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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1206-19
STATE OF NEW JERSEY,
Plaintiff- Respondent,
v.
LUKE V. BAKULA,
Defendant-Appellant. _______________________
Argued October 2, 2023 – Decided December 15, 2023
Before Judges DeAlmeida, Berdote Byrne, and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-12-0942.
Susan Lee Romeo, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Susan Lee Romeo, of counsel and on the brief).
Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ali Y. Ozbek, of counsel and on the brief). PER CURIAM
Following a ten-day trial, a jury found defendant guilty of two counts of
aggravated sexual assault, N.J.S.A. 2C:15-2(a)(1) (count one and four); two
counts of sexual assault, N.J.S.A. 2C:14-2(b) (counts two and five); and two
counts of endangering the welfare of a child, N.J.S.A. 2C:25-4(a)(1) (counts
three and six). The offenses arose from A.S. and defendant's inappropriate
relationship that developed while they were members in a dojo, also known as a
karate academy.
Defendant was sentenced to twelve years under count one and six years
under count two, to run consecutively and subject to an eighty-five percent
parole bar under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
I.
On appeal, defendant presents the following arguments.
POINT I
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THIS TRIAL WAS REPLETE WITH INADMISSIBLE LAY OPINION AND HEARSAY TESTIMONY REGARDING DEFENDANT'S CHARACTER, CONDUCT[,] AND GUILT, ELICITED FROM THE STATE'S WITNESSES IN VIOLATION OF MULTIPLE COURT RULINGS.
A-1206-19 2 1. Inflammatory, Inadmissible Lay Opinion Testimony Regarding Defendant's Character.
2. Inadmissible Lay Opinion Testimony [a]nd Hearsay Regarding Defendant's Conduct [a]nd Guilt.
3. Testimony [b]y [t]he State's Witnesses Regarding Defendant's Character, Conduct [a]nd Guilt [w]as Inadmissible Lay Opinion [a]nd Hearsay That Was Highly Prejudicial.
4. The Prejudice [f]rom This Inadmissible Opinion [a]nd Hearsay Evidence Was Overwhelming Where [t]he State's Case Rested Almost Exclusively [o]n [t]he Victim's Testimony.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED HIGHLY PREJUDICIAL ALLEGATIONS OF UNCHARGED CONDUCT, BECAUSE IT FAILED TO MAKE THE REQUIRED FINDINGS UNDER STATE V. COFIELD, 127 N.J. 328 (1992), APPLIED THE WRONG BURDEN OF PROOF, AND PERMITTED THE JURY TO USE THE EVIDENCE FOR PLAN, MOTIVE, OPPORTUNITY, KNOWLEDGE, BACKGROUND, AND DELAYED DISCLOSURE, NONE OF WHICH WERE PROPER BASES FOR ADMISSION.
1. The State's Motion [t]o Admit Uncharged Conduct Evidence.
2. The Trial Court Abused Its Discretion When It Admitted Evidence [o]f [t]he Uncharged Conduct Because It Applied [t]he Wrong Burden [o]f Proof, It Failed [t]o Identify [t]he Specific Purpose [o]r Disputed
A-1206-19 3 Material Issue, [a]nd It Failed [t]o Conduct [t]he Required Balancing Test.
3. None [o]f The Purposes [f]or Which These Highly Prejudicial, Unsupported Allegations Were Admitted Were Permissible Under These Circumstances.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED, AS "FRESH COMPLAINT," EVIDENCE OF A.S.'S VAGUE ALLEGATIONS TO HER FRIEND IN 2013, SEVEN YEARS AFTER THE ABUSE ALLEGEDLY ENDED IN 2006.
1. The State's Motion [t]o Admit Evidence [o]f A.S's 2013 Statement To [M.G.]
2. The Court Abused Its Discretion When It Admitted These Vague Allegations Under [t]he Fresh Complaint Doctrine: The Seven-Year Delay Rendered [t]he Complaint Not "Fresh," [a]nd [t]he Court's Decision Was Based [o]n Its Mistaken Understanding [o]f [t]he Facts [a]nd [a] Mistaken Belief That [t]he Lengthy Delay Solely Presented [a] Credibility Issue [f]or [t]he Jury.
POINT IV
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE CUMULATIVE EFFECT OF THE ERRORS DEPRIVED HIM OF DUE PROCESS AND THE RIGHT TO A FAIR TRIAL. (Not raised below).
We have considered the arguments in view of the record and applicable
legal principles. We hold the evidence against defendant was of sufficient
A-1206-19 4 weight to lead us to conclude there was no error or abuse of discretion by the
trial court and reasonably viewed, did not produce an unjust result. Accordingly,
we affirm defendant's conviction and sentence.
