On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-08-0685.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2012
Before Judges Alvarez and Ostrer.
Tried by a jury, defendant M.S. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-degree child endangering, N.J.S.A. 2C:24-4(a) (count three). On April 14, 2011, he was sentenced on count one to fifteen years imprisonment subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The judge merged count two with count one. On count three he imposed a concurrent seven-year term of imprisonment. For the reasons that follow, we reverse.
After defendant and his wife separated, and the children and their mother relocated to Utah, the children rarely visited with defendant over the course of six years. At trial, defendant's daughter, who had just turned seventeen at the time, testified that when she was six and seven and her mother, brother, and she still lived in New Jersey, defendant sexually assaulted her on four occasions. The child's mother also testified - she said that her daughter told her about the assaults approximately two years prior to the trial when she warned her that defendant, concerned about the victim's relationship with a boyfriend, was planning to visit the family. Her daughter had responded that her father had no right to interfere "because he had behaved very badly towards her." The conversation took place in the summer of 2008, when the child was fourteen, and as a result the mother immediately contacted the Salt Lake City Police Department, who in turn contacted the police in this state.
In addition to describing the assaults, the victim added that defendant, claiming her mother was one of the women depicted on the screen, showed her pornography on his computer. She also recounted that her father asked her if she would agree to have sex with a friend while he had sex with his friend's daughter. The victim refused because defendant had excused the sexual assaults as being motivated by his love for her, and she did not understand how a stranger could love her. On another occasion, defendant came out of the shower wearing a towel. He approached her, removed it, put the towel back on and went into his room.
Defendant categorically denied any improper sexual behavior of any kind towards the victim. He claimed that when the victim was seven, he worked as a truck driver from 8:00 a.m. until 6:00 p.m. and was rarely, if ever, alone with his children. He also testified that because of his efforts to control his daughter talking to her boyfriend for hours on the phone on school nights, he and she stopped speaking. Eventually, after she had gone to the police, the victim sent him an email asking for his forgiveness.
The State presented a clinical psychologist who explained the Child Sexual Abuse Accommodation Syndrome (CSAAS) and detailed children's various responses to sexual abuse, including secrecy and delayed disclosure. The psychologist further testified that young children might not disclose abuse because they are too young to understand the nature of the activities, or even that they are being sexually abused.
On appeal, defendant raises the following issues:
THE ADMISSION OF TESTIMONY, AS "FRESH" COMPLAINT, THAT [D.] TOLD HER MOTHER NEARLY EIGHT YEARS LATER THAT HER FATHER HAD SEXUALLY ABUSED HER, AND THE FATALLY DEFECTIVE INSTRUCTIONS ON "FRESH" COMPLAINT AND CSAAS TESTIMONY, DEPRIVED THE DEFENDANT OF HIS SIXTH ...