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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1237-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.O.R.,
Defendant-Appellant. _______________________
Submitted November 9, 2020 – Decided February 3, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-08-1179.
Nathan Kittner, attorney for appellant.
Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel; Catherine A. Foddai, Legal Assistant, on the brief).
PER CURIAM In this appeal, we are asked to consider whether, in a sexual assault case,
the admission of a child victim's Rule 803(c)(27) videotaped pretrial interview
violated a defendant's Confrontation Clause rights when the recording was
played for the jury after the child victim testified at trial and had been excused.
For the reasons stated in this opinion, we conclude that the trial court did not err
in applying Rule 803(c)(27) and that defendant's Confrontation Clause rights
were not violated because he had an opportunity to conduct meaningful cross-
examination of the victim at trial but chose not to do so.
A jury convicted defendant L.O.R.1 of having committed one count of
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), three counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). The first-
degree crime stated in the first count was based upon his ten-year-old
stepdaughter's statement to police that defendant digitally penetrated her.
On appeal, defendant challenges his conviction and argues the following
point:
1 We use initials to protect the privacy of the victim and other family members. R. 1:38-3(c)(12). A-1237-18T2 2 POINT I
THE TRIAL COUR[T] ERRED BY REFUSING TO DISMISS COUNT ONE OF INDICTMENT 17-08- 01179-I FOLLOWING CONCLUSION OF THE TESTIMONY.
According to defendant, while his conviction on the first count was based
upon a videotaped pretrial interview in which the child victim detailed his digital
penetration of her, when she testified at trial, she denied that type of assault
occurred. After she testified and left the courtroom, and with the trial court's
prior permission, the State played the videotape for the jury in which the victim
stated that defendant placed his fingers inside of her vagina. The taped
statement was the only evidence of penetration.
Defendant contends that although at the time the victim testified his
attorney had a copy of the transcript of the victim's videotaped statement that
she could have used on cross-examination, the trial court's permitting the
videotape to be played after the victim testified and left the courtroom violated
his Confrontation Clause rights and warranted the dismissal of the indictment's
first count. We disagree.
For our purposes, we need only briefly summarize the facts that led to
defendant's arrest and conviction. In April 2017, the then-ten-year-old victim
A-1237-18T2 3 disclosed to a friend that defendant, who lived with her, her mother and other
family members, had sexually assaulted her. That disclosure led to the police
being contacted and the Bergen County Prosecutor's Office (BCPO) initiating
an investigation that led it to conclude defendant had been sexually assaulting
the victim from January 2015 through April 3, 2017.
During a videotaped interview conducted by BCPO Detective Melissa
Cullen on April 5, 2017, the victim told Cullen about one incident of sexual
abuse that occurred in January 2017 while her mother was out attending to the
laundry. The victim explained that while at home with defendant, he asked her
to come downstairs into her mother's bedroom to watch a movie. She
specifically stated that once she and defendant were laying down watching a
movie, defendant proceeded to touch her underneath her clothes, then on top of
her vagina, before digitally penetrating her with two fingers.
Defendant was arrested and charged in an indictment with the offenses
that the jury convicted him of committing. Prior to his trial, the court conducted
a Rule 104 hearing in response to the State's motions to admit fresh complaint
testimony and the video of the victim's statement under Rule 803(c)(27). At the
conclusion of the hearing, the trial court ruled that the video was admissible and
could be played by the State in its case-in-chief so long as the victim testified at
A-1237-18T2 4 trial. The court stated that "the child ha[d] to testify before" the videotaped
statement could be used at trial.
At the beginning of defendant's trial, he requested that the victim's video
statement be played for the jury while she was still on the witness stand. Defense
counsel acknowledged she was in possession of a transcript of the interview, but
argued that if the video was played after the victim testified and had been
excused from the witness stand, defendant "would be effectively prevented from
cross-examining [the victim] about her video statement and would therefore be
prevented from conducting full and comprehensive cross-examination in front
of the jury," essentially "eliminating" defendant's ability to cross-examine her
as to her statements.
The trial court was not persuaded and ruled that, consistent with its Rule
104 hearing determination, the State would be permitted to play the video
statement during its case-in-chief at a point in the State's discretion so long as
the victim testified first. The court did not discern any prejudice to defendant
and was satisfied that "defendant's right of confrontation [was] protected"
"because the defendant has the statement, has the video of the statement and has
the transcript of the statement."
