STATE OF NEW JERSEY VS. H.H. (16-04-1062, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4208-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

H.H.,

Defendant-Appellant.
___________________________

Submitted October 2, 2018 – Decided October 24, 2018

Before Judges Suter and Firko.

On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-04-1062.

Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Following a jury trial, defendant H.H. 1 was found guilty of third-degree

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), and three counts of

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a),

committed against M.W. when she was between the ages of thirteen and sixteen.

On April 7, 2017, defendant was sentenced on count one to four years of

imprisonment, on count two to a six-year term, on counts three and four to

concurrent five-year terms, all to run concurrently with count one, for an

aggregate six-year term. In addition, defendant was ordered to register as a sex

offender under Megan's law; parole supervision for life; and a sex offender

restraining order was issued pursuant to Nicole's law. Also, mandatory

assessments, penalties, and a Sex Crime Victim Treatment Fund Penalty of

$2,000 were imposed.

On appeal, defendant presents the following arguments:

POINT I:

THE TRIAL COURT ERRED IN ADMITTING
FRESH[-]COMPLAINT TESTIMONY FROM TWO
WITNESSES BECAUSE THE COMPLAINT BY
M.W. WAS NOT TIMELY MADE TO THOSE
WITNESSES, AND BECAUSE THE EVIDENCE
ADMITTED ABOUT THE COMPLAINT WAS
CUMULATIVE. (Not Raised Below)

1
We use initials to protect the privacy of the victim, who is related by marriage
to defendant.
A-4208-16T4
2
POINT II:

THE COURT FAILED TO CHARGE THE JURY IN
RELATION TO DEFENDANT'S STATEMENT TO
POLICE AND THE REMAINDER OF THE CHARGE
THAT WAS GIVEN WAS INSUFFICIENT TO
ADVISE THE JURY OF THE NEED TO
CRITICALLY AND EFFECTIVELY EVALUATE
HIS STATEMENT IN LIGHT OF THE REALITY
THAT JURORS HAVE GREAT DIFFICULTY
DISTINGUISHING BETWEEN FALSE
CONFESSIONS AND TRUE CONFESSIONS. U.S.
CONST. AMEND VI; N.J. CONST. ART. I, PAR. 10
(Not Raised Below)

POINT III:

THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE AND MUST BE REDUCED.

A. The Sentence Imposed.

B. The Sentencing Court Engaged in Erroneous
Double Counting When It Applied Aggravating
Factor ([Two]).

C. The Remaining Applicable Aggravating [a]nd
Mitigating Factors Supported Imposition of
Minimum Concurrent Sentences.

D. The Aggravated Criminal Sexual Contact
Conviction Should Be Merged [i]nto Defendant's
Conviction for Endangering The Welfare of [a]
Child Which Was Based [o]n [t]he Same
Conduct.

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3
 E. The Sentencing Court Erred When It Imposed [a]
$2,000 Sex Crime Victim Treatment Fund
Penalty Without Considering Defendant's Ability
[t]o Pay.

We reject these arguments and affirm defendant's conviction. However,

we remand the matter to amend the judgment of conviction to merge defendant's

conviction for aggravated criminal sexual contact (count one) with his

conviction for endangering the welfare of a child (count two) because both were

based on the same conduct.2

I.

The following facts are derived from the trial record. When M.W. was

thirteen-years old, she was residing with her mother, defendant, who is her step-

father, and younger brother in Camden. M.W. described her relationship with

defendant for the two years prior as "fine" but "[not] perfect." In the Fall of

2011, after arriving home from church without his wife, defendant invited M.W.

to watch television alone with him in his bedroom. He sat next to her on the

floor and rubbed her back, gradually progressing down to her buttocks. She

tried to move away from him but he persisted in this behavior. M.W. testified

that this made her feel "uncomfortable." The next morning, she refrained from

2
Both parties agree to this amendment. The aggregate term of defendant's
sentence shall remain six years with no period of mandated parole ineligibility.
A-4208-16T4
4
telling her mother about the incident because M.W. thought her mother would

not believe her. M.W. testified that, thereafter, defendant started to act more

forcefully by seizing her, hugging her, and grabbing her buttocks. She wa s

afraid to report his behavior to anyone, including her mother, brother, or

biological father, from whom she was estranged, because M.W. thought no one

would believe her.

