STATE OF NEW JERSEY v. O.A.C. (19-07-0767, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-3031-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
O.A.C.,
Defendant-Appellant.
_______________________
Submitted October 13, 2021 – Decided September 28, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 19-07-0767.
Scott D. Finckenauer, attorney for appellant.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Noah Kim, Assistant Prosecutor, on the
brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendant O.A.C. 1 appeals from a judgment of conviction entered after a
jury convicted him of ten counts arising from his sexual assaults of his two step-
granddaughters, Ka.F. and Ki.F., when they were minors. We affirm.
I.
Defendant began sexually assaulting Ka.F. when she was six. While he
was babysitting the child at her grandparents' house, defendant touched her inner
thigh, breasts, buttocks, and vagina over and under her clothes. These assaults
took place while Ka.F. was sitting on defendant's lap. Defendant's assaultive
conduct escalated to him placing Ka.F. on a bed, removing her underwear,
kissing her thighs, and performing cunnilingus on her, penetrating her with his
tongue. He rubbed his penis on the child's vagina, penetrating the lips of her
vagina. When Ka.F. resisted, defendant forcefully grabbed her arms and legs to
bring her closer to him and threatened to harm her parents. Ka.F. was terrified
during the assaults.
Ka.F. could not identify the precise number of times the sexual assaults
occurred because they were so common. Defendant assaulted her almost every
time she visited her grandparents' house. He showed Ka.F. pornography and
1
We refer to defendant and others by their initials to protect from public
disclosure the identity of child victims of sexual assault. R. 1:38-3(c)(9).
A-3031-19
2
bought her things she wanted, like a bicycle, with the expectation of the sexual
abuse afterwards.
Defendant's sexual abuse of Ka.F. took place between March 2004 and
March 2010. He stopped assaulting Ka.F. when she was ten or eleven years old
and told him she was having her period. Ka.F. did not report the sexual abuse
at the time it was happening because she feared it would ruin her family.
However, when Ka.F. was in the sixth grade she told her best friend, J.U., about
the assaults. When she was fifteen, Ka.F. attempted to tell her mother about the
assaults, but was brushed off by her.
At trial, J.U. testified that when she and Ka.F. were in the sixth grade
Ka.F. told her that her grandfather touches her breasts and genitals. She noticed
Ka.F. was about to cry as she described the sexual abuse. J.U. never told anyone
what Ka.F. had confided in her.
Defendant began sexually abusing Ki.F., Ka.F.'s sister, in 2013, when she
was six years old. When Ki.F. was alone with defendant at her grandparents'
house, he would grab her and touch her breasts and vagina, putting his fingers
in between the lips of her vagina. He put his mouth on her breasts and performed
cunnilingus on her. Defendant rubbed his penis on Ki.F.'s vagina. He forced
her to perform fellatio and to touch his penis as he masturbated. Defendant made
A-3031-19
3
Ki.F. watch pornography while touching her breasts and vagina. Ki.F., who was
eleven when she testified, described a slimy, white substance coming out of
defendant's penis during the assaults.
Defendant sexually abused Ki.F. every time she went to her grandparents'
house. He bought Ki.F. a bicycle, ice cream, and school supplies, and would
take her to the park, all with the expectation of sexual abuse afterward. When
Ki.F. refused his demands, defendant would hit her with a sandal and threaten
to harm her mother and grandmother. Ki.F. attempted to tell her grandmother
about the sexual abuse, but her grandmother did not believe her. Defendant
sexually abused Ki.F. from November 2013 to April 2018.
In April or May of 2018, Ka.F. began suspecting defendant was abusing
Ki.F. when she noticed that he was buying her things and taking her to the park.
Defendant's conduct reminded Ka.F. of his behavior when he was sexually
abusing her. She approached Ki.F. and told her to "be careful" when she was
left alone with defendant. Ki.F. spontaneously exclaimed, "I know." Ka.F. then
asked Ki.F. to blink twice if defendant was sexually abusing her because she
thought Ki.F. might not want to answer verbally. Ka.F. also hit the record button
on her cellphone. Ki.F. blinked twice. In the recorded conversation that
followed, Ki.F. said defendant would touch her sexually, and when she tried to
A-3031-19
4
back away, he would get angry. Ki.F. also said defendant would take off both
his and her clothes, and when she resisted, he would threaten to leave their
grandmother and harm her family members. Ka.F. played the recording for L.F.,
the victims' father, an hour or two later.
