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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5529-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TALBERT D. HINTON, a/k/a YASIN R. BRYANT, TALBRET HINTON, TAV HINTON, HINTON D. TALBERT,
Defendant-Appellant. __________________________________
Submitted June 1, 2017 – Decided September 11, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-01-0098.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief; Jeffery St. John, Assistant Prosecutor, on the brief).
PER CURIAM In April 2015, a jury acquitted defendant Talbert D. Hinton
of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1), but convicted him of second-degree sexual assault,
N.J.S.A. 2C:14-2(b), and endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). In the aggregate, he was sentenced to an
eighteen-year extended term of imprisonment, subject to an
eighty-five percent period of parole ineligibility. Defendant
appeals from his convictions and sentence. We affirm.
I
The salient evidence was as follows. In December 2012,
then five-year old Lisa1 went to McDonald's with defendant, her
mother's friend. Lisa testified after she finished her meal,
defendant drove her to his grandmother's home. While she sat on
a bed and listened to music, defendant took off his pants but
not his underwear. He then took her leggings down to her knees,
but left her underwear intact.
Lisa stated defendant then got on top of her, as she lay
face down. She felt his chest touch her back and his stomach
touch her buttocks. She began to cry, because she believed she
would get in trouble with her mother for not returning home as
soon as she finished eating at McDonald's. Defendant then got
1 The child's name is a pseudonym to protect her privacy. 2 A-5529-14T4 off of her and, after she pulled her leggings up, took her home.
Lisa testified the first person she told about the incident was
her teacher, because the child found the teacher trustworthy and
had a good relationship with her.
During a videotaped interview conducted by a detective of
the Monmouth County Prosecutor's Office, which was viewed by the
jury, Lisa stated while at his grandmother's home, defendant
pulled her pants and underwear down to her knees. As a result,
she started to cry and told him to stop. However, he then
touched her buttocks with his penis and was moving it "back and
up." She described his penis as hard and, at one point,
inserted it "inside [my] butt," which hurt "a little bit." He
then stopped and, after getting her a "rag" to dry her face,
drove her home.
Lisa's teacher testified that, in June 2013, she sat next
to Lisa on a bus, which was taking Lisa's entire Kindergarten
class on a field trip to a park. Lisa spontaneously said she
had gone to a McDonald's with a "mean and nasty" man, who later
took her to his grandmother's home, where he pulled down her
underwear. The child further stated she started to cry and told
him to stop, so he took her home.
3 A-5529-14T4 After arriving at the park, the teacher approached the
teacher assistant for the Kindergarten class and told her to
talk to Lisa; the teacher could not recall if she informed the
assistant what Lisa had related to her. Finally, the teacher
testified that, after the Christmas vacation in 2012, the child
was "a little withdrawn" and "not as eager to participate."
The teacher assistant testified she asked Lisa what she had
talked about with the teacher. Lisa reported her mother's
friend took her to McDonald's and then to his home. While
there, he took off his and her clothes, and rubbed his body
against hers. The assistant also testified that after the
Christmas vacation in 2012, the child had an "attitude" and
would get "upset about anything." The teacher and the assistant
reported the child's comments to the school principal, who
contacted the police.
Lisa was treated by a pediatrician who focuses her practice
on children who allegedly have been abused. The pediatrician
testified the child told her an adult named "Tal" took her to
his grandmother's home and asked her to lie down on her stomach.
He then put his penis on top of her buttocks, which "hurt a
little."
4 A-5529-14T4 Lisa also told the pediatrician she was concerned about
physical abuse between her mother and stepfather, and further
mentioned her mother had hit her with a belt, but stated the
belt did not cause any injuries or marks. In fact, Lisa stated
she had never been physically abused by an adult in her home.
The pediatrician testified she did not have any concern the
child was being abused in her home.
The pediatrician further testified that Lisa's mother
informed her the child's behavior changed after the time of the
subject incident. Lisa's mother related to the pediatrician
that Lisa became defiant, continued to do well academically.
The doctor commented exposure to domestic violence can cause
behavioral changes, including becoming more defiant.
Lisa's mother also testified. She stated around Christmas
2012, she consented to defendant taking Lisa to McDonald's for
lunch. The mother recalled they had been gone for a long period
of time and she became worried, but Lisa did come home that
afternoon and reported she had had fun while she was out.