M.W. specifically recalled an incident when she was fourteen-years old

when defendant asked her "if [she] ever experienced an orgasm?" She

responded, "no," and walked away from him.

While still fourteen, M.W. recalled being alone with defendant in his car

in a supermarket parking lot while her mother was shopping. Defendant asked

M.W. if she liked it when he touched "[her]" and she said "no."

On another occasion, defendant confronted and interrogated M.W. about

sexually provocative text messages he surreptitiously found on her phone. He

badgered her about communicating with strangers, and asked her if she ever

engaged in sexual activity. Defendant alarmed M.W when he told her "that he

wanted to . . . lick [her] down there[,]" leaving her in shock.

Eventually at age sixteen, M.W. decided to confide in her pastor, D.T.,

about the recent incident. M.W. told D.T. that she "felt uncomfortable at home.

A-4208-16T4
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She wanted to leave home and she felt that some things were inappropriate."

D.T. and her husband, J.T., who is also a pastor, served at Gatekeepers

Fellowship Church, where M.W. was a student and attended religious services.

Based upon her trust in D.T., a meeting was convened with M.W., her mother,

defendant, and both pastors, to discuss the allegations.

At the meeting, defendant denied the allegations, and the attendees were

given "strict instructions" by the pastors to preserve confidentiality. They did

not notify authorities or take any action. M.W.'s mother did not do anything

either.

Out of frustration, at age seventeen, M.W. left home and moved in with

her father to escape defendant. She decided to inform an aunt ("M.S.") about

her experiences with defendant and the meeting. After M.W.'s father was told

about this history by M.W. and M.S., law enforcement was alerted.

Detective Timothy Houck of the Camden County Prosecutor's Office

Special Victims Unit handled this case. He conducted a forensic interview of

M.W., her mother, and M.S. An interview was conducted of defendant at the

Prosecutor's office. He was advised of his Miranda3 rights orally and in writing,

waived them, and gave a recorded statement. In response to questioning,

3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4208-16T4
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defendant admitted to massaging M.W. on "the back of her legs and the front of

her legs" after she ostensibly complained of pain after exercising. He also

admitted to asking her if she ever had an orgasm, but denied asking to lick her

vagina. Shortly thereafter, he recanted and answered "yes" when asked if he

ever told M.W. he wanted to "eat her out." He concluded that his hand slipped

to her butt during a hug, and that he engaged in all of this conduct because he

found her attractive, resembling her mother, and wanted "to see her [M.W.'s]

reaction." He blamed himself and M.W., rationalizing that "she always

approach[ed] him."

II.

Defendant first argues that the "fresh-complaint" testimony of M.S. and

D.T should have been barred because M.W.'s complaints were untimely made,

she did not contend that she was fearful of defendant, or that she was

embarrassed or coerced into silence. He further argues that the fresh-complaint

testimony was cumulative, and "served only to make the jury believe that the

State had a greater number of witnesses than the defense." We disagree.

"On appellate review, '[c]onsiderable latitude is afforded' to the court's

ruling, which is reversed 'only if it constitutes an abuse of discretion.'" State v.

Cole, 229 N.J. 430, 449 (2017) (citations omitted). Evidentiary determinations

A-4208-16T4
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will be affirmed "absent a showing of an abuse of discretion. i.e., there has been

a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015)

(quoting State v. Harris, 209 N.J. 431, 439 (2012)).

If no objection is raised before the trial court, we review for plain error

and, "[a]ny error or omission shall be disregarded . . . unless it is of such a nature

as to have been clearly capable of producing an unjust result . . . ." See R. 2:10-

2.

