Sexual Assault Case Hinges On Voluntary Confession

In State v. R.P. the defendant was convicted of sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(c)(3)(a)); fourth degree criminal sexual contact (N.J.S.A. 2C:14-3(b)); and one count of endangering the welfare of a child (N.J.S.A. 2C:24-4(a)). The defendant was sentenced to 8 years each on counts one and two to be served consecutively with the remaining sentences to be served concurrently with count one resulting in a total sentence of 16 years. Defendant lived with his biological children and his wife. His wife suspected defendant of being unfaithful and placed a recording device in their bedroom and, days later, found a recording of the defendant and his daughter in what seemed to be sexual acts. The defendant's wife contacted the Bergen County Prosecutor's office who interviewed the defendant's 17 year old daughter who advised the prosecutor sexual acts had occurred between her and the defendant. Detectives visited R.P. at his residence, notified him he was the subject of an investigation and requested that he go to the Prosecutor's Office with them for questioning. The defendant went with the detectives, was Mirandized and waived his Miranda rights. During an 8 minute videotaped interview the defendant stated that for approximately 6 months he and his daughter would lie, in their underwear, on the bed defendant shared with his wife and watch television while the defendant hugged and kissed his daughter's body. He also admitted to putting his mouth on her vagina but denied ever having sexual intercourse. The matter was originally heard in Bergen County Superior Court. At trial, defendant's wife indicated she was under a great deal of stress when she thought the voices were her husband and his daughter and later realized the voices were her cousins who had been visiting that weekend. The daughter provided the same testimony she had originally provided to the detectives. The taped confession was provided to the jury and admitted into evidence without objection by defense counsel. The defendant appealed the matter based on lack of the voluntariness of his confession for failure of the court to comply with N.J.R.E. 104 relating to voluntariness of the confession and N.J.R.E. 403 balancing test to determine whether the probative value of defendant's statement was substantially outweighed by the prejudice it would cause against defendant. R.P. claimed his confession was "false because it was made in a stressful and inherently coercive situation." State v. Cook, 179 N.J. 533 (2004), State v. Jordan, 147 N.J. 409 (1997) and State v. Kelly, 61 N.J. 283 (1972) are among a long line of cases indicating that confessions obtained under coercive circumstances are inherently unreliable. The NJ Appellate Division remanded the matter for a Rule 104 hearing in which the state must demonstrate the voluntariness of the defendant's confession beyond a reasonable doubt. The appeals court did not agree with the State that the evidence against defendant was "overwhelming" and found the failure to conduct a Rule 104 hearing to be plain error. The Appellate Court further considered the fact that admission of the confession, if it was involuntary, could certainly produce an unjust result. If you are charged with a sex crime you are subject to incarceration, registration as a sex offender and the accompanying stigma which will affect where you may live, where you may work and how others will treat you and possibly even civil commitment. It is critical that you obtain experienced criminal defense counsel to assist you with these charges. For more information about rape, endangering the welfare of a minor, sexual assault, criminal sexual contact and other sex crimes in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sex Offender's Confession Inadmissible

