February 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-08-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010
Before Judges Lisa and Reisner.
Defendant was charged in a five-count indictment with various sexual offenses committed against two victims, his daughter Andrea, and his granddaughter Allison.*fn1 The offenses against Andrea were alleged to have occurred between December 1994 and December 1998, beginning when Andrea was about eleven years old. More particularly, defendant was charged in the first three counts with committing the following offenses against Andrea during that time: (1) first-degree aggravated sexual assault by committing acts of sexual penetration, N.J.S.A. 2C:14-2(a)(1); (2) second-degree sexual assault by committing acts of sexual contact, N.J.S.A. 2C:14-2(b); and (3) second-degree*fn2 endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The fourth and fifth counts charged sexual improprieties against Allison between December 1, 2004 and February 28, 2005, when she was eleven years old, as follows:
(4) second-degree sexual assault by committing acts of sexual contact, N.J.S.A. 2C:14-2(b); and (5) third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
The jury convicted defendant of counts one, two and three, but acquitted him of counts four and five. After merging count two with count one, the judge sentenced defendant on count one to ten years imprisonment. The judge imposed a consecutive five-year term on count three.
Defendant presents the following arguments on appeal:
DEFENDANT'S MOTION FOR SEVERANCE OF OFFENSES SHOULD HAVE BEEN GRANTED.
THE ADMISSION OF THE TESTIMONY OF [H.V.] AS FRESH COMPLAINT EVIDENCE WAS ERRONEOUS. POINT III
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LIMITED USE OF FRESH COMPLAINT EVIDENCE. (Not raised below.)
IT WAS ERROR FOR THE COURT TO FAIL TO MERGE THE OFFENSE OF ENDANGERING THE WELFARE OF A CHILD WITH THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT.
CONCURRENT SENTENCES SHOULD HAVE BEEN IMPOSED ON DEFENDANT. (Not raised below.) POINT VI
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below.)
We reject these arguments and affirm.
Defendant and his extended family lived together in the same household at all relevant times. In addition to defendant and his wife, the household included defendant's daughter Andrea, defendant's three sons, the wife of one of those sons, and defendant's two stepdaughters and their children, one of whom was Allison. Approximately twelve people lived in the household. Defendant, who was sixty-six years old at the time of trial in 2008, supported his family by working as a truck driver for many years.
Although the abuse of Andrea had ceased by the end of 1998, Andrea never disclosed the abuse to anyone until March 2005. The circumstances inducing Andrea to come forward were as follows. In late February or early March 2005, Allison's mother came upon a "revenge list" containing ten to fifteen names written on it by Allison. One of the names was "Grandpa," referring to defendant. When her mother asked why defendant's name was on the list, Allison initially said it was "nothing." Upon further questioning by her mother, Allison said defendant had "been mean to her." When further questioned, Allison said defendant sometimes "held her too tight," he "was hugging on her," he rubbed her back, and "he had touched her some." Allison's mother discussed this with her sister and her mother (defendant's wife). They agreed this was a family problem that should be handled internally and not reported to the police. Allison's mother confronted defendant. He said he did not know what Allison was talking about, and that "he was just making her move the dog off the bed."
Andrea was twenty years old at that time. When she came into the home one day, she found her sisters crying and was told that her niece, Allison, had been sexually abused by defendant.
Learning of this information, Andrea went to visit a friend, H.V., and told her what happened. The relationship between Andrea and H.V. began when Andrea was a freshman in high school. H.V. was the leader of a youth group in which Andrea participated through her high school years. The two remained friends even after Andrea graduated from high school. According to H.V., Andrea showed up at her house "visibly upset [and] crying," and informed her that there had been sexual abuse going on in her family involving Allison. When H.V. asked Andrea if there was anything else she wanted to tell her, Andrea explained that she too had been sexually abused by her father.
H.V. urged Andrea to speak to the area coordinator of the youth group organization, but Andrea declined to do so. After a few days, H.V. informed the coordinator of the information that Andrea had revealed, and the coordinator passed it along to the Division of Youth and Family Services. The police were then informed. An investigation ensued, resulting in the indictment we have previously described.
