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State v. A.M.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2007

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

On appeal from Superior Court of New Jersey, Law Division, Essex County, 05-06-1390-I.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 cases ultimately allowing CSAAS expert testimony. Based on that case law, the judge ruled that the expert's testimony would be allowed with a proper limiting instruction.

Before Dr. Baker testified at trial Judge Isabella instructed the jury on the legal definition of an expert witness, and cautioned them, as follows:

You may not consider Doctor Baker's testimony as offering proof that child sexual abuse occurred in this case. The [CSAAS] is not a diagnostic device and cannot determine whether or not abuse occurred. It relates 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 [CSAAS] as proving whether abuse occurred or did not occur. Similarly, you may not consider that testimony as proving in and of itself that [T.H.] was or was not truthful.

Dr. Baker testified about the origins of CSAAS, first developed in 1983. She insisted that CSAAS "is not used as a diagnostic tool," but rather a clinical observation "to help adults understand better what happens to children when child sexual abuse occurs." "The syndrome really talks about a typical behavior pattern of children who are sexually abused within the family situation, or extended family situation, or if adults are in a caregiving role." She explained the "five basic components" of CSAAS: the preconditions of (1) secrecy and (2) helplessness, as well as (3) entrapment or accommodation, (4) "unconvincing delayed and conflicting disclosure," and (5) recantation.

Dr. Baker stated that "[w]hen we talk about [CSAAS], most of the time we're looking at people who are within the family," and explained that the original definition of the syndrome was intended "to include people in caregiving roles with children." She testified that "[o]nly eleven percent of assaults generally happen by strangers. Generally, children who are in caregiving and trusting relationships with adults are the children who have sexual abuse histories, not the other way around." She explained that children react to sexual abuse in a variety of ways, but cautioned that "for the record that one symptom does not a diagnosis make."

At side-bar defense counsel raised concerns that Dr. Baker "is giving a lecture rather than answering questions." In addition she had not yet addressed delayed reporting, which defense counsel had understood to be the purpose for her testimony. Judge Isabella stated he was "concerned about [what] she said about the family" because even if her comments were true "if it is not borne out, the jury should be told. So I am telling them to disregard that . . . ."

After the completion of Dr. Baker's direct examination, defendant's attorney made a motion for a mistrial because the "testimony now has gone so far beyond what it should have been. . . . it is so highly prejudicial." Defense counsel argued that "the use of this expert is to bolster the victim's credibility, not to explain her delay in reporting." The judge and the prosecutor both agreed that they were not "crazy about the [hypothetical] variations" offered in Dr. Baker's testimony, and though the judge stated he understood the reason for the mistrial motion, he denied the application.

On cross-examination, Dr. Baker again stated that CSAAS was not intended to be a scientific instrument. It is not a diagnostic tool.

It doesn't mean if you have five of these things, you have been sexually abused . . . . The syndrome was not determined to be diagnostic. . . . It is related to a set of behaviors that were observed, a list of reactions. . . . . . . . a set of symptoms is not a diagnosis of sexual abuse. It could be. It could mean a lot of different things have happened.

Dr. Baker stated that she had "no knowledge of the facts of this case" and had "not read discovery" or spoken with T.H.

The State's final witness was T.H.'s friend, Cl., whose testimony was offered as that of a "fresh complaint witness." Before she testified, and out of the presence of the jury, the judge ruled that he would not be giving a fresh complaint instruction "[b]ecause pursuant to case law in State v. P.H., 178 N.J. 378 (2004), it should not be given when I'm going to give the [CSAA instruction]." Defense counsel agreed.

Cl. was eighteen at the time of her testimony, and had become "good friends" with T.H. around age thirteen. She testified that she was "with [T.H.] on her 15th birthday, on May 9th, 2002 . . . [because T.H.] wanted me to go out with her uncle and her [']cause her uncle was taking her out to dinner for her birthday." Cl. could not remember where she and T.H. had met that day but recalled being "at her grandmother['s] house together," referring to R.'s house in Irvington. She thought she had arrived at R.'s "around like 5:30, six o'clock, around there" and planned to go to the restaurant with T.H. and defendant.