II.
We review a trial court's evidentiary rulings "'under the abuse of discretion
standard because, from its genesis, the decision to admit or exclude evidence is
one firmly entrusted to the trial court's discretion.'" State v. Prall, 231 N.J. 567,
580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.
369, 383-84 (2010)). "Under [the] deferential standard, we review a trial court's
evidentiary ruling only for a 'clear error in judgment.'" State v. Medina, 242
N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)). A
reviewing court will not substitute its "judgment for the trial court's unless," the
trial court's determination "was so wide of the mark that a manifest denial of
justice resulted." Ibid. (quoting State v. Brown, 170 N.J. 138, 147 (2001)).
Where a defendant challenges the admission of evidence for the first time
on appeal, the plain error standard applies. "Plain error is a high bar and
constitutes 'error not properly preserved for appeal but of a magnitude dictating
appellate consideration.'" State v. Santamaria, 236 N.J. 390, 404 (2019)
(quoting State v. Bueso, 225 N.J. 193, 202 (2016)). Stated differently, we must
A-1206-19 5 determine whether the alleged error was "of such a nature as to have been clearly
capable of producing an unjust result." R. 2:10-2. To warrant a reversal under
this standard, the "error [at trial]must be sufficient to raise 'reasonable doubt . .
. as to whether the error led the jury to a result it otherwise migh t not have
reached.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting State v. Jenkins,
178 N.J. 347, 361 (2004)). "To determine whether an alleged error rises to the
level of plain error, it 'must be evaluated "in light of the overall strength of t he
State's case."'" State v. Clark, 251 N.J. 266, 287 (2022) (quoting State v.
Sanchez-Medina, 231 N.J. 452, 468 (2018)).
A. Lay Opinion and Hearsay Testimony
Defendant contends on appeal that the State elicited improper hearsay and
opinion testimony from S.N., G.M., and A.S. about his character traits, conduct,
and guilt that was "highly prejudicial," usurped the jury's fact-finding function,
improperly bolstered the State's claim that defendant committed the sexual
assaults, and clearly produced an unjust result. Thus, he argues, reversal is
warranted. Defendant's contentions lack merit.
Testimony of S.N. and G.M.
Defendant argues the "extensive" lay opinion and hearsay testimony from
S.N. and G.M. that defendant was "weird" and "awkward" was offered for no
A-1206-19 6 reason other than to cast defendant as a "strange person - a weird, long-haired
communist," "likely to prey on young girls," and to make an emotional appeal
to the jury. Since there was no objection to this testimony at trial, our review is
under the plain error standard. R. 2:10-2.
S.N., a former dojo member, began attending the dojo in 2004. In
response to the prosecutor's question to describe "the kind of person" defendant
was when they initially met, S.N. described defendant as "unusual," having an
"odd personality," and that he "seemed really lost." The witness said defendant
also had "a little unusual appearance," with "big, long hair." The court sustained
defense counsel's objection to S.N.'s testimony that defendant was a "staunch
communist."
G.M., a Methodist pastor and former dojo member, was also asked to
describe defendant when they initially met. Initially, G.M. testified defendant
was "kind of an awkward weird kid." When asked to describe "what kind of
person" defendant was based on her interactions, G.M. restated he was a "weird
kid." The judge then asked: "[W]hat does that mean?" Upon further
questioning by the prosecutor, G.M. explained defendant "seemed like a nice
kid" and there was "some awkward social things." Defense counsel objected to
any further exploration by the prosecutor of the meaning of "weird" and
A-1206-19 7 "awkward," and the prosecutor moved on to another line of questioning. G.M.
also recalled defendant as "overweight," "withdrawn," a "little quiet," and with
"kind of long hair."
Defense counsel did not object to either witnesses' description of
defendant's physical appearance and personality nor did he request a limiting
instruction. Both witnesses testified they did not see defendant engage in any
inappropriate behavior with A.S. or any other child.
Defendant next challenges testimony from S.N. and G.M. concerning
defendant's conduct and guilt. The trial court conducted a N.J.R.E. 104 hearing
in accordance with State v. Covell, 157 N.J. 554, 573, 574 (1999). At the 104
hearing, S.N. testified that in 2006 or 2007, defendant told her that he was "in
love" with and had a "crush" on A.S. S.N. said she felt as if she was "punched
in the stomach because [she] couldn’t breathe" and it was a "shocking
statement." At the time, defendant was eighteen or nineteen years old and A.S.
was ten; physically he was a "young man," and she was a "prepubescent girl."
