November 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, because she did fear that he would come in at night.
She went on to tell me that there were nights where she'd lie awake anticipat[ing] him coming in, and that once he came in[,] she'd act like she was asleep and hope that it would just stop.
Because M.P. instructed A.R. not to tell anyone, A.R. maintained her silence until after M.P. had informed her parents of the assaults.
At the conclusion of A.R.'s testimony, and that of M.P.'s father who also testified as to what M.P. told him on December 6, 2003, about the assaults, the trial court provided the jury with a limiting instruction concerning their testimonies as to what M.P. told them about the assaults. In pertinent part, the trial court instructed the jury:
You may not automatically conclude that [M.P.'s] testimony is untruthful based only on her silence or a delayed disclosure. Rather, you may consider the silence or delayed disclosure, along with all the other evidence, including her explanation for her silence or delayed disclosure when you decide how much weight to afford to her testimony, and of course, she ha[s] not yet testified.
In cases involving allegations of sexual abuse[,] the [S]tate is permitted to introduce evidence that some complaint was made, but is not permitted to introduce the details of any of such a complaint. The only reason that the evidence is permitted is to prevent you from making a false assumption about whether or not the complaint was made.
Such evidence is not proof that the sexual act occurred, and is not proof that the witness is telling the truth. After all, a complaint may be true or false when it is made. It was for this limited purpose that the [S]tate was permitted to introduce testimony that [M.P.] made a complaint to her friend, [A.R.], and her father, [A.P.].
You may consider all the relevant factors in evidence in determining whether a complaint was in fact made. The limited purpose for which you may use this testimony is as follows: If you should find that a complaint was made within a reasonable time to one whom [M.P.] would confide in, you may consider that fact and all the circumstances relating to the complaint in evaluating her credibility as a witness.
The trial court provided the jury with a similar instruction at the end of the case after M.P. testified to the assaults. Defendant testified that he believed he had a friendly relationship with M.P., and denied ever touching her in an inappropriate manner.
On appeal, defendant argues:
POINT I. THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF [A.R.] UNDER THE FRESH COMPLAINT DOCTRINE.
POINT II. THE JURY CHARGE REGARDING FRESH COMPLAINT WAS CONFUSING AND CAPABLE OF CAUSING AN IMPROPER RESULT.*fn1
Defendant argues in Point I that the trial court erred in permitting A.R.'s testimony under the FCR. Defendant contends that the trial court abused its discretion by permitting A.R. to testify as to M.P.'s 2003 complaint, asserting that the complaint was not voiced within a reasonable period of time after the last alleged assault in May 2001. Defendant asserts that "[i]n the absence of coercion, a complaint not made within a reasonable period of time can serve no purpose other than to bolster the victim's testimony, an impermissible use of [the fresh complaint] exception to the hearsay rule."*fn2
On review, we accord deference to a trial court's evidentiary ruling. State v. R.E.B., 385 N.J. Super. 72, 82 (App. Div. 2006). Therefore, we will not reverse a trial court's evidentiary determination "unless the court not only abused its discretion[,] but was also clearly wrong." Ibid. Simply stated, an appellate court should not upset the decision of the trial court unless "the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (internal citations and quotations omitted).
The FCR is a common law exception to the hearsay rule. See State v. Hill, 121 N.J. 150, 163-66 (1990) (explaining the historical development and current status of the rule). The purpose of the FCR is to permit "the State to negate the inference that the victim was not sexually assaulted because of [the victim's] silence." Id. at 163. For a victim's complaint to qualify under the FCR, the State must meet a three-prong standard. The statement must have been: 1) voiced "to someone [the victim] would ordinarily turn to for support"; 2) "made within a reasonable time after the alleged assault"; and 3) "spontaneous and voluntary." Ibid. Moreover, for the victim's statement to be admitted under the FCR, the victim must testify at trial; and only the fact that a complaint was made is admissible, not the details of the complaint. Ibid. An exception, however, is that details of the complaint may be permitted "to rehabilitate a witness after impeachment to show that statements were made after the incident consistent with the witness's trial testimony." State v. Pillar, 359 N.J. Super. 249, 281 (App. Div.), certif. denied, 177 N.J. 572 (2003).
