STATE OF NEW JERSEY v. R.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2412-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.R.,

Defendant-Appellant.

 

 

Submitted February 8, 2006 - Decided March 28, 2006

Before Judges Conley, Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey, Law

Division, Bergen County, Ind. Nos. 00-01-0150 and

00-02-0325.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney

for respondent (Annmarie Cozzi, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant R.R. appeals from his conviction after a jury trial of seven counts of an eight-count indictment charging two counts of first-degree aggravated sexual assault against his daughter G.R., N.J.S.A. 2C:14-2a(1) (counts one and two); four counts of second-degree sexual assault against G.R., N.J.S.A. 2C:14-2b (counts three, four, five and six); fourth-degree lewdness, N.J.S.A. 2C:14-4 (count seven); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count eight). The trial judge dismissed count two; the jury convicted defendant on all remaining counts. At sentencing, the judge merged counts four, five and six (all of which alleged second-degree sexual assault) and count seven (lewdness) into count three (second-degree sexual assault). The judge then sentenced defendant to: (1) an eighteen-year term of imprisonment on count one (aggravated sexual assault); (2) a concurrent ten-year term of imprisonment on count three; and (3) a consecutive five-year term of imprisonment on count eight (endangering the welfare of a minor). A $1000 fine, as well as appropriate penalties and assessments were also imposed.

On appeal defendant presents the following arguments:

POINT ONE

THE ADMISSION OF EVIDENCE OF DEFENDANT'S PRIOR SEXUAL RELATIONSHIP WITH A FIFTEEN-YEAR-OLD VIOLATED N.J.R.E. 404(b) AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT TWO

THE TRIAL COURT'S INSTRUCTION TO THE JURY, PROHIBITING THE JURY FROM CONSIDERING G.R.'S FAILURE TO COMPLAIN AS EVIDENCE WEIGHING AGAINST G.R.'S CREDIBILITY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)

POINT THREE

THE IMPROPER ADMISSION OF THE CHILD'S UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING ALLEGED SEXUAL ABUSE DENIED DEFENDANT THE RIGHT TO CONFRONT WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT FOUR

IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

POINT FIVE

THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 1014 (1986).

POINT SIX

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN EIGHTEEN-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

POINT SEVEN

THE IMPOSITION OF A $1000 FINE WITHOUT ANY STATEMENT OF REASONS OR FINDINGS RELATING TO DEFENDANT'S ABILITY TO PAY WAS IMPROPER. (Not Raised Below)

POINT EIGHT

THE VCCB AND SNSF PENALTIES IMPOSED ON COUNTS FOUR, FIVE, SIX AND SEVEN MUST BE VACATED. (Not Raised Below)

We conclude that the issue presented in Point One mandates reversal and a new trial. The issue raised in Point Two has merit and can appropriately be handled on retrial, making it unnecessary for us to determine whether a reversal would be required on this ground. We reject defendant's argument in Point Three. As a result of our disposition, we have no need to address the sentencing issues advanced in Points Four, Five, Six, Seven and Eight.

I

Defendant and his ex-wife B.V. were married on May 15, 1993, and their daughter G.R. was born on August 8, 1994. The pair separated approximately one year later and amicably arranged for defendant to have visitation with G.R. every other weekend. This arrangement was incorporated into the parties' final judgment of divorce dated January 1996, and defendant was also awarded two additional weeks of vacation time with G.R.

In February 1996, defendant enlisted in the Navy for a five-year tour of duty. Nonetheless, he regularly drove up from Norfolk, Virginia, whenever he could get leave, and stayed at his parents' home in Midland Park. Initially, B.V. made G.R. available to defendant for overnight visits during these leaves. However, after it became clear in the fall of 1997 that G.R. was allergic to defendant's parents' cats, the parties agreed to limit her visits to daytime only.

According to B.V., shortly before the overnight visitation ended, G.R. came home from seeing defendant and spontaneously announced, while they were discussing the events of the weekend at the dinner table, that her "daddy has a tail." When B.V. asked what she meant, G.R. pointed to her crotch area and explained that defendant's tail was where he went "pee pees from" and that it looked like a piece of squid.

B.V. immediately telephoned defendant, related what G.R. had said, and asked him to explain. Defendant replied that he did not know what G.R. was talking about and that she was lying. B.V. asked if G.R. had walked in on him while he was in the bathroom, but he said "no." As a result, B.V. let the matter drop.

Thereafter, upon G.R.'s return from a subsequent visitation with defendant, G.R. informed B.V. and her new husband R.V., (G.R.'s "special daddy"), that she and defendant (her "regular daddy") had taken a bath in the tub together, but that it was okay because he had worn his shorts. B.V. immediately telephoned defendant, expressed her disapproval and elicited defendant's agreement not to bathe with G.R. anymore.

