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State v. Scherzer

May 20, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN SCHERZER, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. KYLE SCHERZER, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. CHRISTOPHER ARCHER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Approved for Publication May 22, 1997. As Corrected May 29, 1997. As Amended June 16, 1997. Second Correction July 11, 1997.

Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

In May 1990, defendants, Kevin Scherzer and Kyle Scherzer, twin brothers, were indicted, along with three co-defendants, Peter Quigley, Richard Corcoran, Jr., and John Maher, on various sexual assault charges allegedly committed against a mentally defective victim, M.G. In September 1990, the prosecutor's application to have three juveniles, Christopher Archer, his brother Paul Archer, and Bryant Grober, tried as adults was granted. Therefore, in September 1991, a superseding indictment was obtained charging all eight defendants with second degree conspiracy to commit aggravated sexual assault (N.J.S.A. 2C:5-2 and 2C:14-2a(5), Count One); two counts of first degree aggravated sexual assault (sexual penetration of mentally defective person) (N.J.S.A. 2C:14-2a(5)(b), Counts Two and Four); two counts of first degree aggravated sexual assault (sexual penetration using physical force or coercion) (N.J.S.A. 2C:14-2a(5)(a), Counts Three and Five); and four counts of third degree aggravated criminal sexual contact (N.J.S.A. 2C:14-3a, Counts Six, Seven, Eight, and Nine).

Pretrial hearings and motions began in June 1991, and continued until March 1992. On April 3, 1992, Quigley pled guilty to endangering the welfare of an incompetent person (N.J.S.A. 2C:24-7), a disorderly persons offense. Defendants' motion to seal Quigley's statement was granted. In May 1992, the State's motion to sever the trial of Corcoran was granted, and the indictment was dismissed as to Corcoran in January 1994, after defendants' trial was completed. Defense motions to dismiss the indictments and for severance of the trials of Christopher Archer, Grober, and John Maher were denied, and we denied leave to appeal. On June 23, 1992, Paul Archer gave a statement as a condition of his acceptance into the pretrial intervention program ("PTI") and then pled guilty to endangering the welfare of an incompetent person.

Several Rape Shield Law hearings followed between July, 1992, and September 1992. Jury voir dire began on September 22, 1992, and the trial followed on October 15, 1992. On October 20, 1992, an in-camera hearing was held on the admissibility, under the Rape Shield Law, of portions of tapes made of conversations with M.G. Following six days of jury deliberations, the trial concluded on March 16, 1993. The three appellants, Kevin Scherzer, Kyle Scherzer and Christopher Archer, were convicted of second degree conspiracy to commit aggravated sexual assault (Count One), and first degree aggravated sexual assault by force or coercion (Count Three). They were acquitted of Counts Four through Nine. In addition, Christopher Archer and Kevin Scherzer were convicted of first degree aggravated sexual assault upon a mentally defective person (Count Two), and Kyle Scherzer was convicted of the lesser included offense of second degree attempted aggravated sexual assault. Bryant Grober, who has not appealed, was convicted of third degree conspiracy to commit aggravated criminal sexual contact and was acquitted of all other charges.

At sentencing on April 23, 1993, appellants' convictions on Counts One and Two were merged into their convictions on CountThree. They were then sentenced as young adult offenders to the Youth Correctional Institution Complex for indeterminate terms with fifteen-year maximums, but were continued on bail pending appeal.

Kyle and Kevin Scherzer and Christopher Archer, appeal. Although the State also filed a notice of cross-appeal, it did not pursue its cross-appeal when it submitted its briefs in response to defendants' briefs on appeal.

FACTS

M.G. lived in Glen Ridge most of her life, where she attended special education classes at the elementary and middle schools. In 1989, when seventeen years of age, she attended classes for the "educably mentally retarded" at West Orange High School. She participated in athletics programs, such as softball and basketball, at Glen Ridge High School. Defendants were also Glen Ridge residents and M.G. had known them since grade school.

At trial M.G. testified that on the afternoon of March 1, 1989, she went to Carteret Park in Glen Ridge, to play basketball. There she saw the Archer brothers, Corcoran, and another boy. While she was shooting baskets, Christopher Archer, Grober, Quigley, and two other boys greeted her. In her direct testimony, M.G. said that Grober told her that if she went to the Scherzers' basement with them she would get to go out with Paul. However, on cross-examination she said that she went up to Grober, placed her hand on his crotch, and said something to the effect of "Nice package you have there. Would you like a blow job?" On redirect, she stated the latter testimony was a lie, as she did not want to hurt people.

She said she walked to the Scherzers' house with Christopher Archer, who put his arm around her shoulders. She viewed this as "romantic." When they arrived, there were already "a lot of people" on the stairs and in the basement. Others started setting up chairs near the couch, while she and Grober sat on the couch. M.G. said that when some of the boys asked her to, she took offher sweat pants and T-shirt. Thereafter, at the urging of the boys, sexual activity occurred beginning with M.G. inserting her fingers in her vagina, her masturbating and performing fellatio on five of the young men, permitting Kevin to insert a broomstick and Christopher to insert the handle of a baseball bat into her vagina. She said she permitted Corcoran to put a small stick in her vagina. Four of the boys also sucked on her breasts. Before she left, some of the boys told her "not to tell anybody" or they would tell her mother and she would "get in trouble."

Paul Archer, called on behalf of the defense, testified to a different account of the events. He said he and Quigley went to the park because he had heard some baseball players would be throwing the ball around. When they arrived, they went over to talk to the Scherzer brothers and some other friends who were on the basketball court. Soon afterward, Grober and Christopher arrived. Then M.G. arrived carrying a basketball and went directly to Grober. Paul overheard M.G. say, "Bryant, you're really hot. You're sexy. I like your body. You have a nice package." Grober appeared startled. Paul said that in all the years he had known Grober, he had never before seen him engage in conversation with M.G. After M.G. made these comments to Grober, Paul saw her reach for Grober's crotch, and Grober lunged back. M.G. then asked if Grober wanted a "blow job." At first Grober did not take her seriously, but after they talked, he asked if she meant it.

Paul and Quigley walked to the Scherzers' house, where there were "a couple of guys" playing Nintendo in the basement. Soon, Grober and M.G. appeared. Paul observed Grober drop his pants, and M.G. kneel down and perform fellatio. After a while, he saw Grober rest his hand on M.G.'s shoulder, but did not observe him exert pressure. Grober then moved his hand to the top of M.G.'s head, but once again no pressure was exerted. He did not hear M.G. say any words of resistance. According to Paul, the entire act took about thirty seconds. Grober then sat down and did not participate in any other sexual activity with M.G.

According to Paul, M.G., who was "totally in control" of the events, then said that "that blow job just got me so horny, I want to have sex with someone." When no one responded, she stood up, pulled down her pants, and then laid down on the couch. He said she then placed her fingers followed by the other objects into her vagina voluntarily. Kevin and Christopher helped her move the broomstick in and out. On cross-examination, Paul admitted that he had testified, when the Judge was taking his guilty plea, that his brother and Kevin had inserted the broomstick into M.G., but said that testimony was a mistake.

