On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Before Judges Shebell, Wallace and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D. Shebell, P.J.A.D., Dissenting.
The opinion of the court was delivered by
Tried to a jury, defendant G.S. was convicted of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2b (count one), third-degree aggravated sexual contact, contrary to N.J.S.A. 2C:14-3a (count two), first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (count three), second-degree endangering the welfare of a child, L.K., contrary to N.J.S.A. 2C:24-4a (count four) and second-degree endangering the welfare of a child, M.K., contrary to N.J.S.A. 2C:24-4a (count five).
Defendant was sentenced to the Adult Diagnostic and Treatment Center at Avenel for an aggregate term of twenty-three years with a ten-year period of parole ineligibility as follows: a seven-year term on count one; a five-year term on count two, to be served concurrently with the sentence on count one, but subject to a two-year period of parole ineligibility; a sixteen-year term on
count three to be served consecutive to the sentences imposed on counts one and two and subject to an eight-year period of parole ineligibility; and a sentence of four years on counts four and five, with each sentence to be served concurrent with the sentences imposed on counts one, two and three. Defendant was also ordered to pay a Violent Crimes Compensation Board penalty of $1,590.
On appeal, defendant raises eight points of error as follows:
THE TRIAL COURT'S EXCLUSION OF EVIDENCE OF THE VICTIM'S PRIOR SEXUAL CONDUCT, WHICH WOULD HAVE DEMONSTRATED HER PRIOR SEXUAL KNOWLEDGE, AS WELL AS HER BIAS AND MOTIVE TO FABRICATE THE CHARGES, VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE PROSECUTOR'S COMMENTS DURING SUMMATION PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING THE EVIDENCE OF PRIOR ALLEGED SEXUAL ACTIVITY BETWEEN DEFENDANT AND THE VICTIM.
THE TRIAL COURT'S LIMITING INSTRUCTIONS CONCERNING THE ALLEGATIONS OF PRIOR SEXUAL ACTIVITY BY DEFENDANT AND THE VICTIM WERE INADEQUATE .
THE LOWER COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A PSYCHIATRIC OR PSYCHOLOGICAL EXAMINATION OF THE VICTIM, WHO HAD BEEN DIAGNOSED AS SUFFERING FROM FANTASY GRATIFICATION/REALITY AVOIDANCE AND VARIOUS OTHER DISORDERS, HAD ATTEMPTED SUICIDE AND HAD PREVIOUSLY UNDERGONE EXTENSIVE PSYCHIATRIC TREATMENT/COUNSELING.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL .
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL (PARTIALLY RAISED BELOW).
THE TRIAL COURT'S SENTENCE TO CONSECUTIVE TERMS OF IMPRISONMENT CUMULATING 23 YEARS WITH A 10 YEAR PERIOD OF PAROLE INELIGIBILITY AND TO ENHANCED VCCB PENALTIES OF $1500 WAS NOT IN ACCORDANCE WITH THE SENTENCING GUIDELINES OF THE CODE.
The indictment charged G.S. with sexual crimes committed upon his stepdaughter, L.K., commencing in the spring of 1984 when L.K. was twelve years old and in the sixth grade and continuing on a regular basis until February 1987. Count five of the indictment charged defendant with endangering the welfare of his stepson, M.K., related to one event, discussed more fully hereafter, when M.K. was nine or ten years old. All of the events referenced within the indictment occurred in Sussex County, where defendant resided with his wife (now deceased), two children born of their marriage, and his stepchildren, L.K. and M.K.
We need not recount the exact details of the alleged sexual activity. L.K.'s graphic testimony at trial detailed sexual activity which progressed from fondling to include sexual intercourse, cunnilingus, masturbation and sexual perversion. Count five of the indictment encompassed one incident in which G.S. allegedly required L.K. to disrobe and permit M.K. to fondle her breasts and vagina as a method of sex education under G.S.'s guidance.
After careful and deliberate review, we conclude that G.S.'s conviction should be reversed and the matter remanded for a new trial. The trial court's admission of evidence of prior sexual conduct between G.S. and L.K. was improper without a more tailored limiting instruction to the jury pursuant to Rule 6 of the New Jersey Rules of Evidence (now R. 105).
Our focus in the first section of this opinion concerns those allegations of error raised by defendant as Points III and IV. The second section of this opinion focuses on allegations of error asserted in Point I. We will then consider defendant's claim of prosecutorial misconduct.
In 1982, when L.K. was eleven years old, the family unit resided in Monmouth County. After viewing an educational film in school
dealing with "bad touching" and "good touching," L.K. informed her mother that she did not want G.S. to bathe her any longer because G.S. had touched her genital area. She also indicated that G.S. would make her lie on her bed naked and would stare at her body. L.K. also indicated that she feared that G.S. would spank her with his hands, a ruler or a hairbrush as punishment for receiving a poor grade in school.
As a result of those allegations, the Division of Youth and Family Services (D.Y.F.S.) became involved with the family. L.K. was placed in the home of an aunt for approximately six months and in foster care thereafter. L.K.'s mother did not believe L.K.'s accusations, and she remained supportive of her husband. While L.K. was in foster care in 1983, G.S. was charged with endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. He applied for and was accepted to the Pretrial Intervention Program. While in foster care, L.K. recanted her original allegations concerning her stepfather, and D.Y.F.S. returned her to the home of her mother and stepfather.
Soon thereafter, the family moved to Sussex County. Approximately six months after this relocation, G.S. allegedly began to fondle L.K., and his sexual acts escalated in intensity and frequency. By February 4, 1987, G.S. was allegedly engaging in sexual relations with L.K. approximately three times each week. As a result of a revelation of these sexual acts on February 4, 1987, defendant was charged criminally and thereafter indicted.
At the ensuing trial, the State sought to present evidence of the sexual activity in Monmouth County, L.K.'s accusations and subsequent recantation, and the admission of G.S. into Pretrial Intervention. The State contended that the Monmouth County allegations were admissible to establish defendant's intent and to explain why L.K. never confided in her mother once defendant began to sexually abuse her. The trial court concluded that the evidence of the prior acts was admissible under Evidence Rule 55 to demonstrate defendant's motive or intent.
Evidence Rule 55 specifically provides: