On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Carchman and Baxter.
Defendant S.O.G. was convicted by a jury 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); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). At the time of sentencing on February 22, 2010, the judge imposed a twenty-year term of imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA), and on counts two and three, ten-year terms of imprisonment, concurrent to each other and concurrent to the sentence imposed on count one.
On appeal, defendant maintains the cumulative effect of a series of errors denied him a fair trial. In particular, he asserts that the judge erred by: permitting the victim to testify to an incident when defendant touched her breasts in 1999, even though the acts of sexual penetration and sexual contact contained in the indictment did not begin until January 1, 2000; admitting the testimony of the victim's cousin as a fresh complaint witness, even though the witness was so young at the time of the conversation in question as to be incompetent to testify; allowing the State to introduce irrelevant and prejudicial evidence of defendant's alcohol abuse; refusing to issue an adverse inference instruction when the State failed to call a friend of the victim as a fresh complaint witness; issuing an erroneous jury charge on fresh complaint and child sexual abuse accommodation syndrome (CSAAS) testimony; and failing to instruct the jury when the defense rested that defendant had no obligation to testify. Defendant also asserts that the judge imposed an excessive sentence, which was the result of double-counting an aggravating factor, omitting an applicable mitigating factor and improperly failing to merge offenses. Finally, defendant argues he was denied the effective assistance of counsel at trial and during the sentencing proceeding.
Having carefully considered defendant's arguments in light of the record and applicable law, we conclude that none of the evidentiary rulings or jury instructions about which defendant complains was sufficient, either individually or in the aggregate, to warrant reversal of defendant's conviction. We do, however, agree that the judge's errors in the finding of aggravating and mitigating factors require us to vacate the sentence and remand for resentencing. We defer defendant's claims of ineffective assistance of counsel to the post-conviction phase.
In 1998, when E.O. was eight years old, she moved from Kenya to Edison, New Jersey with defendant, who was her stepfather, along with her mother Anita, and defendant's son Thomas, who was then six years old.*fn1 The family moved from Edison to North Brunswick at the end of 1999. In 1999, while still living in Edison, E.O. was in her mother's bedroom when defendant entered the room drunk. While engaging E.O. in conversation, defendant suddenly "put his hands on [her] boobs." E.O. ran out of the room, not telling her mother what had happened. Defendant never accosted E.O. again while they were living in Edison; however, in 2000, after the family moved to North Brunswick, at which time E.O. was nearly ten years old, defendant's sexual abuse resumed. From January 1, 2000, through December 31, 2003, while Anita was at work and Thomas was outside playing, defendant sexually abused E.O. as often as three times per week. At the outset, defendant touched her breasts and vagina over and under her clothing. As the sexual abuse progressed, defendant forced E.O. to touch his penis, and on other occasions, he digitally penetrated E.O.'s vagina and had vaginal intercourse with her. He also performed cunnilingus. On some occasions defendant wore a condom, but on other occasions he ejaculated onto the floor.
At times, E.O. attempted to resist defendant's sexual abuse, but sometimes she "just s[a]t there, so that it would just be over and done with." Defendant told her that "[t]his is what you are supposed to be doing at your age." He once played a pornographic video on the computer, commenting "this is how you are supposed to do it." Defendant warned E.O. that if she told anyone, nobody would believe her, and her family would be forced to return to Kenya. E.O. believed his threats.
When E.O. was twelve years old, she visited her ten-year-old cousin Mary in Hershey, Pennsylvania. The two cousins were very close. While with Mary, E.O. began to think about defendant sexually assaulting her. She became upset, and ran out of the house, with Mary following her. When Mary asked what was wrong, E.O. responded that defendant "was having sex with [her] when [she] didn't want to, and it hurt." E.O. swore Mary to secrecy, telling Mary she was "scared" of defendant. Defendant continued to sexually abuse E.O. until December 2003, when E.O. began menstruating. Afraid her mother would not believe her, E.O. never told her mother what defendant had been doing. During 2003, Anita decided to separate from defendant, and she and E.O. moved to Pennsylvania.
In April 2008, when E.O. was eighteen years old, she went to Baltimore for a family party. She and Mary were alone "talking about life" when E.O. confided to Mary that she felt ashamed "because of what happened." E.O. suddenly attempted to run in front of a car to kill herself, but Mary was able to grab E.O. before a car struck her.