Cl. stated that she did not know defendant, but that T.H. referred to him as "[h]er uncle." Cl. stated that defendant told the girls he could not take her to dinner when they "were outside" and could not remember whether or not they had yet gotten in his car. She said that after defendant told them he did not have enough money to bring Cl. to dinner, she went back into R.'s house to wait for T.H. to return.

She testified that T.H. returned after "[m]aybe like two, three hours" and "she pulled me into the other room" when defendant came in the house to say "hello to everybody." "After he left [T.H.] told me" that something of a sexual nature had occurred that night. She was not sure when T.H. had first told her about the past abuse by defendant, but believed "it was like within a couple days before we planned to go out" for T.H.'s birthday. Cl. testified that defendant was supposed to drive her home from R.'s house "but he said it was out of the way and he didn't have enough gas to take me so I just caught a cab." In contradiction to T.H.'s statement that defendant gave Cl. money for this cab ride, Cl. stated that she used her own money.

The defense's sole witness was defendant. He testified he was forty-nine years old and had spent the past nineteen years working at Northern State Prison, in addition to twelve years of part-time work as a disc jockey (DJ). He recalled he met A. in 1994 when he was working as a DJ at a retirement party and A. asked him to dance. Eventually, defendant moved in with A. and her son in East Orange in 1994. Defendant recalled living there for three months and then moving with her to the first-floor apartment in the home where T.H.'s mother occupied the second-floor apartment with her three children. He stated he lived in that house for "approximately three years" and that, though his son would visit at times, only he and A. lived in the apartment. After three years, defendant and A. broke up and he moved out.

Concerning the incident in the bathroom with T.H.'s dead fish, defendant stated he was in the bathroom because it was his job to clean the fish tank and T.H. had requested that he join her for a memorial before they flushed the dead fish down the toilet. He insisted he did not "walk around the house [in his] boxer shorts" and that during the incident "I had on clothes, pants. . . . raggedy jeans, a shirt, sneakers." He denied ever touching T.H., or attempting to have intercourse or oral sex with her.

Defendant stated that he and A. broke up and he did not have contact with A. until the early summer of 2002,*fn3 when she called to ask him for a loan. He testified that his next contact with the family was in March 2002 when R. called him and asked that he take T.H. to Hillside municipal court because she "was in some kind of trouble" and no one else could take her. He agreed to do so, paid eighty dollars on T.H.'s behalf, and drove her back to R.'s home.

Defendant recalling that he and T.H. shared a birthday, stated "[i]t was a tradition. We went out for our birthday every year . . . to McDonald's, eat, and come on back . . .

[j]ust me and [T.H.]." He continued that when T.H. called him regarding the court date, he mentioned their birthday and he then took her to Iberia. He recalled that he picked her up at R.'s house around seven in the evening and came in to say hello to everyone. He repeated T.H.'s version of the events regarding Cl., saying after the three got into the car he told them that he did not have enough money for Cl. to come to dinner, so she returned to R.'s. He stated that during dinner he had sangria and T.H. only drank soda.

After dinner, defendant testified that they stopped at his apartment "to pick up my CDs . . . 'cause I had a show to do that night" at a lounge in Newark. While he admitted that T.H. entered his apartment, he denied that either of them sat down, saying "we was only there for about approximately 20 seconds or 15 seconds the most." He then dropped her off at home "[a]bout nine or tenish or somewhere around there." He again confirmed T.H.'s version of events regarding their return, his conversation with R. and T.H.'s request that he drive Cl. home. He stated that he declined to drive Cl. because he had to go to work, but "gave her $20 to catch the cab." He denied giving T.H. money as a birthday gift, saying "[t]he gift was the dinner."

II.

