On appeal from Superior Court, Law Division, Essex County.
Judges Pressler, Deighan and A. M. Stein. The opinion of the court was delivered by Pressler, P.J.A.D.
Following a jury trial, defendant Vincent Ross was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); two counts of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; and one count of second-degree sexual assault, N.J.S.A. 2C:14-2b. He was sentenced to concurrent 15-year terms on the first-degree convictions, concurrent 9-month terms on the fourth-degree convictions and a concurrent 7-year term on the second-degree conviction. We reverse.
The alleged victim of these crimes was E.C., the then ten-year old daughter of the woman in whose home defendant's girlfriend was residing with her own two children and where defendant was therefore a frequent visitor. The incidents forming the basis of the indictment occurred over an approximate two-week period during the latter half of March 1987. According to the uncorroborated testimony of E.C., defendant during this period performed an act of sexual contact with her
while both were fully clothed and twice thereafter forced her to perform acts of fellatio. She did not tell anyone of these events until about two months later when she revealed them to her mother. Defendant, who testified in his own behalf, denied that these acts ever took place. The jury evidently, however, believed the victim.
The primary issue raised by defendant on appeal implicates the Rape Shield Law, N.J.S.A. 2C:14-7. The trial predated our decision in State v. Budis, 243 N.J. Super. 498 (App. Div.), certif. granted, N.J. (1990), and consequently no reference to the victim's prior sexual experiences was permitted into evidence.
The issue arose in this manner. During the course of her opening statement, the prosecutor suggested to the jury that the victim, by reason of her tender age, could not have had the knowledge to assert that defendant had abused her as she alleged he did unless the incidents had actually occurred.*fn1 During the course of his opening statement defendant attempted to overcome this suggested inference by telling the jury that in fact the victim did have such knowledge because she claimed to have been sexually abused twice before. The prosecutor immediately objected and the jury was excused.
During the course of the ensuing colloquy, defense counsel advised the trial judge that he had been provided during the course of discovery with a D.Y.F.S. report apparently made in connection with its investigation of these charges*fn2 and that the report stated that the victim claimed to have been sexually abused by one adult male relative when she was six years old
and by another adult male relative when she was eight years old. Insofar as we can determine from the record, the D.Y.F.S. report did not disclose whether these claims by the victim had been contemporaneously reported or followed up in any way either within the family or by social service or law enforcement agencies.
The trial judge conducted a Rule 8 hearing. The victim testified that those events had occurred and described them. The questioning did not cover the issue of her contemporaneous disclosure of these alleged events or any other surrounding circumstances or indeed anything else beyond her statement that the acts of abuse had taken place. Nor was the victim's mother, who later testified as a State witness, called as a witness during the Rule 8 hearing. At the close of the hearing, the court ruled that the Rape Shield Law precluded any reference to these prior claims. The jury was then recalled and the judge gave this instruction:
Ladies and gentlemen of the jury, before we start taking testimony, I just want to mention one thing. During one of the openings of counsel, reference was made to prior allegations by E.C. with regard to sexual abuse by others against her. That was incorrect, should not have been made, and you are to disregard it and strike it from your recollections.
The court then overruled defense counsel's objection to the use of the word "incorrect" to characterize the excluded references. Significantly, while the jury was instructed to disregard defense counsel's reference to prior sexual abuse of the victim by others, it was not told to disregard the statement of the prosecutor which had provoked the reference, namely, that the victim's naivete precluded her fabrication. The prejudice necessarily resultant from ...