L.F. testified that in April or May of 2018, Ka.F. approached him and
played the recording of her conversation with Ki.F. The following day, he called
the children's grandmother to ask what she wanted him to do with defendant.
He waited three months to report the sexual abuse to police because he was
awaiting a response from the grandmother, who was ill, and defendant.
In August 2018, after the Hudson County Prosecutor's Office received a
referral from local police, a detective recorded an interview with Ki.F. During
the interview, Ki.F. described defendant's sexual abuse in detail. She also said
that when she resisted, defendant would become violent and aggressive and
"grab her face into the wall." Ki.F. told the detective that defendant kept
pornographic videos he forced her to watch in a box behind curtains in her
grandparents' home. The detective testified that during a search of the home,
pornographic videos were recovered from the area described by Ki.F.
A grand jury indicted defendant, charging him with first-degree
aggravated sexual assault (Ka.F.), N.J.S.A. 2C:14-2(a)(1); second-degree sexual
A-3031-19
5
assault (Ka.F.), N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of
a child (Ka.F.), N.J.S.A. 2C:24-4(a)(1); first-degree aggravated sexual assault
(Ki.F. oral penetration), N.J.S.A. 2C:14-2(a)(1); first-degree aggravated sexual
assault (Ki.F. fellatio), N.J.S.A. 2C:14-2(a)(1); first-degree aggravated sexual
assault (Ki.F. digital penetration), N.J.S.A. 2C:14-2(a)(1); second-degree sexual
assault (Ki.F.), N.J.S.A. 2C:14-2(b); third-degree terroristic threats (Ki.F.),
N.J.S.A. 2C:12-3(a); second-degree endangering the welfare of a child (Ki.F.),
N.J.S.A. 2C:24-4(a)(1); and second-degree aggravated assault (Ki.F.), N.J.S.A.
2C:12-1(b).
The State moved in limine pursuant to N.J.R.E. 803(c)(27) for an order
that Ki.F.'s recorded statements to Ka.F. and the detective were admissible under
the tender years exception to the hearsay rule. 2 After a hearing pursuant to
N.J.R.E. 104, at which Ka.F. and the detective testified, the trial court granted
the State's motion.
In a written opinion, the court found that under the totality of the
circumstances, the recorded statement Ki.F. made to Ka.F. was trustworthy. The
2
The parties agreed Ka.F.'s out-of-court statement to J.U. was admissible under
the fresh-complaint doctrine. "That doctrine allows the admission of evidence
of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to
negate the inference that the victim's initial silence or delay indicates that the
charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015).
A-3031-19
6
court found that Ki.F.'s exclamation, "I know" was spontaneous and the
questioning by Ka.F. that followed was mostly open-ended. In addition, the
court found Ki.F.'s account of the abuse was consistently repeated without
deviation. The court also found Ki.F.'s state of mind at the time she made the
statement points to reliability, as she believed she was in a safe environment
with her sister, whom she trusted. The court also found the terminology Ki.F.
used evidenced an absence of coaching, because she did not use medically
correct terminology. Finally, the court found an absence of evidence of
motivation to fabricate allegations against defendant or partisanship on the part
of Ka.F., who the court found was motivated by a desire to protect her sister.
The court also found the recorded statement of Ki.F. to the detective was
admissible. The court found that the detective asked non-leading and non-
suggestive questions in accordance with her specialized training. In addition,
the court found that Ki.F.'s account of the sexual abuse was consistent with the
statement she previously made to Ka.F. and the circumstances in which the
statement was made supported a finding of reliability.
Defendant subsequently moved to sever trial of the charges relating to
Ka.F. from trial of the charges relating to Ki.F. The State opposed the motion.
