On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-01-0084.
Before Judges Skillman, Wallace, Jr. and Carchman.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The primary issue presented by this appeal is whether the trial court properly admitted evidence of a child sexual assault victim's out-of-court statements under the fresh complaint rule even though the statements were made nearly a year after the last of the alleged assaults. We conclude that in view of the continuing aura of intimidation under which the child lived until four months before she told her foster mother and another girl residing in the foster home about the sexual assaults, her statements were made within the reasonable time required for admission under the fresh complaint rule.
Defendant was indicted on four counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1); sexual assault, in violation of N.J.S.A. 2C:14-2b; kidnapping, in violation of N.J.S.A. 2C:13-1a; and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. At the end of the trial, the trial court dismissed the kidnapping charge. The jury found defendant guilty of sexual assault and endangering the welfare of a child, but acquitted him of the four counts of aggravated sexual assault. The trial court imposed concurrent seven-year terms of imprisonment for both convictions. The court also imposed the statutorily mandated penalties and assessments and sentenced defendant to registration and community supervision for life in accordance with Megan's Law, N.J.S.A. 2C:7-1 to -11; N.J.S.A. 2C:43-6.4.
The victim of the offenses was defendant's adopted daughter, J.R. *fn1 Defendant, his wife, their natural children, Nancy and Mark, and J.R. lived together from 1992, when J.R. was seven years old, until 1997, when she was twelve. J.R. testified that defendant sexually assaulted her on six separate occasions between 1994 and 1997. After several of the incidents, defendant threatened to kill her if she told anyone what he had done to her. Defendant also struck J.R. when she attempted to resist his sexual assaults.
In October 1997, the Division of Youth and Family Services (DYFS) removed J.R., Nancy and Mark from defendant's home for reasons unrelated to sexual abuse and placed J.R. and Nancy in foster care with Sarah Rodriguez. After Nancy hit J.R. and behaved inappropriately in other ways, she was removed from the Rodriguez home and placed in another foster home. Thereafter, J.R. became quite friendly with one of the other foster children in Ms. Rodriguez' care, Barbara.
In July 1998, Barbara suggested to J.R. and another of the foster children in the home that they play "Skeleton in the Closet," a game in which each of the participants discloses a personal secret. During this game, J.R. divulged for the first time that she had been sexually assaulted by defendant. Barbara later told Rodriguez that J.R. had "something bad" to tell her.
A few days later, Rodriguez asked J.R. whether she had anything to tell her, and J.R. then said that defendant had sexually abused her. Rodriguez reported this allegation to J.R.'s DYFS caseworker, who notified the police. J.R. subsequently gave a formal statement to the police, which resulted in defendant's arrest.
At defendant's trial, J.R. testified consistently with what she had told Barbara and Ms. Rodriguez concerning the sexual abuse allegedly perpetrated upon her by defendant. On cross-examination, J.R. admitted that she first told Barbara and Rodriguez about the abuse shortly after she was told that DYFS planned to remove her from Rodriguez's home and reunite her with defendant and her adoptive mother. She also admitted that she wanted to stay in the Rodriguez home.
The State's evidence included the testimony of Anthony D'Urso, a psychologist, concerning Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. D'Urso described this syndrome as consisting of five types of behaviors that commonly occur in cases of child sexual abuse: secrecy; helplessness; accommodation; delayed disclosure; and recantation. He stated that children "typically do not [immediately] disclose the [sexual] abuse because the person abusing them has some force or weight around them[,]" such as the abuser occupying the role of a parent. According to Dr. D'Urso, "It is a very rare occurrence when a child is abused once and discloses immediately." He also stated that child sexual abuse victims sometime disclose the abuse because there is a "change of circumstance" such as removal "out of their home," which leads them to "feel safe and away from the perpetrator."
On the appeal from his convictions for sexual assault and endangering the welfare of a child, defendant presents the following arguments:
I. THE COURT IMPROPERLY ADMITTED "FRESH COMPLAINT" TESTIMONY OF [BARBARA] ...