On appeal from Superior Court of New Jersey, Law Division, Ocean County, 01-06-0824.
Before Judges Conley, Carchman and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2003
A jury found defendant, B.H., guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (as a lesser-included offense of the second-degree crime defined by the same statute (count two). The victim was defendant's seven-year-old stepson, L.H., the child of B.H.'s husband, co-defendant S.H. The cases against defendants were severed, and S.H. entered a guilty plea on June 7, 2002, approximately three weeks after the May 16, 2002 jury verdict in B.H.'s trial. Both defendants were sentenced on September 27, 2002. B.H. was sentenced as a second-degree offender on count one. She received a seven-year state prison sentence on that count and a concurrent five-year sentence on count two. Her aggregate sentence was the same as that received by S.H. under his plea agreement.*fn1 Because we conclude that the judge's charge to the jury erroneously limited the purpose for which the jury was permitted to consider expert testimony on the battered woman's syndrome, we reverse defendant's convictions and remand for a new trial.
There is no dispute about certain aspects of the offense charged. B.H. and S.H. had been living in a motel in 1999, and S.H.'s son was spending the weekend with them.*fn2 The child walked in on them while they were on the bed, undressed, engaged in sexual relations. S.H. told the child to remove his pants, which he did, and to take S.H.'s place on top of B.H. B.H. neither played an active role in the sexual contact nor attempted to get up and leave. She does not dispute that the child's penis entered her vagina. B.H. testified at trial that she was afraid to refuse S.H.'s demand that she participate because"[h]e had his hands at my throat. He wouldn't let me off the bed. And I told him that I didn't want to do this, that I was not going to do this. And he said that if I didn't go through with this, that he would make me pay and that I would never see my daughter again." In a taped statement to police one-and-one-half years later, however, B.H. denied that S.H. had forced her into the act.*fn3
The evidence at trial included B.H's testimony about a sexually and physically abusive relationship she endured with S.H. virtually from the start of the relationship. B.H. moved in with S.H. in 1997, at the age of nineteen, only weeks after they met. Shortly thereafter, police were called as a result of a loud argument in the parking area outside B.H.'s mother's house. After the police left and the couple returned home, S.H. became violent, held an ax to B.H.'s throat, and forcibly and repeatedly forced anal and oral sex on her and urinated on her. She testified that he made a"habit out of raping me. He would choke me,... he made a game out of choking me until the point where I would pass out, until - letting me go and then trying to punish me because I couldn't get up. And during sex, he would beat me across the chest. There were times that he would handcuff me to the couch and would take me."
In January 1998, S.H. was angry that B.H. had gone out with her girlfriend for the day, and got into a confrontation with the girlfriend's fiancé. When the others left, S.H. pinned defendant against a wall with a knife to her throat. In July 1998, defendant obtained a restraining order and left S.H. Defendant described how S.H."threatened to kill my entire family... [a]nd he told me that he... wasn't going to accept... that I didn't want to be with him."
Defendant reconciled with S.H. in August 1998 after he promised to change. Defendant testified that while S.H. was on medication, there were no problems. But when he stopped taking the medication after several months, the abuse resumed.
B.H. herself reported the 1999 incident involving L.H. to authorities in March 2001, when she sought refuge from S.H. at a women's shelter. She told a counselor at the shelter about the incident, and the counselor instructed her to report it to the Division of Youth and Family Services ("DYFS"). B.H. did so. Within days of going to the shelter, she reconciled with S.H. once again. After a DYFS worker interviewed B.H., local police visited her at home and invited her to the police station for an interview. She went voluntarily, driving herself to police headquarters with her two small daughters in tow.
At the station, B.H. was interviewed for close to an hour before her statement was taped. She was immediately placed under arrest, and DYFS took custody of her children. B.H.'s taped statement was played for the jury at her trial. In that statement, after admitting sexual intercourse with L.H., B.H. denied that S.H. had threatened her with physical harm on the day in question:
Q. When this happened, when you had seX with [L.H]... were you, at that point, ever afraid of [S.H.] and what he might do to you if you didn't have sex with [L.H.]?
A. Like I said, he threatened to leave me and I, I love him and I, I don't (inaudible)
Q. Did, what I mean by threatened is did he ever threaten you physically to do you physical harm at that point?
Q. Did he have any guns on him at that point?
Q. Did he have any knives on him?
Q. Any weapons of any sort?
Q. Has [S.H.] ever, in the past, physically harmed you? Let me re...
S.H., who was free on bail at the time, was present in the courtroom during the first day of the trial and while B.H. was testifying. Immediately after the jury was excused for lunch, the judge sua sponte addressed S.H., revoked his bail, and had him taken into custody. This is what the judge said:
THE COURT: All right, Mr. [H.], I happened to notice your actions just prior to you leaving the courtroom here today. I regard them as conveying a threat to the defendant presently on trial here, and in an effort to intimidate her.
I'm concerned for her safety at this particular moment. So I am revoking your bail with regard to the charges against you, and remanding you to ...