In an oral opinion, the court explained that where evidence established that
A-3031-19
7
multiple offenses are linked as part of the same transaction or series of
transactions, as is the case here, severance will be granted only when a defendant
establishes prejudice will result if the charges are tried together. Prejudicial
joinder, the court reasoned, is found when the jury may use evidence of one of
the crimes charged to infer criminal disposition on defendant's part to commit
the other crimes charged. The court noted that the test for determining prejudice
in these circumstances is whether, assuming the charged crimes were tried
separately, evidence of one set of charged crimes would be admissible in the
trial of the other set of charged crimes.
The court concluded that under N.J.R.E. 404(b) and the holding in State
v. Cofield, 127 N.J. 328, 338 (1992), if the counts were severed for trial,
evidence of defendant's sexual abuse of Ka.F. would be admissible in the trial
of the counts concerning Ki.F. and evidence of defendant's sexual abuse of Ki.F.
would be admissible in the trial of the counts concerning Ka.F. The court
reasoned that the evidence of defendant's abuse of each victim is clear and
convincing. In addition, the court found the details of defendant's sexual
assaults against the two victims are similar, as were the circumstances of the
assaults – defendant's access to the victims as a babysitter and his familial
A-3031-19
8
relationship to both victims. This evidence, the court found, is relevant to
defendant's motive, opportunity and intent.
The court also reasoned that defendant's history of sexual abuse of Ka.F.
would be admissible in the trial of charges relating to Ki.F. because of the
circumstances of Ki.F.'s disclosure of the abuse to her sister. Defendant's sexual
abuse of Ka.F., and the manner in which he carried out the abuse, were the
reasons she suspected defendant was sexually abusing Ki.F. Without that
evidence, the jury would not have a full understanding of the circumstances in
which Ki.F. revealed defendant's abuse to Ka.F. In addition, the court found the
probative value of the evidence outweighed any prejudice to defendant.
After the State rested, defendant moved for a judgment of acquittal. In an
oral opinion, the court denied the motion, finding the State had offered sufficient
evidence for the jury to find each element of the crimes charged had been proven
beyond a reasonable doubt. The court rejected defendant's argument that
inconsistencies in the victims' testimony and their father's history of hostility
toward defendant created reasonable doubt as a matter of law as to all charges.
The jury convicted defendant of all counts of the indictment, except
second-degree aggravated assault. On that count, the jury convicted defendant
of the lesser included offense of simple assault, N.J.S.A. 2C:12-(1)(a)(1).
A-3031-19
9
After finding two aggravating factors and no mitigating factors, the court
sentenced defendant to an aggregative sixty-year term of imprisonment, with an
eighty-five-percent period of parole ineligibility pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
This appeal followed. Defendant makes the following arguments.
POINT I
THE STATE FAILED AT TRIAL TO PROVE THE
CHARGES AGAINST DEFENDANT-APPELLANT
BEYOND A REASONABLE DOUBT.
POINT II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT-APPELLANT[']S MOTION TO
SEVER DUE TO PREJUDICIAL JOINDER.
POINT III
THE TRIAL COURT ERRED IN ADMITTING THE
VICTIM[']S STATEMENT[S] PURSUANT TO
N.J.R.E. 803(C)(27) – THE TENDER YEARS
EXCEPTION.
II.
A.
We review a denial of a motion for a judgment of acquittal de novo. State
v. Williams, 218 N.J. 576, 593-94 (2014); State v. Brown, 463 N.J. Super. 33,
47-48 (App. Div. 2020). The motion pursuant to R. 3:18-1 will be denied "if
A-3031-19
10
'viewing [only] the State's evidence in its entirety, be that evidence direct or
circumstantial,' and giving the State the benefit of all reasonable inferences, 'a
reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Sugar,
240 N.J. Super. 148, 152 (App. Div. 1990) (alteration in original) (quoting State
v. Reyes, 50 N.J. 454, 458-59 (1967)). The beyond a reasonable doubt standard
"gives full play to the responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
"In the absence of independent witnesses, the case often turns on an
assessment of the credibility of the participants, an assessment better left to the
trier of fact." State v. Budis, 125 N.J. 519, 528 (1991). "A trier of fact may
reject testimony because it is inherently incredible, or because it is inconsistent
with other testimony or with common experience, or because it is overborne by
other testimony." Congleton v. Pura-Tex Stone Corp., 53 N.J. Super. 282, 287
(App. Div. 1958); see also E&H Steel Corp. v. PSEG Fossil, LLC, 455 N.J.
