State of New Jersey v. W.P.

• Court: New Jersey Superior Court Appellate Division
• Decided: April 5, 2024
• Docket: A-2715-21
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2715-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.P.,

Defendant-Appellant. _______________________

Submitted March 19, 2024 – Decided April 5, 2024

Before Judges Paganelli and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 19-06- 0847.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel; William Kyle Meighan, Supervising Assistant Prosecutor, on the brief). PER CURIAM

Defendant appeals from a March 3, 2022 amended judgment of

conviction after a trial for first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-

degree endangering, N.J.S.A. 2C:24-4(a)(1). We affirm defendant's

conviction, but remand for a more detailed sentencing analysis.

Defendant raises the following issues on appeal:

I. BECAUSE THE POLICE UNDERMINED THE SIGNIFICANCE OF THE MIRANDA 1 WARNINGS DURING DEFENDANT'S INTERROGATIONS, THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANT'S STATEMENTS WERE ADMISSIBLE.

A. Defendant Was in Custody for Purposes of Miranda During Both Interrogations.

B. Defendant's Waiver and Statements Were Not Voluntarily Provided Because the Detectives Made Comments That Undermined His Miranda Warnings.

II. THE IMPROPER ADMISSION OF J.M.'S 2 UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING SEXUAL ABUSE DENIED

1 Miranda v. Arizona, 384 U.S. 436, 479 (1966). 2 We utilize the parties' initials pursuant to Rule 1:38-3(c)(9). A-2715-21 2 DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

A. The Statements Were Inadmissible Under N.J.R.E. 803(c)(27)—The Tender Years Exception.

B. J.M.'s Statements to E.M.R. Were Inadmissible as a Present Sense Impression Under N.J.R.E. 803(c)(1) or as an Excited Utterance Under N.J.R.E. 803(c)(2).

III. THE TRIAL COURT ERRED WHEN IT IMPOSED A CONSECUTIVE SENTENCE WITHOUT FIRST CONDUCTING THE REQUIRED ANALYSIS OUTLINED IN STATE V. 3 YARBOUGH.

We discern the following facts from the record. On February 5, 2018,

defendant was at home, helping his eleven-year-old stepdaughter, J.M., with

her homework at the dining room table while his wife and J.M.'s mother

worked in the kitchen. When her mother finished in the kitchen, she left to go

to her bedroom. After ten or fifteen minutes, she realized the voices from the

dining room had gotten quiet, so she went to investigate. The mother

discovered that the lights had been turned off, her daughter's chair was turned

to face away from the table, and defendant was on his knees in front of her

daughter with his head between her legs. J.M.'s mother verbally confronted

3 State v Yarbough,100 N.J. 627, 643-44 (1985). A-2715-21 3 defendant and removed her daughter to the bedroom, where she shut and

locked the door.

Once inside the bedroom, the mother asked J.M. "how long has this been

going on?" and other related questions, eventually gleaning defendant had

touched J.M. inappropriately during the prior month. According to J.M.,

defendant had touched her genital area twice with his hand over her clothing or

her underwear and, that evening, had moved her clothing aside to touch her

bare genital area with his mouth. After a few hours, the mother called 9 -1-1,

and police responded to the house.

That night, J.M. and her mother were driven to the Jackson Police

Department. Defendant drove himself there in his own car. The Jackson

Police then transported all three—defendant separately from the others—to the

Ocean County Prosecutor's Office, where they were interviewed. Detective

Alexander Bromley, assisted by a Spanish-speaking member of the Lakewood

Township Police Department, led the interviews. Detective Bromley first

interviewed J.M.'s mother and then defendant. After the mother's interview,

she and J.M. were transported to Community Medical Center for a forensic

medical examination. J.M. was forensically interviewed on February 7, 2018,

by Detective Sandra Rodriguez of the Ocean County Prosecutor's Office.

A-2715-21 4 After defendant's recorded interview on February 6, 2018, he was free to

leave. The detectives advised defendant, however, he was not permitted to

return home, and he needed to avoid contact with J.M. and her mother.

Defendant returned to the Jackson Township Police Department on February 9,

2018, for a scheduled polygraph examination conducted by the New Jersey

State Police. After being informed he had failed the polygraph, defendant

admitted that his mouth made skin-to-skin contact with J.M.'s genital area.

Defendant was arrested and later indicted. Defendant moved pretrial to

suppress his statements based on questions of Miranda waiver; the trial court

held a hearing and denied the motion. The State moved to admit J.M.'s

recorded statement to a detective under the tender years exception to hearsay,

N.J.R.E. 803(c)(27), which motion the trial court granted.

A jury trial ensued. On the first day of trial, the court granted the State's

motion to admit J.M.'s statements to her mother, pursuant to N.J.R.E.

803(c)(27). J.M. and her mother both testified, as did Detectives Bromley,

Rodriguez, and Jillian Marin. Family nurse practitioner Melinda Moyer and

New Jersey State Police forensics scientist Allison Lane also testified.

Defendant did not testify or present any witnesses.