A-1237-18T2 5 During her direct examination at trial, the victim testified to various
instances of sexual assault that occurred from 2015 to 2017 that involved
defendant touching her "on top" of her vagina and defendant taking her hand,
putting it inside his pants, and forcing her to touch his penis. Turning to the
January 2017 incident, the prosecutor asked, "When you said the defendant
touched your vagina, was it outside, inside, or something else?" to which she
responded, "It was on top." The prosecutor then asked, "At any point did the
defendant touch the inside of your vagina?" to which she responded, "No."
Following the conclusion of her testimony on direct, defense counsel
cross-examined the victim for over an hour. The cross-examination did not
address the inconsistency between the victim's testimony at trial and in the
videotaped statement about digital penetration, but defense counsel used the
transcript from the earlier statement to question the victim about other
inconsistencies. On redirect, the victim reiterated that defendant used his fingers
to touch her but did not mention any penetration. Afterward, following a brief
recross examination, the court excused the victim from the courtroom.
Defendant never asked to recall the victim as a witness.
After the victim left, defendant immediately moved to bar the videotape
from being played because the victim's testimony contradicted her videotaped
A-1237-18T2 6 statement, and without the testimony at trial, there was no support for the first-
degree charge that was based on digital penetration. The trial court denied the
application because defense counsel had seen the videotape and had the
transcript, and therefore had an adequate opportunity to cross-examine the
victim about her statements before the tape was played but chose not to question
the victim. Later in the trial, the court also explained that the videotaped
statement was, as it previously ruled, admissible as substantive evidence under
Rule 803(c)(27), and there was no authority to support barring its admission
simply because it contained statements made at an earlier time that were
inconsistent with the victim's trial testimony.
On July 20, 2018, defendant filed a letter brief with the court that argued
for the dismissal of count one of the indictment. Four days later, after the
conclusion of the testimony but prior to counsels' closing statements, defense
counsel renewed defendant's motion for judgment of acquittal under Rule 3:18-
1 to dismiss all counts against defendant and specifically urging that the first
count alleging aggravated sexual assault be dismissed on the basis that admitting
the video tape, the only evidence of guilt under count one, violated defendant's
Confrontation Clause rights. Defendant contended that by permitting the State
to play the videotape after the victim had been excused as a witness, and by
A-1237-18T2 7 concluding that defense counsel had adequate opportunity to cross-examine
defendant because defense counsel had access to the video and transcript of the
statement, the trial court effectively forced defense counsel to "choose whether
to elicit damaging testimony from [the victim] which was not presented in her
direct examination," or otherwise require her to "call [the victim] as a defense
witness, thereby shifting the burden of proof to the defendant to call a hostile
witness to prove that the events set forth in Count One of the Indictment did not
occur." The trial court denied the application for the same reasons it had stated
in response to defendant's earlier applications.
Later, in her summation to the jury, defense counsel relied upon the
inconsistencies in the victim's statement and testimony to undermine her
credibility with the jury. She specifically compared the victim's allegation in
her video statement that defendant had digitally penetrated her with her
testimony at trial and argued that the victim had given "completely contradictory
and irreconcilable statements regarding digital penetration."
The next day the jury convicted defendant of all charges stated in the
indictment. Later, the trial court sentenced defendant to an aggregate term of
40 years of imprisonment, subject to a mandatory period of parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2.
A-1237-18T2 8 On November 6, 2018, defense counsel filed a motion to have the trial
court conduct a hearing to question a juror who had served as an alternate and
had been contacting the court after the trial to obtain the name and contact
information of defense counsel. On December 14, 2018, the court held a hearing
where the juror testified that he personally did not think that defendant was
guilty, and that he had heard the other jurors state that they "based the[ir]
decision on whether [the victim] changed her testimony or not and did[ not] pay
attention to anything else." When the court asked the juror whether he had
gotten any indication that the deliberating jurors had considered evidence that
they were not supposed to consider, the juror answered, "No." Based on the
juror's answer, the trial court found that there was no "need for any follow up."
This appeal followed.
On appeal, defendant contends that the trial court should have
reconsidered its earlier ruling admitting the videotaped interview into evidence
after the victim testified in court inconsistently with what she said in the
interview, and it should have dismissed the indictment's first count. We
disagree.