At trial, Andrea described the course of conduct and specific instances of sexual abuse, which she said began when she was about eleven years old. She said these incidents would occur in the evenings when her mother was at work. They typically occurred in her parents' bedroom. Initially, defendant would caress her back. Sometimes he would gradually move his hand lower, toward her buttocks. Eventually, he progressed to touching her chest. In the beginning, the touching was over the clothes. The conduct progressed further to touching her vaginal area. Again, this was first over the clothes, and this too progressed to touching under the clothes. Andrea testified that while touching her vaginal area under her clothes, defendant sometimes touched her "on the skin" and sometimes "further in" her vagina. Andrea said this happened more than once.
Andrea would typically bring these incidents to a close by moving away and repositioning herself on the bed. She said it went on for "probably a couple of years." Prior to telling H.V., she had never told anyone of these events because she was "[a]shamed, afraid, [and] confused." At some point in time, defendant's abusive conduct toward her stopped.
Hearing that defendant was accused of engaging in similar conduct with her niece, Andrea went to see H.V. and volunteered the information we have previously described. Andrea cooperated with law enforcement officials in their investigation. She moved out of the area, to Missouri, for more than a year, after which she returned to New Jersey to live.
Allison testified to three discrete events underlying the charges pertaining to her. They all occurred within a three-month period when Allison was eleven years old. In the first incident, Allison said she brought the telephone up to defendant in his bedroom. He put his hand up under her shirt and rubbed her stomach, after which he moved his hand up and touched her breasts. On another occasion, Allison said that defendant "slapped [her] on the butt." Finally, Allison said she stayed home from school one day because she was sick. She went to sleep in her room and was certain she had locked the door. When she woke up, she said defendant was in her room and "he was rubbing [her] hair." Allison was startled, because she did not know how defendant could have gotten into her room through the locked door. She said that all of these incidents made her feel "uncomfortable" and "strange."
Allison did not tell anyone, but put defendant's name on her "revenge list," which her mother later found. She then told her mother about defendant's conduct toward her, which Allison considered inappropriate.
Defendant testified. He described the extended family household and the fact that he was the provider. He did not charge any of the occupants of his home room and board. He said he had been considering retiring and that he and his wife had been discussing the prospect of possibly selling the home.
Defendant denied ever touching Andrea inappropriately or ever digitally penetrating her. He also denied ever touching Allison inappropriately. He specifically denied reaching under her shirt and touching her breast or touching her on the buttocks. When asked about the telephone incident Allison had described, defendant denied that Allison had ever brought a telephone to him while he was laying on his bed.
However, under cross-examination, defendant acknowledged going into Allison's bedroom on one occasion when she was sick. He said he simply went in to give her her medicine. He said the door was not locked, and he denied stroking her hair. Defendant also acknowledged that he was typically "affectionate" with his children and grandchildren and that he "believe[d] in showing them love." He acknowledged hugging Allison, but said she was exaggerating the duration of the hugs. He acknowledged that he sometimes gave Allison and the other women in the household massages on their shoulders.
Defendant also testified that he had scolded Allison because she had failed to clean up after the dog. Defendant said that when Allison's mother confronted him about Allison's allegations, he said she must have been mad at him because he "yelled at her over the dog."
The State presented the testimony of Patricia Sermabeikian, PhD., a social worker and supervisor at the Audrey Hepburn Children's House at the Hackensack University Medical Center. She qualified as an expert in the field of Child Sexual Abuse Accommodation Syndrome (CSAAS). She described the syndrome as consisting of five categories of behaviors that commonly occur in cases of child sexual abuse. They are: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, inconsistent disclosure, and (5) retraction or recantation.
Dr. Sermabeikian testified in detail about each of these characteristics. She explained that all five are not necessarily present in every case. She described in detail each of the characteristics and explained how they are typically manifested. She explained that the abuse typically follows a "gradual process" and "has a seductive quality to it." Thus, a perpetrator can start out with gentle touches, gifts, and the like. This process is referred to as "grooming." The conduct, which starts out seemingly innocent, gradually escalates, "becom[ing] more and more involved, until it finally becomes more sexual. It advances in its sexual nature over time."
Defendant first argues that his motion for severance should have been granted. Prior to trial, defendant moved to sever the first three counts from the last two counts. He contended that the two groups of counts concerned different victims, time periods, and alleged conduct, and that evidence of misconduct with regard to one victim would not be admissible in the trial of the other victim's case.