Super. 12, 29 (App. Div. 2018) (holding that a factfinder may accept some parts
of a witness's testimony and reject other parts).
We have carefully reviewed the record and find no basis on which to
reverse the trial court's denial of defendant's motion for a judgment of acquittal.
A-3031-19
11
Defendant's arguments are primarily based on what he describes as
inconsistencies in the victims' recorded statements and testimony. For example,
defendant points out that Ki.F. testified that defendant rubbed his penis against
her vagina, but during her interview with the detective did not report that
contact, stating only that defendant put his hands and face on her vagina. In
addition, Ki.F. told Ka.F. during their recorded conversation that defendant
showed her what she thought was an exercise video. However, Ki.F. told the
detective that defendant showed her several pornographic videos. Ki.F. also
told the detective that Ka.F. was the first person she told about the sexual abuse,
although she had earlier told Ka.F. that she told her grandmother about the abuse
but was not believed. Defendant also argued Ka.F. prompted Ki.F. to accuse
defendant of sexually abusing her by revealing to Ki.F. details of Ka.F.'s alleged
sexual abuse.
Finally, defendant argues trial testimony revealed a history of animosity
between defendant and the victims' family, including their father. The victim's
father testified that he left the children in defendant's care because of defendant's
manipulation and that the victims knew their father thought defendant was
ignorant and a manipulator.
A-3031-19
12
Each of these points could have been or was raised by defendant's counsel
before the jury. As the finders of fact, the jury was authorized to weigh the
testimony, decide whether the alleged inconsistencies were actually direct
contradictions, and, if so, to decide what facts had been established beyond a
reasonable doubt. There was more than sufficient evidence on which the jury
could rely to decide beyond a reasonable doubt that defendant engaged in long-
term sexual abuse of his step-granddaughters while responsible for their care,
threatened them if they revealed his sexual abuse, and engaged in the other
crimes alleged against him.
B.
We are not persuaded by defendant's argument regarding the trial court's
denial of his motion to sever the trial of the charges. R. 3:7-6 provides that
[t]wo or more offenses may be charged in the same
indictment or accusation . . . if the offenses charged are
of the same or similar character or are based on the
same act or transaction or on 2 or more acts or
transactions connected together or constituting parts of
a common scheme or plan. Relief from prejudicial
joinder shall be afforded as provided by R. 3:15-2.
Where "it appears that a defendant . . . is prejudiced by a . . . joinder of
offenses . . . the court may order . . . separate trials of counts . . . or direct other
appropriate relief." R. 3:15-2(b). The rule addresses the inherent
A-3031-19
13
danger when several crimes are tried together, that the
jury may use the evidence cumulatively; that is, that,
although so much as would be admissible upon any one
of the charges might not have persuaded them of the
accused's guilt, the sum of it will convince them as to
all.
[State v. Pitts, 116 N.J. 580, 601 (1989) (quoting United
States v. Lotsch, 102 F.2d 35, 36 (2d Cir. 1939)).]
In addition, a jury may use the evidence of another crime to conclude defendant
has a criminal propensity. State v. Reldan, 185 N.J. Super. 494, 502 (App. Div.
1982). Such an inference could lead the jury to "employ an entirely different
. . . calculus of probabilities to determine the defendant's guilt or innocence."
State v. Stevens, 115 N.J. 289, 303 (1989) (quotations omitted).
"The test for assessing prejudice is whether, assuming the charges were
tried separately, evidence of the offenses sought to be severed would be
admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State
v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting State v.
Chenique-Puey, 145 N.J. 334, 341 (1996) (internal quotations omitted)).
N.J.R.E. 404(b) provides, in relevant part, as follows:
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Except as otherwise provided
by Rule 608(b), 3 evidence of other crimes, wrongs, or
3
Rule 608(b) is not applicable here.
A-3031-19
14
acts is not admissible to prove a person's disposition in
order to show that on a particular occasion the person
acted in conformity with such disposition.