He said that as people started to leave, M.G. walked to him, pulled up her shirt and bra, and said, "Paul, don't you like my breasts?" She asked him to touch them, but he refused. He said no one else touched her breasts, nor did he observe M.G. masturbating any of the boys or anyone doing anything with a stick. When M.G. asked if the boys wanted to "come back another day and do it again," no one responded. Some of the boys said, "You're not going to say anything about this?" and she said no. He said that the entire incident, from the time M.G. first walked up to Grober at the park until she left the basement, lasted about twenty minutes.

Three boys who said they left the basement soon after the sexual activity began testified for the State. They agreed that M.G.'s activities with Grober, which is all they witnessed, appeared to be voluntary, as they did not see Grober use any force.

The first adult to whom M.G. related the incident was her swimming instructor, who testified that on March 3, 1989, after the swim class, M.G. came to talk to her, but seemed hesitant. M.G. said she had gone to a party during the week, that there were boys there, and that "something had happened." When asked what happened, M.G. said she did not want to talk about it now. The next day the instructor talked to M.G. in the locker room. M.G. told her she had gone to someone's basement and the boys asked her to "suck their dicks" and "stuck something up [her] butt." The instructor told M.G.'s classroom teacher at West Orange High School about the incident. The teacher informed M.G.'s parents about a week after the incident occurred. When M.G. learned that the instructor had told others about the incident, she was angry and said that it was her own fault that the "boys got in trouble" and that "she was going to lie."

M.G.'s mother took her to a gynecologist on March 14, 1989, however, a pelvic examination showed nothing abnormal. Her mother first met with the Glen Ridge police on March 22, 1989, and on March 27, 1989, M.G. and her mother met with Detective Sheila Byron. They brought a stick M.G. had brought home after the incident. Detective Byron became the principal investigator on the case.

M.G. gave the prosecution four statements--on April 7, May 5, May 18, and August 3, 1989. In the third statement the word "forced" in the phrase "additional acts were forced upon me" was crossed out and changed to "done." The investigator who took the statement from M.G. testified that he made the change because he did not think she knew "what the concept of the word force was." However, under cross-examination, M.G. testified that she requested the change because the acts were not forced on her.

M.G.'s fourth statement included her first accusation against Corcoran. She said she had not related this earlier because she had not wanted to get Detective Byron "in any trouble . . . [with] her boss [who was related to Corcoran]." M.G. later told her mother that she had lied about Corcoran's involvement. Her mother immediately relayed this to the police. After a June 6, 1990, meeting at the prosecutor's office to discuss M.G.'s recantation, Byron had a private conversation with M.G. during which M.G. retracted her recantation and said that Corcoran had put the stick inside her.

M.G. said she had recanted because "everybody is behind him [Corcoran]," or possibly because her mother did not believe her about Corcoran, or "it could have been Maricarmen [Ferraez] who told me to say Richie didn't do anything." This was the first Byron had heard about M.G.'s conversations with Ferraez, a friend of the Scherzers whom M.G. knew from her basketball team. Between September and November 1989, Ferraez had taken M.G. out for ice cream on several occasions and during their time together Ferraez had secretly taped conversations in which she persuaded M.G. to talk about the incident and her prior sexual history. Following Rape Shield Law hearings, the Ferraez tapes were redacted and played for the jury. They were also discussed by the State's expert witnesses.

The State presented numerous witnesses who testified concerning M.G.'s personality, mental acuity, and the way she was perceived by others. A teacher who taught M.G. and other educable mentally retarded students at West Orange High School, said that M.G. functioned verbally on a second-grade level, had poor self-esteem, and was "very easily led" by people whom she hoped would like her. An instructor, who in 1982 taught tennis to a group of children that included M.G. and the Archers, all about eleven or twelve at the time, testified that the other children, including the Archers, would call M.G. "stupid" and "a retard." He said that when he offered M.G. the opportunity to be in a different group, she said those boys were her friends and she wanted to be with them.

Dawn Lipinski, the sister of M.G.'s friend Jennifer Lipinski, testified that "everyone knows that [M.G.] is different." She also said that M.G. would "do anything that she's asked to do" and that she had never heard her say no to any request. M.G.'s sister also said that everybody knew that M.G. was different. She testified that M.G. talks as if she is five or six years old, cannot follow simple instructions, and does not understand money. As an example of how easily led M.G. was, her sister said that when M.G. was five years old, a group of children, including Kyle and Kevin, persuaded her to eat dog feces.

M.G.'s mother testified about the social problems that emerged when M.G. was attending Columbia High School in Maplewood in 1987. She said M.G. would act the part of the class clown, setting herself up for ridicule. M.G.'s teachers at Columbia were concerned she might be raped. This led her mother to have her gynecologist prescribe birth control pills for her. M.G.'s mother also testified that, prior to the incident, M.G. had received sexual phone calls from Christopher Archer.

A guidance counselor at Columbia High School, testified about the sexual incidents in which M.G. was involved while at Columbia. M.G. told someone that "she wanted to be fucked," she would regularly exchange sexual comments with a group of football players in the cafeteria, and someone once touched her breast in health class. After these incidents, the guidance counselor claimed to have told M.G. that she had a right to refuse to allow someone to touch her body, but she could not understand this concept, especially when the person touching her was a friend.

The young men who testified at trial about the incident, three for the State and one for the defense, Paul Archer, all acknowledged it was common knowledge that M.G. was different. She was described as hard to communicate with, and as "slower, simple," something one could recognize after a few minutes of conversation. She associated mainly with younger children, was subjected to teasing, was the butt of jokes, was in special education classes, and was called "a retard."

The State presented three expert witnesses: Dr. Susan Esquilin, a psychologist specializing in the area of sexual abuse; Dr. Gerald Meyerhoff, a psychiatrist specializing in the field of child and adolescent psychiatry and mental retardation in children and adolescents; and Dr. Ann Burgess, a registered nurse with a doctorate in psychiatric mental health nursing and a specialist in the field of rape trauma.

Dr. Esquilin administered an I.Q. test on which M.G. scored 64, the mildly-mentally retarded range. On the adaptive behavior test, which measures daily living skills, M.G. scored in the top half, when compared to other retarded people. According to Esquilin, M.G. had a high risk of victimization because "she so focused on what somebody else wants and needs and not what she feels shewants and needs. . . . She's likely to do what anybody asks her to do." Esquilin expressed the opinion that M.G. is mentally defective, as she is incapable of exercising the right to refuse to engage in sexual conduct, and understands coercion only as the use of physical force. To M.G., her sexuality was a way of pleasing others. Esquilin's review of the Ferraez tapes strengthened her opinion that M.G. was susceptible to coercion and social pressure and that she had an immature concept of friendship.

