On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-04-00160.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on September 11, 2008
Before Judges Winkelstein, Gilroy and Chambers.
On April 19, 2005, a Hunterdon County Grand Jury charged defendant with two counts of second-degree sexual assault on M.P., a female under thirteen years of age, N.J.S.A. 2C:14-2b (Counts One and Two); and with one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three). The indictment alleged that the crimes occurred on diverse dates between May 26, 1998 and May 26, 2001. A jury trial in May 2006 ended in a mistrial when the jury could not reach a verdict. Prior to retrial, defendant moved to exclude the testimony of A.R., M.P.'s friend, which the State sought to introduce under the "fresh complaint" rule (FCR). After the motion was denied, defendant was tried to a jury. The jury convicted defendant on Counts One and Three and acquitted him on Count Two.
Following his convictions, defendant was evaluated and found ineligible for sentencing under the Sex Offender Act, N.J.S.A. 47-1 to -10. On March 20, 2007, defendant was sentenced on Counts One and Three to concurrent six-year terms of imprisonment; sentenced to community supervision for life, N.J.S.A. 2C:43-6.4; and directed to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19. In addition, all appropriate fines and penalties were imposed. Defendant appeals, and we reverse.
M.P. was born in May 1988. Defendant is the husband of M.P.'s maternal aunt, D.O. Defendant and his wife have two children, a daughter approximately the same age as M.P, and a son, two years younger. From her earliest memories, M.P. often slept at defendant's home in Hunterdon County until sometime in 2003, when defendant and his wife moved to a new home in a different municipality. Defendant's first home consisted of two stories. The first floor contained a kitchen, dining room, living room, master bedroom, and bathroom, and the second floor consisted of one large room, which served as the bedroom for M.P.'s cousins.
Between 1998 and 2003, M.P. slept at defendant's home approximately 100 times. On those occasions, M.P.'s aunt slept in the first-floor bedroom, defendant slept on the couch in the living room, and defendant's children slept in the second-floor bedroom. Generally, except when it was extremely cold and she would sleep on the floor in the living room, M.P. slept in her cousins' bedroom on a pullout couch. The State alleged that during the five-year period when M.P. slept at defendant's home, she was sexually assaulted by defendant approximately twenty or thirty times. The assaults allegedly occurred between May 1998 and May 2001, when M.P. was between the ages of ten and thirteen.
M.P., who was eighteen years old at the time of trial, testified to the assaults as follows. The first assault occurred in 1998 when she was ten years old. Because her cousins were staying the night at their grandparents' home, M.P. slept on the floor in the living room, while her uncle slept on the couch. M.P. was clothed in her underwear and pajamas and covered by a blanket. M.P. awoke in the middle of the night after feeling someone touching her. On observing that the person touching her was defendant, M.P. continued to pretend she was asleep because she was afraid something would happen. For approximately five or ten minutes, defendant placed his hand under her clothes, touching M.P.'s breasts and genital area.
M.P. testified that other assaults occurred during the next three years while she slept on the pullout couch in her cousins' bedroom. While lying on the couch pretending to be asleep, she observed her uncle enter the bedroom, check on his children to ensure that they were asleep, and then approach M.P., again touching her breasts and genital area. On one or two occasions, defendant took M.P.'s hand and placed it on his penis.
M.P. never said anything to defendant during the assaults because she was afraid that he might hurt her. Following each assault, M.P. neither mentioned anything to her aunt or to her cousins concerning her uncle's actions, nor voiced any complaints to her mother, or to her father, with whom, although divorced from her mother, she retained a good relationship. When questioned why she never said anything to her aunt, M.P. stated that she was afraid her aunt would not believe her. When questioned what she meant by being afraid of her uncle, M.P. said, "He just scared me. He was bigger and stronger." However, M.P. acknowledged that defendant never yelled at her; never threatened her; and never instructed her not to tell anyone about the assaults. The only past act of violence that M.P. attributed to her uncle was when she and one of her cousins had accidentally locked the garage door, and defendant broke a window pane in the door to gain access to the door's lock.
In addition to the above alleged assaults, M.P. testified that during the same three-year period defendant would inappropriately touch her breasts while giving her back rubs. M.P. stated that the back rubs occurred during family functions and in the presence of other family members, including her mother, her grandfather and grandmother, and defendant's wife. According to M.P., the incidents occurred when defendant approached her from behind while she was seated, rubbed her neck and back, and eventually moved his hands toward her chest, touching her breasts underneath her bra. Because M.P. had observed defendant rubbing the backs of others, she did not complain to anyone about the incidents, "just figur[ing] everyone thought it was normal."
The first person M.P. told about the assaults was A.R., one of her best girlfriends during her middle school years from seventh through ninth grade. In the spring of 2003, near the end of eighth grade and two years after the last assault, M.P. slept at A.R.'s home. Because she was frustrated with the way her cousins were treating her, M.P. confided in A.R. that her uncle had inappropriately touched her during the past several years. Approximately six months later, on December 6, 2003, M.P. told her parents of the assaults, which led to the prosecutor's investigation and ultimately to defendant's charges.
A.R., also eighteen years of age at the time of trial, testified that one night in the spring of 2003, when M.P. was at A.R.'s house, M.P. told her about defendant's actions. "She basically began to tell me that her uncle had been touching her in inappropriate ways at nighttime when she was asleep, or seemingly asleep, that he would come in, touch her, have her touch him with him thinking that she was asleep." When questioned whether M.P. had told her where defendant would have M.P. touch him, she replied that M.P. had stated "[i]n the groin area." When asked whether M.P. had told her that the assault had occurred on more than one occasion, A.R. replied:
[w]ith the way she told the story, she had basically suggested that it had occurred many times previously, because she said that that was a great deal as to why she didn't want to go to their house, ...