Later, S.N. called defendant and told him that his feelings for A.S. were
"completely wrong," "totally inappropriate," and "totally out of line." She also
relayed defendant's statement to her husband and G.M. S.N. left the dojo in
2009.
A-1206-19 8 G.M. also testified defendant told her that he had a "crush" on A.S. She
thought defendant's statement was "weird" because there was a nine-year age
gap between defendant and A.S. G.M. said when she told her father, N.M.,
about defendant’s "feelings," he reacted with a "kind of scrunched up in an
unpleasant look [on his face]." Defendant objected but the court overruled
defendant's objection, finding this testimony was not hearsay. G.M. also told
S.N. about defendant's statement.
After hearing testimony, the court considered and discussed Covell and
N.J.R.E. 803(b), and ruled the separate direct conversations defendant had with
S.N. and G.M. were admissible as statements offered against a party opponent.
Further, the trial court determined the witnesses were credible for the purpose
of the 104 hearing. The court noted, ultimately, "the jury [was] going to make
the ultimate determination as to whether or not the [witnesses] were credible."
At trial, both witnesses testified to the direct conversations they had with
defendant about his feelings for A.S. Following G.M.'s testimony, the trial judge
gave a limiting instruction to the jury regarding defendant's statements made to
S.N. and G.M. and gave it again when he read the jury the final charges before
it deliberated. Defendant denied making the statements to S.N. and G.M.
A-1206-19 9 "[T]estimony regarding another person's character trait is a form of lay
opinion evidence." State v. C.W.H., 465 N.J. Super. 574, 601 (App. Div. 2021)
(quoting Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 310 (2006)). Lay
opinion evidence is "limited to testimony that will assist the trier of fact either
by helping to explain the witness's testimony or by shedding light on the
determination of a disputed factual issue." State v. McLean, 205 N.J. 438, 458
(2011). Lay opinion testimony is admissible subject to two conditions set forth
in N.J.R.E 701. Lay opinion evidence "may be admitted if it: (a) is rationally
based on the witness'[s] perception; and (b) will assist in understanding the
witness'[s] testimony or determining a fact in issue." N.J.R.E. 701. The second
element therefore precludes "lay opinion on a matter 'as to which the jury is as
competent as [the witness] to form a conclusion.'" State v. Sanchez, 247 N.J.
450, 469-70 (2021) (alteration in original) (quoting McLean, 205 N.J. at 459).
A witness's perception is knowledge acquired "through the use of one's sense of
touch, taste, sight, smell[,] or hearing." McLean, 205 N.J. at 457. Fact
testimony relates to what a witness did or saw. See id. at 460.
We conclude S.N. and G.M.'s descriptive testimony about their initial
interactions with defendant was permissible lay opinion because the testimony
was based on their perception of defendant's physical appearance, personality,
A-1206-19 10 and social skills. Moreover, the record shows defense counsel waived a curative
instruction that the jury disregard any comments that defendant was "weird,"
"awkward," and similar remarks. The witnesses lacked personal knowledge of
whether A.S. was sexually assaulted by defendant, and therefore, the descriptive
testimony was not offered for the truth of the matter asserted. Thus, we are
satisfied the trial court's admission of their testimony was not clearly capable of
producing an unjust result.
With respect to defendant's statements to S.N. and G.M. admitting to
having a "crush" on A.S., we agree with the trial judge that the witnesses'
testimony did not contain hearsay because defendant was the declarant. See
N.J.R.E. 803(b)(1). We likewise reject defendant's argument that the prejudice
to defendant was outweighed by the probative value of the conversations. See
N.J.R.E. 403. In fact, defendant denied making the statement to either witness.
As noted above, defendant's statement met the requirements of N.J.R.E. 803
(b)(1) and assisted the jury in determining a disputed factual issue: whether he
had a motive to sexually assault A.S. Moreover, because a jury can evaluate
evidence for itself does not render testimony about that evidence categorically
"unhelpful," nor does the lay witness "usurp[] the jury's role" in offering the
testimony. State v. Singh, 245 N.J. 1, 20 (2021). Instead, their testimony was
A-1206-19 11 admissible because the jury remained "free to discredit" the witnesses' testimony
that defendant made damaging admissions to them about his interest in A.S .
Ibid. We discern no reversible error.
We likewise reject defendant's contentions regarding G.M.'s testimony
with respect to whether it was "ethical or moral" to remain at the dojo following
a conversation G.M. had with the dojo owner's wife. No objection was made by
defense counsel. On cross-examination, defense counsel questioned whether on
an "ethical or moral" basis G.M. decided to talk to the dojo owner. G.M.
responded, "Yes."