Dr. Meyerhoff diagnosed M.G. as mildly-mentally retarded and suffering from attention-deficit hyperactivity disorder, residual state. He did not diagnose her as suffering from post-traumatic stress disorder, as defined in the Diagnostic and Statistical Manual of Mental Disorders III ("DSM III "). In his opinion, M.G. was "mentally defective" because although she understood that she was engaging in conduct of a sexual nature, she did not understand that she had the right to refuse to participate in the sexual activity. His review of the Ferraez tapes did not alter his opinion. Under cross-examination he acknowledged M.G. was at times sexually aggressive because sexual activity fulfilled her need for friendship, which "was an important part of her life." He also acknowledged that she was capable of lying and being deceptive.

Dr. Burgess, who had co-authored a pioneering study on rape trauma syndrome ("RTS") in 1974, testified about the kinds of reactions she had observed in rape victims and how her observations served to dispel such common myths as that victims immediately report a rape or that all victims display an emotional demeanor after an attack. She said that adolescent rape victims often do not disclose information about rape immediately, especially when the assailant is known to them, because they have divided loyalties about the assailant and fear retaliation. Recantation may be a way of protecting the assailant from getting into trouble or for the victim to deny that the rape occurred.

One of the methods Burgess used when interviewing M.G. was an "event drawing series." She used it to gain both visual and verbal information in a nonleading fashion. She had M.G. draw a series of pictures, including representations of the basement incident. Defense counsel objected to testimony on the drawings, and their admission into evidence. The Judge overruled the objection, but told the jury that "her testimony is not offered to show one way or the other whether [M.G.] was sexually assaulted . . . it's to better help you understand some of the issues so that you can decide what really happened back on March 1, 1989."

Additionally, Burgess testified that M.G. suffered from RTS, as M.G. reported the incident only to people with whom she felt safe, and because of the type of friendship she desired with defendants. The Ferraez tapes did not change her opinion because the leading, suggestive questions asked by Ferraez caused M.G. to answer in a way intended to please her friends. Burgess also believed that Ferraez's inclusion in defendants' social network pressured M.G. into recanting her accusation against Corcoran. Under cross-examination, Burgess acknowledged that RTS would fall under the category of post-traumatic stress disorder in the DSM III, a condition that Meyerhoff did not believe M.G. suffered from.

I

We first consider whether the Judge erred in denying defendants' judgments of acquittal and whether the jury's verdicts were against the weight of evidence.

Rule 3:18-1 governs motions for a judgment of acquittal. In determining whether the motion should be granted, the trial Judge must decide whether "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967). The Judge must view the State's evidence, both direct and circumstantial, in its entirety and give "the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn" from that testimony. Ibid. In reviewing the Judge's determination, we can give no consideration to any evidence or inferences from the defendant's case and must exclude from our consideration any improperly admitted evidence. Ibid.

At the close of the State's case, defendants moved for judgments of acquittal on all counts of the indictment. The motions were denied as the Judge found that a reasonable jury, giving the State the benefit of all reasonable inferences, could find guilt beyond a reasonable doubt on every element of each of the nine counts of the indictment. After presenting their case, defendants renewed their motions for judgment, and the Judge again denied the motion, incorporating by reference his reasons for denying the earlier motions. Defendants did not, however, move to set aside the verdicts as against the weight of the evidence.

The first count on which defendants were convicted is conspiracy. The Criminal Code provides:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

[N.J.S.A. 2C:5-2(a).]

When the State prosecutes a defendant for conspiracy to commit a first or second degree crime, it need not prove that a defendant committed an overt act in pursuance of the conspiracy. N.J.S.A. 2C:5-2d. Therefore, because defendants were convicted of conspiracy to commit first and second degree crimes, the sufficiency of the evidence as to the commission of an overt act is not at issue. Ibid. The only question is whether a reasonable jury, viewing the State's evidence in its most favorable light, could find beyond a reasonable doubt that defendants, acting with a purposeful state of mind, agreed to commit, attempted to commit, or aided in the commission of an aggravated sexual assault. Reyes, (supra) , 50 N.J. at 459.

The State presented considerable evidence that several of the boys who eventually ended up in the Scherzers' basement, including Christopher Archer and Grober, approached M.G. while she was shooting baskets at Carteret Park and persuaded her to join them at the Scherzers'. M.G. testified on direct that Grober told her that if she went to the basement with them, she would get a date with Paul. She also said that when she walked to the Scherzers' house, Christopher Archer had his arm around her shoulders in a romantic fashion. The testimony of M.G., Paul, and three other boys all placed defendants either at the basketball court with M.G. or in the basement when the sexual activity occurred. M.G. also testified to the active participation of defendants. She testified that some of the boys set up chairs in front of the couch. One boy's testimony corroborated this: he said that the boys crowded around the couch "like a tank of piranhas." M.G. also testified that various boys told her to take her clothes off, to insert her fingers into her vagina, and go "further, further, further." Another boy testified that he believed Archer had told M.G. to take her clothes off. According to M.G., when the sexual activity was over, the boys stood in a circle and put their hands together in the center. They told M.G. not to tell anybody about what happened or they would tell her mother what she did.

There was ample testimony that defendants had known M.G. since grade school and were aware she was "slow." M.G.'s own testimony, as well as that of the experts,Esquilin and Meyerhoff, portrayed a young woman who would do anything to please her friends, who considered almost everyone she spoke to a friend, and who was openly sexually aggressive.

A reasonable jury could infer from this evidence that defendants were aware of M.G.'s acquiescent nature and intellectual limitations and agreed to persuade her to join them in the Scherzer basement so that they could engage in sexual activity with her. Once there, each of the defendants participated in the activity as the others watched and offered encouragement and instruction. When they were done, they joined hands in a pact and instructed M.G. not to tell anybody about what had happened further evidencing their common purpose. Thus, the State's evidence was sufficient to support a conviction for conspiracy to commit an aggravated sexual assault, and the trial Judge properly denied their motions for judgments of acquittal.

The Judge also denied defendants' motions for judgments of acquittal on the counts charging aggravated sexual assault under N.J.S.A. 2C:14-2a(5)(a) and (b). The offenses are defined by the Code as follows:

a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(5) The actor is aided or abetted by one or more other persons and either of the following circumstances exists:

(a) The actor uses physical force or coercion, or

(b) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated; . . . .

[Emphasis added.]

Under N.J.S.A. 2C:14-1c, "sexual penetration" can mean vaginal intercourse, fellatio, or insertion of fingers or objects into the vagina either by the actor or by the victim upon the actor's instruction, with depth of insertion irrelevant to whether the crime was committed. In State in the Interest of M.T.S., 129 N.J. 422, 444, 609 A.2d 1266 (1992), the Supreme Court held that the definition of "physical force" in N.J.S.A. 2C:14-2a(5)(a) is satisfied "if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration." There need be no more physical force than that "inherent in the act of sexual penetration." Ibid. Under N.J.S.A. 2C:13-5, a person is guilty of criminal coercion if,

with purpose unlawfully to restrict another's freedom of action to engage or refrain from engaging in conduct, he threatens to:

(7) Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

[N.J.S.A. 2C:13-5(a)(7).]

