On appeal from Superior Court of New Jersey, Law Division, Essex County, 05-06-1390-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Weissbard, S.L. Reisner and Baxter.
Defendant A.M.J. was charged by indictment with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Counts One and Two); second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Four); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Counts Three, Five and Seven); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Six).
Following a jury trial, on October 3, 2005, defendant was convicted of three counts of third-degree endangering the welfare of a child (Counts Three, Five and Seven), second-degree sexual assault (Count Four), and fourth-degree criminal sexual contact (Count Six). The jury also found defendant guilty of the lesser included offense of second-degree aggravated sexual assault (Count One) and acquitted him of first-degree aggravated sexual assault (Counts One and Two).
On January 23, 2006, the judge sentenced defendant to consecutive seven year prison terms on Counts One and Four and a consecutive eighteen month term on Count Six. Counts Three, Five and Seven were merged, respectively, into Counts One, Four and Six. Thus, defendant's total sentence was fifteen and one-half years with no parole disqualifier. Appropriate penalties and assessments were imposed. In addition, defendant was subject to Megan's Law notification and registration requirements, N.J.S.A. 2C:7-1 to -19, and community supervision for life. N.J.S.A. 2C:43-6.4.
Defendant appeals, raising the following arguments:
POINT I: DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; A REVERSAL IS REQUIRED.
A. DEFENSE COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED. (NOT RAISED BELOW)
B. DEFENSE COUNSEL FAILED TO REQUEST A BILL OF PARTICULARS. (NOT RAISED BELOW)
POINT II: THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE TESTIMONY REGARDING THE SO-CALLED CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME.
POINT III: THE TRIAL COURT ERRED IN THAT IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL IN THAT THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IV: THE TRIAL COURT ERRED IN ITS TREATMENT OF THE FRESH COMPLAINT ISSUE.
POINT V: THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL.
Finding no basis for reversal, we affirm.
The victim of the offenses of which defendant was convicted was T.H., born on May 9, 1987. T.H. first met defendant when she was seven or eight years old, while he was living with T.H.'s grandmother, A. Defendant, whom T.H. called "Tony," would be at A.'s home when T.H. visited. T.H. recalled that during one visit to her grandmother's house, her fish died, "and [her] grandmother told [her] to go flush it down the toilet."
Defendant joined T.H. in the bathroom, closing the door so "[i]t was cracked open." T.H. could not recall what the bathroom looked like. After flushing the fish, T.H. saw defendant's penis "hanging out . . . through the fly of his boxers." She testified that defendant then "took my hand and put it on [his penis] and moved my hand up and down" and that she felt uncomfortable. T.H. said this did not continue for long "because [her] grandmother knocked on the door and said, 'What you all doing in there?'" T.H. testified that she had responded "nothing, and went in the . . . bedroom." She did not tell anyone about the incident at that time.
T.H. later moved with her mother, C., into a two-family house in Newark. C. lived with T.H. and her other children in the second-floor apartment. A. and defendant lived below them, having moved in on the same day. T.H. testified that when she was approximately nine years old "other incidents of sexual nature occur[red]" while she lived in the two-family house. She recalled that defendant "would feel on me, kiss on me, and he used to try to have intercourse with me." She stated this occurred on nights when she was sleeping over in the apartment shared by defendant and A., and took place on a couch in the living room, while her grandmother was "in the bedroom asleep." Meanwhile, her sister, who was three years younger than T.H., was sleeping on another couch in the living room. She testified that "he would feel on me, lift up my night gown and try to have intercourse with me." She recalled "[t]elling him to stop. I didn't want to do this" but "[h]e kept going." When asked if defendant's "penis actually enter[ed]" her, T.H. replied "[j]ust the tip." Also, she testified that defendant "would perform oral sex on me." She could not remember the first time this happened, but testified that it happened on more than one occasion, and recounted multiple other incidents that occurred while she lived above A. and defendant.*fn1
T.H. stated she did not tell anyone about these incidents because defendant would tell her "[y]ou know what would happen if you tell somebody," which she took to mean "he would hurt me or something." Despite this, she testified that she felt that she and defendant "had a good relationship." T.H. testified that around age thirteen, she told her friend Cl. "what happened." At some point defendant and A. broke up and defendant moved out of the two-family house.
T.H. and defendant shared the same birthday, and they would celebrate their birthdays by "go[ing] to McDonald's and my favorite restaurant or something." As her fifteenth birthday approached, T.H. was living down the street from A. with her father, H., and her great-grandmother, R.*fn2 Her mother had moved to Georgia, but T.H. remained in New Jersey to finish school. T.H. testified that she saw defendant when he was visiting A., and that he told her, "'We have a birthday coming up soon,' and [T.H.] said, 'Yes, I know.'" Then he said he was going to take me out for my birthday."