G.M. also stated on multiple occasions that she had "a gut instinct"
regarding the truth of A.S.'s allegations, that she "believe[d] something
happened" and trusted her "gut instinct" despite having not done an investigation
into the truth of the allegations.
G.M.'s "gut instinct" and "ethical or moral" reasons were not based on her
perception because she never witnessed any inappropriate behavior between
defendant and A.S. See N.J.R.E. 602 ("[a] witness may testify to a matter only
if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter."); N.J.R.E. 701 (a non-expert witness may
give testimony "in the form of opinions or inferences" as long as it "is rationally
A-1206-19 12 based on the witness'[s] perception" and "will assist in understanding the
witness'[s] testimony or determining a fact in issue."). G.M.'s testimony
reflecting her opinion that A.S. had truthfully reported that defendant had abused
her was, therefore, inadmissible. However, given the strength of the admissible
evidence adduced at trial, we conclude that the admission of that testimony did
not constitute plain error.
Testimony of A.S.
Lastly, defendant claims the testimony of A.S. calling defendant a
"pedophile" was the "most direct example of improper opinion testimony
regarding [his] guilt" because the State's case rested "almost exclusively" on her
testimony. We are not convinced.
A.S. testified in 2005-2006, when she was in fourth grade, defendant
continued to "penetrate her [genitals] with his fingers," "make her touch him,"
and "make [her] masturbate him" under his clothes. When A.S. cried, defendant
shushed her and said: "[I]t's okay." According to A.S., the acts happened "pretty
much every time," sometimes in the mat room, but defendant "mostly" waited
for people to leave the waiting room. According to A.S., she became "really
afraid of defendant." She also testified she felt "completely powerless" when the
A-1206-19 13 incidents happened at the dojo because she knew the acts were going to happen
"whether she wanted them to or not."
A.S. also recounted the abuse by defendant that occurred twice in her
bedroom during the spring and summer of fourth grade. When A.S. was alone
with defendant, he "touched [A.S.] over and then under her clothes," "penetrated
her," and made her "touch him" and "[masturbate] him for over fifteen minutes."
Once during dinner, the family and defendant were discussing having children,
and A.S. said, "Well, I'm never going to have kids." J.S. then said she would
change her mind when she was older. A.S. testified defendant said, "[W]e'll
decide that for ourselves one day."
A few weeks later, defendant returned for another family dinner. The
alleged abuse again took place in A.S.'s bedroom. A.S. said defendant did the
"[s]ame thing he always [did]." He began "touching [her] over [her] clothes and
then . . . penetrated [her] vaginally and he made [her] touch him."
A.S. testified around 2008 when she was in the sixth grade, she saw
defendant at the middle school as a first-grade student teacher. She stayed away
from him and told all her friends he was a "pedophile." Defense counsel did not
object. Rather, on cross-examination, defense counsel questioned whether A.S.
told anyone that she believed defendant was a "predator." A.S. responded that
A-1206-19 14 she told her friends defendant was a "pedophile" but did not tell them he
molested her.
Defense counsel further questioned A.S. regarding whether she conducted
an internet search to see if defendant had a criminal record. A.S. testified that
she found nothing on the internet about defendant as an adult. The prosecutor
objected to defense counsel's line of questioning. In a side bar conference, the
trial court stated it would not "normally" permit that line of questioning and
answering. The court noted, however, A.S. called defendant a "pedophile" two
or three times during her testimony and "no objection was made presumably for
strategy purposes." The court, however, permitted further questioning of A.S.
to clarify whether calling defendant a pedophile was related to the abuse
perpetrated on her and not based on some other act. Neither defense counsel nor
the prosecutor sought further clarification on cross or re-direct examination.
Defendant's arguments are unavailing. Defendant failed to object for
strategic reasons, then invoked the term "predator" to explore the victim's belief,
and now attempts to categorize the testimony as prejudicial and inadmissible
hearsay. It is not. The record shows A.S.'s testimony was from her personal
experience with defendant and offered for two reasons. First, to prove defendant
committed the sexual assaults on A.S. as an especially young child, thereby
A-1206-19 15 showing defendant's attraction to a prepubescent child. Second, to show how
A.S. felt when she saw defendant sporadically in the building as a first-grade
student teacher for children of the same age as A.S. when the abuse began. We
are satisfied the reference to defendant as pedophile does not amount to plain
error sufficient to raise a reasonable doubt that the jury arrived at a verdict it
would not have otherwise reached.
