newjerseynewsroom.com

New Jersey Supreme Court upholds Monmouth County conviction

BY MARGARET McHUGH

NEWJERSEYNEWSROOM.COM

Sex offender Terry Coder failed today to get his 2003 conviction overturned on the grounds his 3-year-old victim’s out-of-court statements were introduced at trial without her taking the witness stand.

In a unanimous decision, the state Supreme Court found that a Monmouth County judge properly allowed the child’s mother to testify to what her daughter told her right after the August 2001 incident.

Coder, now 48 and on parole, was the superintendent of a Long Branch apartment complex when he lured the 3-year-old girl and an 11-year-old girl into the basement of a building, exposed himself to them and then pulled down the younger child’s underpants to touch her.  A week earlier, he had shown pornographic magazines to the older girl, according to court records.

Before police were called, the younger girl told her mother “it hurts’’ and pointed to her private parts, according to the decision. She again pointed to her private parts and said, “Mommy, he touched me’’ while they were waiting for police to arrive, the decision said.

In a statement to police, Coder admitted he exposed himself, but denied touching either child. He claimed while the three were in the basement, the 11-year-old girl asked him numerous sexual questions and then lifted up the dress of the 3-year-old and said,  ‘this is what I look like,’ according to court records. Coder claimed he exposed himself to scare the 11-year-old girl and make her leave.

At a pre-trial hearing, the child, then 4, said she couldn’t recall the incident. The judge decided to let the mother testify about what the child had said, based on the “tender years’’ exception to the rule prohibiting hearsay. The exception allows the use of statements from children under 12 in cases of sexual misconduct.

The Supreme Court ruled that the judge erred in finding that the child was available to testify at trial — one of the prongs to be satisfied to enact the “tender years’’ exception. However, the high court found that the statements still were permissible because they corroborated the testimony of the 11-year-old witness, who told the jury she saw Coder put his hands on the 3-year-old’s bottom.

A jury convicted Coder of sexual assault and attempted sexual assault, both second-degree offenses, as well as lewdness and child endangerment. Coder was sentenced to 11 years in prison, including 71 months before chance of parole.  He was released from state prison in December, according to state Department of Corrections records.