Defendant presents related arguments that it was error to deny his motion for a judgment of acquittal, R. 3:18-1, and to deny his motion for a new trial on the ground that the verdict was against the weight of the evidence. R. 3:20-1. We conclude that neither contention has sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(2). Under the governing standard of State v. Reyes, 50 N.J. 454, 459 (1967), the evidence was sufficient to require submission to the jury, and the resulting verdict did not constitute a "miscarriage of justice under the law." R. 2:10-1; R. 3:20-1.

III.

Defendant's ineffective assistance of counsel claim is predicated on his attorney's failure to object to certain remarks by the prosecutor in opening and summation and his failure to request a bill of particulars. If we find no error in these claims the lack of objection is of no significance. Such is the case.

In his opening the prosecutor referred to defendant as a "child molester," and as "a person who views a child as a sexual being." Contrary to defendant's assertion, these comments did not constitute improper "name-calling," State v. Sims, 140 N.J. Super. 164, 175 (App. Div. 1976), nor did they suggest facts that were not anticipated to be supported by the proof at trial. See State v. Bruce, 72 N.J. Super. 247 (App. Div. 1962). Both comments were no more than forceful descriptions of the charges in the indictment. In describing the charges, the prosecutor is not limited to a bare reading of the indictment. In summation, the prosecutor repeated and elaborated upon the comment about "people in the world who view kids as sexual beings . . . as lovers, as potential companions in a sexual way . . ." We discern no error. "Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). These comments did not exceed the bounds of propriety.

Defendant finally challenges the prosecutor's argument that T.H. "had nothing to gain" by her testimony. "She came up here from Georgia to testify before you folks today or yesterday because she was a victim of a crime, a serious crime like all other crimes." These comments were also appropriate. Defense counsel had forcefully attacked plaintiff's credibility, calling her testimony "a series of spontaneous fabrications." In fact, T.H. did come from Georgia to testify and her motive or bias was a matter of fair comment in response to the defense summation. The prosecutor did not thereby impermissibly bolster the victim's testimony. Cf. State v. Frost, 158 N.J. 76, 85-86 (1999).

Thus, having found no error we need not address defense counsel's failure to object to these remarks.

Concerning the claim that his trial counsel was ineffective in failing to seek a bill of particulars, R. 3:7-5, we agree with the State that "there is no indication in the record that the victim's inability to recall the specific dates underlying the sexual abuse described in . . . the indictment actually prejudiced the defendant at trial."

Defendant had a full opportunity to cross-examine T.H. and to expose any lack of specificity in her allegations. Moreover, the record demonstrates that defendant fully recalled the specific occasions described by T.H., but sharply differed with her account of his behavior. In that light it is not surprising that defendant fails to explain how he was prejudiced by the failure to have obtained a bill of particulars. See State in re K.A.W., 104 N.J. 112, 120 (1986). Thus, there was no ineffective assistance of counsel.

IV.

Defendant claims that the trial court erred in admitting Cl.'s testimony as fresh complaint evidence because: (1) it did not fulfill the requirements of N.J.R.E. 803(c)(27), as announced in State v. D.R., 109 N.J. 348, 371-77 (1988); and (2) it constituted repetitive corroboration of T.H.'s trial testimony. The State responds that Cl.'s testimony was properly admitted only as evidence that T.H. made a complaint, and was not offered for the truth of her complaint, as to which T.H. herself testified at trial.

N.J.R.E. 607 states in relevant part: "A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence." An example of such an exception is the "fresh complaint" rule which "'permits proof that the violated victim complained within a reasonable time to someone she would ordinarily turn to for sympathy, protection and advice.'" State v. R.B., 183 N.J. 308, 318 (2005) (quoting State v. Balles, 47 N.J. 331, 338 (1966), cert. denied, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed. 2d 1321 (1967)). See also State v. Bethune, 121 N.J. 137 (1990). This doctrine "is still a viable exception to the hearsay rule." State v. Tirone, 124 N.J. Super. 530, 533 (App. Div. 1973), rev'd on other grounds, 64 N.J. 222 (1974).