Bergen County Superior Court Judge Patrick Roma oversaw a trial in which R.P. was convicted on four counts of 2nd degree sexual assault by sexual penetration of a blood relative between the ages of 16 and 18 (N.J.S.A. 2C:14-2(a)), one count of 4th degree criminal sexual contact (N.J.S.A. 2C:14-3) and one count of 2nd degree endangering the welfare of a child (N.J.S.A. 2C:24-4) for allegedly having sexual contact with R.P.'s own 17 year old daughter, "Jane". R.P. was sentenced to consecutive 8 year terms on two of the counts, with the remaining sentences to be served concurrently. R.P.'s wife, "Vera", was suspicious that R.P. and "Jane" were having a sexual relationship and placed a recording device in the master bedroom of their home and later found a recording of a "very explicit sexual interaction" in which, upon reporting, she verified the voices of "Jane" and R.P. "Jane" advised officers, during her interview, that she and her father were sexually involved and that she participated due to privileges he would afford her including use of a car, later curfew and permission to date. "Vera" later recanted her testimony indicting she was under substantial stress at the time she made the tape and identified the voices and later realized the voices were those of her cousins who had been visiting the residence at the time of the recording. R.P. initially denied the allegations and later confessed in a video and audio interview by police to a consensual sexual relationship indicating they never had intercourse. R.P. challenged the conviction based on the voluntariness of the confession in which one officer was yelling at him and, due to lack of understanding, made statements to protect his daughter. R.P. claimed "Jane" provided false testimony based on R.P. having disciplined her and he also stated the voices on the wife's tape were those of the wife's cousins. The Appellate Division found no impropriety in the two consecutive sentences based on the need to deter such activity. However, in regard to the confessions, they held that, in spite of defense counsel's failure to object to the confession upon the prosecution's entry of the statement into evidence but then calling for a mistrial the following day, it was plain error for the trial judge not to conduct a hearing under NJ Rule of Evidence 104 to determine the voluntariness of the confession. Rule 104 addresses the reliability of statements given during confession in an effort to ensure confessions are given only voluntarily, without duress, compulsion or coercion. Rule 104 also deems confessions under such circumstances are unreliable. The Appellate Division reversed for a new trial requiring the state to prove voluntariness of the confession beyond a reasonable doubt. If you have been charged with a sex crime you face severe consequences including prison, societal scorn and inclusion on the sex offender registry and possible involuntary civil commitment. It is critical you obtain experienced defense counsel to immediately begin to review the prosecution's evidence, speak with witnesses, explore alibis you may have and build a defense. For more information about sexual assault, aggravated sexual assault, criminal sexual contact, endangering the welfare of a minor and other sex crimes visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

First or Second Degree Sexual Assault Conviction Turns On "Severe Personal Injury" To Victim

In 2005, O.M., a 32 year old woman, first disclosed that she was sexually abused by her stepfather, R.P. when she was a child. R.P. was convicted of first-degree aggravated sexual assault by committing an act of sexual penetration with O.M. when she was at least 13 but less than 16 and related to O.M. by affinity (N.J.S.A. 2C:14-2(a)(2)(a)) and defendant stood in loco parentis within O.M.'s residence (N.J.S.A. 2C:14-2(a)(2)(c)); first-degree aggravated sexual assault by commission of an act of sexual penetration with O.M. while using physical force or coercion, and O.M. received severe personal injury (N.J.S.A. 2C:14-2(a)(6)) and second-degree aggravated sexual assault by committing an act of sexual penetration with O.M. while she was at least 16 but less than 18 (N.J.S.A. 2C:14-2(c)(3)). An additional count of first-degree aggravated sexual assault by committing an act of sexual penetration on a minor under thirteen (N.J.S.A. 2C:14-2(a)(1)) was dismissed. Upon conviction, R.P. received two concurrent 18 year prison terms with a 9 year period of parole ineligibility and a concurrent 8 year prison term with a 4 year parole disqualifier. O.M. testified that R.P. began molesting her when she was 12 years old, initially by performing oral sex on her or penetrating her digitally. Later, the abuse by R.P. progressed to sexual intercourse without condoms with physical force over O.M.'s objections. The regular assaults resulted in 2 pregnancies when O.M. was age 16 and the first prior to her attaining age 16. The earlier pregnancy was terminated by abortion and O.M. gave birth to the second. The NJ Appellate Division held that, although substantial time had elapsed there was substantial evidence upon which a determination of guilt could be made. Where the Appellate Division found issue with the trial court's finding was in regard to failure to charge the jury on sexual assault as a lesser-included offense of aggravated sexual assault. In State v. Ramsey, 415, N.J. Super 257, 266 (App.Div. 2010) the court held "improper instructions on material issues are presumed to constitute reversible error" in criminal trials. Pursuant to N.J.S.A. 2C:14-2(a)(6) an act of sexual penetration on another using physical force or coercion in which the victim sustains "severe personal injury" constitutes first-degree aggravated sexual assault. Under N.J.S.A. 2C:14-2(c)(1) an act of sexual penetration on another using physical force or coercion without "severe personal injury" to the victim constitutes second-degree sexual assault. Other than the "severe personal injury" the elements of these two offenses are the same and the trial court's failure to charge the jury on the lesser-included offense is plain error which could have produced an unjust result. No court in New Jersey has held an unwanted pregnancy to constitute severe personal injury and the question of severe personal injury would then be left to a jury on a case by case basis. Commission of a sexual offense can be discovered many years after the incident or incident and can result in substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sex crimes, internet crimes, child pornography, rape, endangering the welfare of a minor or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.