On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-08-0532.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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)
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 ...