The present rule in New Jersey is that to qualify as a fresh complaint, the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary. At trial, fresh-complaint evidence serves a narrow purpose. It allows the State to negate the inference that the victim was not sexually assaulted because of her silence. Only the fact of the complaint, not the details, is admissible. In addition, the victim must be a witness in order for the State to introduce fresh-complaint evidence. [State v. Hill, 121 N.J. 150, 163 (1990) (citations omitted).]

"New Jersey courts recognize that children may be too frightened and embarrassed to talk about sexual abuse, and that it is therefore necessary to be flexible in applying 'fresh complaint' guidelines to complaints of children who allegedly have been sexually abused." Bethune, supra, 121 N.J. at 144 (citing People v. Hood, 319 N.E. 2d, 802 (Ill. 1974)).

As T.H.'s best friend, Cl. was clearly someone T.H. would "ordinarily turn to for support." In addition, given the CSAAS testimony offered by Dr. Baker, T.H.'s reporting of the abuse to Cl. was "made within a reasonable time after the alleged assault." Finally, no evidence in this case suggests that Cl. subjected T.H. to coercive questioning which would render T.H.'s responses inadmissible under the fresh complaint rule. Id. at 145. Thus the spontaneity and voluntariness of T.H.'s complaint is not questioned. Ibid.

In addition, Cl.'s testimony was within the permissible scope of fresh complaint evidence.

The purpose of the fresh-complaint rule is to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime. The purpose of [fresh complaint] is to negative the supposed inconsistency of silence by showing that there was not silence. Thus, the gist of the evidential circumstances is merely non-silence, i.e., the fact of the complaint, but the fact only. [Id. at 146 (alteration in original) (quotation and citation omitted).]

As evidence offered not for the veracity of T.H.'s complaints of abuse, but only in support of the fact that such a complaint was made, Cl.'s testimony was not repetitive.

Two additional claims made by defendant are also without merit. First, the test for fulfillment of the Confrontation Clause in the context of hearsay exceptions, State v. D.G., 157 N.J. 112, 125 (1999), is not relevant here. Cl.'s testimony was not hearsay as it was not offered for the truth of the matter asserted. N.J.R.E. 801(c). Rather, it was offered simply as evidence that T.H. made a statement to her. Even if the Confrontation Clause was at issue, the "clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted)." Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed. 2d 177, 197 n.9 (2004) (internal citation omitted). T.H., the declarant of the statement, was present at trial and was cross-examined by defendant's attorney. Thus, the Confrontation Clause was satisfied.

Second, defendant claims that the requirements of the "tender years exception" were not fulfilled. N.J.R.E. 803(c)(27) provides for an exception to the general bar on hearsay testimony for "[a] statement by a child under the age of 12 relating to sexual misconduct committed with or against that child . . . ." "The date at which the age of the declarant is to be determined is the date on which the statement at issue was made." Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 803(c)(27) (2007). This argument fails because this was not the theory upon which the State relied in offering Cl.'s testimony: she testified as a fresh complaint witness, not under the tender years' exception. In addition, this Rule of Evidence could not possibly apply to this case since T.H. was older than age twelve when she made statements to Cl., as they became friends at age thirteen. This is conceded by defendant in his appellate brief: "The statements to [Cl.] were given several days before and on the victim's 15th birthday, May 9, 2002...."

Cl.'s testimony satisfied the requirements for a fresh complaint witness, and defendant's other challenges to her testimony are without merit. Cl.'s statements were thus properly admitted by the trial court.

V.

Defendant contends that the jury instructions were deficient in several respects. We disagree.*fn4

Defendant first complains that the jury was not instructed on harassment as a lesser included offense of sexual assault. However, harassment is simply not a lesser-included offense of sexual assault. Moreover, under the facts of this case, harassment is not even a lesser-related offense. See State v. Thomas, 187 N.J. 119, 129-30 (2006). Thus, this claim is unpersuasive.