The trial court denied the motion, finding that the incidents concerned victims of about the same age, began with the same type of touching, occurred in the same home, and bore many common characteristics. Although there was a lapse of about six years between the two sets of incidents, the judge was of the view that the other-crimes evidence pertaining to one victim would be relevant with respect to the allegations pertaining to the other victim to show lack of mistake, intent, and a pattern of conduct. The judge found that there was clear and convincing evidence that the acts occurred in light of the grand jury's probable cause finding. Finally, he found that the prejudicial effect would not outweigh the probative value of the evidence.
Separate offenses can be included in a single indictment if the charges are the same or similar in character or constitute part of a common scheme or plan. R. 3:7-6. However, if the court is convinced that the defendant would be prejudiced by joinder, severance may be ordered. R. 3:15-2(b). "The decision whether to sever an indictment rests in the sound discretion of the trial court." State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Absent a mistaken exercise of discretion, an appellate court will defer to the trial court's decision. Ibid.
Central to the inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Pitts, 116 N.J. 580, 601-02 (1989). If the evidence would be admissible at both trials, the charges can be consolidated because the defendant "will not suffer any more prejudice in a joint trial than he would in separate trials." Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)). However, "wherever evidence is required with respect to one offense and inadmissible and prejudicial with respect to another, except under specified conditions, those two offenses should not be tried together." State v. Carminati, 170 N.J. Super. 1, 14 (App. Div.), certif. denied, 82 N.J. 274 (1979).
Under N.J.R.E. 404(b), "evidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).
To be admissible under N.J.R.E. 404(b), other-crimes evidence must satisfy the four-part test laid out in State v. Cofield, 127 N.J. 328, 338 (1992): "(1) It must be relevant to a material issue; (2) It must be similar in kind and reasonably close in time to the offense charged; (3) The evidence of the other crime must be clear and convincing; and (4) The probative value of the evidence must not be outweighed by its apparent prejudice." State v. Covell, 157 N.J. 554, 564 (1999). In determining whether to order severance, the court should analyze the offenses at issue under this test to determine if evidence of one offense would be admissible other-crimes evidence in the trial of the other offense. Chenique-Puey, supra, 145 N.J. at 341; Pitts, supra, 116 N.J. at 601-02.
The trial court applied this test in ruling on defendant's severance motion. Accordingly, because the judge applied the correct legal principles, our role is limited to determining whether the judge acted within the bounds of his discretion. State v. Marrero, 148 N.J. 469, 483 (1997). The trial court is in the best position to engage in the required balancing process, and its decisions are entitled to our deference. State v. Ramseur, 106 N.J. 123, 266 (1987). We will only intervene if there has been a clear error of judgment. Marrero, supra, 148 N.J. at 483.
Under the first prong, courts frequently admit other-crimes evidence to establish intent and motive, and allow a wider range of evidence when these issues are material. State v. Koskovich, 168 N.J. 448, 483-84 (2001). However, where a defendant's intent and motive were clear from the manner in which the offense was committed, the other-crimes evidence cannot be admitted for this purpose. State v. Beckler, 366 N.J. Super. 16, 28 (App. Div.), certif. denied, 180 N.J. 151 (2004). Defendant argues that his intent was clear from the manner in which the offenses were allegedly committed. Similarly, he contends that the nature of the alleged acts established the absence of mistake. We do not agree.
Many of the acts included in defendant's course of conduct with both victims could well be characterized as innocent or trivial. The State had the burden of proving a sexual motive and a purpose of sexual gratification as elements of the offenses charged with respect to both victims. See N.J.S.A. 2C:14-1d, defining "sexual contact" as an intentional touching of the victim's intimate parts "for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." Defendant offered innocent explanations, saying he was very affectionate with his children and believed in showing them love. He acknowledged hugging them and massaging them, although he denied the conduct was inappropriate. He admitted entering Allison's bedroom when she was sick, and it could easily be argued that stroking a sick child's hair (if the jury believed Allison) was innocent conduct.