Our review of a trial court's evidentiary rulings is limited. We will not
overturn a trial court's evidentiary rulings unless it is clear that the court
A-1237-18T2 9 palpably abused its discretion. State v. R.Y., 242 N.J. 48, 64-65 (2020). "[A]n
abuse of discretion 'arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Id. at 65 (quoting Flagg v. Essex Cnty. Prosecutor, 171
N.J. 561, 571 (2002)). In other words, the trial court's rulings on evidentiary
matters will not be set aside unless we are "convinced that 'the trial court's ruling
is so wide of the mark that a manifest denial of justice resulted.'" State v. Prall,
231 N.J. 567, 580 (2018) (quoting State v. J.A.C., 210 N.J. 281, 295 (2012)).
We review the constitutional implications of the trial court's evidentiary
rulings for errors of law. State v. Sims, __ N.J. Super. __, __ (App. Div. 2021)
(slip op. at 29) (citing State v. McInerney, 450 N.J. Super. 509, 512 (App. Div.
2017)). Deference will not be afforded if the trial court has misapplied the law
to an evidentiary issue. See State v. Hathaway, 222 N.J. 453, 467 (2015).
Under Rule 803(c)(27), an out-of-court video statement made by a child
victim is generally admissible if the trial court determines in advance that (1)
the proponent of evidence gave notice to the opponent of the intent to use the
evidence, (2) the court determined at a Rule 104 hearing that the video statement
was trustworthy under the totality of the circumstances, and (3) the child was
present to testify at trial.
A-1237-18T2 10 When making a determination under the Rule's second requirement about
the reliability of a statement, a court must consider "the totality of the
circumstances." State in interest of A.R., 234 N.J. 82, 103 (2018) (quoting State
v. P.S., 202 N.J. 232, 249 (2010)). In doing so, the court considers "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." Ibid.
(emphasis omitted) (quoting P.S., 202 N.J. at 249). Consistency in the victim's
statement is therefore only one factor in the "non-exclusive" list of factors to be
considered in determining reliability.
At the Rule 104 hearing in this case, the trial court considered the "time,
content, and circumstances" of the victim's statement to determine its
trustworthiness. The court found that the statement was trustworthy because the
victim's "initial disclosure of the abuse . . . was spontaneous [and] not in
response to questioning"; she had "consistently maintained the[] allegations";
her "mental state at the time she gave the statement was calm and collected";
"her use of terminology during the interview was that expected of a 10-year-
old"; "she ha[d] no motive to fabricate, and the [detective] to whom she gave a
A-1237-18T2 11 statement was . . . not a person to whom a 10-year-old would lie"; and the
"comfortable setting" and "serious tone" of the interview established a setting
that was "likely to elicit truthfulness."
Addressing the interviewer, the trial court noted that Cullen did not ask
the victim leading questions on critical issues and that there was no issue with
"incessant questioning." The court also noted that the "descriptions of the events
were extremely detailed . . . indicating that the statement itself is reliable." On
these bases, the trial court ruled that, under the totality of the circumstances, the
statement was reliable and could be presented by the State, so long as the victim
testified at trial.
Here, defendant does not challenge the trial court's original ruling.
Rather, he argues that the victim's failure at trial to corroborate her earlier
statement undermined the second requirement under Rule 803(c)(27) which
warranted the tape not being admitted into evidence and played for the jury and,
by extension, the dismissal of the indictment's first count for a lack of supporting
evidence. We find no merit to his argument.
Contrary to defendant's contention, a child victim's in-court testimony that
contradicts an earlier out-of-court statement does not require that the 803(c)(27)
statement be barred from admission. See State v. Nyhammer, 197 N.J. 383, 410-
A-1237-18T2 12 11 (2009). In Nyhammer, the Court explained that even if a child could not
recall or corroborate what the child had previously reported, the prior out -of-
court statement was still admissible as long as the criteria of N.J.R.E. 803(c)(27)
continued to be met. Id. at 410-15.
Nevertheless, a trial court remains free to revisit the issue of reliability
after considering the victim's testimony at trial. See State v. Smith, 158 N.J.
376, 389 (1999) (noting that the trial court's decision to reserve judgment on
reliability until hearing testimony at trial allowed it to "compare key factors such
as the spontaneity and consistency of the child's responses to questions and the
language or terminology used by the child."). But, inconsistent testimony at
trial does not necessarily impugn the reliability of an initial out-of-court
statement. See State v. D.R., 109 N.J. 348, 360 (1988) (noting that a child's
testimony "is often affected by the stress of the courtroom experience, the
presence of the defendant . . . the prosecutor's need to resort to leading questions
[and t]he lapse of time between the sexual assault and the trial" and that "[i]n
cases where the accused is a member of the child's family or household, the
victim may be urged or coerced to recant."); State v. Burr, 392 N.J. Super. 538,
565-66 (App. Div. 2007), aff'd as modified on other grounds, 195 N.J. 119
(2008).