Defendant's second complaint is that the judge failed to "define degradation, humiliation, arousal or gratification" for the jury. "[I]nsofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005). Here, the charges on the aggravated sexual assault counts and lesser included offense of sexual assault was a near verbatim recitation of the model jury charge, which does not include a definition of the terms "degrading" or "humiliating" or "arousing" or "gratifying." In fact, these terms are commonly used and well-understood. There is no need to define them. See State v. Brannon, 178 N.J. 500, 510 (2004); State v. Rombolo, 91 N.J.L. 560, 563 (E. & A. 1918).

Defendant's third complaint is that the court failed to instruct the jury "that the actor had a legal duty for the care of the child or who has assumed responsibility for the care of a child." This claim is also without merit, as defendant was not charged with second-degree endangerment, requiring a legal duty or caretaker relationship, but with third-degree endangerment which has no relationship requirement. The relevant statute states in pertinent part:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child . . . is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree. [N.J.S.A. 2C:24-4a (emphasis added)]

The model jury charge for third-degree endangering the welfare of a child only states that the State must prove beyond a reasonable doubt that T.H. was a child, that defendant knowingly engaged in sexual contact with T.H., and that he knew this conduct would impair or debauch her morals. Model Jury Charge (Criminal), Endangering the Welfare of a Child, Third-Degree, (N.J.S.A. 2C:24-4a) (Nov. 10, 2003). The requirement that "defendant had a legal duty for the care of the child or has assumed responsibility for the care of the child" exists for second-degree endangerment only, as indicated in the model jury charge for that offense. Model Jury Charge (Criminal), Endangering the Welfare of a Child, Second-Degree, (N.J.S.A. 2C:24-4a) (Nov. 10, 2003).

VI.

Defendant's final claim relating to his conviction is that the trial court erred in allowing expert testimony regarding CSAAS because the evidence was not beyond the knowledge of the jurors, the defendant did not raise T.H.'s delayed reporting as a defense, and Dr. Baker's testimony was prejudicial. The State responds that the CSAAS evidence was admissible because it was both probative and relevant and because the jury received a proper limiting instruction.

In State v. J.Q., 130 N.J. 554, 556 (1993), the Court held "that CSAAS has a sufficiently reliable scientific basis to allow an expert witness to describe traits found in victims of such abuse to aid jurors in evaluating specific defenses"; however, if the expert's testimony "went beyond that limited scope and included opinions on commonplace issues, such as credibility assessments . . . that are for jury resolution . . . such evidence [would be] clearly capable of producing an unjust result . . . ." The study that first identified CSAAS was limited "to the most typical victim; i.e., a young female molested by an adult male entrusted with her care." Id. at 567 n.5. The Court stated that CSAAS was designed not to provide certain evidence of guilt or innocence but rather to insure that all agencies . . . offer the child a right to parity with adults in the struggle for credibility and advocacy. CSAAS achieves that by providing a common language for analysis and a more recognizable map to the understanding of child abuse. [Id. at 571 (quotations and citations omitted).]

CSAAS represented "five categories of behavior" commonly exhibited by child sexual abuse victims, two of which were described "as 'preconditions' to the occurrence of sexual abuse and the remaining three as 'sequential contingencies' to the abuse . . . [though] the 'preconditions continue into and characterize the period of abuse." Id. at 568. The preconditions are (1) secrecy, "frequently accompanied by threats" - the "abuse happens only when the child is alone with the offending adult, and the experience must never be disclosed"; and (2) helplessness, "an outgrowth of the child's subordinate role in an authoritarian relationship in which the adult is entrusted with the child's care . . . ." Id. at 568-69. The sequential contingencies are: (3) a combination of entrapment and accommodation -- "the child feels trapped by the situation (entrapment), and that perception results in the behavior of accommodating the abuse (accommodation)"; (4) "delayed, conflicted and unconvincing disclosure" occurring "if ever, only after some years of continuing sexual abuse and an eventual breakdown of accommodation mechanisms"; and (5) retraction - "the child feels obligated to preserve the family, even at the expense of his or her own well being . . . to capitulate and restore a lie for the family's sake." Id. at 569-70 (quotation and citation omitted).

