State v. G.S.

Page 460

145 N.J. 460

678 A.2d 1092

STATE of New Jersey, Plaintiff-Appellant, v. G.S., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 3, 1996.

Decided July 24, 1996.

Nancy A. Hulett, Deputy Attorney General, for appellant (Deborah T. Poritz, Attorney General, attorney).

Helen E. Szabo, Designated Counsel, Flemington, for respondent (Susan L. Reisner, Public Defender, attorney).

The opinion of the Court was delivered by

HANDLER, J.

In this case, the defendant was indicted and convicted for repeated acts of sexual molestation of his stepdaughter over a three-year period. Some of the evidence admitted at trial related to acts of sexual molestation that allegedly occurred over a period of time before the offenses charged in the indictment allegedly happened.

The trial court instructed the jury that such evidence may not be considered as demonstrating that defendant had a predisposition to commit the offenses charged, but failed more specifically to explain to the jury the relevance of that evidence to any issue in dispute and, further, to so restrict its consideration of that evidence.

The jury convicted defendant of the offenses charged. In a reported decision, the Appellate Division reversed the convictions. 278 N.J.Super. 151, 650 A.2d 819 (1994). Because of a dissent, the matter was appealed to this Court as of right. R. 2:2-1(a). Based on the dissent, the sole question to be determined is whether the failure of the trial court to give a limiting instruction restricting the use of such other-crime evidence constituted reversible error.

I

In 1979, when L.K. was eight years old, her mother married defendant G.S. The family resided in Monmouth County. 278 N.J.Super. at 159, 650 A.2d 819. In 1982, at age eleven, L.K. attended a school assembly in which an instructor discussed "good touching and bad touching." Id. at 159-60, 650 A.2d 819. A few weeks later, L.K. received a poor school grade and was told by her mother that she would be punished with a spanking from defendant. L.K. informed her mother that she did not want defendant to spank her because she believed that he would spank her bare bottom in order to view her genitalia. L.K. further informed her mother that defendant had inappropriately touched her. Ibid. Also, L.K. told her mother that defendant would fondle L.K.'s genitalia while bathing her, and had ordered L.K. to lie naked on his bed so that he could stare at her naked body. Id. at 160, 650 A.2d 819.

The Division of Youth and Family Services ("DYFS") became involved with the family, and L.K. was placed first in her Aunt Dee's home and then in foster care. Ibid. While L.K. was in foster care, defendant was charged with endangering the welfare of a child. Ibid. Those charges were dismissed when defendant was accepted into the Monmouth County Pretrial Intervention Program. Because her mother did not believe or support her, L.K. eventually recanted her accusations against defendant. Ibid. In 1983, L.K. returned to the home of her mother and defendant in Monmouth County. Ibid.

In November of 1983, L.K. and her family moved to Sussex County. Ibid. Approximately six months later, defendant allegedly resumed molesting L.K. and by 1987 was allegedly engaging in sexual relations with L.K. three times each week. Ibid. L.K.'s mother was frequently not home because she worked at night and regularly attended Bible classes. Id. at 170, 650 A.2d 819. L.K. testified that these sexual encounters were virtually never interrupted because defendant always brought L.K. into defendant's bathroom, defendant's bedroom, or L.K.'s bedroom, and always locked the door.

L.K. testified about sexual activity with defendant that began with genital fondling but escalated extensively over time. Id. at 159, 650 A.2d 819. Also, L.K. alleged that when she was fourteen years old, defendant required her to disrobe and exhibit herself to her ten-year old brother, and allow him to fondle her as sex education. Ibid.

L.K. testified that she remained silent about the Sussex County abuse as it occurred because defendant told her that if she informed anyone, the government would put her and her siblings in foster care. L.K. stated that because she believed defendant's threats, she remained silent for several years about the abuse.

On one occasion, however, L.K. briefly disclosed to her close girlfriend, A.C., that defendant was sexually abusing her, but implored A.C. to refrain from telling anyone. A.C. told her guidance counselor, Mary Kronick, by saying it was someone at the school L.K. attended. Mary Kronick contacted a guidance counselor at L.K.'s school who, knowing of L.K.'s prior accusations, asked L.K. if she was having problems at home. L.K. vehemently denied any problems.