B. Prosecutorial Misconduct
On appeal, defendant argues the prosecutor committed three instances of
prosecutorial misconduct. First, the prosecutor invoked in summation G.M.'s
testimony regarding her "gut instinct" and "her belief in defendant's guilt," that
together created a "moral and ethical dilemma" for G.M. to remain at the dojo.
Second, the prosecutor "implicitly asked the jury to consider G.M.'s moral
conclusions in its determination of defendant's guilt." Consequently, defendant
argues he was deprived of a fair trial.
Defendant's contention is belied by the record. Both parties' summation
referenced G.M. Defense counsel summarized her testimony, stating "G. M. did
[not] do anything because she did [not] believe" A.S.'s allegations. Defense
counsel also referred to G.M.'s pastoral title.
A-1206-19 16 The prosecutor, however, referenced G.M. only by her first name. As to
her G.M.'s testimony, the prosecutor in her summation commented on the verbal
and demeanor of S.N. and G.M. regarding their conversations with defendant
about his feelings about A.S. Specifically, the prosecutor commented that S.N.
and G.M. exhibited a "demeanor of guilt" on the stand "because they had known
and connected the dots as to what was happening back them, that this defendant
[told] them I'm in love with [A.S.]" Defense counsel did not object to this
summarization of witnesses' testimony.
"'Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented.'" State v. Patterson, 435 N.J. Super. 498, 508 (App. Div. 2014)
(quoting State v. R.B., 183 N.J. 308, 332 (2005)). "In deciding whether
prosecutorial conduct deprived a defendant of a fair trial, 'an appellate court
must take into account the tenor of the trial and the degree of responsiveness of
both counsel and the court to improprieties when they occurred.'" State v.
Williams, 244 N.J. 592, 608 (2021) (quoting State v. Frost, 158 N.J. 76, 83
(1999)). "Factors to be considered in making that decision include, '(1) whether
defense counsel made timely and proper objections to the improper remarks; (2)
whether the remarks were withdrawn promptly; and (3) whether the court
A-1206-19 17 ordered the remarks stricken from the record and instructed the jury to disregard
them.'" Ibid. (quoting Frost, 158 N.J. at 83). "In reviewing closing arguments,
we look, not to isolated remarks, but to the summation as a whole." State v.
Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Carter, 91
N.J. 86, 105 (1982)). Reversal is appropriate only where the prosecutor's actions
are "clearly and unmistakably improper" to "deprive defendant of a fair trial."
Patterson, 435 N.J. Super. at 508 (quoting State v. Wakefield, 190 N.J. 397, 437-
38 (2007), cert. denied, 552 U.S. 1146 (2008)) (internal quotation marks
omitted).
Measured against this standard, we are not persuaded the prosecutor's
remarks made during summation deprived defendant of a fair trial. As discussed
above, defense counsel made no timely objection to the comments now raised
on appeal. Having reviewed the summation in its entirety, we are satisfied the
prosecutor's summation failed to implicitly ask the jury to consider G.M.'s moral
conclusions in their determination of defendant's guilt. Furthermore, the trial
judge instructed the jury that counsels' summations were not evidence and must
not be considered as evidence. After considering the totality of the
circumstances, including the context of the challenged remarks, we find no merit
to defendant's contention.
A-1206-19 18 C. Uncharged Conduct Evidence from 2002 to 2005
Defendant now argues the trial court erred by admitting evidence of the
uncharged conduct allegedly committed by defendant from 2002 to 2005.
Defendant argues: the court applied the wrong burden of proof; the court failed
to identify the specific purpose or disputed material issue; and the court failed
to conduct the required balancing test. We reject defendant's contentions.
After jury selection, the State moved to admit acts of sexual abuse
between 2002 and 2005 as intrinsic evidence under State v. Rose, 206 N.J. 141
(2011), or alternatively, as other crimes evidence under N.J.R.E. 404(b) and
State v. Cofield, 127 N.J. 338 (1992).
We discern from the record, the State argued and, ultimately, presented
the following evidence of uncharged conduct by defendant with A.S. to show he
groomed her to engage in the sexual acts. A.S. testified at a 104 hearing that at
the time of the alleged abuse, her family were long standing members of the
dojo, and her mother was a teaching assistant. A.S. and her young brother would
accompany their mother when she trained at the dojo.
The abuse started when she was six or seven years old in the mat room at
the dojo. She stated near the end of second grade and the beginning of third
grade, defendant began "rubbing" her breasts and genitals over and then under
A-1206-19 19 her clothes. A.S. claimed that when she was in mid-third grade the abuse
escalated to "a lot more regular" "penetration with his finger." By the end the
third grade, defendant had penetrated A.S. and had her masturbate him "over
twenty or thirty times."
