On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-0267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges C.L. Miniman and Baxter.
Defendant, V.C., appeals from his July 28, 2006 conviction, following a trial by jury, on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree*fn1 criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four). After merging count two into count one, the judge sentenced defendant on count one to a fifteen-year term of imprisonment subject to a twelve-year, nine-month parole ineligibility term. On count three, the judge imposed a consecutive seven-year term of imprisonment. Appropriate fines and penalties were imposed. We reverse.
When F.P. was approximately eleven years old, her mother, L.C.,*fn2 married defendant, V.C. According to F.P.'s trial testimony, defendant started sneaking into her bedroom, and into her bed, when she was approximately thirteen years old.*fn3
According to F.P.'s testimony, while her mother was either sleeping or working overtime, F.P. was awakened by defendant putting his hand under her pajama shirt and touching her breasts. Defendant also pulled down her pajama pants and touched the outside of her vagina. He said nothing to her while he was doing this and she said nothing to him. Instead, F.P. attempted to "kick him out" of her room by pretending she was still sleeping, but thrashing about in a way that would force him out of her bed. According to F.P., defendant came into her bed and molested her two to three times per week.
F.P. also testified that at some point defendant began to insert his fingers into her vagina. When asked how many times he had done so, F.P. answered "around 10," and that he had been doing so "like almost a year."
When asked whether she told her mother, F.P. said no. She explained that she was "embarrassed" and "didn't know how to tell [her] mom that her husband was molesting her daughter. I didn't want to hurt her."
F.P. testified that her silence continued until October 6, 2003. That night, while defendant was away on an extended trip out-of-state, her mother asked her whether defendant had been molesting her. F.P. initially answered no because she was "scared" and "nervous." Her mother then went to take a shower. As soon as her mother emerged, F.P. changed her mind and told her mother what defendant had been doing for the past year. The next morning, L.C. took F.P. to the local police station to file a complaint.
On cross-examination, F.P. conceded that the conduct in question had been "going on week after week for 104 weeks," without F.P. telling anybody. F.P. also conceded that defendant was a "tough step-dad" who "had a temper" and "[s]ometimes . . . wasn't very pleasant to be around." She also acknowledged that although L.C. had caught defendant sleeping in her bed on one occasion, L.C. merely told defendant not to repeat such conduct.
The State's next witness was L.C., who obtained a divorce from defendant shortly before the commencement of the trial. Before the State called L.C. to the stand, the judge conducted a N.J.R.E. 104(a) hearing outside the presence of the jury to determine whether L.C.'s testimony describing her conversation with her daughter qualified as fresh-complaint evidence under State v. Bethune, 121 N.J. 137, 144-45 (1990). The judge concluded that the testimony of L.C. so qualified; however, there was no discussion during the hearing of the limiting instruction that Bethune requires.
Before the jury, L.C. testified that there were occasions during her marriage to defendant when she awakened in the morning to find him asleep in F.P.'s bed. L.C. testified that on October 6, 2003, after defendant had left for Kansas to train for a new job, she asked F.P. "if [defendant] ever touched her." Without the defense requesting a limiting instruction or objecting to the scope of her testimony, L.C. described her conversation with F.P. as follows:
Q: What did you ask [F.P.]?
A: I asked her if he ever touched her.
Q: When did you ask her that?