On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-02-00140-I.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Hoens and R. B. Coleman.
Defendant R.E.B. is serving a ten year term of imprisonment after being convicted of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, against his biological daughter, J.B., who was approximately thirteen or fourteen years old at the time of the alleged abuse. In a brief, which was unnecessarily lengthy, defendant advances ten errors allegedly committed by the trial court during defendant's Cape May County jury trial.*fn1 The excessively wordy and repetitive 104 page "brief" made it more difficult for us to discern whether defendant was advancing any meritorious allegations.*fn2 After our careful review of the record, however, we conclude that several errors were made that require reversal of defendant's conviction and a new trial. We deal only with those errors, which include the preclusion of admissible evidence and the absence of an instruction regarding the appropriate use of fresh complaint evidence.
The pertinent facts are as follows. Defendant and J.B.'s mother divorced in 1990. In 1993, when J.B. was eight years old, she was, unfortunately, molested by her paternal grandmother's husband who was subsequently convicted of these crimes. J.B. stopped visiting with her father during this period, but resumed visitation approximately one year later in the fall of 1994.
After contact with her father resumed, J.B. and her brother R.B.III, who was eighteen months younger than his sister, generally had overnight visitation on weekends with their father and his current wife. It was during the overnight visitation at her father's house that J.B. asserts she was once again molested, this time by her own father.
She could not recall precisely when the incidents occurred or exactly when they stopped, but it was believed that they occurred sometime between 1998 and 2000. J.B. reported that the incidents occurred in the mornings, while her brother and defendant's wife were at the store and J.B. and defendant were alone in the house.
J.B. testified that in the morning defendant would come into the bedroom she shared with her brother, while she was alone watching television or listening to music. Defendant would lock the bedroom door and then proceed to have sex with her for about one hour. J.B. testified that defendant would touch her chest and, put his penis inside of her, ejaculating on her stomach. J.B. would wipe the ejaculate off of her stomach and then get dressed.
According to J.B., neither she nor defendant said anything to each other during the encounters and J.B. did not tell defendant to stop. J.B. testified that on one occasion defendant's wife came home while defendant was still in J.B.'s bedroom. The wife knocked on the door, and defendant told her to "hold on." Defendant dressed and left the room, explaining to his wife that he was helping J.B. fix something. After the encounters, defendant would give J.B. money and instruct her not to tell anybody. J.B. testified that after the incidents occurred she "would keep it together."
J.B. explained that she did not tell her brother about the abuse because she didn't want him to know and she felt her brother and her mother "[didn't] need to know." J.B. stopped visiting her father "maybe two or three years" before the trial, when she was fourteen, and did not explain to her mother why she no longer wanted to visit her father.
Defendant's current wife testified that she never observed any "unusual or untoward conduct" between defendant and his daughter. It was her custom to shop on Fridays when she picked up the children. If she had to pick something up on the weekends, she would go to a nearby market within minutes of the house. She did not recall any incident where defendant was in the bedroom with J.B. and instructed her to wait outside or not to enter.
R.B.III testified that he and his sister had a good relationship and were "pretty open" with each other. R.B.III stated that his sister never disclosed any allegations of abuse by defendant and he never saw anything that aroused his suspicions, except that J.B. "cried a lot" and one time, when he was about ten years old, he saw his sister naked in the bathroom. She appeared to be upset and crying while speaking with defendant. He could not see his father, nor could he hear what was said.
S.B., defendant's aunt, testified that she also had a close relationship with J.B. She explained that two summers before trial, after the alleged abuse, J.B. expressed a desire to live with defendant because she was upset with her mother.
S.B.'s husband, J.B.'s uncle, confirmed his wife's testimony, and also explained that when he had discussed with defendant the previous sexual assault against J.B. by her grandmother's husband, defendant exclaimed that "he felt that he let his daughter down" and "at one point he wanted to kill [the abuser]." According to S.B.'s husband, defendant was "very emotional" about his daughter's previous abuse and defendant "has never recovered from that."
A licensed private detective hired by the defense testified that R.B.III reported that defendant would not send anybody to the store on weekends, "because he would generally be sleeping." R.B.III specifically told the investigator that when he occasionally went out with defendant's current wife to get food or coffee, it generally took about ten minutes, and when they returned, defendant was usually asleep.
J.B.'s best friend in 1998 and 1999 testified that during the relevant time period she would spend the night at defendant's house "basically every weekend [J.B.] was [at defendant's house]," and thirty percent of the time she would stay over both Friday and Saturday nights. During the time she was staying with J.B., she did not observe anything unusual between J.B. and defendant, and J.B. never said anything about defendant molesting J.B.
About nine months before defendant's trial began, and about two years after the alleged abuse, J.B. told her cousin that her father had molested her. This disclosure took place in the "middle of the night" after her cousin had revealed that she had been physically abused. J.B.'s cousin testified that J.B. was "very upset" when she divulged the sexual ...