After oral argument, the trial court determined the uncharged conduct
"evidence [was not] intrinsic." Citing U.S. v. Green, 617 F.3d 233 (3rd Cir.
2010), and Rose, the court found any acts committed by defendant prior to 2005
did not directly prove the charges in the indictment. The court also found the
uncharged acts were not performed "contemporaneously" with the charged acts
from 2005 to 2006. It "did not find that the crimes prior to 2005 facilitate[d] the
commission of the charged crime under the intrinsic evidence argument."
The court appropriately conducted a Cofield analysis and concluded the
evidence related to the alleged sexual acts that predate 2005 was admissible at
trial. With respect to the first prong, the court found the "prior acts were relevant
to a disputed issue." As to the second prong, the court found defendant's
"conduct [was] similar in kind and it [was] reasonably close in time." The judge
explained "there [was] no break whatsoever" because "[i]t was a continuing
course of conduct." In considering the third prong, the court also found there
was clear and convincing evidence of prior acts based on the State's
A-1206-19 20 representation concerning statements made by A.S. and other witnesses. Under
the fourth prong, the court acknowledged the prior acts "could be considered
very prejudicial" to the defendant. However, in considering the fourth prong,
the court stated it would impose limitations on the prior acts utilizing the
guidelines articulated in State v. Herbert, 457 N.J. Super. 490, 505 (App. Div.
2019), and giving a limiting instruction to the jury before the evidence was
presented and in the final jury charge.
At trial, A.S. recounted the details of the sexual abuse from 2002 to 2005.
Immediately following this testimony, the trial court gave a limiting instruction
to the jury explaining that evidence of defendant's acts between 2002 and 2005
was offered for the following purpose: necessary background; an ongoing
pattern to facilitate the commission of the crimes from 2005 to 2006; motive to
continue the sexual abuse knowing defendant would remain silent; why A.S.
was helpless, remained silent, and did not confide in her mother; and an alleged
plan to desensitize A.S. to sexual conduct so that he could continue his abuse.
Before a court determines whether a prior bad act is admissible for a
particular purpose, it should first determine whether the evidence relates to a
prior bad act or whether it is intrinsic to the charged offense. State v.
Brockington, 439 N.J. Super. 311, 325 (App. Div. 2015) (quoting Rose, 206 N.J.
A-1206-19 21 at 179). Evidence that is intrinsic to the charged offense, while needing to
satisfy the rules relating to relevancy and undue prejudice, "is exempt from the
strictures of Rule 404(b)[.]" Rose, 206 N.J. at 177. Intrinsic evidence is limited
to two categories: (1) evidence that "directly proves the charged offense"; and
(2) evidence that, when "performed contemporaneously with the charged crime,"
facilitates "the commission of the charged crime." Brockington, 439 N.J. Super.
at 327-28 (quoting Rose, 206 N.J. at 180) (internal quotation marks omitted).
As to the second category of intrinsic evidence, the temporal proximity between
the uncharged bad act and the indicted crime must be contemporaneous, not
simply "close in time," and the link between the same must be "meaningful."
Brockington, 439 N.J. Super. at 338 (Fisher, P.J.A.D., dissenting) (citations
In Cofield, the Court adopted a four-part test to determine the
admissibility of other bad acts and crimes evidence. 127 N.J. at 338. To be
admissible under N.J.R.E. 404(b), the evidence: (1) must be relevant to a
material issue which is genuinely disputed; (2) the other conduct must be similar
in kind and must have occurred reasonably close in time to the events at issue
in the criminal trial; (3) evidence of the other conduct must be clear and
A-1206-19 22 convincing; and (4) its probative value must not be outweighed by prejudice to
the defendant. Ibid.; accord State v. Green, 236 N.J. 71, 81-82 (2018).
The trial court's evidentiary ruling and Cofield analysis were sound. The
court appropriately considered and determined the uncharged acts did not satisfy
either category as intrinsic evidence. However, the evidence of uncharged acts
had probative value because it provided the necessary background to show
defendant's plan, the intent to groom a young child, and the progression of the
sexual acts to desensitize A.S. See State v. Garrison, 228 N.J. 182, 197 (2017)
(holding that the State may introduce evidence of an uncharged act of sexual
assault on a child to show a defendant's "plan to further desensitize [the child]
to sexual conduct so that he could continue to abuse her"); State v. J.M., 225
N.J. 146, 160 (2016). The court also properly informed the jury about the
limited proper use of the uncharged conduct evidence and its limitations. Based
on the record, we conclude there was no abuse of discretion by the trial court in
admitting the uncharged conduct.