Defendant moved pretrial for the trial court to exercise its gatekeeper role regarding the admissibility of A.R.'s testimony. Defendant requested that the court exclude A.R.'s testimony, contending that M.P.'s 2003 statement to A.R. did not meet the second prong of the Hill standard, i.e., it was not voiced "within a reasonable time after the [last] alleged assault". Hill, supra, 121 N.J. at 163.
In denying defendant's motion, the trial court reasoned:
Here, the victim is the niece of the defendant, and she had to interact with him on a regular basis. [M.P.] testified that her aunt, the defendant's wife, often asked [M.P.'s] mother to have [M.P.] spend the night at the defendant's house. [M.P.] testified that she tried to make other plans so that she would not have to go to their house, because when she did spend the night there she testified she was repeatedly sexually abused.
She was only ten years old when the abuse started and it occurred almost every overnight visit to the defendant's house until she was [thirteen] according to her testimony. Family dynamics may have kept [M.P.] silent. Again, she was only ten years old when the purported abuse started. While [M.P.] was not subject to explicit coercion or intimidation during her sworn statement to police and testimony under oath to the Grand Jury and during the first trial, she testified that she was afraid of defendant's "tough guy" reputation. She stated that he had a "strong hand" and did not feel pain, and that she saw him put his hand through a glass window in the garage, or at least that was what she perceived to have happened.
As stated in State v. Bethune, 121 N.J. 137, Page 146 (1990). "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. Detailed testimony is impermissible under the rule."
The State submits that it is seeking to admit the fresh complaint testimony of only one witness, [A.R.], because she was the first person to which [M.P.] disclosed the abuse. According to the State's proffer, [A.R.'s] testimony will be limited to merely the fact that [M.P.] told her the defendant had sexually abused her.
This [c]court finds that defendant will not be unduly prejudiced if this witness is allowed to testify. He will have the opportunity to hear what [A.R.] testifies to and defense counsel will be able obviously to cross[-]examine her. Further, the defense may argue in closing that [M.P.] waited a "significant amount of time" before disclosing the abuse to anyone.
Additionally, the jury will be given an instruction specifically regarding fresh complaint testimony and limiting its use.
As in the first trial, the instruction will explain the limits on the use of fresh complaint testimony. For these reasons, the defendant's motion to bar this fresh complaint shall be denied. [(emphasis added).]
On appeal, defendant does not challenge that M.P.'s 2003 complaint to A.R. met the first and third prongs of Hill. Rather, as in the trial court, defendant argues that M.P.'s complaint to A.R. did not satisfy the second prong of Hill. Defendant challenges the trial court's implied determination that M.P. voiced her complaint to A.R. within a reasonable time after the last assault occurred in May 2001, when M.P. turned thirteen years of age. Defendant asserts that M.P. did not proffer a plausible explanation why she remained silent during that two-year period and that an explanation was needed to support the court's determination that the two-year period constituted a "reasonable period of time" under Hill. Ibid.
We agree, under the limited facts of this record, that the trial court failed to properly exercise its gatekeeper function when it denied defendant's pretrial motion to exclude A.R.'s testimony. As evidenced by the jury not reaching a verdict at the end of the first trial and defendant's acquittal on one of the two sexual assault counts at the second trial, the evidence of defendant's guilt was not overwhelming. To the contrary, without any other direct testimony or physical evidence of the assaults, the jury was required to acquit or convict based only on its acceptance or rejection of M.P. and defendant's testimonies.
Depending on the facts of a given case, the term "fresh complaint" may be a misnomer. "Fresh" is defined as: "[r]ecent; not stale; characterized by newness without any material interval." Black's Law Dictionary 692 (8th ed. 2004). However, the time in which a victim must voice the complaint to be admissible under the FCR exception to the hearsay rule has not been so restricted. Whether a victim voiced a complaint within a reasonable period after a sexual assault must be decided on a case-by-case basis with the court "[s]triking the appropriate balance between a defendant's right to confrontation and society's interest in adjudicatory reliability". State v. P.H., 178 N.J. 378, 390 (2004). "That balancing must take into account the need for a fair trial of the accused, the nature of the alleged crime, and the overall difficulty involved in prosecution of a case in which the victim is a child and the offense occurs in private." Ibid. Therefore, "[w]hile statements about the sexual assault must be reasonably contemporaneous, that requirement has been given a flexible application when the victim is a minor." Pillar, supra, 359 N.J. Super. at 281.