Therefore, on the third count, the State had to prove that defendants engaged in an act of sexual penetration while aided or abetted by at least one other person and that defendants used force or coercion. N.J.S.A. 2C:14-2a(5)(a). Viewing the State's evidence as to defendants' use of force or coercion in a light most favorable to it and ignoring for the purposes of this inquiry Paul's testimony and M.G.'s poor credibility when cross-examined, Reyes, (supra) , 50 N.J. at 459, as well as what we conclude was improperly admitted RTS evidence, we are convinced that the State failed to present enough evidence to prove to a reasonable jury that force or coercion were used against M.G. Her testimony and conduct clearly reflect that her engaging in the sexual activity in question was voluntaryfor purpose of N.J.S.A. 2C:14-2a(5)(a), and did not involve force or coercion.

M.G. never testified that the sexual activity was done without her consent. There was no evidence that physical force without permission, as defined by M.T.S, (supra) , 129 N.J. at 444, was used by defendants. Nor did we find it reasonable on the evidence presented to infer that force or coercion was engaged in by or on behalf of defendants. Persuasion is not coercion under N.J.S.A. 2C:14-2a(5)(a) merely because the victim is mentally defective, as such conduct is specifically covered under subsection (b). Nor is there any indication that M.G. was in any way intimidated by the size or number of the boys present.

In any event, even if a judgment of acquittal were denied, Count Three, charging penetration using physical force or coercion, must ultimately fail as a manifest denial of Justice. See R. 3:20-1. Paul Archer and two other boys present testified to the absence of force and the voluntariness of M.G.'s actions in the Scherzer basement. M.G.'s own testimony fails to support a finding of force or coercion. She said on direct that she went to the basement because Grober said she would be able to go out with Paul Archer if she did. Even if defendants did lure her to the basement with promises of a date with Paul, the trial Judge correctly instructed the jury that being promised a date with Paul was not enough to constitute criminal coercion. Moreover, on cross-examination she said that she went up to Grober at the park, placed her hand on his crotch, and asked him if he wanted her to give him a blow job. Although on redirect, she said that the latter testimony was a lie, Paul testified to substantially that account of the incident. M.G. also said that she did not try to leave the basement because she wanted to stay, and that she could have left if she wanted to. M.G. said she had the prosecutor change the word "forced" to "done" in her August 3, 1989 statement because the acts were not forced on her. On the Ferraez tapes, M.G. talked about how much fun the incident was, and about several prior incidents of sexual activity on her part. The jury also heard Dr. Meyerhoff describe M.G. as sexually aggressive. Under no proper theory of force or coercion could a reasonable jury find those elements of the offense beyond a reasonable doubt on the admissible facts and applicable law.

However, a different Conclusion results as to Count Two. N.J.S.A. 2C:14-1(h) defines "mentally defective" as a condition that renders one "temporarily or permanently incapable of understanding the nature of [one's] conduct, including, but not limited to, being incapable of providing consent." The Supreme Court clarified this definition in State v. Olivio, 123 N.J. 550, 564, 589 A.2d 597 (1991) by specifying that the mentally defective person must be "unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another." Thus, as to this count, the inquiry is whether the State presented sufficient evidence for a reasonable jury to conclude that defendants, knowing that M.G. was mentally defective, purposely engaged in sexual penetration while aided or abetted by at least one other person.

The State presented two experts, Doctors Esquilin and Meyerhoff, who expressed their opinion that M.G. was mentally defective under the Olivio standard because, although M.G. understood that she was engaging in conduct of a sexual nature, she did not understand that she had the right to refuse. Defendants had known her since grade school, and thus it was reasonable to infer they were aware of this defect. M.G.'s tennis teacher testified that in 1982 the Archers were among those who called M.G. "stupid" and "a retard." M.G.'s sister and Dawn Lipinski both testified that everyone knew that M.G. was "different."

M.G.'s friends, family, and teachers testified to her inability to say no to any request because she wanted to please people and to her use of sexuality to make friends. Lipinski said she had never heard M.G. say no to any request. M.G.'s sister related an incident that occurred when M.G. was five years old--a group of children, including Kyle and Kevin, persuaded her to eat dog feces--as an example of how easily led she was. M.G.'s mother testified about phone calls of a sexual nature that M.G. received from Christopher Archer. M.G.'s high school guidance counselor testified that after she learned M.G. was engaging in sexual conversations with a group of football players in the cafeteria and had allowed someone to touch her breast in health class, she told M.G. that she had a right not to allow someone to touch her body, but that she did not appear to understand the concept, especially when the person touching her was someone she considered to be a friend.

The State presented ample evidence that all three defendants were aware of M.G.'s acquiescent nature in sexual and other matters and that they had taken advantage of that aspect of her personality in the past. Even if they could not be expected to have labeled her as "mentally defective," they, as reasonable young persons were shown under the circumstances presented to have known that M.G. did not understand that she could say no to a request. This we hold to be sufficient under N.J.S.A. 2C:14-2a(5)(b).

There was no dispute that vaginal penetration of M.G. occurred, and according to M.G.'s testimony, all three defendants were involved in either preparing, inserting, or trying to insert, either the broom handle or the bat into M.G. while she lay on the couch. That the bat may not have actually entered M.G. is irrelevant since it touched her vaginal area. N.J.S.A. 2C:14-1c. According to M.G.'s testimony, Kyle does not seem to have actually inserted either the bat or broom into her, as he was putting plastic bags and Vaseline over them and then handing them to Kevin and Christopher Archer. However, he would be culpable as a co-conspirator and under the theory of accomplice liability for Kevin's and Christopher Archer's conduct. N.J.S.A. 2C:2-6b(4) and c(1)(b).

Under Rule 2:10-1, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." Defendants did not make such a motion before the trial court, and, therefore, we need not consider it. Nonetheless, as is evident from our earlier Discussion, we have considered the merits of defendants' arguments in the interest of Justice. State v. Smith, 262 N.J. Super. 487, 511, 621 A.2d 493 (App. Div.), certif. denied, 134 N.J. 476 (1993). We conclude that as to the convictions on all counts other than Count Three, it does not appear "that there was a miscarriage of Justice under the law." R. 2:10-1.

Quite the contrary, the evidence weighed heavily in favor of the jury's verdicts. Only on the force or coercion count, was there insufficient evidence of the use of force or coercion. On the basis of the permissible evidence presented to the jury, we conclude that the jury could rationally have found that all the elements required to prove the remaining counts on which defendants were convicted were proved beyond a reasonable doubt and that the jury's verdicts were not against the weight of evidence.