Months later, the mother received a call from the teacher
assistant; following that call, the mother asked Lisa what she
had reported to the teacher and the teacher assistant. The
child said defendant took her to his mother's house, pulled her
5 A-5529-14T4 pants and underwear down, made her lie on the bed, laid on top
of her, and rubbed his penis on her buttocks.
During cross-examination, defense counsel broached the
subject of domestic violence between the mother and Lisa's step-
father. The State objected, and during a sidebar conference
defense counsel explained she wanted to "infer possible third-
party guilt" by suggesting another in Lisa's home had abused the
child. The court sustained the objection, noting there was no
evidence the step-father or any third party committed the acts
about which Lisa complained.
The defense attorney then advised the court she wished to
question the mother about hitting the child with a belt, to
suggest the change in the child's demeanor around the time of
the subject incident was the result of her mother's abuse. The
court sustained the State's objection, noting there was no
evidence the mother caused the child to sustain any injury when
she hit Lisa with a belt, not to mention there was no evidence a
female committed the alleged acts of sexual abuse. The court
also expressed concern defense counsel's questions would
necessitate the mother asserting her Fifth Amendment2 rights in
the presence of the jury.
2 U.S. Const. amend. V. 6 A-5529-14T4 During her summation, defense counsel argued there was
insufficient proof defendant committed the alleged offense, and
emphasized the inconsistencies among the child's reports of the
incident rendered her claim of sexual assault untrustworthy.
II
Defendant asserts the following arguments for our
consideration:
POINT I – THE TRIAL JUDGE IMPROPERLY PERMITTED THE FRESH-COMPLAINT WITNESS TO TESTIFY AS TO THE DETAILS OF THE ALLEGED ASSAULT, PROVIDED THE JURY WITH AN UNNECESSARY AND MISLEADING INSTRUCTION ON THE TENDER-YEARS HEARSAY EXCEPTION, AND PERMITTED THE STATE TO IMPROPERLY BOLSTER [THE CHILD'S] CREDIBILITY BY ALLOWING IT TO PRESENT NEEDLESSLY CUMULATIVE EVIDENCE OF [THE CHILD'S] ALLEGATIONS AGAINST DEFENDANT. THE COMBINATION OF THESE ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL.
A. The Judge Failed To Limit [The Teacher Assistant] Fresh- Complaint Testimony To General Information About [the Child's] Complaint To Her.
B. The Judge Improperly Issued A Jury Instruction On Tender-Years Testimony That Was Likely To Have Misled And Confused The Jury.
C. In Addition To The Victim's Testimony, The Judge Permitted Three Hearsay Statements Under The Tender-Years Hearsay Exception, One Hearsay Statement Under The Fresh-Complaint Doctrine, And
7 A-5529-14T4 Testimony About The Reported Incident From The Treating Doctor, Resulting In Cumulative Evidence That Improperly Bolstered The Victim's Testimony and Prejudiced Defendant.
POINT II – THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE BY PROHIBITING COUNSEL FROM ASKING THE VICTIM'S MOTHER ABOUT VIOLENCE IN THE HOME, WHICH SERVED AS AN ALTERNATIVE EXPLANATION FOR THE VICTIM'S PURPORTED BEHAVIORAL CHANGES AFTER THE INCIDENT.
POINT III – THIS CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING COURT IMPROPERLY WEIGHED THE AGGRAVATING AND MITIGATING FACTORS, RESULTING IN AN EXCESSIVE SENTENCE.
A
We first address defendant's contention the court erred
when it failed to limit the teacher assistant's testimony, which
both parties regarded as fresh complaint testimony. As stated
above, the assistant testified the child informed her that,
after her mother's friend took her to McDonald's, he then took
her to his home. While there, he took off his and her clothes,
and rubbed his body against hers.
The fresh complaint doctrine is one that "allows the
admission of evidence of a victim's complaint of sexual abuse,
otherwise inadmissible as hearsay, to negate the inference that
8 A-5529-14T4 the victim's initial silence or delay indicates that the charge
is fabricated." State v. R.K., 220 N.J. 444, 455 (2015).
However, "[o]nly the facts that are minimally necessary to
identify the subject matter of the complaint should be
admitted." Id. at 456. When admitting fresh complaint
evidence, a trial court should make clear to a jury such
evidence should not be considered to "bolster [a] victim's
credibility or prove the underlying truth of [] sexual assault
charges," but rather used only for the narrow purpose of
"dispel[ing] [a negative] inference [from] the victim['s]"
silence. State v. Bethune, 121 N.J. 137, 148 (1990).