D. Fresh Complaint
Before us, defendant contends the trial court abused its discretion in
allowing M.G.'s testimony concerning A.S.'s molestation complaint seven years
after the last act occurred. We are unpersuaded.
A-1206-19 23 At a pretrial N.J.R.E. 104 hearing, M.G., A.S.'s best friend since middle
school, testified that in the late spring of 2013, while at a coffee shop , A.S. was
"uncharacteristic[ally] crying" as she "poured out" that she had been "molested"
starting at age four or five by defendant at the dojo and ending before middle
school. M.G. assumed A.S. was ten or eleven when the abuse ended. A.S. did
not provide details. Later, in July 2013, A.S. went to M.G.'s home after a
"blowout fight" with her parents and disclosed additional details to M.G. that
defendant "touched" her, repeated that she was "molested," and said the
molestation ended "before middle school." A.S. also stated while in a "yelling
fit" she told her father about the abuse.
M.G. testified that A.S. did not report the abuse because, according to
A.S., "her mom's reaction had been . . . dismissive" from A.S.'s "perspective as
a child," and that A.S. thought no one would believe her, including her parents,
the police, or the courts. M.G. stated A.S. felt "bad," a "sense of shame," and
"embarrassment."
The trial court granted the State's motion to admit M.G.'s testimony
regarding the spring 2013 conversation with A.S. subject to the "fresh complaint
limitations." The court did not find the July conversation to be a fresh complaint
because it was a separate conversation.
A-1206-19 24 In a detailed and comprehensive oral ruling admitting A.S.'s initial
conversation with M.G., the trial court cited State v. Hill, 121 N.J. 150, 163
(1990), and found that A.S. would ordinarily turn to M.G. for support. The court
also cited State v. Hummel, 132 N.J. Super. 412 (App. Div. 1975), State v. L.P.,
352 N.J. Super. 369 (App. Div. 2002), and State v. Bethune, 232 N.J. Super.
532, 536-37 (App. Div. 1989), and determined: (1) three years had been held
reasonable; (2) the rules are relaxed for child sexual abuse victims; and (3) the
reasonableness of the delay is left to the jury. Lastly, the court cited to State v.
Pillar, 359 N.J. Super. 249, 281-82 (App. Div. 2003), stating: "even a
substantial lapse of time between the assault and the complaint may be
permissible if satisfactorily explainable by the age of the victim and the
circumstances surrounding the making of the complaint." The trial court
calculated five years between the end of the alleged abuse and the disclosure to
M.G., and seven years until the complaint to police. The court concluded "[t]he
circumstances ma[d]e . . . clear that A.S. appeared to be fearful, embarrassed,
[and,] afraid[;] that her relationship with her [m]other was rocky[; and] that even
when A.S. did disclose the abuse, she was concerned about whether or not they
would believe her." The court then said "the time period between the alleged
abuse and its ultimate disclosure does not bar the fresh complaint witness from
A-1206-19 25 testifying. It merely becomes a credibility determination for the jury to make at
trial."
Lastly. the trial court cited State v. J.S., 222 N.J. Super. 247, 253 (App.
Div. 1998), and concluded "there [was] no evidence that anybody coaxed,
coerced, [or] prompted A.S. to disclose or fabricate these allegations when she
made them to M.G." Thus, the court concluded the initial conversation at the
coffee shop to be a fresh complaint, but not the second, separate conversation in
July 2013. Instead, the court stated that, under the case law, "a significant time
delay merely bears upon the weight of the evidence and not its admissibility,"
and "[t]his particular length of time can be submitted to a jury for their
evaluation."
In this case, the State presented additional testimony other than M.G.'s
fresh complaint testimony to explain the delay in reporting the molestation. A.S.
testified that in 2013, she had a fight with her mother, which escalated into
fighting about "[defendant] and karate." A.S. told her mother she "didn't protect
[her] . . . [and] never listened," and then she called her father to pick her up. In
2013, A.S. also told her father of the abuse. She did not provide details but
"gestured" with her hands to show where defendant had touched her. She stated
at the time, she felt "ashamed," "dirty," and "embarrassed." Sometime later,
A-1206-19 26 A.S. told her mother. According to A.S., her parents did not want her to go the
police because she would "ruin her future" and "nobody believes you when you
go to the police." A.S. admitted that she did not want to go to the police because
she "just want[ed] it to go away."