Later that day, Mary, E.O.'s friend Lucy, and E.O.'s two male cousins, encouraged E.O. to report defendant's sexual abuse to Anita. Upon learning of the abuse, Anita brought E.O. to the Lower Paxton, Pennsylvania police department, where E.O. provided a statement to the police about defendant sexually assaulting her.
The Lower Paxton police referred the charges to the Middlesex County Prosecutor's Office, which obtained an indictment in August 2008 charging defendant with acts of sexual penetration and sexual contact upon E.O. in North Brunswick "between January 1, 2000 and December 31, 2003," and with endangering the welfare of E.O. by engaging in sexual conduct with her during the same dates and at the same location, North Brunswick.
The trial commenced on September 22, 2009. During his opening, defense counsel argued to the jury that defendant was innocent of all charges against him. Counsel asserted that Anita had forced E.O. to file sexual abuse charges against defendant because Anita resented defendant's extra marital affairs, and was angry that defendant had stopped supporting her financially. Defense counsel argued to the jury:
[Their marital] problems centered around money and fighting and jealousy. . . . [A]s time went on, and [defendant] tried to distance himself, . . . he supported [Anita] and the children . . . until 2007. Once he finally broke off [the relationship], there was [sic] just too many problems, too much jealousy, too many accusations going back and forth. [Anita's] anger became greater and greater. Frankly, [defendant] claims that [E.O.] is saying these things, based upon [Anita's] prompting, based on [Anita's] influence.
And, frankly, that [E.O.'s] claims are really retribution from [defendant] cutting them off financially.
E.O.'s testimony at trial was consistent with what we have already described. The State also called Anita, who testified that she was unaware until E.O.'s 2008 suicide attempt that defendant had sexually abused E.O. Anita explained that during the period when the abuse occurred, she was at work while defendant was home alone with E.O. and Thomas. When asked to describe her daughter's relationship with defendant, Anita responded that E.O. was "afraid of [defendant], because of his drinking," but other than that, Anita had observed nothing unusual in her daughter's relationship with defendant. Anita also testified that while living with defendant in North Brunswick between 2000 and 2003, she "moved out a lot" due to his drinking. On all but the last occasion, she returned to defendant because he apologized and promised to stop drinking.
After she left defendant for the last time, he came to her home drunk, and gave her a "hard time," which caused her to call the police.
On cross-examination, defense counsel elicited testimony from Anita about other problems in her marriage to defendant, including financial difficulties, fights over money, and defendant "cheating" on her with other women. Anita admitted that she was jealous and hurt when she learned that defendant had been unfaithful during their marriage.
Anita was also asked on cross-examination if she ever suspected defendant of sexually abusing E.O. Anita answered that because E.O. had become very withdrawn, and was making an obvious effort to avoid defendant, it occurred to her that defendant might be abusing E.O. When she asked, E.O. said "no." Defense counsel also elicited testimony that from the time Anita separated from defendant in 2003, "[h]e never gave [her] a dime."
The State also called Mary as a witness, to describe E.O.'s disclosure in 2002, when Mary was ten, that defendant had been forcing E.O. to engage in sexual intercourse. Before Mary was called to the stand, the judge conducted a hearing outside the presence of the jury, at which he concluded that Mary's testimony satisfied the applicable standards for fresh complaint testimony. In issuing that ruling, the judge expressly rejected defendant's assertion that Mary was so young when the initial disclosure occurred in 2002 that she would have been incapable of understanding what E.O. was telling her. Before the jury, Mary described E.O.'s 2002 disclosure as well as E.O.'s 2008 suicide attempt.
The State also called as witnesses Detective Gordon Goodrow of the Lower Paxton police department, who was on duty at the time E.O. provided her statement to police in 2008, as well as Susan Cohen Esquilin, an expert in CSAAS.
The defense rested without calling any witnesses. Before the attorneys began their summations, they asked the judge to instruct the jury that a defendant has no obligation to testify or present a defense, and that the jury was prohibited from drawing an adverse inference from defendant's decision not to testify. The judge declined to issue such an instruction, noting that he had already done so during his preliminary instructions to the jury at the beginning of the trial, and that he intended to repeat that instruction during his final charge to the jury. As promised, the judge issued such an instruction to the jury during his ...