T.H. recalled that on her birthday she was at R.'s house with her friend Cl., H. and R. When defendant arrived he and T.H. exchanged birthday wishes and at his request she gave him a hug. After defendant spoke with R. in her bedroom for "about five minutes," defendant, T.H. and Cl. entered defendant's truck. As they drove, defendant asked where Cl. stayed, apparently thinking he was giving her a ride. When T.H. told him that Cl. would be joining them for dinner, defendant replied that he did not have enough money to take Cl. out to eat. He then dropped Cl. back off at R.'s house. On the way to dinner, defendant asked T.H. if she had a boyfriend and if Cl. knew "any of our business." T.H. responded affirmatively to both questions. When he asked why Cl. knew this, T.H. responded that Cl. was her best friend, to which defendant "said [']Oh. I just don't trust her.[']"
Defendant took T.H. to the Iberia restaurant for dinner. This was the second time they had gone to the restaurant together; the first occasion was also her birthday, but "the whole family was there." There was no discussion of the past at that dinner, which lasted "at least 30 minutes." After dinner, defendant paid the check and then gave T.H. fifty dollars "[f]or [her] birthday."
When they left the restaurant in defendant's truck he told T.H. "he want to stop by the house and get a jacket because it was kind of chilly outside." Defendant took her to his home "[o]n Schuyler" where he "[p]arked on the street." When they entered the apartment, defendant offered T.H. a drink and gave her a Sprite. She sat on the couch and listened to music while defendant went into the bedroom. When Defendant returned, he "turned off the music and put on a porno movie." When T.H. told defendant she did not want to watch the movie, he turned it off and then "sat on the couch next to [T.H.] . . . [and] started kissing on [her] neck and rubbing [her] chest . . . [u]nder [her] clothes." She did not recall him doing anything else of a sexual nature. T.H. told defendant to stop and he did so. Defendant then said, "'But I thought this was what you wanted.'" T.H. responded that she "was ready to go home." Defendant then returned to the bedroom, got his jacket, and they left. There was no further conversation between them on the ride back to R.'s house.
When she returned to R.'s, T.H. joined Cl. in the living room and told her that something of a sexual nature had occurred. While they were talking, defendant visited with R., who was bedridden, in R.'s bedroom. T.H. did not tell anyone else about the night's events because she was afraid, remembering how defendant "always told me if I was to tell I know what [would] happen." Cl. told T.H. that she needed to tell someone because "'[t]his is gone on far too long.'" T.H. testified that as defendant left R.'s house, T.H. asked him to give Cl. a ride home. Cl. wanted to have T.H.'s father accompany them "just in case." Defendant said "he wasn't going that way but he gave her [$20 or $30] to catch a cab home."
Two weeks later, T.H. and her father had an argument that resulted in her father sending T.H. to A.'s house to discuss her behavior. At this time, T.H. told A. about the incident with defendant. A. told T.H. "anything [T.H.] had to tell her, to tell her, that [T.H.] could trust her, and that she's there for [T.H.]" Thereafter, T.H. "just told her everything that happened." This was the first adult to whom T.H. had reported the abuse. A. called T.H.'s mother in Georgia and at the mother's request arranged for T.H.'s cousin, to take T.H. to the emergency room on June 25. T.H. went to Rahway Hospital where she spoke with a female police officer and reported what had occurred. T.H. returned to her cousin's house where she remained until July 1, 2002, when her mother came to New Jersey to bring T.H. to Georgia. On July 12, 2002, T.H. gave a statement about the incidents to police in Georgia.
At the time of trial T.H. was eighteen and living in Georgia.
In addition to T.H.'s testimony, the State provided fresh complaint testimony from her friend, Cl., and testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) from Dr. Christine Baker. Defendant had moved in limine to bar Dr. Baker's testimony. At the outset of that hearing, Judge Isabella stated that such testimony could not include statements to the fact that the victim suffers from this or that any of her traits are similar to this but simply it is an expert testifying to the syndrome itself in an abstract matter, not really connected to the victim in this case or any case. Just really an educational tool to help assist the jury to understand it.
Through an expert witness, Barry A. Katz, Ph.D., defendant challenged the reliability of CSAAS and argued that the phenomenon of children coming forward with revelations of abuse was a topic of general knowledge. Dr. Katz described CSAAS, stating the theory was not in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and not supported by scientific data. On cross-examination, the prosecutor stated that "we all agree, that [CSAAS] is not intended to diagnose sexual abuse." Dr. Katz concurred. Though the judge noted that Dr. Katz raised legitimate issues, he concluded that they were the same issues presented to the Supreme and Appellate Courts in earlier ...