On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-08-00974.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Ashrafi, and Fasciale.
Defendant appeals from his convictions for six counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; and one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b). We affirm but remand to vacate the imposition of a Safe Neighborhood Services Fund (SNSF) penalty on Counts Four to Nine.
In August 2006, a grand jury indicted defendant on two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Counts One and Two), pertaining to one victim; one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b) (Count Three); and six counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (Counts Four through Nine), pertaining to a second victim. Defendant's trial in April 2008 was based only on the charges against the second victim, who was defendant's girlfriend's youngest daughter. That victim, however, was not cooperative with the prosecution and did not testify at the trial. Her eldest sister was the State's chief witness and testified about many of her own experiences with defendant, which were not charged in the indictment.*fn1 The sister's testimony and other evidence at the trial showed the following facts.
Defendant and L.H.*fn2 began dating in 1981, four years after she separated from her husband. L.H. had three children: A., born in 1969; B., born in 1972; and C., born in 1976.*fn3
After the separation, L.H. moved into an apartment with her children, at which defendant frequented. Initially, he wore casual or work clothes when visiting. Eventually, however, defendant would visit the apartment after work, remove his clothing, and remain nude while he ate dinner, the family watched television, or the girls did their homework.
A. testified that the household environment became female-dominated, where L.H. was the dominant partner. Defendant began wearing a chain around his genitals every day both at home and work. At home, defendant wore additional chains attached to his wrists. Defendant also wore handcuffs attached to the chains, so that his hand would have to stay on his genitals. According to A., defendant never objected to wearing the chains and L.H. never forced him to wear them.
Every day, defendant masturbated in the living room in front of whoever was present, including L.H.'s daughters and A.'s friends. According to A., there were times when she and her friends masturbated defendant, whipped him with a belt, put makeup on him, and inserted a dildo into his anus. Defendant also masturbated in front of the girls when L.H. was not present. Both A. and L.H. took pictures and videos of defendant engaged in these activities.
From 1983 to 1987, L.H., her daughters, and defendant moved three times into different secluded homes, where they continued this lifestyle, which now included defendant going outside in the nude. The day after A.'s seventeenth birthday, L.H. filmed defendant masturbating in front of C. and one of A.'s friends. In yet another video, defendant masturbated in front of the three daughters and one of A.'s friends. In 1987, A. was eighteen, B. was fifteen, and C. was eleven. In their newest home, L.H. would attach defendant's chain to a hook in the living room's ceiling. A. also recalled that she, her sisters, and mother used defendant's chain as a "lead" while "putting him through his paces," or as a leash when walking outside.
A. and B. moved out in 1989 and 1990, respectively. When A. visited, the same lifestyle continued. After C. completed high school in 1994, L.H. separated from defendant. She and the youngest daughter moved to another home. In early 1996, A. contacted her mother and sisters to discuss defendant's conduct. They agreed that if they were to contact law enforcement, they must all be in it together. C., who was then about twenty years old, refused to cooperate, and law enforcement was not contacted at that time.
In December 2003, L.H. emailed the Morris County Prosecutor's Office to inform the authorities that defendant had sexually abused her daughters. In 2004, police officers searched defendant's home and found numerous pictures, videos, chains, handcuffs, locks, padlocks, key locks, and dildos, and also a leather whip device. Thereafter, the police arrested defendant and charged him with the offenses.
At an evidentiary hearing in June 2005, a judge ruled that defendant may admit expert testimony from a psychologist in support of his affirmative defense of duress. N.J.S.A. 2C:2-9. In March 2008, the court conducted a hearing and concluded that certain other crimes evidence was admissible. On April 3, 2008, the judge granted the State's motion for severance of Counts One and Two because of a medical emergency that prevented the first victim, B., from appearing at trial.
The charges pertaining to C. were tried for eight days in April 2008. The State presented testimony from A. and two detectives. Regarding the absence of her younger sisters, A. stated that B. was unable to travel because of a medical condition, and C. consistently refused to discuss their upbringing. Defendant testified on his own behalf, and presented testimony from his expert and his girlfriend. Defendant stated that L.H. controlled him, she drugged him, he did not willingly participate in their sexual activities, and she threatened to show others his pornographic photographs. The jury found defendant guilty on all counts.*fn4
The judge sentenced defendant to three consecutive maximum ten-year terms with a fifteen-year mandatory minimum on three counts of sexual assault (Counts Four, Five, and Six); three concurrent ten-year prison terms for the remaining three sexual assault counts (Counts Seven, Eight, and Nine); and a concurrent one-year term for endangering the welfare of a child (Count Three). The judge ordered defendant to pay a total of $525 in SNSF assessment penalties.
On appeal, defendant raises the following points:
THE INTRODUCTION OF OTHER CRIMES EVIDENCE, IN THE FORM OF DEFENDANT'S SEXUAL CONDUCT IN THE PRESENCE OF THE ALLEGED VICTIM'S SISTERS AND FRIENDS, WITHOUT A LIMITING INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶¶ 1, 9, 10. (Raised in part below).
THE JUDGE'S REFUSAL TO PROVIDE A CLAWANS INSTRUCTION ON THE ABSENCE OF A CRUCIAL STATE'S WITNESS (THE ALLEGED VICTIM) DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶¶ 1, 9, 10.
THE IMPOSITION OF CONSECUTIVE AND MAXIMUM TERMS WAS ...