(2) Permitted Uses. This evidence may be admitted
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident when such
matters are relevant to a material issue in dispute.
"The Rule's list of issues for which other-crime evidence may be admissible is
not intended to be exclusive." State v. Oliver, 133 N.J. 141, 151 (1993).
"Subject to the 'probativeness/prejudice' balancing test of [N.J.R.E. 403], other-
crimes evidence may be admitted under [N.J.R.E. 404(b)] when that evidence
bears on any fact genuinely in issue." Ibid.The Supreme Court established four factors to be weighed when deciding
if other crimes evidence is admissible under N.J.R.E. 404(b):
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[Cofield, 127 N.J. at 338.]
A-3031-19
15
"Because evidence of a defendant's previous misconduct 'has a unique tendency'
to prejudice a jury, it must be admitted with caution." State v. Willis, 225 N.J.
85, 97 (2016) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). "Prior-
conduct evidence has the effect of suggesting to a jury that a defendant has a
propensity to commit crimes, and, therefore, that it is 'more probable that he
committed the crime for which he is on trial.'" Ibid. (quoting State v. Weeks,
107 N.J. 396, 406 (1987)).
The Supreme Court has upheld the use of joinder to try a defendant in a
single trial for sexual crimes committed against multiple victims on diverse
dates. See e.g., Oliver, 133 N.J. at 150-56 (other-crimes evidence admissible to
show the feasibility of defendant sexually assaulting women in his bedroom
while other family members were present in the house and to show defendant
lured women to his home on a pretext); Stevens, 115 N.J. 289 at 294-95, 306-
07 (other-crimes evidence admissible to show intent of police officer charged
with subjecting female arrestees to inappropriate strip searches on various
occasions for his sexual gratification).
A more recent decision, State v. J.M., Jr., 225 N.J. 146 (2016), however,
explains the limits of those precedents. In J.M., Jr., the defendant was a massage
A-3031-19
16
therapist charged with sexually assaulting a client while giving her a massage.
Id. at 150. The defendant denied any sexual contact with the victim. Id. at 153.
Prior to trial, the State moved to admit evidence that the defendant had
committed a similar sexual assault against a female client years earlier while
working as a massage therapist in Florida. Ibid. The Florida incident resulted
in criminal charges of which the defendant was acquitted by a jury. Ibid. After
conducting a hearing at which the Florida client testified, the trial court admitted
the evidence of the Florida sexual assault under Rule 404(b), as relevant to
motive, intent, plan, and/or absence of mistake. Id. at 154.
On leave to appeal, the Supreme Court reversed. The Court held that "[i]n
a case in which a defendant contends the alleged assault did not occur, intent
and absence of mistake are not at issue. In the absence of a genuinely contested
fact, other-crime evidence is irrelevant and the first Cofield prong cannot be
satisfied." Id. at 159. The Court explained that when a "[d]efendant does not
argue that the alleged sexual assault . . . was consensual or accidental[,]"
evidence of a prior alleged sexual assault "is inadmissible to establish motive,
intent, or absence of mistake because defendant's state of mind is not a
'genuinely contested' issue in the case." Id. at 160 (quoting Willis, 225 N.J. at
98).
A-3031-19
17
Nor, the Court explained, was the prior-conduct evidence admissible "for
proof of plan, because it is insufficient to 'establish the existence of a larger
continuing plan of which the crime on trial is a part[.]'" Id. at 160 (quoting
Stevens, 115 N.J. at 306 (alterations in original)). "A 'strong factual similarity'
between the two sexual assaults is not enough to reveal a plan." Ibid. (quoting
Stevens, 115 N.J. at 305). Finally, the Court found that the probative value of
the evidence of the Florida sexual assault was outweighed by its potential for
undue prejudice – "namely, the jury's inevitable assumption that defendant has
a propensity to engage in such conduct . . . ." Id. at 161.
Given that defendant denied any sexual contact with Ka.F. and Ki.F., it
was error for the trial court to conclude that evidence of the sexual assault of
each victim was relevant to defendant's motive, intent, or opportunity with
respect to his sexual assault of the other victim.