A-1237-18T2 13 Under these circumstances, we conclude that the trial court did not abuse
its discretion in admitting the child victim's interview even though her trial
testimony was not consistent with her earlier out-of-court statement. The
discrepancies in the live testimony and the videotaped testimony were not a
reason to find the videotaped statement untrustworthy as a matter of law. The
problems often encountered by young children in testifying in court are exactly
the reasons why Rule 803(c)(27) was enacted in accordance with what the
Supreme Court proposed in D.R., 109 N.J. at 371-77, in response to a "need for
a more liberal rule of admissibility with respect to out-of-court statements of
young sexual abuse victims." Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. 2 on N.J.R.E. 803(c)(27) (2020).
Discrepancies between an out-of-court statement and live testimony can
be, as defense counsel did here, argued to the jury as bearing upon the victim's
credibility. They do not control the analysis of the totality of the circumstances
to be made by the judge in evaluating whether the out-of-court statement was
sufficiently trustworthy. To accept that as a valid and conclusive consideration
would, in effect, defeat the purpose of relaxing the hearsay rule in child sexual
abuse cases.
A-1237-18T2 14 We also conclude that the trial court's decision to allow the videotaped
interview to be played after the victim completed her testimony was not an abuse
of discretion as it did not violate defendant's Confrontation Clause rights. "[T]he
Sixth Amendment to the United States Constitution and Article I, Paragraph 10
of the New Jersey Constitution provide that the accused in a criminal
prosecution has the right 'to be confronted with the witnesses against him.'"
State v. Cabbell, 207 N.J. 311, 328 (2011); U.S. Const. amend. VI; N.J. Const.
art. I, ¶ 10. The federal and state constitutional provisions "express a clear
preference for the taking of testimony subject to cross-examination." Cabbell,
207 N.J. at 328.
The Confrontation Clause provides a defendant with "the opportunity to
cross-examine and impeach the State's witnesses." State v. Williams, 184 N.J.
432, 443 (2005); see also State v. Budis, 125 N.J. 519, 530-31 (1991) ("Among
the primary interests protected by the right of confrontation are the opportunity
for defendants to face their accusers and to cross-examine the state's
witnesses."). The right to confront and cross-examine accusing witnesses is
"among the minimum essentials of a fair trial." Budis, 125 N.J.at 531 (quoting
Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973)). Although trial courts
have wide latitude to impose reasonable limits on cross-examination, the "denial
A-1237-18T2 15 or significant diminution [of cross-examination] calls into question the ultimate
integrity of the fact-finding process." Id. at 532. The Confrontation Clause
operates to prohibit a party from introducing testimonial hearsay "as a substitute
for in-court testimony when a defendant has never been given the opportunity
to cross-examine the witness." Cabbell, 207 N.J. at 329.
"Testimonial" statements are statements "in which witnesses 'bear
testimony' against the accused, and include certain statements that are the
product of police interrogation." Ibid. (quoting Crawford v. Washington, 541
U.S. 36, 51 (2004)). "The [Confrontation] Clause does not bar admission of a
statement so long as the [witness] is present at trial to defend or explain it."
Crawford, 541 U.S. at 68. "However, if the witness is absent from trial, a
testimonial statement is only admissible if that witness 'is unavailable, and only
where the defendant has had a prior opportunity to cross-examine.'" Cabbell,
207 N.J. at 329-30 (quoting Crawford, 541 U.S. at 59).
Our research disclosed only one New Jersey reported case, Burr, that
addressed an issue similar to that raised by defendant here—that playing the
recording after the witness was excused violated his Confrontation Clause
rights. 392 N.J. Super 538. Burr involved the defendant's sexual abuse of a
child, wherein the defendant similarly contested the State's admission of a video
A-1237-18T2 16 statement during the testimony of a witness after the declarant-victim had
already been excused. Id. at 565. There, as here, the court considered the
defendant's argument that his right to confrontation was violated because the
victim was only cross-examined on her in-court testimony, not on the contents
of her out-of-court video statement recorded by law enforcement prior to trial.