Defendant's reliance on J.Q., supra, is misplaced. In that case, the expert witness not only "described the various aspects of CSAAS" but also "related them to behavior she had observed" in the alleged victims. Id. at 559. The Court held that such testimony "was clearly capable of producing an unjust result" and accordingly ordered a new trial. Id. at 556. The J.Q. court found that had the expert's opinion stayed within the prescribed bounds, "we would not find clear error capable of bringing about an unjust result." Ibid. Instead, the expert was specifically asked to "give this jury your expert opinion as to whether or not [the alleged victims] were sexually abused" and she answered, "I believe that they were sexually abused." Id. at 578. This constituted improper opinion evidence either regarding an issue of credibility that was for the jury or suggesting that CSAAS was a tool used to detect abuse. Ibid. CSAAS is not the sexual abuse analogue of battered child syndrome, which is diagnostic of physical abuse. . . . [CSAAS] is not probative of abuse. . . . .

[CSAAS] has a place in the courtroom.

The syndrome helps explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny that anything occurred. If use of the syndrome is confined to these rehabilitative functions, the confusion clears and [CSAAS] serves a useful forensic function. [Id. at 579 (citation omitted).]

The Court revisited the issue of CSAAS testimony in State v. P.H., 178 N.J. 378, 395-96 (2004) (citations omitted), holding that

[s]uch testimony properly can be used to explain why a victim's reactions, as demonstrated by the evidence, are not inconsistent with having been molested. However, when CSAAS evidence is admitted, the jury must receive a specific instruction that such testimony does not answer the ultimate question whether the victim's molestation claims are true.

The Court continued its discussion of CSAAS's usefulness:

In performing its exceedingly important task of assessing credibility, the jury should be permitted to consider all relevant testimony. Viewed in the context of all the facts surrounding the claimed abuse, the timing of the report of abuse, or silence about it, can be relevant for the jury to consider in the totality of the circumstances. So long as the jury is instructed that such silence or delay, in and of itself, is not inconsistent with a claim of abuse, the proper balance is struck. [Id. at 397.]

In the instant case, while we agree that Dr. Baker's testimony was at times rambling, the witness was neither asked nor did she opine about the ultimate issue in the case: whether T.H. had been sexually abused. Because Dr. Baker's testimony remained within the bounds of describing CSAAS without relating to the specifics of T.H.'s claims against defendant, no error is apparent. "Unlike the expert in State v. J.Q., the CSAAS expert here never attempted either to 'connect the dots' between [T.H.'s] behavior and the [CSAAS] or tender an opinion as to whether [T.H.] in fact was abused." R.B., supra, 183 N.J. at 328. While admittedly close to the edge of impropriety, any error in Dr. Baker's "family" references and her use of percentages was cured by the trial court's several limiting instructions.

Defendant claims he did not raise T.H.'s delayed reporting as a defense and CSAAS was thus not necessary "as an explanation for the delay." Yet, in the same sentence in which he insists "delay was not used as a defense," defendant admits that "delay was inherent in the facts of the case." Either way, as discussed above, CSAAS testimony is permitted to explain why sexual assault victims may not report their injuries in a timely manner; it is not necessary that this explanation be preceded by a defendant invoking that delay as a defense.

Invoking N.J.R.E. 403, defendant claims the CSAAS evidence was prejudicial and cumulative. Considering the Court has already accepted expert testimony on CSAAS as legitimate, a claim that such testimony would be confusing is unpersuasive. Defendant also fails to prove his claim that the evidence was cumulative. In addition, defendant fails to acknowledge that the prosecutor stated in his opening remarks that CSAAS "cannot be used to prove this girl was molested. It is merely to educate you on the realities of when some kids are molested, the process that sometimes occurs . . . ." Finally it should be noted that unlike the defense in P.H., supra, defendant did not offer his own expert at trial to discuss CSAAS, as he did in his in limine motion. In turn, this allowed the State's evidence on the topic to go unanswered. 178 N.J. at 386.