However, the trial court correctly concluded that this evidence was
admissible because of its relevance to other genuinely contested facts: the
circumstances surrounding the motivation triggering Ka.F.'s delayed reporting
of defendant's abuse and Ki.F.'s disclosure of defendant's abuse to her sister and
police. It was Ka.F.'s history of being abused by defendant that caused her to
be suspicious that defendant was abusing Ki.F. and to ask her sister if defendant
A-3031-19
18
was sexually abusing her. In order to explain the basis for Ka.F.'s suspicion it
was necessary for the State to inform the jury of the details of defendant's sexual
abuse of Ka.F. Ka.F.'s suspicion regarding defendant's abuse of Ki.F., and
Ki.F.'s disclosure of defendant's abuse of her, resulted in Ka.F.'s delayed
disclosure that she too had been sexually abused by defendant years after the
abuse ended. Thus, if the charges against Ka.F. had been tried separately,
evidence of defendant's sexual abuse of Ki.F. would have been admissible at
that trial.
In addition, in order to establish what triggered Ki.F.'s disclosure of
defendant's sexual abuse, it was necessary for the State to introduce evidence
that Ka.F. approached Ki.F. because defendant was behaving toward Ki.F. in a
way that was similar to how he was acting toward Ka.F. when he was sexually
abusing her. The circumstances leading to Ki.F.'s disclosure are relevant to the
credibility of her accusations against defendant. Thus, if the charges against
Ki.F. had been tried separately, evidence of defendant's sexual abuse of Ka.F.
would have been admissible at that trial.
These circumstances differ considerably from those before the Court in
J.M., Jr. There, the other bad acts evidence concerned a sexual assault against
a victim that bore no relationship, other than their factual similarities, to the
A-3031-19
19
sexual assault for which the defendant was standing trial. The motivation and
timing of the two victims' reporting of that defendant's sexual abuse bore no
relationship to one another and were not genuinely contested in J.M., Jr.
Consequently, we do not view the holding in J.M., Jr. to be controlling here.
C.
Finally, we find no error in the trial court's decision to admit Ki.F.'s out-
of-court statements to Ka.F. and the detective. We review a trial court's
evidentiary rulings with deference. State v. Hyman, 451 N.J. Super. 429, 441
(App. Div. 2017). "[T]he decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." Est. of Hanges v. Metro. Prop. & Cas.
Ins. Co., 202 N.J. 369, 383-84 (2010). An abuse of discretion is found only
when the court has made a "clear error of judgment." State v. Koedatich, 112
N.J. 225, 313 (1988). The court's evidentiary decision should be sustained
unless it resulted in a "manifest denial of justice." State v. Perry, 225 N.J. 222,
233 (2016) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
"'Hearsay' means 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(c).
Hearsay is not admissible unless subject to a specific exception. N.J.R.E. 802.
A-3031-19
20
N.J.R.E. 803(c)(27) provides an exception to the exclusion of hearsay
statements by a child relating to a sexual offense. The rule provides that
[a] statement made by a child under the age of 12
relating to sexual misconduct committed with or
against that child is admissible in a criminal . . . case if
(a) the proponent of the statement makes known to the
adverse party an intention to offer the statement and the
particulars of the statement at such time as to provide
the adverse party with a fair opportunity to prepare to
meet it; (b) the court finds, in a hearing conducted
pursuant to Rule 104(a), that on the basis of the time,
content and circumstances of the statement there is a
probability that the statement is trustworthy; and (c)
either (i) the child testifies at the proceeding, or (ii) the
child is unavailable as a witness and there is offered
admissible evidence corroborating the act of sexual
abuse; provided that no child whose statement is to be
offered in evidence pursuant to this rule shall be
disqualified to be a witness in such proceeding by virtue
of the requirements of Rule 601.
[N.J.R.E. 803(c)(27).]
The trial court, after a hearing, made credibility determinations and
findings of fact with respect to the admissibility of Ki.F.'s out-of-court
statements that are amply supported by the record. We find no basis on which
to conclude that the trial court erred when it found the circumstances of Ki.F.'s
disclosure to Ka.F. and her recorded interview by the detective were indicative
of trustworthiness. Defendant's arguments to the contrary are unpersuasive.
Affirmed.
A-3031-19
21