In light of the CSAAS testimony, the jury could certainly consider the grooming aspect of defendant's conduct which, in Andrea's case, escalated beyond the preliminary, seemingly innocent conduct, and which, with respect to Allison, began the same way. Unlike the conduct in State v. G.V., 162 N.J. 252, 259 (2000), the sexual misconduct here was not the kind of "horrendous course of patent sexual depravity" which could not be characterized by the defense as "simply misinterpreted expressions of fatherly affection." Much of the conduct in this case was ambiguous in nature and amenable to the possible defense of mistake or absence of intent. Ibid. We are satisfied that the evidence pertaining to each of the victims was relevant with respect to the conduct pertaining to the other victim.
Further, the two sets of conduct were interrelated factually. It was only when the abuse against Allison came to light that Andrea was motivated to disclose what had happened to her. In order to present a clear picture to the jury of why Andrea came forward after such a long period of silence, the jury had to be told about the precipitating event, namely disclosure of the allegations pertaining to her young niece. Finally, the grooming aspect of the conduct as to each victim showed a pattern of conduct, which made the evidence with respect to each victim relevant to that pertaining to the other victim.
The second Cofield prong requires similarity in kind and temporal proximity. Covell, supra, 157 N.J. at 564. Unquestionably, the conduct was similar in kind. Each victim was approximately eleven years old when the abuse began. The abuse occurred in the same household. The grooming aspect of CSAAS bears on this factor as well. Although the alleged conduct with respect to Allison was in its early stages, it was similar to the early stages of the conduct pertaining to Andrea. We recognize, of course, that there was a significant hiatus of about six years between these events. However, remoteness "cannot ordinarily be determined by the passage of time alone." State v. Sands, 76 N.J. 127, 144 (1978). Under all of the circumstances in this case, including the youth of the victims, the continued presence of Andrea in her father's household after the abuse to her had ended, the nature of the offenses, and the CSAAS evidence, we are satisfied that the time frame was reasonable.
The trial court found that the third prong was satisfied because the grand jury determination was sufficient to establish clearly and convincingly that the other conduct occurred. See State v. G.S., 145 N.J. 460, 469 (1996). While we have some misgivings about this rationale, and note the absence of an N.J.R.E. 104(a) hearing, we are satisfied that the trial evidence was sufficient to satisfy this prong.
Finally, as to the fourth prong, because of the absence of independent corroborative evidence, the testimony of the victims constituted the principle evidence the State had to offer to prove the crimes. The State was confronted with the potential defenses of mistake, absence of intent, exaggeration by the girls, vendetta for reprimanding Allison about the dog or for defendant's intention to sell the house, and the like. Therefore, the probative value of the other-crimes evidence was high. Its admission was also necessary to tell the complete story. We are satisfied that the probative value substantially outweighed the risk of prejudice to defendant. Indeed, this conclusion is borne out by the jury's verdict, finding defendant guilty with respect to Andrea but not guilty with respect to Allison.
In his second and third points, defendant argues that the court erred by admitting H.V.'s testimony as fresh complaint evidence and by not giving an appropriate limiting instruction regarding that testimony.
Defendant argues that Andrea's disclosure to H.V. did not satisfy the requirements for the common law exception to the hearsay rule under the fresh complaint doctrine because the disclosure occurred six years after the abuse to Andrea had ended and because Andrea and H.V. did not have a close relationship. We disagree.
The fresh complaint doctrine permits the introduction of evidence "that a victim of a sexual assault spontaneously complained of the crime within a reasonable amount of time to someone the victim would normally turn to for help and advice." State v. Scherzer, 301 N.J. Super. 363, 419 (App. Div.) (citing State v. Hill, 121 N.J. 150, 163 (1990)), certif. denied, 151 N.J. 466 (1997). The point of the doctrine is that allowing such evidence "will forestall a jury from assuming that no evidence of complaint was introduced because no complaint was made." Ibid. (citing State v. Balles, 47 N.J. 331, 338 (1966), cert. denied and appeal dismissed, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967)). However, consistent with this rationale, details of the complaint are not admissible under the doctrine. Hill, supra, 121 N.J. at 163. Therefore, details of the offense should be restricted to those "minimally necessary to identify the subject matter of the complaint." Scherzer, supra, 301 N.J. Super. at 419 (citing State v. J.S., 222 N.J. Super. 247, 257 (App. Div.), certif. denied, 111 N.J. 588, 589 (1988)). Besides being reasonably contemporaneous, the complaint must also be "both spontaneous and voluntary, factors which may be negated if the complaint results from interrogation." State v. Pillar, 359 N.J. Super. 249, 282 (App. Div.), certif. denied, 177 N.J. 572 (2003).