II

Defendants maintain the trial Judge did not limit Dr. Burgess's testimony on the RTS to the only appropriate use of the testimony, i.e., to rehabilitate M.G.'s credibility by explaining that delayed reporting and recantation are not inconsistent with a claim of rape. Burgess was allowed to testify that M.G. exhibited RTS. This, defendants assert, may have persuaded the jury that Burgess believed M.G. had been raped. They also allege error because the Judge admitted the event drawings which were not probative and were highly prejudicial in that they had an aura of scientific reliability, and the Judge failed to provide the jury with a limiting instruction on the proper use of the drawings. Finally, it is contended the Judge erred in refusing to grant defendants' motion for a mistrial or hold a hearing to investigate whether the jurors improperly used the drawings as direct evidence of the alleged assault.

N.J.R.E. 702 (formerly Evid. R. 56(2)) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

There are three requirements for the admission of expert testimony: (1) it must concern matters "beyond the ken" of the average juror; (2) the scientific theory must be sufficiently reliable (generally accepted in the appropriate profession); and (3) the expert must have sufficient expertise. State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984).

New Jersey courts have not directly ruled on the admissibility of RTS evidence, however, in State v. J.Q., 130 N.J. 554, 581, 617 A.2d 1196 (1993), our Supreme Court analogized its ruling on the admissibility of Child Sexual Abuse Accommodation Syndrome ("CSAAS") to the approach followed by other jurisdictions on RTS evidence. In J.Q., (supra) , 130 N.J. at 580, the Court held that because CSAAS "has a limited, therapeutic purpose and not a predictive one," it could not be used as affirmative evidence that molestation had occurred, but could only be used for the limited purpose of explaining why a child's reactions "are not inconsistent with having been molested." In a subsequent child sex abuse case, we explained that

the role of CSAAS evidence is the other side of the coin of fresh complaint evidence and fulfills the same function, namely, to respond to preconceived but not necessarily valid ideas jurors may have regarding the consistency of the post-assault conduct of a victim who claims to have been sexually abused with the fact of an actual act of abuse.

State v. W. L., 278 N.J. Super. 295, 302 (App. Div. 1995).

The trial Judge sought to follow the mandate of J.Q. He prohibited Burgess from giving her opinion as to whether M.G. was sexually assaulted, or to testify about other symptoms of the syndrome that she might have exhibited. Only one aspect of his ruling appears unacceptable. He allowed Burgess to testify that M.G. "exhibited the rape trauma syndrome." He stated its use was to help the jury determine credibility "as it may relate to any delay in reporting or partial recantation."

In J.Q., (supra) , 130 N.J. at 559, because the expert was allowed to offer her opinion at trial that the children had been sexually abused, the Court reversed without addressing the issue of whether an expert opinion that someone had exhibited symptoms of the syndrome was also inadmissible. However, in other appeals involving CSAAS, we have indicated that such an opinion would be inadmissible. In State v. Michaels, 264 N.J. Super. 579, 604, 625 A.2d 489 (App. Div. 1993), aff'd, 136 N.J. 299, 642 A.2d 1372 (1994), we held it was error for the prosecution to present expert testimony that specific children had demonstrated behavioral indicators "consistent with" those of abused children. In W.L., (supra) , 278 N.J. Super. at 303, we found it plain error for the expert to explain the syndrome by tracking the child's testimony, "underscoring in the jurors' minds the notion that these behaviors were probative of the fact of abuse." In State v. W.L., Sr., 292 N.J. Super. 100, 112-18, 678 A.2d 312 (App. Div. 1996), we held it was error for the expert to testify that she had diagnosed the victim as suffering from post-traumatic stress disorder, which is not inconsistent with a victim of sexual abuse.

The danger of allowing such opinion evidence is explained in State v. Taylor, 663 S.W.2d 235, 240 (Mo. 1984), where the court said that an inherent implication of the term "rape trauma syndrome" is that the syndrome can only be caused by rape, although in fact the "characteristic symptoms may follow any psychologically traumatic event." Id. at 238 (quoting State v. Saldana, 324 N.W.2d 227, 229-30 (Minn. 1982)); see People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 291, 301, 203 Cal. Rptr. 450 (Cal. 1984) (improper to permit an expert to "suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped."). Thus, we hold it was error for the Judge to permit Burgess to render an opinion that M.G. exhibited what Burgess calls the RTS. We believe that error had the capacity to taint the jury verdict only as to Count Three, penetration by force or coercion.

The Judge did, however, give the jury a limiting instruction before Burgess began offering her opinion. He said that "her testimony is not offered to show one way or the other whether [M.G.] was sexually assaulted . . . it's to better help you understand some of the issues so that you can decide what really happened back on March 1st, 1989." In certain cases in which expert evidence was inappropriately offered as affirmative proof that an assault occurred, courts have not reversed when the prosecution had such a strong case that it was not reasonably probable that the evidence affected the result, especially when the trial court gave a proper limiting instruction. Bledsoe, (supra) , 681 P.2d at 301; People v. Coleman, 48 Cal. 3d 112, 768 P.2d 32, 49, 255 Cal. Rptr. 813 (Cal. 1989), cert. denied, 494 U.S. 1038, 110 S. Ct. 1501, 108 L. Ed. 2d 635 (1990) (both cases dealing with the issue of consent). We conclude that on Count Two, charging penetration of a person defendants knew or should have known was mentally defective, the case against defendants was very strong and the evidence that M.G. was suffering from RTS had limited relevance to defendants' guilty. The elements of the crime are 1) penetration; 2) defendant is aided and abetted by one or more other persons; 3) victim is mentally defective; 4) defendant knew or should have known the victim was mentally defective. Defendants did not actively dispute that at least two of the defendants penetrated M.G. Paul Archer testified that Kevin and Christopher helped M.G. move the broom stick in and out of her vagina. Defendants did dispute whether M.G. was mentally defective and whether they knew or should have known that she was defective. As to these disputed elements, Burgess's testimony on RTS had no relevance. The fact that M.G. may have suffered a trauma is not probative of whether she was mentally defective, that is, whether she had the capacity to consent; nor is it probative of defendants' knowledge of the mental defect.

As to mental defect, the State offered the expert opinion of Dr. Esquilin, a psychologist, and Dr. Meyerhoff, a psychiatrist, that M.G. is mentally deficient in that she is incapable of exercising the right to refuse to engage in sexual conduct. There was clear evidence that these defendants knew or should have known of that mental defect. Numerous witnesses testified that M.G.'s mental condition was apparent within a few minutes of conversation with her and that it was generally known in the community that M.G. was "slow." M.G. testified that she knew Archer since first grade and met Kevin and Kyle in grade school. Moreover, the Archers and Scherzers and M.G. all lived in the same neighborhood. We are, therefore, convinced that the error lacked the ability to change the verdict on either Count Two or the conspiracy count.

Burgess also testified as to M.G.'s event drawings. Although this was error, these drawings had no capacity to prejudice the jury with regard to count two. Burgess testified that M.G. told her that one picture depicted "either Chris or Kevin" inserting the bat and another picture depicted Kevin inserting the broomstick. This testimony did not mislead the jury on the issue of who penetrated M.G. Paul Archer testified that both Christopher and Kevin helped insert the broom stick. Thus, there was no danger that this testimony would have caused the jury to convict Kevin and Christopher of a crime involving penetration, when it otherwise would not have.