Defendant contends the teacher assistant's testimony should
have been limited to the fact the child complained to her and
the "general substance of the complaint – that someone
inappropriately touched her." In addition, defendant points out
the court failed to give a limiting instruction at the time of
the assistant's testimony.
First, the limited details the teacher assistant provided
were not more than necessary to identify the subject matter of
the child's complaint. Although our courts have disallowed
"excessive details," see State v. Bethune, 121 N.J. 137, 147
(1990), "[o]ur courts have been consistent in allowing fresh-
9 A-5529-14T4 complaint witnesses to provide enough basic information that the
jury will have a sense of the complaint's context." State v.
R.K., 220 N.J. 444, 459 (2015).
In State v. Balles, 47 N.J. 331 (1966), the victim's mother
testified the victim had disclosed to her the defendant "put his
hands down her panties and had touched here." Id. at 339. Our
Supreme Court determined the mother's testimony was not improper
under the fresh complaint doctrine, as she did not "elaborate
and could hardly have said less and still identified the nature
of [the victim's] complaint." Ibid.
Here, as for the illicit act itself, the assistant merely
testified the child said defendant took off her and his clothes,
and rubbed his body against hers. These few details were
necessary to provide the minimal information necessary to enable
the jury to have a "sense of the complaint's context," and were
analogous to those provided by the fresh complaint witness and
found acceptable by the Court in Balles.
Second, the court did provide the appropriate limiting
instruction in its final charge to the jury, thoroughly
explaining the limited nature of fresh complaint testimony.
There is no requirement such instruction be provided at the time
fresh complaint testimony is admitted. See State v. Hummel, 132
10 A-5529-14T4 N.J. Super. 412, 424 (App. Div. 1975). Accordingly, we conclude
there is no merit to defendant's contention the court erred by
allowing the admission of the teacher assistant's testimony and
by failing to provide a limiting instruction at the time such
testimony was provided.
B
Defendant next contends the court issued a jury instruction
on tender years testimony that likely misled and confused the
jury. Before trial, the court determined the proffered
testimony of the mother, teacher and detective was admissible
under the tender years exception. Defendant does not challenge
this ruling, or that these witnesses' testimony was substantive
evidence. The defendant complains the final jury instruction on
tender years testimony was given immediately following the
instruction on fresh complaint testimony, and thus may have
confused the jury on how to use these two different kinds of
testimony.
We have examined the jury charge and find no merit to the
contention the charge was confusing or could have misdirected
the jury on how to consider and apply these two forms of
testimony. The court distinguished fresh complaint from tender
years testimony and clearly instructed the jury how it was to
11 A-5529-14T4 consider each kind of testimony. Defendant's remaining
arguments pertaining to the court's instructions on fresh
complaint and tender years testimony are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
C
In argument Point I(c), defendant maintains the court erred
by admitting: (1) the teacher assistant's testimony under the
fresh complaint doctrine; (2) the teacher's, detective's, and
mother's testimony under the tender years exception; and (3) the
testimony from Lisa's treating pediatrician. Defendant does not
challenge the fact each witness's testimony was separately
admissible under one rule of law or another. The claimed error
is the testimony from all of these witnesses improperly
bolstered the victim's testimony. That is, collectively, the
admission of these witnesses' testimony had the cumulative
effect of bolstering the victim's testimony and thus prejudiced
him. We disagree.
First, this particular issue was not raised before the
trial court. Defendant did move before trial to exclude the
testimony of the mother, teacher, and detective under the tender
years exception, but he did not seek the exclusion of such
12 A-5529-14T4 testimony under N.J.R.E. 403. Therefore, our review of
defendant's argument is guided by the plain error rule. R.
2:10-2; see also State v. Miraballes, 392 N.J. Super. 342, 360
(App. Div.), certif. denied, 192 N.J. 75 (2007).
Under the plain error rule, any error will be disregarded
unless "clearly capable of producing an unjust result." State
v. Feaster, 156 N.J. 1, 71 (1998). Reversal based on plain
error requires us to find the error is "sufficient to raise a
reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached." State v. Williams,
168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325,
336 (1971)). We may also infer from the lack of an objection
defense counsel recognized the alleged error was of no moment or
was a tactical decision to let the error go uncorrected at the
trial. Macon, supra, 57 N.J. at 337.
Second, the child's report of what occurred varied from one
person to another; thus, collectively, the subject testimony did
not bolster the victim's testimony. In fact, defense counsel
emphasized the inconsistencies in the child's reports in her
cross-examination of some of the witnesses. During counsel's
summation, she highlighted the key differences in the child's
13 A-5529-14T4 reports to each adult, arguing the child's inconsistent reports
made her untrustworthy.
