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State v. A.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
A.S., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-08-0532.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2007

Before Judges Parker and Yannotti.

Defendant A.S. appeals from a judgment of conviction entered on October 31, 2005 after a jury found him guilty of second degree sexual assault, N.J.S.A. 2C:14-2b (Count 1); and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (Count 3). The jury was unable to reach a decision on Counts 2 and 4 charging sexual assault and endangering the welfare of a child. Defendant was sentenced to a term of six years subject to three years parole ineligibility concurrently on Counts 1 and 3.

These charges arose out of allegations made by V.N., defendant's step-daughter, who was under thirteen years of age at the time of the incident. V.N. alleged that on July 30, 1999, the day after her mother gave birth to defendant's child, V.N. was lying in defendant's bed while her sister was on the floor of the room, when defendant pulled her pants down and ejaculated on her back. V.N. further alleged that a year later, in August 2000, she had a similar experience. This time, however, she had completed sex education in school and was aware of what was happening. She claimed that defendant said he would harm her and her family if she told anyone what happened. As a result, V.N. did not report these incidents until three-and-a-half years later when she told her step-mother, O.N.

At trial, Lynn Tasca, Ph.D., a clinical psychologist, testified about Child Sexual Abuse Accommodation Syndrome (CSAAS) and stated that it was common for children to keep sexual assaults secret for a long time. Tasca never spoke with or evaluated V.N., however, nor did she review any records relating to this case. She stated that she was "testifying about what the class of sexually abused children behave like, what [their] typical behaviors are." She further explained that she was "not rendering an opinion about what happened in this case. That's for the jury to decide."

Defendant testified on his own behalf and denied the offenses in their entirety. He related that at the end of the summer in 2003, his wife, V.N.'s mother, filed a domestic violence complaint against him. The complaint was dismissed after a final hearing but defendant moved out of the house anyway because he learned that his wife "was going out with somebody" else. Defendant learned of V.N.'s allegations about five or six months later.

In this appeal, defendant argues:

POINT ONE

BECAUSE THE TRIAL COURT NEVER INSTRUCTED THE JURY AS TO HOW IT SHOULD EVALUATE THE "FRESH COMPLAINT" TESTIMONY OF V.N., THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below)

POINT TWO

THE ADMISSION OF TESTIMONY FROM DETECTIVE GETTIS THAT SHE "PREPARED CRIMINAL COMPLAINTS" AGAINST THE DEFENDANT BECAUSE SHE "DETERMINED A CRIME HAD OCCURRED," CONSTITUTES PLAIN ERROR IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below)

POINT THREE

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. [SIC] V, VI AND XIV; N.J. CONST ART. 1, PARS. 1, 9 AND 10. (Not Raised Below)

POINT FOUR

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND CONTRARY TO THE CODE OF CRIMINAL JUSTICE

Defendant first argues that the trial court failed to instruct the jury on the "fresh-complaint" testimony given by V.N.'s step-mother, O.N. After the child testified, O.N. testified that on December 14, 2003, while she was at church with her family, V.N. told her she needed to speak with her about something serious. After church, while they were driving home in the car, V.N. told O.N. what defendant had done while her mother was having the baby, three years earlier. V.N. was about fourteen years old at the time of this conversation with O.N. V.N. was nervous, scared and crying, and told O.N. that she had not told anyone before because defendant had threatened her if she did. O.N. told V.N. to tell her mother. O.N. did not testify with respect to any details of V.N.'s allegations.

The fresh-complaint rule allows evidence that the victim of a sexual assault voluntarily reported the incident "to someone she would ordinarily turn to for support . . . within a reasonable time after the alleged assault." State v. Hill, 121 N.J. 150, 163 (1990). "The purpose of the fresh-complaint rule is to prove only that the alleged victim complained, not to elaborate the victim's allegations concerning the crime." State v. Bethune, 121 N.J. 137, 146 (1990). Fresh-complaint evidence is intended to negate "the supposed inconsistency of silence by showing that there was not silence." Id. at 146 (quoting 4 Wigmore on Evidence § 1136 at 307) (Chadbourn rev. 1972).

Defendant argues that the trial court's failure to instruct the jury on fresh-complaint evidence left the jury without guidance on how to consider O.N.'s testimony. The State responds that the trial court gave an instruction consistent with State v. P.H., 178 N.J. 378 (2004). The trial court did, in fact, give a charge consistent with P.H., but it dealt only with the CSAAS evidence, not O.N.'s fresh-complaint testimony. The judge charged the jury as follows:

Now, with respect to child sexual abuse accommodation syndrome, the law has come to recognize [silence] about sexual assault complaints may lead some of you to question [V.N.'s] credibility based solely on the fact that she did not complain about the alleged abuse earlier in time. You may not automatically conclude her testimony is untruthful based only on her delayed disclosure. Rather[,] you may consider the delayed disclosure, along with all of the other evidence, including [V.N.'s] explanation for her delayed disclosure; and in deciding how much weight, if any, to afford to complaint testimony, also consider [the] expert testimony explained that delay [is] one of the ways in which a child may respond to sexual abuse.

Accordingly, your deliberations in this regard should be informed by the testimony presented concerning the so-called child sexual abuse accommodation syndrome. You may recall evidence that [V.N.] failed to disclose or acted or failed to act in a way addressed by the child sexual abuse accommodation syndrome. In this respect Dr. Tasca testified on behalf of the State of New Jersey. The witness was qualified as [an] expert as to child sexual abuse accommodation syndrome. However, you may only consider the testimony of this expert for a limited purpose as I will explain. You may not, I emphasize you may not consider Dr. Tasca's testimony as offering proof that child sexual abuse occurred in this case.