A-2715-21 5 On October 1, 2021, the jury found defendant guilty of all charges. The

trial court sentenced defendant to an aggregate forty years in custody. This

appeal timely followed.

We review a trial court's denial of a motion to suppress for an abuse of

discretion. State v. Sims, 250 N.J. 189, 218 (2022). Trial judges are entrusted

with "a wide latitude of judgment, and, therefore, the trial court's evidentiary

ruling will not be upset unless there has been a clear error of judgment." Ibid.

Similarly, "a trial court's factual findings in support of granting or denying a

motion to suppress must be upheld when 'those findings are supported by

sufficient credible evidence in the record.'" State v. S.S., 229 N.J. 360, 374

(2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). We review legal

questions de novo. State v. L.H., 239 N.J. 22, 47 (2019).

"When faced with a trial court's admission of police-obtained statements,

an appellate court should engage in a 'searching and critical' review of the

record to ensure protection of a defendant's constitutional rights." Ibid.

(quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)). If we then determine

they "are based on sufficient credible evidence in the record," we generally

"defer to a trial court's factual findings concerning the voluntariness of a

confession." Ibid. (citing State v. Elders, 192 N.J. 224, 244 (2007)).

A-2715-21 6 "Considerable latitude is afforded a trial court in determining whether to

admit evidence, and that determination will be reversed only if it constitutes an

abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). Specifically, a

court's

determination of reliability or trustworthiness sufficient to allow admission of evidence [under N.J.R.E. 803(c)(27)] should not be disturbed unless, after considering the record and giving deference owed to the court's credibility findings, it is apparent that the finding is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction."

[State v. P.S., 202 N.J. 232, 250-51 (2010) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).]

We review a sentence imposed by a trial court narrowly, utilizing an

abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010).

Defendant argues the statements he made to law enforcement officials on

February 6, and February 9, 2018, were procured in violation of his right

against self-incrimination. "The right against self-incrimination is guaranteed

by the Fifth Amendment to the United States Constitution and this [S]tate's

common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence

rule, N.J.R.E. 503." S.S., 229 N.J. at 381-82 (quoting State v. Nyhammer, 197

N.J. 383, 399 (2009)). The State bears the burden of proving "beyond a

A-2715-21 7 reasonable doubt that the suspect's waiver was knowing, intelligent, and

voluntary in light of all the circumstances." State v. A.M., 237 N.J. 384, 397

(2019). We apply a "totality of the circumstances" analysis in considering

whether a defendant's statement was "the product of an essentially free and

unconstrained choice" or whether "the defendant's will [was] overborne and

[their] capacity for self-determination critically impaired." State v. Dorff, 468

N.J. Super. 633, 644 (App. Div. 2021) (first alteration in original) (quoting

State v. P.Z., 152 N.J. 86, 113 (1997)).

We conclude defendant's statements were legally obtained and

admissible, as defendant was subject to custodial interrogation, and he

knowingly, intelligently, and voluntarily waived his Miranda rights before

speaking with officials.

Defendant asserts, "despite not being under arrest or handcuffed," he

was in custody and, therefore, subject to custodial interrogation for the

purposes of Miranda when he made the disputed statements. This point is not

at issue, however, as the trial court implicitly agreed defendant was in custody

for purposes of Miranda during his two interviews.

Defendant argues several comments made by detectives during each

interrogation undermined the importance of defendant's Miranda rights such

A-2715-21 8 that his Miranda waivers and subsequent statements were rendered

involuntary. Defendant contends that when a detective stated during his

February 6 interrogation, "what we talk about in here stays in here," the

detective was suggesting his statements would remain confidential. The trial

court was correct in finding the officers were, in fact, "inform[ing] defendant

that anything discussed would not be disclosed to the victim's mother." During

that same interview, a detective asserted that "[t]hese things aren't the end of

the world. It's not the crime of the century[.]" Defendant argues such offense

minimization undermines the voluntariness of his statements. Although the

L.H. Court relied on the minimization of an offense to support their finding of

involuntariness, in that case, "the detectives repeatedly minimized the nature

and gravity of . . . defendant's alleged offenses—intimating that his conduct

was amenable to counseling and rehabilitation." 239 N.J. at 48. Here, the

detectives did not repeatedly minimize defendant's offense and did not pair it

with an implication that it may receive minimal punishment.

The trial court found "Miranda was complied with in this case and . . .

defendant was advised of and waived his Constitutional rights . . . prior to

giving any statement." Having undertaken a "searching and critical" review of

the record, we discern no abuse of discretion.

A-2715-21 9 Defendant next challenges the admission of J.M.'s out-of-court

statements, claiming they are unreliable hearsay. Hearsay is "a statement that:

(1) the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers in evidence to prove the truth of the matter asserted in

the statement." N.J.R.E. 801. "Hearsay is not admissible except as provided

by these rules or by other law." N.J.R.E. 802. Certain statutory exceptions to

the hearsay rule allow the admission of statements made under conditions that

either suggest their reliability or permit for their reliability to be tested. See

N.J.R.E. 803. The exceptions at issue in this case include the tender years

exception, N.J.R.E. 803(c)(27); the exception for a present sense impression,

N.J.R.E. 803(c)(1); and the excited utterance exception, N.J.R.E. 803(c)(2).