Moreover, significantly, while the jury convicted defendant
of second-degree sexual assault, N.J.S.A. 2C:14-2(b),
specifically, sexual contact, as well as endangering the welfare
of a child, N.J.S.A. 2C:24-4(a), the jury acquitted defendant of
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1).
The State failed to prove beyond a reasonable doubt defendant
committed an act of sexual penetration upon the child. Clearly,
the jury rejected the child's reports of anal penetration.
Given the inconsistencies in the child's reports as provided
through the subject witnesses' testimony, which defendant deftly
utilized to further his defense – a strategy that succeeded in
the acquittal of the most serious charge -, we cannot conclude
there was plain error in the admission of the testimony about
which defendant complains.
D
Defendant contends the court erred by precluding him from
cross-examining the mother on whether the stepfather had been
violent toward her, and on the mother's use of a belt to punish
Lisa. We reject defendant's argument, substantially for the
reasons expressed by the trial court.
14 A-5529-14T4 "The scope of cross-examination is a matter resting in the
broad discretion of the trial court." State v. Martini, 131
N.J. 176, 255 (1993). Accordingly, it is "well settled" that
the "scope of cross-examination is a matter for the control of
the trial court[,] and an appellate court will not interfere
with such control unless clear error and prejudice are shown."
Id. at 263-64 (quoting State v. Murray, 240 N.J. Super. 378, 394
(App. Div. 1990)).
As observed by the trial court, there was no evidence the
stepfather or any third party committed the acts about which
Lisa complained; therefore, evidence of domestic violence
between the mother and stepfather was irrelevant. Further, to
the extent defendant sought to show witnessing domestic violence
can affect a child's behavior and, thus, the observed change in
Lisa's behavior may not have been caused by his alleged conduct,
defendant effectively cross-examined the pediatrician on the
point domestic violence can make a child defiant.
As for the mother's use of a belt to discipline the child,
first, there was no evidence the mother committed the acts with
which defendant was charged. Second, there was no expert
testimony to substantiate the use of the belt caused or could
have caused the change in the child's behavior, not to mention
15 A-5529-14T4 the child herself said she was not injured as a result of her
mother's use of a belt. Finally, the pediatrician testified she
was not concerned the child was being abused at home.
Accordingly, we are satisfied the trial court's decision to
limit defendant's cross-examination on these issues did not
prejudice defendant.
E
Finally, defendant argues this matter must be remanded for
resentencing because the court improperly weighed the
aggravating and mitigating factors, resulting in an excessive
sentence. We disagree.
An appellate court reviews a sentence under a deferential
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). Our
"review of sentencing decisions is relatively narrow and is
governed by an abuse of discretion standard." State v.
Blackmon, 202 N.J. 283, 297 (2010). "In conducting the review
of any sentence, appellate courts always consider whether the
trial court has made findings of fact that are grounded in
competent, reasonably credible evidence and whether 'the
factfinder [has] appl[ied] correct legal principles in
exercising its discretion.'" Ibid. (alterations in original)
(quoting State v. Roth, 95 N.J. 334, 363 (1984)).
16 A-5529-14T4 The traditional articulation of this standard limits our
review to situations where application of the facts to the law
has resulted in a clear error of judgment leading to sentences
that "shock the judicial conscience." Roth, supra, 95 N.J. at
364-65. If the sentencing court has not demonstrated a clear
error of judgment or the sentence does not shock the judicial
conscience, appellate courts are not permitted to substitute
their judgment for that of the trial judge. Ibid.
Here, the trial court found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (the risk of re-offending); six, N.J.S.A.
2C:44-1(a)(6) (the extent and seriousness of defendant's prior
record); and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter
defendant and others from violating the law). The trial court
noted defendant, only age thirty-five at the time of sentencing,
had already been convicted of thirteen indictable and ten
Municipal Court offenses.
It is evident from the record defendant has previously had
the benefit of probationary sentences, but to no avail. He
reoffended and was subsequently imprisoned, only to reoffend
again. The three aggravating factors found by the court to
exist in this matter are supported by the credible evidence. We
17 A-5529-14T4 are unpersuaded that it is either necessary or appropriate for
us to intervene and adjust this sentence.
To the extent we have not expressly addressed any of
defendant's arguments, it is because we concluded they lacked
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
18 A-5529-14T4