Id. at 566-69. In Burr, we concluded that the defendant's right to confrontation
could not have been violated because the victim's out-of-court statement was
entirely consistent with her in-court testimony. Id. at 568-69.
Other state courts have considered the issue under similar circumstances
and most have concluded that a defendant's Confrontation Clause rights were
not violated.2 For example, in State v. Tompkins, 859 N.W.2d 631 (Iowa 2015),
2 A minority of jurisdictions have held—as defendant urges here—that putting the defendant in a position where he must "call a child complainant to testif y 'unfairly requires a defendant to choose between his right to cross-examine a complaining witness and his right to rely on the State's burden of proof in a criminal case.'" State v. Bates, 383 P.3d 529, 534 (Wash. Ct. App. 2016) (quoting Lowery v. Collins, 988 F.2d 1364, 1368 (5th Cir. 1993)). Under the minority approach, a violation of the Confrontation Clause is established where a defendant shows that "the State's presentation of evidence require [s a defendant] to forego cross-examination or to challenge [the victim's] allegations by calling [the victim] as a witness himself." Id. at 534; State v. Rohrich, 939 P.2d 697 (Wash. 1997) (en banc) (holding that the Confrontation Clause "requires the State to elicit the damaging testimony from the witness so the defendant may cross-examine if he so chooses" and noting that "[t]he State's failure to adequately draw out testimony from [a witness] before admitting the
A-1237-18T2 17 the court addressed almost the exact argument being made by defendant, but in
the context of a defendant arguing he could not cross-examine a witness about
a prior out-of-court statement because the prosecutor did not ask any questions
on direct about the earlier statement. Id. at 639-40. Moreover, the defendant
claimed "he could not recall [the witness] to confront her on her hearsay
statements because he was placed in a constitutionally impermissible catch -22:
forego either his Confrontation Clause rights or his right to have the State prove
its case against him." Id. at 640.
The Tompkins court disagreed with the defendant's contention and
explained the following:
We agree with [defendant] that the State's decision not to question [the witness] about the statements she made to [police], or the events surrounding the night in
[witness's] hearsay puts the defendant in 'a constitutionally impermissible Catch-22' of calling the child for direct or waiving his confrontation rights" (quoting Lowery v. Collins, 996 F.2d 770, 772 (5th Cir. 1993))).
In justifying this preference for in-court child witness testimony, the Rohrich court suggested that "nothing about child hearsay indicates the hearsay statement would be more reliable than an in-court declaration of the same accusation." Rohrich, 939 P.2d at 702. As noted above, our Supreme Court has suggested exactly the opposite. See D.R., 109 N.J. at 360 (listing a number of reasons why a child's in-court testimony may be less reliable than a prior testimonial statement). Because of this distinction, and because our opinion in Burr supports the proposition that the Confrontation Clause is not per se violated as a result of this unique trial procedure so long as the child victim testifies and is subjected to cross-examination, we decline to follow the minority approach. A-1237-18T2 18 question, placed [defendant] in the unenviable position to weigh the advantages and disadvantages of cross- examining [the witness] during her initial testimony or calling her as a witness for the defense. However, [defendant]'s Confrontation Clause rights were not violated based on this choice. The choice whether and to what extent to cross-examine a witness always requires a cost-benefit analysis. But where the witness takes the stand and is available for cross-examination, the Confrontation Clause places no constraints on the use of the witness's prior testimonial hearsay statement. Crawford, 541 U.S. at 59 n.9.
[Ibid.]
In reaching its conclusion that no violation occurred, the Tompkins court
relied on the fact that the witness "was available for cross-examination" and
remained an available witness had the defendant wished to recall her. Ibid. The
court also relied on the court's evidence rules, which provided for a trial court
to allow cross-examination beyond the scope of direct in its discretion and, if an
out-of-court statement was otherwise admitted, permitted the party against
whom it was used to call the witness and question them as if under cross-
examination. Ibid. The court found further support in its canvass of court
decisions from other jurisdictions wherein it concluded that "the majority of
courts from other jurisdictions that have addressed this issue have reached
similar conclusions." Id. at 640-41 (discussing sixteen opinions from state and
federal courts).
A-1237-18T2 19 In State v. Pollock, 284 P.3d 1222 (Or. Ct. App. 2012), review denied,
298 P.3d 30 (Or. 2013), one of the cases cited by the Tompkins court, an
appellate court in Oregon considered facts nearly identical to those presented in
the case before us. 284 P.3d at 1222–23. There, after a three-year-old child
victim told her mother details of her sexual assault without being prompted, the
mother contacted police who conducted an interview with the child which was
recorded on DVD. Ibid.
