On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Resubmitted October 22, 2008
Before Judges Rodríguez and Lyons.
Following a jury trial, defendant P.L.M. was convicted of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and one count of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 14-2b. These charges stemmed from sexual assaults on three girls under the age of thirteen. One of the victims was A.M. Prior to trial, defendant moved to introduce evidence that during her examination, A.M. had informed Linda Jane Shaw, M.D., of "prior sexual partners" and "requested her sexual history be confidential from her grandmother." The judge denied defendant's motion to pierce the protection of the Rape Shield Law. N.J.S.A. 2C:14-7.
Following the trial, the judge denied defendant's motion for a new trial. The judge merged the lesser offenses with the first-degree aggravated sexual assault convictions, and imposed sixteen-year terms with a NERA*fn1 parole disqualifier on each of the offenses to run consecutively with each other.
On direct appeal, we affirmed in part, rejecting four of defendant's six challenges. State v. P.L.M., No. A-2368-05T4 (App. Div. June 18, 2007). We remanded to the trial court the conviction concerning abuse of A.M. to determine: (1) whether evidence of A.M.'s possible prior sexual history was improperly excluded by the trial judge; and (2) for a resentencing hearing pursuant to State v. Natale, 184 N.J. 458 (2005). However, the convictions arising from the abuse of the two other girls were affirmed.
On remand, the same judge that presided at trial held an N.J.R.E. 104 hearing. Dr. Shaw testified that during her second evaluation of A.M., the girl had indicated that she had "some prior sexual partners." The term "sexual partners" was Dr. Shaw's language, not how A.M. had described them. Dr. Shaw was not able to identify a time when those encounters took place. She did not discuss the specifics of what was involved in those encounters with A.M. Dr. Shaw was certain that A.M. had said that these contacts were with "boys," and there had been at least two.
In her physical examination of A.M., Dr. Shaw found some tearing of A.M.'s hymenal tissue, which could be attributed to blunt trauma to the tissue. According to Dr. Shaw, such tearing is rarely found in sexual assault cases involving menstruating females. It is far more likely to occur in younger children. Because A.M. had begun menstruating at age ten, the tearing of A.M.'s hymenal tissue was consistent with her allegations of sexual abuse beginning at age nine. According to Dr. Shaw, the fact that A.M. might have been having sex with other individuals did not change this finding.
A.M. testified that prior to defendant sexually assaulting her, she had not had sex with anyone else. She did not have a boyfriend at the time when Dr. Shaw examined her. A.M. denied having told Dr. Shaw of any sexual activity with anyone other than defendant, and insisted that any sexual activity she referred to during the examination was in reference to defendant.
On cross-examination, A.M. admitted that her grandmother had told her several times that she was going to have her examined by a doctor to see if she was still a virgin. These confrontations with her grandmother were upsetting to her. According to A.M., her grandmother found her diary, in which she described defendant's assaults on her. She ...