On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Gaulkin and Dreier. The opinion of the court was delivered by Dreier, J.A.D.
Defendant has appealed from a conviction of second degree sexual assault, N.J.S.A. 2C:14-2b. He was sentenced to a term of 10 years, the maximum permitted for a second degree crime, although the trial judge imposed no period of parole ineligibility.
On November 5, 1984 defendant awakened his four-year old niece who was spending the night at the home of her grandmother where defendant also resided. Although there was significant evidence of some penetration, the jury obviously found that defendant merely rubbed his penis against the victim's vagina and genital area and then left the victim's bedroom. Soon thereafter she entered the kitchen crying and upset, telling her aunt that her "poo poo" hurt. The aunt, who was baby-sitting with the child, took her into the bathroom and, receiving no further explanation, examined the child's vaginal area, noting that it was slightly inflamed. She then took the child to another area of the house away from where the other children were playing. The victim then told her aunt that defendant had pulled down her pants and stuck his "ding ding," which was sticking up, in her.
The aunt did not confront defendant, her brother, at that time because she did not know how he was going to react, but rather waited until the child's mother returned home in the early morning. She then immediately told the mother what happened the previous night, whereupon the mother also spoke to the young girl. The mother testified that the child explained that defendant had pulled down his pants and her pajamas and put his "ding ding" in her "poo poo."
The child was taken to United Hospital in Newark where she was examined. The doctor testified that she observed a generalized redness in the victim's entire external genital area, her hymen orifice was slightly enlarged, and there was a small abrasion on the opening to her hymen. There was also a 1/2
centimeter laceration which appeared to be a recent wound in the child's labium majora.
Defendant testified at trial and denied doing anything to his niece; he admitted, however, that he was the only adult male in the house on the evening the alleged act occurred. While there had been some question whether the defendant had hidden when the police originally came to look for him, and defendant denied that he had done so, he admitted he hid in the basement when the police had dropped the aunt off at the family home.
Defendant produced three character witnesses to testify as to his truthfulness, but when he attempted to introduce opinion testimony from these same witnesses concerning the character of the victim, her mother and her aunt, the trial judge excluded the testimony under Evid.R. 4.
During trial, the mother testified that on occasion defendant would sleep with one of another sister's children. She was then asked whether she had ever heard of "any complaints about him doing to any of those kids --." After an objection to this question had been overruled, she answered, "Not with one of my sister's kids, but twice with my sisters --." After another unsuccessful objection and a request to strike the answer, the mother was permitted to complete her answer and add the names of two of her sisters. These questions, however, were posed by defense counsel on cross-examination even though the State had raised no issue concerning other improper sexual activity on the part of defendant.
Defendant urges five points on this appeal:
Prejudicial instances of defendant's conduct not the subject of a criminal conviction were admitted into evidence contrary to Rules 47 & 55.
Character evidence offered by defendant to impeach the credibility of State witnesses was erroneously and prejudicially excluded.
Defendant was prejudiced by admission of alleged 'fresh complaint' testimony which was not fresh.