On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-04-571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Parrillo and Messano.
Following a jury trial, defendant R.N. was convicted of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and acquitted of second-degree sexual assault, N.J.S.A. 2C:14-2c, and fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b. On appeal, defendant raises the following issues:
POINT ONE THE COURT ABUSED ITS DISCRETION BY ALLOWING [M.S.] TO TESTIFY AS A FRESH COMPLAINT WITNESS BECAUSE THE ACCUSER'S COMPLAINT WAS NOT MADE IN A REASONABLE TIME, IT WAS NOT CREDIBLE, AND [M.S.] WAS ALLOWED TO TESTIFY AS TO ALL OF THE PREJUDICIAL DETAILS OF THE COMPLAINT.
POINT TWO THE COURT'S FAILURE TO ISSUE AN EVIDENTIAL DECISION, CONDUCT A[N] N.J.R.E. 104 HEARING[,] AND GIVE A LIMITING INSTRUCTION TO THE JURY ON OTHER-CRIMES EVIDENCE WAS PLAIN ERROR REQUIRING [DEFENDANT'S] CONVICTION TO BE REVERSED.*fn1
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The State's first witness was Detective James Muir who had been employed with the Woodbridge police department for twenty-four years and assigned to the criminal investigations unit for nine years. On January 6, 2006, Muir responded to 129 Summit Avenue where defendant lived with his wife, and her son, M.S. Muir was advised by other officers at the scene that defendant had called the police complaining that M.S. had assaulted him. Muir was also told there "might also be some other sexual assault involved in this also." He decided to bring everyone to police headquarters for further questioning. In addition, M.H., the girlfriend of M.S. and the alleged victim of the sexual assault, was contacted and brought to headquarters. Muir took a taped statement from both M.H. and M.S.
Muir testified that M.H. claimed defendant had sexually assaulted her in late July or early August 2005, when she was fourteen-years old. Although M.H. was unable to provide the exact date of the incident, Muir testified that this was not unusual nor was it unusual for a minor to delay reporting a sexual incident. M.H. claimed the assault took place at a house on George Street owned by defendant's mother. Defendant denied the allegations.
M.H. testified that at the time of the incident, she lived with her grandmother, who was also her legal guardian, had just finished eighth grade, and was dating M.S. During the summer of 2005, she would frequently "hang out" at defendant's house in the company of M.S., defendant, and his wife; eat dinner; and celebrate holidays with them. M.S. referred to defendant as "dad" and thought of him and his wife as her parents.
One day in the summer of 2005, defendant took M.H. to his mother's home on George Street. She was not at home at the time, but defendant intended to borrow her car upon her return, and, together with M.H., pick up M.S. from football practice. The house was defendant's childhood home, so he took M.H. upstairs to show her his bedroom that contained trophies he earned as a child. While in the bedroom, defendant told M.H. that he loved her. When she sat down on the bed, defendant sat next to her and put his hand on her leg. Defendant moved his hand up her skirt and, even though she protested, he pushed her back and put his fingers in her vagina. Defendant proceeded to "kiss in between her legs" under her skirt but over her underwear. Defendant left the room and went to the bathroom where M.H. saw him masturbating over the toilet. He asked her twice "to come help him with it," but she went downstairs and waited by the back door until defendant's mother returned home. When M.H. and defendant left together in the car, defendant grabbed the back of her neck and said "[Y]ou know, nothing happened."
After the incident, M.H. and defendant "acted as if nothing happened." She did not tell M.S. because she was scared. However, defendant became "more flirtatious after awhile," occasionally "hitt[ing] [her] butt as [she] walked past" him. In September 2005, she gave defendant an affectionate birthday card acknowledging that they had "grown closer than any biological father and daughter ever could." At Christmas, she gave defendant a card thanking him "for everything!!" She told him he would "always be [her] dad." M.H. testified that she expressed these sentiments in the cards to make it seem like nothing was wrong between her and defendant. She knew defendant and his wife were ...