III

Defendants contend that the trial Judge's Rape Shield rulings altered the Assignment Judge's original Rape Shield ruling thereby preventing them from effectively cross-examining the State's witnesses in violation of their Sixth Amendment right of confrontation. They refer specifically to rulings that

limited their cross-examination of four witnesses, including Paul Archer, about aspects of M.G.'s sexual history, and a ruling that restricted them from cross-examining Esquilin and Meyerhoff on redacted portions of the Ferraez tapes, on which they had, in part, based their opinion that M.G. was mentally defective.

The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right "to be confronted with the witnesses against them." The right to confront witnesses includes the opportunity for effective cross-examination of the State's witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974). This right, however, is not absolute and may bow to competing interests, such as fairness, reliability, and public policy considerations. State v. Budis, 125 N.J. 519, 531-32, 593 A.2d 784 (1991).

The Rape Shield Law, N.J.S.A. 2C:14-7, limits the circumstances under which evidence of a victim's previous sexual conduct may be admitted in prosecutions for sexual assault offenses. Such evidence will not be admitted unless it is "relevant and highly material," meets the requirements of sections (c) and (d) of the statute, and its probative value "substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim." N.J.S.A. 2C:14-7(a).

Sections (c) and (d) specify particular subjects to which evidence of prior sexual conduct may be relevant, but the list is illustrative rather than exhaustive. State v. W. L., (supra) , 278 N.J. Super. at 305. In order to avoid a conflict with the defendant's constitutional right to a fair trial, the trial Judge retains the discretion to admit critical defense evidence that is not the subject of sections (c) or (d). State v. Ross, 249 N.J. Super. 246, 251, 592 A.2d 291 (App. Div. 1991).

Defendants had at trial identified sixty-nine specific prior sexual acts that they might want to explore. The acts were divided into three groups: thirty were identified in the State experts' reports and grand jury transcripts, twenty-eight derived from the Ferraez tapes, and eleven emerged during defendants' own investigation. The trial Judge entered an order detailing which of the sixty-nine sexual acts were admissible. He ruled that twenty-eight of the acts were admissible and four might be "subject to the Court being satisfied regarding the discovery rules." The remaining acts were held inadmissible under Evid. R. 4 (now N.J.R.E. 403). In a "Statement of Reasons" the Judge explained that he would admit sexual conduct evidence to establish that M.G. was not mentally defective because she understood the nature of sexual acts, understood and was able to exercise her right to say 'no,' and had engaged in sex acts with any of the defendants "as relevant to the issue of whether or not M.G. freely and affirmatively assented to any sex acts on March 1, 1989 and whether or not any of the defendants reasonably understood that." However, he would "not allow defendants to introduce evidence of specific instances of M.G.'s sexual conduct to establish her character trait of promiscuity," which he said they wanted to do "so as to permit the jury to infer that she initiated and/or consented to the sex acts with the defendants on March 1, 1989." Nor would he allow defendants "to adduce evidence of M.G.'s reputation in the community for promiscuity or sexual aggressiveness as tending to show that she actually possessed those character traits." He would allow reputation evidence if "relevant to whether any of the defendants knew or should have known that M.G. was mentally defective," but they could not establish that through evidence of specific instances of her sexual conduct.

We find no substantial conflict between the rulings of the two Judges. The Assignment Judge ruled on the legal issues based on his generalized knowledge of the types of sexual incidents defendants wanted to present to the jury, whereas the trial Judge ruled on individual incidents proffered by defendants. Their rulings were consistent with each other on the law.

The trial Judge allowed defendants to show that M.G. was sexually knowledgeable and aggressive in her school and neighborhood, as well as with defendants, from which the jury could infer that she might have consented to the acts in the Scherzer basement and that defendants thought she understood sex and her right to say no. He refused to allow defendants to forage in her private life and tell the jury about every sexual incident in her past, when such evidence might focus attention on her mores and prejudice the jury against her, thus deflecting their consideration from defendants' actions. Defendants were given sufficient opportunity to show M.G. was sexually active and aggressive.

The exclusion of evidence is reversible error only if it is critical to the defense, as where there was no other available evidence to demonstrate particular defense issues. State v. G.S., 278 N.J. Super. 151, 171-72, 650 A.2d 819, (App. Div. 1994), rev'd on other grounds, 145 N.J. 460, 678 A.2d 1092 (1996). Here, there was ample opportunity to explore the defense issues through alternative means. The State's experts testified about M.G.'s sexual aggressiveness and the jury heard M.G. tell Ferraez on the November 14, 1989, tape that she had had sex with both of the Scherzers prior to the basement incident. The Judge also allowed defendants to explore specific instances when M.G. exposed herself to boys. He ruled defendant would be allowed questioning on M.G.'s sexual activities with the Archers "subject to the Court being satisfied regarding the discovery rules." M.G.'s sexual activities with several other boys was brought out in the Ferraez tapes and through cross-examination of the State's experts. Thus, any prejudice to defendants caused by excluding other testimony about M.G.'s sexual aggressiveness toward specific persons was minimized by the admission of other evidence that went to the same defense issues--consent, M.G.'s mental defectiveness, and defendant's knowledge of her condition. We, therefore, conclude the excluded evidence was not crucial to their defense, but merely cumulative.

Defendants also objected to testimony about M.G. attending a dance attended predominantly by black students on the ground that the testimony "was calculated to appeal to the prejudice" of the black jurors. They moved for a mistrial, which the Judge properly denied. Race was not an issue in the case and moreover we find nothing prejudicial to defendants arising from this testimony.

Defendants also contend that by redacting the Ferraez tapes the court allowed the State to present a one-sided and incomplete version of the facts, and that by prohibiting defendants from cross-examining the State's experts on the unredacted portions of the tapes, which they had reviewed as a follow-up to their evaluations of M.G., the court denied defendants their constitutional right to explore the facts underlying the experts' opinion that M.G. was mentally defective. We disagree.

The scope of the cross-examination of an expert is within the trial court's discretion, and we will not interfere unless clear error and prejudice are shown. State v. Martini, 131 N.J. 176, 263, 619 A.2d 1208 (1993), cert. denied, U.S. , 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995). The September 18, 1992 order included defendants' proffers on twenty-eight incidents from the Ferraez tapes. The Judge ruled that only four were admissible. He explained that despite the redactions that would be made in the tapes, there was "going to be plenty left from which the jury will be able to get the full flavor of what M.G. is like, what her capabilities are, and a good deal of the substance, as well, with regard to her sexual background." He stated the fact that the State's experts listened to the unredacted tapes would not preclude defendants from cross-examining them on the numerous incidents relating M.G.'s sexual conduct which he allowed, and testing the validity of their opinions.