At trial, the State called the victim—then five years old—who was not
asked about the specific abuse but was asked whether she remembered making
statements to the police and whether those statements were true, to both of which
she answered in the affirmative. Id. at 1223. Defense counsel also questioned
the victim briefly about whether she remembered making the statements in the
DVD and whether she talked with her mother or police about the topics covered
in the DVD—to which she again answered in the affirmative. Id. at 1223.
After the witness was excused, the State called the victim's interviewer
and offered the DVD of the interview into evidence. Ibid. The court permitted
the State to play the DVD for the jury at the close of its case-in-chief over
defendant's objections that his Confrontation Clause rights were being violated.
Ibid.
A-1237-18T2 20 On appeal, the defendant contended that he "did not have an adequate
opportunity to cross-examine the victim about her out-of-court statements,
because she was, in effect, 'unavailable' for cross-examination on the inculpatory
evidence, due to the prosecutor's failure to have elicited that evidence directly
from the victim before introducing the DVD." Id. at 1224. He further argued
that, because the prosecutor did not elicit the testimony from the DVD on direct
examination, "the prosecutor effectively placed on defendant the burd en to elicit
the inculpatory testimony that he sought to impeach, a burden that he
contend[ed] violated his right to confrontation." Ibid.
The Pollock court found that no right to confrontation had been violated
for a number of reasons: the victim had taken the stand and was subject to cross-
examination, the defense had adequate opportunity to cross-examine the victim
about her statements on the DVD because she affirmed and adopted her prior
statements while on the stand, the defendant did cross-examine the victim, and
the defendant chose not to recall the victim for cross-examination even though
he could have after the prosecutor played the DVD. Ibid. Rejecting the
defendant's confrontation argument, the Pollock court stated, "Although we
agree . . . that the state's decision not to question the victim in detail about the
statements . . . placed on defendant the burden to weigh the advantages and
A-1237-18T2 21 disadvantages of cross-examining the victim specifically about her statements,
we conclude that the [S]tate's tactical decision did not limit defendant's right to
confrontation." Ibid.
Here, like in Pollock, defendant had an opportunity to cross-examine the
child-victim but he chose not to ask questions about her out-of-court statement
even though he had a transcript of the videotaped statement. Moreover,
defendant was not prohibited under our Rules of Evidence from seeking
permission to examine her about her out-of-court statement. See N.J.R.E.
611(b) ("The court may allow inquiry [on cross-examination] into additional
matters as if on direct examination."). Nor was he prohibited from seeking to
recall the victim as a witness after the tape was played. See N.J.R.E. 806 ("If
the party against whom a hearsay statement has been admitted calls the declarant
as a witness, that party is entitled to examine the declarant on the statement as
if under cross-examination.").
Defendant, for what was evidently strategic purposes, simply chose not to
cross-examine the victim while knowing that the videotape would be played
after she testified. The simple fact that the victim's prior statement was
inconsistent with her testimony on direct examination does not constitute a
violation of defendant's confrontation rights where our Rules, like those in
A-1237-18T2 22 Tompkins and Pollock, provided defendant ample opportunity to address those
inconsistencies during cross-examination or following the presentation of her
video statement. See Crawford, 541 U.S. at 59 n.9 (The [Confrontation] Clause
does not bar admission of a statement so long as the declarant is present at trial
to defend or explain it). What occurred here was not a violation of defendant's
Confrontation Clause rights, but rather a strategic decision made by defendant
to not address the victim's earlier statement.
Under these circumstances we conclude from our de novo review of the
evidence, see State v. Williams, 218 N.J. 576, 593-94 (2014), that the trial court
did not err when it refused to dismiss the first count of the indictment as the
victim's videotaped statement provided sufficient evidence to sustain
defendant's conviction on that count. See State v. Tindell, 417 N.J. Super. 530,
549 (App. Div. 2011) (applying the same de novo standard of review to motions
to dismiss under Rule 3:18-1 and Rule 3:18-2 to determine if there was sufficient
evidence "such that a jury could properly find beyond a reasonable doubt that
the defendant was guilty of the crime charged" (quoting State v. D.A., 191 N.J.
158, 163 (2007))); see also State v. Reyes, 50 N.J. 454, 458-59 (1967).
Affirmed.
A-1237-18T2 23