The circumstances of Andrea's disclosure to H.V. fit within the requirements of the fresh complaint doctrine. Andrea arrived at H.V.'s home in an emotionally upset state and spontaneously told her, when simply asked what was the matter, that her niece had been sexually abused. With virtually no additional prompting, when H.V. asked whether anything else was bothering her, Andrea volunteered that she too had been abused in the past by the same person, her father. At trial, H.V. testified accordingly, providing no additional details of the abusive conduct.
Although the closer aspect of the relationship between H.V. and Andrea had ended several years earlier when Andrea graduated from high school, the two remained friends and stayed in touch with each other. Significantly, during Andrea's high school years, when she was in the youth program, H.V. disclosed to some of the group participants, including Andrea, that she herself had been sexually abused in the past. We are satisfied that the judge did not err in concluding that H.V. was an individual that Andrea would normally be expected to turn to for help and advice regarding this problem.
The correctness of this determination is bolstered by two factors. First, the family had "circled the wagons" and determined that this was an internal family matter that should not be disclosed to or discussed with outsiders. Therefore, turning to family members was probably not an attractive option for Andrea. Second, the State presented CSAAS evidence. Children experiencing CSAAS "typically do not [immediately] disclose the [sexual] abuse because the person abusing them has some force or weight around them," such as when the abuser occupies a parental role. State v. L.P., 352 N.J. Super. 369, 376 (App. Div.), certif. denied, 174 N.J. 546 (2002). Under all of the circumstances, it was logical and reasonable for Andrea to confide in H.V.
As to the six-year hiatus, the "reasonably contemporaneous" standard should be applied flexibly where the victim is a minor. State v. Bethune, 121 N.J. 137, 143 (1990). Children should be given additional time to make a fresh complaint in light of their "special vulnerability to being cajoled and coerced into remaining silent by their abusers." Ibid. Children "may be too frightened or embarrassed to reveal the abuse." Pillar, supra, 359 N.J. Super. at 282. Therefore, "even a substantial lapse of time between the assault and the complaint may be permissible if satisfactorily explainable by the age of the victim and the circumstances surrounding the making of the complaint." Id. at 281-82; see, e.g., State v. R.E.B., 385 N.J. Super. 72, 88 (App. Div. 2006) (although several years elapsed between the abuse and the complaint, application of the fresh complaint doctrine was not in question in acknowledgment of CSAAS); State v. Hummel, 132 N.J. Super. 412, 423 (App. Div.), certif. denied, 67 N.J. 102 (1975) (lapse of three years after the fifteen-year-old victim had been repeatedly raped over a three-year period did not preclude fresh complaint evidence after the victim was removed from her abuser). Such circumstances are a common example of CSAAS, "a psychological theory explaining why sexually-abused children delay reporting abuse." State v. P.H., 353 N.J. Super. 527, 534 (App. Div. 2002) aff'd, 178 N.J. 378 (2004).
We are satisfied that the delay in this case was reasonably explainable. As we have stated, the State presented CSAAS evidence, and, after the abuse of Andrea stopped, she remained in the household of the abuser, a parental figure, through her teenage years. She was prompted to disclose what happened to her upon learning that the same thing was now happening to her young niece. Immediately upon learning that information, she made the disclosure. Courts "should take a liberal approach regarding the introduction of fresh complaint evidence in a case in which CSAAS evidence will be presented." L.P., supra, 352 N.J. Super. at 384. Applying these principles here, the report was sufficiently timely to qualify under the fresh complaint doctrine.
Accordingly, there was no error in admitting H.V.'s fresh complaint testimony.
Defendant did not request a limiting instruction as to the use of the fresh complaint testimony either at the time of H.V.'s testimony or in the final charge to the jury. Defendant did not object to the charge as given to the jury. Now, for the first time, he argues that the court erred by failing to give a separate charge on fresh complaint. In particular, defendant argues that the jury should have been told that the limited purpose of the testimony was to negate the inference that Andrea failed to confide in anyone about the sexual abuse, but it did not constitute evidence that the sexual abuse actually occurred.