Many sexual incidents remained after redaction of the tapes, including M.G. having sex with the Scherzers, getting kicked out of Columbia High School for "messing around," that she has been having sex since she was little and knows everything about sex, she let the Archers and other guys do things to her, she loved giving sexual favors to Grober, and the like. Clearly, the Judge left in the more relevant evidence relating to M.G.'s prior conduct with defendants, as well as enough of her general comments on sex to give the jury a flavor of her enjoyment of sex and her sexual aggressiveness. Much of what the Judge deleted from the transcripts involved comments about specific boys.

We are satisfied that the deletions did not result in a one-sided presentation or a sanitization of the facts. It merely cut down on what would have been cumulative evidence and what would have unduly and unnecessarily prejudiced the victim in contravention of the Rape Shield Act. N.J.S.A. 2C:14-7. The deleted comments were not necessary for an understanding of the admitted evidence or to put the rest of the tapes in context. Even with the redactions, the jury in reading the tape transcripts inevitably got the message that M.G. enjoyed sex, approached boys and men for sex, and had been having various types of sexual experiences for years. This was what defendants sought to get across through the tapes. That some of the material had to bow to the competing interests inherent in the Rape Shield Law did not negate that effect.

Esquilin's and Meyerhoff's testimony makes it clear that they evaluated M.G. and wrote up their reports before they ever heard the Ferraez tapes. They were later given the tapes to review, and both testified that the tapes only reinforced the opinions expressed in their reports. They mentioned in particular how M.G.'s conversations with Ferraez supported their Conclusions that M.G. had an overwhelming desire to please people she considered friends by telling them what she thought they wanted to hear, and how easily she was led. Her sexual aggressiveness was something that Meyerhoff had gleaned from other sources before he ever heard the tapes. Further, under cross-examination, Esquilin said that her opinion would not have changed if she had based it on the tapes as edited. We find no error. See State v. Clowney, 299 N.J. Super. 1, 15-16, 690 A.2d 612 (App. Div. 1997).

IV

Defendants contend that the court's imposing the most severe sanction of exclusion of evidence of M.G.'s prior sexual history, for Rape Shield Law discovery violations, deprived them of their constitutional right to a fair trial and to present a defense. The Rape Shield Law, N.J.S.A. 2C:14-7(a), provides that when defendants seek to admit evidence of a victim's previous sexual conduct, they

must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence.

The Rape Shield Law, "like any other law which attempts to pre-Judge relevancy and admissibility, must not be permitted to defeat defendant's sixth amendment right to confront the witnesses against him, and particularly, his right to a fair opportunity for cross-examination." Ross, (supra) , 249 N.J. Super. at 251. Thus, in State v. Budis, 243 N.J. Super. 498, 513, 580 A.2d 283 (App. Div. 1990), aff'd, 125 N.J. 519, 593 A.2d 784 (1991), we held that the defendant's Sixth Amendment rights outweighed the Rape Shield Law considerations where "crucial defense evidence" on the source of the nine-year-old victim's familiarity with sexual matters would otherwise have been excluded.

Under the Rape Shield Law's procedural requirement, as with any discovery rule violation, the trial Judge enjoys broad discretion to determine what sanctions, including preclusion of evidence, should be imposed. See Michigan v. Lucas, 500 U.S. 145, 111 S. Ct. 1743, 114 L. Ed. 2d 205 (1991); State v. Marshall, 123 N.J. 1, 129-30, 586 A.2d 85 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993) (no error in precluding defense witness not on the witness list from testifying mid-trial because the prosecutor would not have had time to locate rebuttal witnesses); State v. Toro, 229 N.J. Super. 215, 223, 551 A.2d 170 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled on other grounds by State v. Velez, 119 N.J. 185, 187, 574 A.2d 445 (1990) (trial court did not abuse discretion in permitting State's expert witness to testify despite failure to notify defendant about his testimony before trial); cf. State v. Caffee, 220 N.J. Super. 34, 37, 531 A.2d 378 (App. Div. 1987).

In N.J.S.A. 2C:14-7, our Legislature has given rape victims heightened protection against surprise, harassment, and unnecessary invasions of privacy. This is a legitimate goal according to the United States Supreme Court. Lucas, (supra) , 500 U.S. at 150, 111 S. Ct. at 1746, 114 L. Ed. 2d at 212. Whether exclusion is an appropriate sanction, depends on the balancing of relevant factors by the courts. See Fendler v. Goldsmith, 728 F.2d 1181, 1187 (9th Cir. 1983) and Caffee, (supra) , 220 N.J. Super. at 37. Those factors include: (1) was defendants' discovery violation due to willful misconduct (e.g., was it a tactical decision); (2) would a mid-trial proffer have caused unfair surprise to the State; (3) were there alternatives to exclusion (e.g., recess, continuance, prosecutorial comment on discovery violation) and (4) the impact of witness preclusion on the outcome of the trial. Fendler, (supra) , 728 F.2d 1187-88; Caffee, (supra) , 220 N.J. Super. at 37.

Here, the trial Judge considered defense counsel's explanations and made his ruling on the merits. Although the Judge did not articulate his findings as to whether defendants' late proffer was willful, the prejudice that would inure to the State and the victim if the evidence was admitted is readily apparent. We conclude that the preclusion order does not require reversal. The Judge admitted almost half of the seventy of the instances proffered by defendants, resulting in the jury hearing extensive testimony about M.G.'s sexual aggressiveness. The jurors heard that M.G. had engaged in sexual experimentation since the age of eleven or twelve, had approached a group of athletes in the high school cafeteria and made sexual comments, had been put on birth control pills by her mother, and much more. Even if the exclusions ordered on procedural grounds constituted error, it was harmless at best. R. 2:10-2.

V

Defendants argue that the Judge erred in admitting detailed fresh complaint testimony of Jennifer Lipinski and that the Judge failed to establish whether M.G.'s statement to Lipinski was spontaneous and voluntary. In addition, it is argued that the fresh complaint testimony of the swimming instructor contained too much detail.

The fresh complaint doctrine permits the State to introduce evidence that a victim of a sexual assault spontaneously complained of the crime within a reasonable amount of time to someone the victim would normally turn to for help and advice. State v. Hill, 121 N.J. 150, 163, 578 A.2d 370 (1990); State v. Tirone, 64 N.J. 222, 226, 314 A.2d 601 (1974). The rationale of the doctrine is that allowing the testimony will forestall a jury from assuming that no evidence of complaint was introduced because no complaint was made. State v. Balles, 47 N.J. 331, 338, 221 A.2d 1 (1966), cert. denied and appeal dismissed, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). Because the evidence is admitted to show only that a complaint was made, no details of the complaint are admissible. State v. Hill, (supra) , 121 N.J. at 163. Our Supreme Court reaffirmed the viability of the fresh complaint doctrine in the companion cases of State v. Hill, (supra) , Id. at 165, and State v. Bethune, 121 N.J. 137, 578 A.2d 364 (1990). Fresh complaint evidence is admitted for the limited purpose of showing that a complaint was made; the evidence is not permitted as corroboration of the alleged offense. State v. J.S., 222 N.J. Super. 247, 256-57, 536 A.2d 769 (App. Div.), certif. denied, 111 N.J. 588, 589 (1988). Thus, details of the offense should be confined to those minimally necessary to identify the subject matter of the complaint. Id. at 257.

