In re State ex rel. J.B.

1

STATE OF NEW JERSEY IN THE INTEREST OF J.B., a juvenile.

No. A-2360-19

Superior Court of New Jersey, Appellate Division

March 3, 2023

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.

Submitted October 26, 2022

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No FJ-09-0956-19.

Joseph E. Krakora, Public Defender, attorney for appellant J.B (Alison Gifford, Assistant Deputy Public Defender, of counsel and on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Colleen Kristan Signorelli, Assistant Prosecutor, on the brief).

Before Judges Accurso and Vernoia.

PER CURIAM

J.B (Jack)^[1] appeals from the trial court's order adjudicating him a juvenile delinquent for conduct which if committed by an adult would constitute the fourth-degree crime of criminal sexual contact, N.J.S.A. 2C:14-3(b). Jack also claims the court's disposition - an eighteen-month period of probation and a requirement he comply with Megan's Law, N.J.S.A. 2C:7-1 to -23 - should be reversed. Based on our review of the record, we discern no basis to reverse defendant's adjudication, but we reverse the court's disposition and remand for further proceedings.

I.

The complaint against Jack alleged he committed acts which if committed by an adult would constitute the crimes of third-degree criminal restraint, N.J.S.A. 2C:13-2(b), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). More particularly, the complaint alleged that on or about December 1, 2018, thirteen-year-old Jack grabbed ten-year-old Z.D. (Zoe) by the arm and took her into the kitchen of his residence, where he touched Zoe's "vagina on her skin with his penis," touched the skin of Zoe's breasts, and touched Zoe's vagina with his hand on top of her clothes.

The State's Motion To Admit Fresh Complaint Evidence

Prior to trial, the State moved for admission of testimony from Zoe's mother, D.P. (Dana), as fresh complaint evidence. The court conducted a hearing during which Dana testified concerning Zoe's initial report she had been sexually assaulted by Jack. During the hearing, the State also argued Dana's testimony concerning Zoe's report should be admitted as substantive evidence a sexual assault occurred under the tender years exception, N.J.R.E. 803(c)(27), to the hearsay rule, N.J.R.E. 802.

The court granted the State's motion, finding Dana's testimony admissible as fresh complaint evidence and expressly limiting admission of the testimony for use "solely . . . for the purposes" for which "fresh complaints are permitted." The court further determined Dana's testimony concerning Zoe's report could not be used to bolster Zoe's credibility at trial.

The court also rejected the State's request for admission of Dana's testimony as substantive evidence of the alleged sexual assault under the tender years exception, N.J.R.E. 803(c)(27), to the rule barring admission of hearsay evidence, N.J.R.E. 802. The court determined the State did not present sufficient evidence supporting admission of Zoe's report, as recounted by Dana, under N.J.R.E. 803(c)(27). The court, however, ruled the State could renew its request for admission of Dana's testimony under N.J.R.E. 803(c)(27) at trial. The court entered an order granting the State's motion to admit Dana's testimony as "[f]resh [c]omplaint" evidence.

The State's Motion To Admit Tender Years Evidence Under N.J.R.E. 803(c)(27)

The State separately moved to admit a recorded statement made by Zoe during an interview with detective Allison Dixon as substantive evidence under N.J.R.E. 803(c)(27). The court conducted a hearing on the State's motion. The State presented the testimony of detective Dixon and introduced the recording of the interview in evidence.

The court made detailed findings and concluded the State satisfied its burden supporting admission of Zoe's recorded statement, and detective Dixon's testimony regarding it, under N.J.R.E. 803(c)(27). The court entered an order permitting admission of Zoe's statement to detective Dixon as "[t]ender [y]ears" evidence under N.J.R.E. 803(c)(27).

