On appeal from the Superior Court of New Jersey, Law Division, Essex County.
King, Deighan and Muir. The opinion of the court was delivered by King, P.J.A.D.
[219 NJSuper Page 292] Defendant appeals from his conviction for first-degree aggravated sexual assault. N.J.S.A. 2C:14-2a. He was sentenced to
18 years in State Prison with an eight-year parole disqualifier. We conclude that certain trial errors were sufficient to undermine our confidence in the verdict and reverse.
These are the facts upon which the conviction was obtained. In February 1982 five-year-old K. S. lived with her grandmother, Nether Broxton, in a house on Peshine Avenue in Newark. Defendant David Bowens, K. S.' father, lived in the basement of the house. K. S. testified that once, while her grandmother was sleeping, her father inserted his finger into her vagina and told her not to tell anyone. She also testified that her uncle, Charles Broxton, had inserted his penis into her. K. S. contradictorily testified both that the assault by Charles happened at the same time and at a different time than David Bowens assault. She could not recall in what room the assault occurred nor whether it was during the day or night. Soon after these assaults K. S. contracted gonorrhea and her grandmother took her to the emergency room of Children's Hospital of Newark where doctors concluded that she had been sexually abused. That same day Nether Broxton filed a complaint alleging abuse of K. S. by both David Bowens and Charles Broxton.
David Bowens claimed that he did not commit any assault. He introduced witnesses to raise the possibility that Curtis Price, Nether Broxton's male friend, had actually committed the assault and that Nether Broxton had filed the present complaint because of malice towards defendant David Bowens and fear of Curtis Price. Both defendant's sister Regina Bowens and his aunt Maryann Broxton testified that during February or March 1982 Nether Broxton had contracted gonorrhea from Curtis Price. Maryann Broxton also testified that during a dispute in April 1982 between Nether Broxton and David Bowens over money, Nether Broxton threatened to have David "locked up." Neither Curtis Price nor Nether Broxton testified at trial.
As noted, defendant was convicted of first-degree aggravated sexual assault and sentenced to 18 years in State Prison with an eight-year parole disqualifier.
On the first day of trial in this case the prosecution moved to change the indictment from alleging that the crime took place "on or about the 15th of February, 1982" to alleging that it occurred "sometime during the month of February, 1982." Defendant not only made no objection to this change at the time but defense counsel assisted the court in picking the proper language to use in the amendment. Defendant now claims that he did not have proper notice of the time of the offense as required by State in the Interest of K.A.W., 104 N.J. 112 (1986). Not only is his claim legally insufficient, it was waived through his failure to object and his counsel's assistance in the amendment process. R. 3:10-2.
The specific day of this particular assault is not critical since defendant never alleged that he was not in the vicinity at the time of the incident. He had alleged that Nether Broxton and Curtis Price were the likely perpetrators. K.A.W. dealt with a trial court's reaction to a motion to dismiss on the same grounds which defendant alleges here. The trial judge should not have the obligation of realizing that defendant had a valid K.A.W. -based objection to an amendment of the indictment where defense counsel unequivocally stated that he had no objection and then proceeds to suggest the appropriate language which should be in the amended indictment.
The cornerstone of David Bowens' defense was that Nether Broxton and her boyfriend Curtis Price actually committed the assault upon K. S. The judge permitted defendant to attempt to establish through Regina Bowens, defendant's sister, that Nether Broxton, Curtis Price and K. S. all had venereal disease after the assault. The following dialogue took place a few moments later in her testimony:
Q. Miss Bowens, to your knowledge how did Nether Broxton feel about Curtis Price? Please don't tell us about any conversation that she had, but to your knowledge how did she feel about him?
A. She was afraid of him.
Q. And do you know why she was afraid of him?
A. He used to beat her all the time and he also had killed his niece, raped his niece and child.
MR. LAURINO [the prosecutor]: Objection, Judge, objection, Judge.
The point of this testimony was to establish that Nether Broxton's fear of Curtis Price was so strong that, even if he had committed the assault against K. S., Nether Broxton would try to pin it on David Bowens rather than accuse Curtis Price and later have to face his wrath.*fn1 The judge conducted an Evid. R. 8 hearing at the prosecutor's request and cut short this line of questioning, instructing the jury, "Members of the jury, I instruct you that any testimony given by the present witness [Regina] concerning alleged crimes that may have been committed by Mr. Price is to be disregarded by you and are not to play any part in your consideration of the defendant's guilt or innocence in this matter." The judge's exclusionary ruling was based upon Evid. R. 4; he felt that even if the evidence "does have some probative value, its impact maybe ...