The State offered Lipinski, a friend of M.G.'s, as a fresh complaint witness. The Judge cautioned the State that he would not permit it to elicit details of what M.G. told Lipinski of the incident except those details which identified the incident. He particularly forbade any testimony that M.G. told Lipinski M.G. was tricked into going into the house. The Judge asked the prosecutor to explain to Lipinski the limits placed on her testimony. However, despite the Judge's ruling, the prosecutor asked a question that caused the Judge to admonish the prosecutor because the question asked was "almost designed to get that kind of an answer." The witness had responded that M.G. said she was coerced into going down there and forced into it. Nonetheless, the prosecutor continued:

Q. Miss Lipinski, focusing your attention just on what [M.G.] said to you about what had happened to her in the Scherzer's basement, did [she] tell you that they made her remove her pants?

A. Yes she did.

Q. And lift up her shirt?

A. Yes.

Q. And had a little bat with Vaseline?

A. Um-hum.

Q. And they stuck it up her?

A. Yes.

At the Conclusion of Lipinski's testimony, the Judge instructed the jury as to the limited use it could make of the fresh complaint testimony. Defendants objected to Lipinski's testimony as being too detailed and to the Judge's instruction as presuming that there had been sexual abuse. We find the admission of the detailed testimony to be improper, but in view of our earlier ruling and the curative instruction of the trial Judge, we find it harmless.

In State v. Bethune, (supra) , 121 N.J. 137, our Supreme Court found overly detailed fresh complaint testimony to be harmless error. There, defendant was convicted of two counts of aggravated sexual assault of a five-year-old child. Id. at 139-41. At trial, a hospital social worker testified that the child told her defendant had penetrated her ten times. Id. at 140. The testimony was admitted under the fresh complaint rule. Id. at 141. The Court acknowledged that the social worker's testimony included too much detail because it referred to the specific act of penetration and to the child's statement that she had been assaulted many times. Id. at 147. Nonetheless, the Court did not find this error to be reversible. Ibid.

Clearly, Lipinski's testimony was caused by the prosecutor to contain more detail than was necessary to identify the incident. Her reference to M.G. being forced to remove her clothing and engage in the sexual acts, exceeded what was necessary to identify the complaint. Significantly, M.G. did not testify that defendants forced her to remove her clothing to engage in sexual acts. Physical force or coercion is one of the elements of Count Three of the indictment, aggravated sexual assault by force or coercion, N.J.S.A. 2C:14-2a(5)(a), and it is remarkably absent from any other source at the trial.

Although the prosecutor acted improperly in compelling this overly detailed testimony, the Judge immediately instructed the jury following the testimony and thereby minimized the risk of prejudice to defendant. The Judge unequivocally instructed the jury that it was not to use the fresh complaint testimony as evidence that the sexual assault occurred or to support the credibility of M.G. Courts must rely upon a jury's ability and willingness to follow limiting instructions. State v. Manley, 54 N.J. 259, 270, 255 A.2d 193 (1969). All factors considered, we do not perceive that the error was capable of tainting any count other than that pertaining to Count Three.

Defendants further contend that the Judge erred in not holding a hearing on whether M.G.'s statement to Lipinski was in response to coercive questioning. See State v. Hill, (supra) , 121 N.J. at 163. However, defendants never raised this objection at trial, as defendants' argument on appeal is different from their argument at trial, the plain error standard of review is appropriate. State v. Bey, 112 N.J. 45, 63, 548 A.2d 846 (1988); R. 2:10-2. In any event, the circumstances of M.G.'s statement to Lipinski indicate that even if Lipinski asked M.G. some questions, these questions were non-coercive. See State v. Hill, (supra) , 121 N.J. at 167.

Defendants' contention that the swimming instructor's fresh complaint testimony contained too much detail about the sexual assault is without merit. R. 2:11-3(e)(2). In addition, as with Lipinski's testimony, we find no cause for reversal.

It is also argued that it was error to allow M.G.'s swimming instructor, to whom M.G. first reported the conduct, to testify that "the main thing she [M.G.] wanted to know was how can she say no if the incidents happen again." Over defendant's objection, the Judge admitted this testimony under the exception to the hearsay rule for statements of the mental condition of the declarant, Evid. R. 63(12) (now N.J.R.E. 803(c)(3)).

The Judge found that the statement was made in good faith and within a reasonable time after the crime. He found that it could be inferred that the statement which reflected M.G.'s state of mind three days after the incident reflected her state of mind on the day of the crime. As M.G.'s mental condition was a genuine issue in the case, he reasoned that whether M.G. had the ability to say "no" was relevant to that issue.

N.J.R.E. 803(c)(3) provides that a statement of mental condition is admissible hearsay:

Then existing mental, emotional, or physical condition. A statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Defendants argue the relevant issue was M.G.'s state of mind at the time of the crime, not her state of mind three days after the crime. They argue that under N.J.R.E. 803(c)(3) hearsay may not be admitted about a declarant's current state of mind to show declarant's past state of mind.

In In re Spiegelglass's Estate, 48 N.J. Super. 265, 270-74, 137 A.2d 440 (App. Div.), certif. denied, 26 N.J. 302 (1958), the testator scratched out certain names in his will. Id. at 267. After his death, his grandchildren challenged the will contending that it had been revoked. Ibid. The trial court admitted the testimony of the testator's lawyer as to a conversation he had with the testator when the testator delivered the altered will, wherein the testator told the lawyer he did not want to revoke the will but only wanted to prevent his son's children from inheriting. Id. at 270.

We held the conversation a contemporaneous declaration of mental state. Id. at 271. We noted "a certain probability of continuity, in a person's state of mind," and reasoned that this continuity was the foundation for admitting evidence of the testator's state of mind at the time he delivered the will as it tended to show what his state of mind was when he altered the will. Id. at 272. However, we specifically provided that

where a declaration is offered in order to show a previous state of mind, the court is invested with a discretion to refuse to admit the evidence where because of the circumstances and the interval between the time of the declaration and the previous time referred to, it concludes that there is no reasonable basis for finding such a continuity.

[ Id. at 272-73.]

Here, the Judge did not abuse his discretion in finding that M.G.'s declaration of her mental state three days after the crime was probative of her mental state at the time of the crime. This was a relatively short interval and no litigation was anticipated at the time. M.G. did not appear to have an incentive to lie about her state of mind. M.G.'s question was how she could avoid such an incident in the future. This reflected her then-existing concern about refusing unwanted sexual encounters, and was not a recollection of what she was thinking or feeling ...


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