The judge charged the jury on CSAAS, following the model jury charge. See Model Jury Charge (Criminal), "Child Sexual Abuse Accommodation Syndrome (Where State presents evidence thereof)" (2004). The introductory passage to the judge's CSAAS charge was as follows:
Now the law recognizes that stereotypes about sexual assault complaints may lead some of you to question [Allison] and [Andrea]'s credibility based solely on the fact that they did not complain about the alleged abuse earlier. You may not automatically conclude that the[ir] testimony is untruthful based only on their delayed disclosure. Rather, you may consider the delayed disclosure along with all other evidence including their explanation for their delayed disclosure in deciding [o]n how much weight, if any, to afford to the complainant[s]' testimony. You may also consider the expert testimony that explained that delay uh, as one of many ways in which a child may respond to sexual abuse.
Accordingly, your deliberations in this regard should be informed by the testimony presented concerning the child sexual abuse accommodation syndrome.
The judge then went on to explain the manner in which the jury could use the CSAAS evidence in its deliberations.
Defendant relies primarily on State v. P.H., 178 N.J. 378 (2004), and State v. R.E.B., 385 N.J. Super. 72 (App. Div. 2006). We find this reliance unpersuasive. Indeed, the charge given in this case included the introductory passage prescribed by the Court in P.H. to avoid conflicting instructions in certain aspects of the model jury charges for CSAAS and fresh complaint. P.H., supra, 178 N.J. at 400. In R.E.B., a panel of this court reversed the defendant's conviction because of "several errors." R.E.B., supra, 385 N.J. Super. at 77. Further, no CSAAS evidence was presented in R.E.B., and accordingly no CSAAS jury instruction was given. Therefore, the fact that failure to give a fresh complaint charge in R.E.B. was one of the errors requiring reversal is not dispositive of the issue before us.
Here, the CSAAS charge covered much of the same ground that is covered in the fresh complaint charge, including the explanation required by the court in P.H. as to delayed disclosure. Therefore, defendant's argument comes down to the court's failure to tell the jury that Andrea's disclosure to H.V. could not be considered as evidence that the abuse actually occurred.
Because defendant failed to object to the charge at trial, our review is guided by the plain error standard, and we will not reverse on the ground of such an error unless it was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of a jury charge, plain error is legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. [State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), (quoted in State v. Nero, 195 N.J. 397, 407 (2008)).]
Applying this standard, we are satisfied that any error in omitting the aspect of the fresh complaint charge that we have described was harmless. Indeed, defense counsel cross-examined H.V. extensively about all of the opportunities Andrea had during the years she participated in the youth group to disclose the abuse, but never did. In particular, defense counsel elicited testimony that H.V. disclosed to Andrea her own sexual abuse experience, which would have been an excellent opportunity for Andrea to come forward, but she did not. We conclude that any error in this regard did not have the capacity to change the outcome of the trial and does not warrant reversal.
Defendant's remaining arguments pertain to his sentence and an assertion of cumulative error.
Defendant argues that his convictions for aggravated sexual assault and endangering the welfare of a child should have merged. He is incorrect. "Because of the added element of parental duty, endangering is not included in and does not merge with aggravated sexual assault." State v. T.E., 342 N.J. Super. 14, 37 (App. Div.), certif. denied, 170 N.J. 86 (2001) (citing State v. Miller, 108 N.J. 112 (1987)).
Defendant also argues that imposition of consecutive sentences constituted a mistaken exercise of discretion and was not supported by sufficient reasons. We disagree. As part of his rationale for imposing a consecutive sentence for endangering, the judge referred to psychological damage done to a victim who was assaulted by someone the victim trusted, such as a parent. In particular, he commented that Andrea "said her problem is she can't trust anybody anymore." These findings go to the heart of the added element in the endangering statute and provide a reasonable basis for imposition of a consecutive sentence. We further note that the judge imposed sentences at the bottom of the sentencing range for both offenses and did not impose periods of parole ineligibility.
The sentence imposed was based upon aggravating and mitigating factors amply supported by competent and credible evidence in the record, it is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Yarbough, 100 N.J. 627, 633-34 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), State v. Roth, 95 N.J. 334, 363-65 (1984).
Finally, in light of the determinations we have expressed in this opinion, defendant's cumulative error argument requires no discussion.