On February 4, 1987, L.K. informed her boyfriend that she thought she was pregnant. Ibid. The boyfriend successfully persuaded L.K. to disclose who had impregnated her, ibid., and then told his mother. The boyfriend's mother contacted DYFS authorities; L.K. told the DYFS authorities about much of the alleged abuse, and defendant was arrested. Ibid. A few days later a gynecological examination revealed that her pregnancy symptoms were caused by a cyst on her ovary.

At trial, the State's primary witness was L.K. who recounted the details of defendant's alleged abuse. The State's other witnesses included L.K.'s former girlfriend A.C. and L.K.'s former boyfriend, both of whom testified that L.K. had confided in them about her stepfather's abuse. A.C. further testified that she never heard anyone in her family or community say "bad things" about L.K. Mary Kronick, A.C.'s guidance counselor, corroborated the testimony of L.K. and A.C., stating that A.C. had come to her seeking advice about an unidentified friend who was being sexually abused by her stepfather. The State also submitted various documents from DYFS containing L.K.'s allegations. The testimony of these witnesses and the documentation were consistent with L.K.'s trial testimony. L.K.'s mother did not testify because she died before trial.

The crux of the defense's strategy was portraying L.K. as a liar. Id. at 167, 650 A.2d 819. Defendant did not testify. The defense relied on extensive cross-examination of L.K. concerning the exact dates and details of the various alleged sexual activities between L.K. and defendant, and L.K.'s failure to record the abuse in her diary, which defendant produced at trial. The defense sought to demonstrate that L.K.'s accusations were fabricated and motivated by her bias against her stepfather. Ibid. Defendant attempted to establish that L.K. disliked him because defendant's strict discipline of her interfered with her relationship with her boyfriend. Id. at 167-68, 650 A.2d 819.

The defense also elicited on cross-examination of L.K.'s former boyfriend that L.K. had a reputation within her church youth group for lying. The defense also called Aunt Dee, the sister of L.K.'s mother with whom L.K. temporarily resided following her removal from the Monmouth County home, who testified that as a child L.K. frequently told "tall stories" to gain attention. Finally, the defense called private investigator Richard Childs, who testified that he interviewed A.C. and that she indicated that L.K. had a reputation for lying. Additionally, defendant's mother testified that, though she frequently visited L.K.'s home during the years in which the alleged abuse was occurring, L.K. never informed her of the abuse.

In rebuttal, the State called Richard Devine, a nursing home administrator who supervised L.K. when she volunteered at the home around the time of the alleged abuse, and L.K.'s former music teacher. They testified about L.K.'s exceptional honesty and character.

The issue on appeal arose in the following manner. In his opening statement, defense counsel depicted L.K. as being untruthful. Counsel suggested that L.K.'s former accusations in Monmouth County, which L.K. later recanted, illustrated L.K.'s tendency to lie. At trial, the State sought to present evidence of the sexual activity in Monmouth County, L.K.'s accusations and following recantation, and defendant's admission into the Monmouth County Pretrial Intervention Program. 278 N.J.Super. at 160, 650 A.2d 819. The trial court permitted the State to admit the Monmouth County evidence, under N.J.R.E. 404(b) (formerly Evid. R. 55), to: (1) illustrate that defendant intended to engage in sexual contact with L.K. for the purpose of his own sexual gratification, an element of the charged offense, N.J.S.A. 2C:24-4a; and (2) explain why L.K. did not confide in her mother about the abuse occurring in Sussex County. 278 N.J.Super. at 160, 650 A.2d 819.

On direct examination, L.K. began to testify about the Monmouth County incident. The court, however, interrupted L.K.'s testimony and gave the following instruction:

Members of the jury, under our Rules of Evidence in the State of New Jersey, where evidence is presented that an individual committed a--crime or a civil wrong on a specified occasion, it is inadmissible to prove an individual's disposition to commit a crime or civil wrong as the basis for an inference that the individual committed a crime or civil wrong on another specified occasion.

However, such evidence is admissible to prove another fact in issue. And, another fact in issue includes a motive, an intent, a plan, a knowledge, entity, [sic] or absence of mistake or accident. And so this evidence, which the State seeks to elicit from [L.K.], the Court permits you to hear this evidence with regard to these Monmouth County--this Monmouth County matter on that basis. On the basis of the--going to issues of notice, intent, plan, knowledge, entity [sic] or absence or mistake or accident. But not to draw any inference that because a crime or civil wrong may have been committed on one occasion, as the basis for inference to commit a crime or civil wrong on another occasion.

Following...