The fresh-complaint rule was established "to allow the State to meet in

advance the negative inference which would be drawn from the absence of

evidence that the [child] victim reported the [sexual abuse] to one to whom she

would naturally turn for comfort and advice." State v. J.S., 222 N.J. Super. 247,

256 (App. Div. 1988) (citation omitted). Our Supreme Court has described

fresh-complaint evidence as follows:

[T]o qualify as fresh[-]complaint, the victim's
statements to someone she would ordinarily turn to for
support must have been made within a reasonable time
after the alleged assault and must have been
spontaneous and voluntary. At trial, fresh-complaint
evidence serves a narrow purpose. It allows the State
to negate the inference that the victim was not sexually
assaulted because of her silence. Only the fact of the
complaint, not the details, is admissible. In addition,
the victim must be a witness in order for the State to
introduce fresh-complaint evidence.

A-4208-16T4
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 [State v. Hill, 121 N.J. 150, 163 (1990) (citations
omitted); see also State v. R.K., 220 N.J. 444, 455
(2015).]

Fresh-complaints may also be admissible when "made in response to

general, or non-coercive questioning[,]" with greater latitude shown in cases

dealing with young children. Hill, 121 N.J. at 167. It is left to the trial court

"to examine all the circumstances of the questioning to determine whether the

line between coercive and benign questioning has been crossed." Id. at 170.

Similarly, "the trial court in its discretion may, but need not, exclude cumulative

fresh-complaint testimony that is prejudicial to defendant." Ibid.

Although fresh-complaint evidence serves a narrow purpose, and should

not be considered as substantive evidence of guilt or as bolstering the credibility

of the victim, R.K., 220 N.J. at 456 (citing State v. Bethune, 121 N.J. 137, 147-

48 (1990)), a review of the record reveals that the judge did not indicate that

M.W.'s testimony was substantive evidence of defendant's abuse. Rather, the

judge properly determined, given M.W.'s young age when the abuse commenced

and the inaction of the adults who participated in the church meeting, that there

was justifiable cause in permitting the fresh-complaint testimony, which was

succinct and limited to M.W.'s reporting of abuse only. It was not until M.W.

moved out of the home she shared with defendant, her mother, and brother, that

A-4208-16T4
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she confided in M.S. about the abuse, who treated M.W. "like [her] second

daughter." The record reflects that the fresh-complaint witnesses testified as to

the fact of M.W's complaints in terms of reporting and not substance. An

appropriate limiting instruction and jury charge at the conclusion of trial was

given by the judge. We are unpersuaded by defendant's contention that the judge

erred by admitting this testimony. The limiting instruction was sufficient to

dispel any reasonable claim of prejudice. See State v. Vallejo, 198 N.J. 122,

129 (2009). We have no reason to believe the jurors did not follow the court's

instructions. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004). Accordingly, there

was no error warranting reversal.

III.

Defendant next argues that the judge improvidently utilized Model Jury

Charges on "Credibility of Witnesses" and the "Redacted Recorded Statement

of Defendant" for the first time on appeal. No objection or tailored jury charges

were proffered to the judge by defendant. The judge instructed the jury as

follows:

As the judges of the facts, you are to determine the
credibility of the witnesses and in determining whether
a witness is worthy of belief and therefore credible, you
may take into consideration the appearance and
demeanor of the witness; the manner in which he or she
may have testified; the witness' interest in the outcome

A-4208-16T4
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of the trial, if any; his or her means of obtaining
knowledge of the facts; the witness' power of
discernment, meaning his or her judgment or
understanding; his or her ability to reason, observe,
recollect, and relate; the possible bias if any in favor of
the side for whom the witness testified; the extent to
which if at all each witness is either corroborated or
contradicted, supported or discredited by other
evidence; whether the witness testified with an intent to
deceive you; the reasonableness or unreasonableness of
the testimony the witness has given; whether the
witness made any inconsistent or contradictory
statement; and any and all other matters in the evidence
which serve to support or discredit his or her testimony.

