on June 3, 2017. The victim M.G.[1] was thirteen years old. Defendant was thirty-one years old and had been living with M.G.'s family for a few weeks. Defendant had a familial connection to M.G. M.G. testified that at around 11:00 p.m., defendant called and asked if she wanted to take a ride with him. M.G. said yes and told her mother she was leaving with defendant in his car. While driving, defendant asked M.G. if she could keep a secret. She responded "yes." Then defendant asked her, "[s]o, if I ask you this question, is you gonna tell anybody?" M.G. responded, "[n]o, I don't run my mouth."
Defendant parked his car at Von Nieda Park near the back of the parking lot, which was unlit. No one else was there, and there were no other cars around. Defendant turned off his car and told M.G., who had been sitting in the front passenger seat, to "get in the back." When she refused, defendant pulled her seat back and pushed her to the back seat of the car. M.G. testified that defendant got out of the car, entered the back, and proceeded to pull down her pants and penetrate her vagina with his penis. Defendant also put his hands on her chest and kissed her lips. Defendant held her down despite her attempts to push him off. Defendant relented in his assault momentarily when M.G. said she had to use the bathroom but requested that M.G. let him ejaculate in her first. At that point, M.G. was able to pull her pants up and got back into the front seat.
When defendant tried to start the car to leave, the car would not start. Camden County Police Department Officer Michael Murtha noticed a vehicle parked in the back corner of Von Nieda Park. He and another officer approached the car and observed defendant sitting in the driver seat and M.G. in the front passenger seat.
Officer Murtha asked M.G. and defendant what they were doing and whether M.G.'s mother knew they were there. M.G. testified that defendant told the officers that they were "sitting here talking" and that he picked her up at the basketball courts at the park and that his car died in the parking lot. M.G. testified she was scared to tell the officers what actually happened because defendant was present.
M.G. revealed to Officer Murtha she was thirteen years old. Given her age, Officer Murtha contacted M.G.'s mother to determine whether she was supposed to be alone with a much older man. M.G.'s mother told Officer Murtha that defendant was like family and that she was aware M.G. was with him. Since there did not seem to be a problem, the officers released them and told them to leave the area.
Since the car still would not start, defendant called for a cab. While traveling in the cab, defendant told M.G., "[d]on't tell nobody." When they arrived back at M.G.'s home, M.G. found her mother and insisted they go outside to talk. Once outside, M.G. began crying and told her mother that defendant sexually assaulted her. M.G.'s mother told her to go behind the house, then ran to the front and started hitting defendant. M.G.'s mother then called the police, but by the time they arrived, defendant was gone.
M.G. testified about reporting the assault to the responding police officers, then going to the hospital where she was examined and swabbed in the mouth, vagina and fingernails. M.G. was examined by Chrisha Austin, a registered nurse certified as a sexual assault nurse examiner (SANE nurse). Without divulging the specifics of what M.G. reported to her, Nurse Austin testified that M.G. reported she had been sexually assaulted. Nurse Austin noted M.G. had abrasions on her chest and complained of soreness on the back of her head. She swabbed M.G.'s mouth, fingernails, and vagina and collected her shorts and underwear for forensic testing.
M.G. also met with Dr. Monique Higginbotham, a child abuse pediatrician and an Associate Professor of Pediatrics. Dr. Higginbotham was accepted without objection as an expert witness in general pediatrics and child abuse pediatrics. She testified that her evaluation focuses on what type of sexual contact occurred to determine whether any testing needs to be done. She testified the ultimate purpose of her examination was for "medical diagnosis and treatment of the child."
Dr. Higginbotham began her examination by explaining her role, that she is a doctor and that she sees patients when there is a concern they experienced something that was uncomfortable and unsafe. During the course of the examination, M.G. related the following information to Dr. Higginbotham:
She described being in a vehicle in the back seat of a car when the individual pulled her pants down and pulled his pants down, got on her and she said that's when it happened. And specifically[,] she said that he put his private part inside her vagina. I asked some follow up questions. I asked specifically if he did anything to her mouth. She said he kissed her on the mouth and put his tongue in her mouth. I asked her to tell me if he did something to her breasts and she said he used his hands and she held her hands up in front of her with palms facing out to show how he used his hands on her breasts. And I asked some follow up questions about what happened to her vagina. And she, as I stated, she said he put his private part inside of it. I asked if he put anything else inside of her vagina, including his fingers and she said no. And I asked her to tell me what he did to her butt and she said he did not do anything to her butt.
Based on M.G.'s answers, Dr. Higginbotham conducted a physical examination around M.G.'s vagina and found everything appeared normal. She testified that it is "very rare for a child or teenager to have any physical finding after this type of sexual contact occurs." Dr. Higginbotham recommended M.G. receive trauma focused counseling.
The State also presented scientific evidence at trial linking defendant to DNA found on the underwear M.G. wore that night. Forensic scientist Rupal Frank-Slotwinski from the New Jersey State Police Office of Forensic Science testified that serology tests were performed on the sexual assault kit swabs, M.G.'s shorts, and her underwear. While no sperm was found on the shorts or underwear, Frank-Slotwinski discovered a stain on the underwear was P30 positive, which is a substance found in high concentration in semen. That area of the underwear was then packaged, sealed, and placed into a DNA packet for further testing.
Forensic DNA analyst Riza Ysla of the New Jersey State Police Office of Forensic Science tested the underwear sample and determined there were at least four contributors, both male and...
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