Judge Isabella instructed the jury before Dr. Baker's testimony, using the majority of the model jury charge for expert testimony, Model Jury Charge (Criminal), Expert Testimony (Nov. 10, 2003), and cautioning them as to the limited use of CSAAS evidence. In his final instructions, the judge again charged the jury regarding Dr. Baker's testimony with a nearly verbatim recitation of the relevant model jury charge, Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (Where State Presents Evidence Thereof), (Mar. 22, 2004). In addition, he specifically instructed the jury that any percentages or statistics offered by Dr. Baker, referring to the prevalence of sexual abuse perpetrated by family members, was not to be considered "for any reason whatsoever. Doctor Baker's testimony may be used only for the limited purpose for which I previously instructed you."

The limiting instruction regarding the CSAAS testimony was entirely appropriate and was given both contemporaneously with Dr. Baker's testimony and later that day in the jury charge. It thereby satisfies the Court's mandate that the "jury must receive a specific instruction that such testimony does not answer the ultimate question whether the victim's molestation claims are true," P.H., supra, 178 N.J. at 396 (citing J.Q., supra, 130 N.J. at 580-81).

As in R.B., it can be said here that "[t]he trial court's CSAAS charge as a whole was proper." Id. at 325. In words that are apt here, the Court stated:

The jury's function to make credibility determinations cannot be usurped by expert testimony. . . . In the future, prosecutors and trial courts must insure that the scope of a CSAAS expert's testimony is carefully circumscribed and does not exceed its proper bounds: solely to explain to the jury why it is not uncommon for sexually abused children, without reference to the child victim in that case, to delay reporting their abuse . . . .

[Id. at 329.]

Defendant raised this same issue in his new trial motion. In denying the motion Judge Isabella filed a comprehensive written opinion with which we fully concur. Nevertheless, while we have found no error here sufficient to warrant a reversal, we caution prosecutors that the necessity of controlling and focusing a CSAAS expert is essential to insure compliance with the narrow purpose of such evidence. Trial judges, too, should be alert to ensure that the expert does not stray out of bounds.

VII.

Defendant's attack on his sentence is also without merit. With respect to the seven-year term on the second-degree sexual assault conviction, the judge found aggravating factor two (gravity and seriousness of harm inflicted on the victim), N.J.S.A. 2C:44-1a (2), and nine (need to deter), N.J.S.A. 2C:44-1a(9), and mitigating factor seven (no prior history of criminal activity), N.J.S.A. 2C:44-1b(7). He found the factors to be in equipoise and therefore imposed the mid-range (formerly presumptive) term. Defendant does not challenge the aggravating factors but contends that the judge should have found mitigating factors eight, nine and ten, N.J.S.A. 2C:44-1b(8),(9),(10). Had the judge done so, defendant argues, the mitigating factors would have greatly predominated, resulting in a much lower sentence, perhaps even in the third-degree range. N.J.S.A. 2C:44-1f(2). We disagree.

At the outset, we note that defendant did not, at the time of sentencing, request sentencing a degree lower, as he now suggests. The judge properly determined that the mitigating factors cited by defendant were not applicable in the circumstances. In our view, that decision did not constitute an abuse of discretion. State v. Dalziel, 182 N.J. 494, 503-06 (2005).

Separately, defendant argues that the imposition of consecutive sentences was unwarranted under the guidelines established by State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). While it is true that there was only one victim, defendant's assaultive behavior took place in several distinct time periods, resulting in the multiple charges. Under these circumstances, as the judge explained at sentencing, consecutive sentences were not an abuse of discretion. Indeed, the facts in Yarbough, bear striking similarity to the facts here, involving sexual assault on a youthful victim over a two month period. Id. at 646. Consecutive sentences were upheld. Here, the offenses occurred over a period of years, presenting an even stronger case for consecutive sentencing. To have imposed concurrent terms would have rewarded defendant with "free crimes."

Overall, defendant's sentence does not "shock [our] conscience." State v. Roth, 95 N.J. 334, 364 (1984).

Affirmed.


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