Courts allow flexibility in applying the FCR standard to cases involving young victims because of their "special vulnerability to being cajoled and coerced into remaining silent by their abusers". State v. Bethune, 121 N.J. 137, 143 (1990). Another reason is that children "may be too frightened and embarrassed to talk about sexual abuse". Id. at 144. A minor victim's complaint may be admitted even where a substantial period of time has elapsed between the assault and the complaint, if the delay is "satisfactorily explainable by the age of the victim and the circumstances surrounding the making of the complaint." Pillar, supra, 359 N.J. Super. at 281-82. Accordingly, when the State seeks to admit a substantially delayed complaint under the FCR, the question is whether there is a plausible explanation for the delay in voicing the complaint. Ibid.
The issue has been addressed in the following cases: P.H., supra, 178 N.J. at 378 (upholding the admission of fresh complaint evidence when a female victim sexually assaulted by her father between the ages of six and twelve waited six years to voice a complaint, and where the State presented expert CSAAS*fn3 testimony explaining why many sexually abused children delay in reporting the acts of abuse); Hill, supra, 121 N.J. at 150 (upholding the admission of a complaint voiced by the victim forty-one days after being raped where the defendant threatened the victim not to tell anyone of the assault); State v. L.P., 352 N.J. Super. 369 (App. Div.) (affirming the admission of the victim's complaint voiced approximately twelve to fourteen months after the last act of sexual abuse, when the victim had been: (1) warned by defendant that he would kill her if she told anyone about the abuse; (2) previously struck by defendant; and (3) removed from defendant's residence and placed in the same home as the defendant's daughter who had also engaged in various acts of physical violence against the victim), certif. denied, 174 N.J. 546 (2002); and State v. Hummel, 132 N.J. Super. 412 (App. Div.) (affirming the admission of a complaint voiced by the victim four to six weeks after the last sexual assault, following the victim's removal from the defendant's home, determining that a fifteen-year-old girl who had been abused and threatened for approximately three years would require several weeks to overcome her residual fears), certif. denied, 67 N.J. 102 (1975).*fn4
Here, contrary to P.H., Hill, L.P., and Hummel, the State did not present a plausible explanation as to why M.P. did not voice her complaint until two years after the last incident. The record is devoid of any evidence that defendant had threatened M.P. not to tell anyone of the alleged assaults, that defendant coerced or intimidated M.P. by displays of violence against his wife or children, or that M.P. resided with defendant for a continuous period of time. Additionally, the record fails to disclose any reasonable explanation why M.P. could not have earlier confided in her mother after returning home from the overnight sleepovers at defendant's residence, or to her father with whom she maintained a good relationship. Nor did the State present testimony from a CSAAS expert.
The State argues that the length of a victim's delay in voicing a complaint to a third party "is merely a factor that the jury may consider relevant with respect to the weight to be given to the fresh complaint under all of the accompanying circumstances" surrounding the sexual assault. We agree with that principle when the State has proffered a plausible explanation for the delay in the victim's complaint, but not as a blanket principle prohibiting the court from exercising its gatekeeper role in the first instance.
As noted by the State, there are cases that indicate the length of the delay goes to the weight to be accorded the evidence, rather than its competency. See State v. Balles, 47 N.J. 331, 341 (1966) (rejecting a defendant's argument that it was for the trial court rather than the jury to determine whether a reasonable time had elapsed between the incident complained of and the victim's complaint), cert. denied, 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed. 2d 1321 (1967); State v. Bethune, 232 N.J. Super. 532, 537 (App. Div. 1989) (holding that "[t]he timeliness of the complaint and any circumstances explaining the delay are treated as questions for the jury"), aff'd, 121 N.J. 137 (1990); Hummel, supra, 132 N.J. Super. at 423 (stating that "[t]he nearness of the complaint to the occurrence or the remoteness therefrom cannot affect its competency, but only its probative value").
However, the facts in Balles, Bethune and Hummel greatly differ from this case. Balles only involved a several hour delay between the assault and the complaint, supra, 47 N.J. at 334-35; Bethune involved a two-week delay in the victim's voicing of the complaint, supra, 232 N.J. Super. at 544; and Hummel involved a delay of four to six weeks with the court determining that there was a reasonable explanation for the delay caused by the victim's residual fears, supra, 132 N.J. Super. at 423. Here, M.P. did not tell A.R. until two years after the last incident complained of.