The tender years exception allows admission of a statement by a child under

twelve relating to sexual misconduct when the proponent notifies the adverse

party of their intent to use the statement, the court finds "there is a probability

that the statement is trustworthy," and either "the child testifies at the

proceeding" or "the child is unavailable . . . and admissible evidence

corroborat[es] the act of sexual abuse." N.J.R.E. 803(c)(27).

Defendant argues J.M.'s out-of-court statements were not sufficiently

trustworthy to be admissible under the tender years exception. We disagree.

A-2715-21 10 The trial court found J.M.'s statement to her mother was spontaneous and

consistent. Additionally, nothing in the record indicated J.M.'s mental state

led her to mischaracterize defendant's conduct; the terminology J.M. used was

expected of a child of similar age; and there was no evidence J.M. had any

motive to fabricate her statement. The trial court also determined J.M. was

competent to testify at trial, pursuant to N.J.R.E. 601, she understood the

difference between truth and a lie, she was "well[-]spoken and sure of herself,"

and "[t]here was no indication to the [c]ourt that J.M. was being untruthful."

Regarding J.M.'s statement to Detective Rodriguez, the trial court found

it "appeared to be made spontaneously and without prompting or suggestion

from [Detective] Rodriguez, who asked open-ended questions"; "the account

was consistently repeated"; "J.M. appeared calm throughout the interview";

and "J.M. had nothing to gain in fabricating these incidents and no evidence of

animus towards defendant has ever been argued." The trial court explicitly

rejected defendant's assertions that "J.M.'s statement is not trustworthy based

on time, content, and circumstances" or that "J.M.'s mother told her what to

say in the time between the incident and the interview with [Detective]

Rodriguez." The trial court found, based on the totality of the circumstances,

J.M.'s statement was sufficiently trustworthy to be admitted under the tender

A-2715-21 11 years hearsay exception, N.J.R.E. 803(c)(27).

The trial court must "'consider the totality of the circumstances' in

determining whether the statement is sufficiently trustworthy to warrant its

admission." State in Int. of A.R., 234 N.J. 82, 103 (2018) (citing P.S., 202

N.J. at 249). Relying on the United States Supreme Court's decision in Idaho

v. Wright, 497 U.S. 805, 821-22 (1990), our Supreme Court has identified "a

non-exclusive list of factors relevant to evaluating the reliability of out-of-

court statements made by child victims of sexual abuse, including spontaneity,

consistent repetition, mental state of the declarant, use of terminology

unexpected of a child of similar age, and lack of motive to fabricate." A.R.,

234 N.J. at 103–04 (quoting P.S., 202 N.J. at 249). "In reviewing a trial

judge's finding that a child's statement meets the trustworthiness requirement

of N.J.R.E. 803(c)(27), appellate courts affirm unless the judge's determination

amounted to an abuse of discretion." P.S., 202 N.J. at 250.

Based on our review, the trial court appropriately analyzed J.M.'s

statements for trustworthiness, and sufficient credible evidence exists in the

record to support the decision to admit J.M.'s statements under the tender years

hearsay exception. Therefore, we need not reach defendant's hearsay

arguments under N.J.R.E. 803(c)(1) or (2).

A-2715-21 12 Finally, defendant seeks review of his sentence on the basis the

sentencing court violated "guidelines for sentencing established by . . . the

courts" in Yarbough and State v. Torres, 246 N.J. 246 (2021). In Yarbough,

our Supreme Court outlined factors a sentencing court must consider in

deciding whether sentences will be imposed concurrently or consecutively.

100 N.J. at 643-44. In Torres, the Court emphasized a sentencing court must

also provide an "explanation of its evaluation of the fairness of the overall

sentence." 246 N.J. at 270.

Here, we agree the trial court did not provide an "explicit statement,

explaining the overall fairness of [the] sentence imposed." See id. at 268.

Further, in the brief statement provided, the trial court relied on the care -taking

relationship defendant had with J.M. when the abuse was perpetrated. The

trial court found defendant "took care of [J.M.] on a daily basis," he was

"helping her with her homework[,] which was something [he] routinely did,"

and he had "ingrained [him]self in her life as someone she could depend on

and would be there to guide her." This closely mirrors the third element of the

endangerment charge as related to the jury—"defendant had a legal duty for

the care of the child[] or had assumed responsibility for the care of the child."

Thus, the trial court improperly justified imposing consecutive sentences using

A-2715-21 13 "factors relied on to sentence a defendant to the maximum term for [an]

offense." State v. Miller, 108 N.J. 112,122 (1987).

Due to the insufficient statement on the overall fairness of imposing

consecutive sentences and the apparent double-counting of aggravating

elements already accounted for in the endangerment charge, we are

constrained to remand to the trial court for further analysis of the Yarbough

factors and an explicit statement of overall fairness pursuant to Torres.

Affirmed in part, remanded in part for further proceedings consistent

with this opinion. We do not retain jurisdiction.

A-2715-21 14