The Trial

At trial, the State first informed the court it intended to call Dana to present fresh complaint testimony pursuant to the order entered following the N.J.R.E. 104 hearing. During her direct testimony, and without any objection, Dana explained that on January 23, 2019, Zoe reported Jack sexually assaulted her at his home "right before" the previous Christmas. Dana further testified Zoe said Jack pulled his and Zoe's pants down, held Zoe's mouth, and put his penis "on her butt, and then in her vagina." Dana also testified: she had a close relationship with Zoe; she confronted Jack's mother, L.P. (Lynn), after Zoe made the report; Zoe never previously accused anyone of sexual assault; and she called the police following Zoe's report.

Following Dana's direct testimony, the State also sought admission of the testimony as substantive evidence under N.J.R.E. 803(c)(27). The court reserved decision on the State's request, finding "cross-examination is necessary" before it could determine if the testimony was properly admissible under N.J.R.E. 803(c)(27).

During cross-examination, defense counsel questioned Dana concerning the details provided by Zoe during her initial report about the alleged sexual offense. Defense counsel asked Dana about statements purportedly made by Zoe during her initial report that went beyond the details of Zoe's initial report brought out by the State during Dana's direct examination. During cross examination of Dana, defense counsel also attempted to establish there were inconsistencies between Dana's statements to the police about Zoe's initial report and Dana's trial testimony concerning the report.

Zoe also testified at trial. Prior to her direct testimony, the court instructed Zoe the attorneys would take turns asking her questions, and all she had to do was "tell the truth when they're asking [her] those questions." The court further instructed, "If you don't know the answer to something you can tell [the lawyers] you don't know. If you want them to say the question[] again, you can ask them to repeat the question." Zoe indicated she understood the instructions.

Shortly after the direct examination of Zoe began, the court again instructed the child, "all you had to do was get up here and tell the truth[.] That's all you have to do." Zoe then answered a series of questions that led to an inquiry about whether anything ever happened to her while she was in Jack's apartment. In response, Zoe stated that something had happened to her in the apartment, and the State asked her to describe what happened. When Zoe failed to respond that query, the court asked Zoe questions concerning her knowledge about the proceeding and court.

The court further instructed Zoe she was required to "speak and . . . tell everybody the answers to the questions." The court engaged in a colloquy with Zoe, during which the court explained Zoe must answer the questions posed verbally because the proceeding was being recorded. The court also repeatedly advised Zoe that her only obligation as a witness was to tell the truth in response to the questions posed.

Before allowing the questioning of Zoe to continue, the court explained to counsel that it had engaged in the colloquy with Zoe because she was "crying" when answering "generic questions," and Zoe than began "not to respond" when she was "asked specifically about other detailed questions."

Defense counsel stated she had an objection to the colloquy, and the court further explained it "took deliberate caution not to address the child with regards to how she should testify, other than telling the truth," and the court noted Zoe had to "verbalize her answers." Defense counsel then voiced a series of objections, but none was directed to the substantive comments the court directed to Zoe about her obligation to testify.

In response to the State's direct examination, Zoe testified that while she played with Jack's sister at their apartment, Jack told his sister to leave the room. When Jack's sister left the room, Jack pulled Zoe by her arm into the kitchen, pulled her pants down, and "put his - his private part on [her] butt." She later identified the body part Jack put on her butt as his "pee-pee," and testified the contact was "skin to skin." Zoe testified the incident occurred before Christmas and she first told her mother, Dana, about it after Christmas. Defense counsel did not cross-examine Zoe.

The State also called detective Dixon, who explained the process she followed in conducting Zoe's interview. Detective Dixon authenticated the recording of the interview, which was played at trial and admitted in evidence.

During the interview, Zoe defined the words she used to describe male and female body parts, identifying Jack's penis as a "chair" and her vagina as a "wall." According to the account provided by Zoe to detective Dixon, while playing with Jack's sister in their apartment, Jack forced Zoe into the kitchen, and placed his "chair" on the skin of her "wall." Zoe explained Jack's sister was not present in the kitchen when the incident occurred because Jack directed her out of the room. Zoe also told detective Dixon that Jack's mother, Lynn, and her boyfriend were in another room in the apartment when the incident took place. Defense counsel cross-examined detective Dixon concerning the questions she asked during the interview and Zoe's responses to some of the questions.

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