We conclude that, as in this case, when there is such a lengthy delay between the last assault and the victim's complaint to a third party, the trial court in the first instance should exercise its gatekeeper function and conduct a N.J.R.E. 104(a) evidentiary hearing. The purpose of the hearing is to determine whether the proponent of the fresh complaint evidence also possesses evidence reasonably explaining why the victim delayed in voicing the complaint. On satisfying itself that sufficient reasons will be presented explaining the delay, the court should then admit the evidence and instruct the jury:
In determining whether a complaint was in fact made, you may consider all the relevant factors in evidence . . . . In this context, you may consider the timeliness of the complaint and the likelihood that [the victim] would complain under the circumstances described. If there was a delay in making the complaint, you may consider whether any circumstances existed which would explain the delay. [(Model Jury Charge (Criminal), "Fresh Complaint" (2007)).]
See also Bethune, supra, 121 N.J. at 145 (leaving it to the trial court to determine in the first instance when questioning of a young victim has crossed the line to where the complaint is no longer spontaneous or voluntary).
Here, in denying defendant's pretrial motion, the trial court found that M.P. "may have" kept silent because of family dynamics, explaining that M.P. testified that she was afraid of defendant's "'tough guy'" reputation; she believed he had a "'strong hand' and did not feel pain"; and "that she saw him put his hand through a glass window in the garage, or at least that was what she perceived to have happened." The trial court's findings are not supported by the record. The dynamics of the family were that during the time of the assaults, and for the years that followed, M.P. maintained a good relationship with her mother and father. M.P.'s mother also had a good relationship with her sister, defendant's wife, to where M.P. was permitted to sleep at defendant's home when visiting her cousins. After the sleepovers, M.P. returned home, but never voiced any complaints to her mother or father during the three years in which the assaults occurred or for two years thereafter. We find no plausible explanation in the record as to why M.P. never complained to A.R., her mother, or her father within a more reasonable period of time following the last alleged assault.
As to the trial court's reference to M.P.'s testimony that she was afraid of defendant's "'tough guy' reputation," the record does not contain that statement. We assume the statement merely references the trial judge's recollection of M.P.'s testimony from the first trial. However, that statement, as well as M.P.'s statements that she believed defendant had put his hand through the garage door window and that he had lost feeling in one of his hands from a prior accident, does not explain why M.P. remained silent for two years after the last alleged assault.
We determine that A.R.'s testimony pertaining to M.P.'s 2003 complaint should not have been admitted at trial because it did not satisfy the second prong of Hill. We also agree that the jury should not have been left to assume that, merely because M.P. did not make the complaint for two years, the charges against defendant were untrue. Bethune, supra, 121 N.J. at 148. However, this could have been remedied by a straightforward instruction to the jury that it was not to consider M.P.'s silence following the alleged assaults as "evidence weighing against the credibility of [M.P.], because silence is one of the many ways a child may respond to sexual abuse." Ibid.
We add the following comments for the purpose of retrial. Although we determine on the limited record before us that the State did not proffer a reasonable explanation for M.P.'s two-year delay in voicing her complaint to A.R., the State is not barred from presenting such plausible explanation if one exists. Accordingly, if the State has additional evidence to present on the issue, the trial court should conduct a N.J.R.E. 104(a) hearing and make a preliminary determination as to whether a reasonable explanation exists for the two-year delay. If the court finds that a satisfactory explanation exists, then the matter should be presented to the jury in accordance with the Model Jury Charge instruction.
If the court determines that the fresh complaint evidence is not admissible, the court should instruct the jury that it is not to draw an adverse inference against M.P. if the State requests the curative instruction or if "defense counsel or a witness attempts to shed doubt on [M.P's] credibility." Ibid. Lastly, if defendant uses M.P.'s delay in voicing her complaint, or lack thereof, to attack her credibility at trial, then A.R.'s testimony may be admitted to rehabilitate M.P.'s testimony by showing that the complaint was consistent with her trial testimony. Pillar, supra, 359 N.J. Super. at 281. Because we reverse on defendant's first argument, we do not address the remaining argument.
Reversed and remanded to the trial court for a new trial.