A.S. testified the first friend that she told was M.G.; however, she did not
provide details but merely stated that she was "molested." A.S. reported the
molestation to the police during her senior year. When asked why the delay in
reporting the molestation, A.S. explained she tried "to say something in every
way that she could" but that "no one would listen;" "then it was over and [she]
just wanted to move on with her life." She further explained that "if he had
never decided to be a teacher, she would never have gone to the police." A.S.
explained that she did not want her other friends to know about the abuse. When
she learned defendant became a first-grade teacher, she "knew it was going to
happen again." She further explained that "if it happened again and she hadn't
done anything about it, . . . then it would have been [her] fault."
Generally, hearsay is an out-of-court statement admitted "to prove the
truth of the matter asserted," N.J.R.E. 801(c) and, subject to limited exceptions,
is inadmissible. N.J.R.E. 802. Ordinarily, a third party's testimony about a
victim's out-of-court description of an alleged sexual assault is inadmissible
A-1206-19 27 hearsay evidence. Ibid. However, under the fresh complaint rule, the State can
present "evidence of a victim's complaint of sexual abuse, [which is] 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). Still, "the trial court is required to charge the jury that fresh[]complaint
testimony is not to be considered as substantive evidence of guilt, or as
bolstering the credibility of the victim; it may only be considered for th e limited
purpose of confirming that a complaint was made." Id. at 456 (citing State v.
Bethune, 121 N.J. 137, 147-48 (1990)).
"In order to qualify as fresh[]complaint evidence, the victim's statement
must have been made spontaneously and voluntarily, within a reasonable time
after the alleged assault, to a person the victim would ordinarily turn to for
support." Id. at 455 (citing State v. W.B., 205 N.J. 588, 616 (2011)). In
determining whether a complaint was made within a reasonable time after the
act(s) occurred, the lapse of time between the incident(s) and the reporting does
not bar the statement if explainable by the youth of the victim and the statement's
attendant circumstances, such as "being cajoled and coerced into remaining
silent by their abusers." Bethune, 121 N.J. at 143. In other words, the
reasonable time component of the fresh complaint rule must be applied flexibly
A-1206-19 28 "'in light of the reluctance of children to report a sexual assault and their limited
understanding of what was done to them.'" W.B., 205 N.J. at 618 (quoting State
v. P.H., 178 N.J. 378, 393 (2004)). An abuse of discretion may be found if the
trial court made a "clear error of judgment." State v. Brown, 170 N.J. 138, 147
(2001) (citation omitted).
We reject defendant's assertion that he was deprived of a fair trial and
conclude the trial court appropriately applied its discretion in admitting M.G.'s
testimony concerning the coffee shop conversation, disclosing defendant's
abuse, and therefore, did not deprive defendant of a right to a fair trial. P.H.,
178 N.J. at 393; Bethune, 121 N.J. at 146. Here, the trial court limited M.G.'s
testimony to "[o]nly the facts that [were] minimally necessary to identify the
subject matter of the complaint." R.K., 220 N.J. at 456; see Hill, 121 N.J. at
163.
M.G.'s testimony satisfies the fresh complaint rule. We agree with the
trial court that A.S. made a spontaneous statement when she "poured out" her
complaint to her best friend M.G. while discussing "philosophical concepts."
We also disagree with defendant that A.S. did not make the complaint
within a reasonable time after the last assault. We also agree with the trial court
that A.S. was "exceptionally young" both when the abuse began and ended four
A-1206-19 29 years later. The record shows various triggers since the last sexual act that
steered A.S. toward revealing the molestation. First, defendant's presence at her
middle school as a student teacher triggered emotions for A.S., and the feeling
that the abuse could happen to another first grader. Second, the "dismissive"
response from her mother. Third, her parents dissuading A.S. from reporting
the abuse. Fourth, the court's findings that A.S. appeared to be "fearful,"
"embarrassed," and "afraid that she would not be believed by her parents, the
police, or her best friend." Under these circumstances, we conclude A.S.'s
complaint to M.G. was timely made. Pillar, 359 N.J. Super. at 281-82. For the
reasons stated, we are satisfied the trial court had sound reasons to apply the
fresh complaint doctrine, finding the initial conversation between A.S. and M.G.
admissible.
Cumulative Errors
Defendant argues the cumulative effect of the previously discussed
misconduct and trial errors deprived him of due process and a fair trial. As noted
above, there is no error, individually or cumulatively, in any of the points
asserted in this appeal and the granting of a new trial is not warranted. State v.
T.J.M., 220 N.J. 220, 238 (2015); see State v. Weaver, 219 N.J. 131, 155 (2014).
A-1206-19 30 To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1206-19 31