Through this analysis as the judges of the facts, you
weigh the testimony of each witness and then determine
the weight to give to it. Through that process you may
accept all of it, a portion of it, or none of it.

....

There is for your consideration in this case, a recorded
statement allegedly made by the defendant. It is your
function to determine whether or not the statement was
actually made by the defendant and if made, whether
the statement or any portion of it is credible. You may
consider all the circumstances surrounding the
statement in making that determination with the
following caution. I instruct you that in this case
certain portions of the recorded statement have not been
provided to you. You may only consider those portions
of the statement which have been admitted in evidence
and must not speculate as to the contents of the
omission or the reason or reasons for the omission.

A-4208-16T4
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 Defendant argues that the jury charge should have included a novel

instruction warning them about the alleged inherent danger of confession

evidence. In his brief, he cites social science articles about false confessions

and DNA evidence, and contends now on appeal that the judge should have

considered and incorporated same. Defendant's argument lacks merit and we

are not persuaded that the judge's use of Model Jury Charges was prejudicial or

insufficient.

We note that, "'[i]t is difficult to overstate the importance of jury

instructions' as '[a]ppropriate and proper charges are essential for a fair trial.'"

State v. Scharf, 225 N.J. 547, 581 (2016) (citations omitted). The judge has an

"independent duty . . . to ensure that the jurors receive accurate instructions on

the law as it pertains to the facts and issues of each case . . . ." State v. Reddish,

181 N.J. 553, 613 (2004). The plain error standard of Rule 2:10-2 applies to our

review of the charge, and we must assure that any deficiency or defect in the

charge was not apt to have been consequential. The judge properly "guide[d]

the jury in the course [of] its deliberation" here. See State v. Jackmon, 305 N.J.

Super. 274, 290 (App. Div. 1997). We find no error as to the jury charge and

the verdict must stand.

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 IV.

Defendant's final point on appeal is that his sentence is manifestly

excessive. As our Supreme Court has recently reaffirmed, "'when [trial judges]

exercise discretion in accordance with the principles set forth in the Code [of

Criminal Justice] and defined by [the Court] . . . , they need fear no second-

guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v.

Ghertler, 114 N.J. 383, 384-85 (1989)). Once the trial court has balanced the

aggravating and mitigating factors set forth in the statute, N.J.S.A. 2C:44 -1(a)

and -1(b), it "may impose a term within the permissible range for the offense."

Id. at 608.

In arriving at the sentence, the judge found aggravating factors two, three,

and nine applied. See N.J.S.A. 2C:44-1(a). Addressing factor two, the gravity

and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2), the

judge found M.W. was particularly vulnerable and incapable of resistance due

to her extreme youth. Addressing factor three, the risk of re-offense, N.J.S.A.

2C:44-1(a)(3), the judge found the familial relationship and escalation of the

miscreant conduct over the years by defendant upon M.W. was justified. Under

factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), the judge observed

that there was a strong need to deter defendant and others from violating the

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law, clearly stating he was not "double counting." The judge found no

mitigating factors applied in this case, and duly considered that "defendant h as

not - - had prior contact with the court system . . . ." 4

On the whole, we detect no reason to disturb the trial judge's sentencing

analysis, and will not "second-guess" his discretionary assessments. See

Bieniek, 200 N.J. at 608. The sentence imposed, a "flat sentence" of six years,

which was below the presumptive mid-range sentence for a single second-degree

conviction, see N.J.S.A. 2C:44-1(d) and 1(f)(1)(c), was well supported by the

record, the presentence report, and the other relevant considerations weighed by

the trial judge.

We have fully considered the balance of the arguments raised by

defendant, and are satisfied that those arguments lack sufficient merit to warrant

discussion in this written opinion. R. 2:11-3(e)(2).

Affirmed as to defendant's convictions, and remanded for sentencing

consistent with this opinion. We do not retain jurisdiction.

4
Defendant had one municipal court conviction in 2004 which had no bearing
on his sentence.
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