On appeal from Superior Court, Law Division, Camden County.
Antell, Deighan and Cohen. The opinion of the court was delivered by Antell, P.J.A.D.
[222 NJSuper Page 250] Defendant was charged in the first count of an indictment with aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and in the second count with sexual assault, N.J.S.A. 2C:14-2b. The more serious crime charged in the first count was allegedly committed by the digital penetration of the victim's vagina, she then being less than 13 years of age. The second count charged that the lesser offense of sexual assault was accomplished by "intentionally touching the intimate parts, i.e., breast and inner thigh" of the victim. Defendant's motion to dismiss the first count for lack of proof of penetration was granted at the end of the State's case. Also addressed by defendant's motion to dismiss was the second count of the indictment which was not supported by any proof that defendant had touched the breast and inner thigh of the victim. Rather than dismiss that count the trial judge struck therefrom the allegation that there had
been a touching of the victim's breast and thigh and substituted therefore an allegation, which conformed to the evidence, that there had been a touching of the victim's vagina.
On this appeal defendant asserts the trial court committed reversible error in receiving into evidence certain testimony under the "fresh complaint" rule and by amending the second count of the indictment in the manner described.
On April 20, 1984 defendant's daughters, C. and L., respectively aged 11 and 7 years old, came to his home for an overnight visitation at the request of their mother, Mrs. M., from whom defendant had been divorced for approximately eight years. The crux of the prosecution was that when the girls were in bed defendant explored with his hands the private areas of C.'s person. A day or two later C. related the incident to her close friend, 10 year old S., who repeated it to her mother, Mrs. S. Mrs. S. thereupon questioned C. and then reported to C.'s mother, Mrs. M., what she had learned. Mrs. M. discussed the matter with her daughter on May 2, 1984.
During presentation of the State's case S. was permitted to testify that C. had told her of the incident in which defendant touched her vagina. Mrs. S. was permitted to testify that after conversing briefly with S., her daughter, she questioned C. who told her that defendant had "inserted his finger inside of her." Mrs. M. was permitted to testify that C. told her on May 2, some 12 days after the event, of the overnight visit at defendant's home during which defendant came in and out of the bedroom "feeling her body, putting his fingers in her vagina."
The foregoing testimony was received under the fresh complaint rule pursuant to which the State is permitted to show in a sexual abuse prosecution that the victim complained of the act within a reasonable time to one to whom she would ordinarily turn for sympathy, protection or advice. State v. Tirone, 64 N.J. 222, 226-227 (1974); State v. Balles, 47 N.J. 331, 338-339 (1966), cert. den. 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967); State v. Gambutti, 36 N.J. Super. 219, 228-229 (App.Div.1955);
State v. Saccone, 7 N.J. Super. 263, 266 (App.Div.1950). The rule has been held applicable in child abuse situations. N.J. Youth & Family Serv. Div. v. S.S., 185 N.J. Super. 3, 8 (App.Div.1982). Its rationale and application were explained by the Supreme Court in State v. Balles, 47 N.J. at 338-339:
The rule is applied widely in rape and morals cases and permits proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice. See State v. Gambutti, supra, 36 N.J. Super., at p. 225.
Wigmore sets forth three principles under which the proof may be offered. He describes the first as an explanation of a "self-contradiction" which would result from the absence of a complaint. He points out that if no testimony were offered with respect to the complaint the jury might naturally assume that none was made and that it is only just that the prosecution be permitted to forestall this natural assumption by showing that a complaint was in fact made. Under this principle the complaint but not its details is admissible and impeachment of the witness is not material. Wigmore, supra, § 1136. The second permits the rehabilitation of the witness after she has been impeached, by showing that she made statements shortly after the incident consistent with her testimony; under this principle the details of the complaint are admissible. Wigmore, supra, § 1138. The third admits the complaint under res gestae where that doctrine's requirement of spontaneity is met; here the details are admissible and impeachment is not material Wigmore, supra, § 1139.
It is not here suggested that C.'s statement was part of the res gestae or that she had been impeached. The fresh complaint theory with which we are here concerned is that which authorizes such testimony to "repel any inference that because the victim did not complain no outrage had in fact transpired." McCormick, Evidence, § 297 at 859 (3 ed. 1984). On this basis, only those details of the complaint which are necessary to show the nature of the complaint may be ...