In other words, I instructed you when the Doctor testified, I instruct you again, that [it] is not evidence that child sexual abuse occurred in this case. The child sexual abuse accommodation syndrome is not a diagnostic device and cannot be used to determine whether or not abuse occurred. It relates only to a pattern of behavior of the victim which may be present in some child sexual abuse cases. You may not consider expert testimony about the accommodation syndrome as proving whether abuse occurred or did not occur. Similarly, you may not consider that testimony as proving in and of itself that [V.N.], the alleged victim here, was or was not truthful. Dr. Tasca's testimony may be considered as explaining certain behavior of the alleged victim of child abuse. I just state the testimony may not be considered as proof that the abuse did or did not occur. Accomodation [sic] syndrome, if proven, may help explain why a sexually abused child may delay reporting of abuse.

To illustrate, in a burglary or theft case involving an adult property owner, if the adult does not report the crime for several years, your common sense would tell you the delay reflected a lack of truthfulness on the part of the owner of the property. In that case[,] an expert would [not] be offered to explain the conduct of the victim because the conduct is within the common experience and knowledge [of] most jurors.

Here[,] Dr. Tasca testified that in child sexual abuse matters certain characteristics are often found which serve to form what is commonly referred to as a syndrome. This testimony was admitted only to explain that the behavior of the alleged victim was not necessarily inconsistent with sexual abuse and you can use your comparison between the burglary victim as an adult and a child, in this case the child who delays reporting. In both instances[,] you draw your own conclusions from that. The weight to be given Dr. Tasca's testimony is entirely up to you. You may give it great or slight weight or any weight in between. You may, in your discretion, reject it entirely.

Again, it is very important you understand you may not consider the expert testimony in any way proving [defendant], the defendant, committed or did not commit any particular act of abuse. Testimony as to the accommodation syndrome is offered only to explain certain behavior of the alleged victim of child abuse.

In P.H., however, there was expert testimony on CSAAS, but there was no fresh-complaint evidence. Id. at 383-84. There, the trial court charged the jury with the "lack-of-fresh-complaint" charge derived from Bethune, and "then charged the jury on the guidelines pertinent to its consideration of expert CSAAS evidence." 178 N.J. at 387-88. We held that the two charges were contradictory and confusing to the jury, requiring reversal and remand for a new trial. The Supreme Court agreed and held that, in the absence of fresh complaint testimony, the trial court should give only the Model Criminal Charge on CSAAS (Where State Presents Evidence Thereof). Id. at 399-400.

Here, there was fresh-complaint testimony, along with expert testimony on CSAAS, and the trial court was required to instruct the jury on how to consider the fresh-complaint evidence, as well as the CSAAS testimony. The Model Criminal Charges include two options for a fresh-complaint charge. The charge revised 4/19/04 specifically notes that it should be used when there is no CSAAS testimony. The charge revised 2/5/07 is the instruction to be used when CSAAS evidence has been presented:

In this case, you heard testimony that sometime after the alleged sexual offense, (name) complained to _____________ about what had taken place. More particularly, there was testimony that . . . (The court should specify for the jury the particular testimony to which the fresh[-]complaint rule applies.)

The law recognizes that people might assume that anyone subjected to a sexual offense would complain within a reasonable time to someone whom (he/she) would ordinarily turn for sympathy, protection or advice. If there was no evidence that (name) made such a complaint, some might conclude that no sexual offense occurred.

As a result, in cases involving an allegation of a sexual offense, the State is permitted to introduce evidence of the complaint. The only reason that the evidence is permitted is to negate the inference that (name) failed to confide in anyone about the sexual offense. In other words, the narrow purpose of the fresh-complaint rule is to allow the State to introduce such evidence to negate any inference that (name) failed to tell anyone about the sexual offense, and that, therefore, (his/her) later assertion could not be believed.

[Model Jury Charge (criminal), "Fresh Complaint" (2007).] The fresh-complaint charge specifically instructs the jury on the narrow purpose of the fresh-complaint testimony and provides the jury with the necessary instruction on how to consider the evidence.

Adequate and understandable jury instructions are "[a]n essential ingredient of a fair trial." State v. Afanador, 151 N.J. 41, 54 (1997). It has long been recognized that the "'charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.'" State v. Cuni, 303 N.J. Super. 584, 603 (1997), aff'd, 159 N.J. 584 (1999) (quoting State v. Gartland, 149 N.J. 456, 475 (1997), aff'd, 159 N.J. 584 (1999)). A defendant is required to challenge the jury instructions by objecting before the jury retires so that the trial court may cure any defect in the charge. R. 1:7-2.

Where, as here, there is a failure to object, we will reverse only if we find plain error. R. 2:10-2. Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Afanador, supra, 151 N.J. at 54 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Generally, "[e]rroneous instructions are poor candidates for rehabilitation . . . and are ordinarily presumed to be reversible error." Ibid. Here, the absence of a fresh-complaint charge was plain error because it left the jury without any guidance as to how it should consider the fresh-complaint testimony. We hold, therefore, that in a child sexual abuse case where fresh- complaint testimony is presented along with expert testimony respecting CSAAS, the jury must be charged on both issues. The trial court should select the fresh-complaint charge, revised 2/5/07.

Accordingly, we reverse defendant's conviction and remand for a new trial.

We have carefully considered defendant's remaining arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Reversed and remanded.

20070530

© 1992-2007 VersusLaw Inc.



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