On August 8, 1998, G.R.'s fourth birthday, defendant returned from a visit to the park with G.R. and informed B.V. that G.R. had fallen on the monkey bars onto her "private." Later that day, G.R., who had developed a fear of going to the bathroom by herself, asked B.V. to accompany her. As G.R. began to urinate, she suddenly started screaming, "I can't go, Mommy, it hurts, it hurts." B.V. then discovered that G.R. had blood in her underwear and immediately called the doctor, who advised her to monitor G.R.'s condition and bring her in for an office visit if the bleeding became worse. B.V. contacted defendant to let him know what had happened, and then questioned G.R., who confirmed that she had fallen on the monkey bars.

A few months later, G.R. returned from visiting defendant and announced that defendant had a "sticky tail," but then became tense and refused to explain what she meant. A few months after this, in February 1999, defendant informed B.V. that G.R. had once again fallen on her "private" during a visit. He offered no details, but G.R. explained that while she was alone with defendant in the bedroom, she fell off a bunk bed and landed on a toy that went into her private. G.R. related that defendant's girlfriend had been outside in the hall when this happened. When B.V. later pressed defendant for details, he stated that he had left G.R. in the bedroom with his girlfriend while he showered, and that he was not present when G.R. fell off the bed and landed on the safety bar. When B.V. noted the differences between his story and G.R.'s, defendant insisted that G.R. was "a liar."

The next month, G.R. returned home from a visit with defendant in a very irritable and nasty mood, and B.V. sent her to her room for a nap. After her nap, G.R. was still cranky and when B.V. asked her what was wrong, she yelled, "My daddy touched my private." G.R. ultimately disclosed that this had happened two or three times, with her pants both on and off, and that sometimes defendant hurt her by pushing her pants up into her private. G.R. also stated that defendant had touched her back with his tail. B.V. told her that it would not happen again and that she did not have to worry. Later that same evening, G.R. asked B.V. if she was going to get hurt and explained, "Regular daddy said if I told you he would hurt you." B.V. said that this would not happen because "special daddy" would not allow it.

During this time period, G.R. began having nightmares. B.V. spoke to her pastor and then took G.R. to speak to someone affiliated with the church on two or three occasions. When these visits proved unavailing, B.V. called her lawyer who recommended that she take G.R. to see Dr. Allwyn Levine, a child psychiatrist. Levine met with G.R. four times and discussed her allegations. G.R. grew very afraid that defendant was going to find out that she had "told," and her nightmares intensified. Ultimately Levine decided, in May 1999, to contact the Division of Youth and Family Services (DYFS).

On May 3, 1999, B.V. and G.R. met with Myra Soltren, a DYFS social worker, and Detective Lynn Morrissey of the Bergen County Prosecutor's Office, at the Children's House in Hackensack. B.V. described G.R.'s allegations to Soltren and Morrissey, and then Morrissey interviewed G.R. alone while B.V. and Soltren watched and listened from another room.

According to Morrissey, during their unrecorded pre-interview, G.R. told her that her regular daddy had a tail that was sticky, and that he made her come into the bathroom at her Grandma's house and touch his tail with her hands while his pants were down and she was in her underpants. She said that his tail touched her privacy (where she went to the bathroom), and that it was sticky. G.R. claimed that her regular daddy told her not to tell her mother. At Morrissey's request, G.R. drew a picture of the tail and her regular daddy's "boom" or buttocks. She then audio-taped a statement from G.R., which was substantially similar to her earlier statements except that G.R. did not specify that it was defendant's "tail" that touched her privacy.

At the conclusion of the interview, Solten told B.V. to suspend defendant's visitation, as well as all visits to defendant's parents' house so as to ensure that defendant's parents did not allow any secret contact. Thereafter, on September 30, 1999, defendant was arrested upon his return from a six-month tour of duty in Kosovo.

At a later point in the fall of 1999, when B.V. took G.R. for her yearly check-up, the doctor checked her genital region thoroughly for the first time. On the way home, G.R. asked whether the doctor's actions were okay, and B.V. said that they were because she was a doctor. G.R. then said, "but it wasn't okay when regular Daddy did it," and B.V. replied no. G.R. subsequently informed her that she had been afraid to tell B.V. the truth because she was afraid that B.V. would get mad at her. B.V. then asked G.R. how she knew her regular daddy had a tail, and G.R. replied that she saw it. B.V. asked if defendant ever made G.R. touch his tail, and she said yes. B.V. then asked G.R. to describe how it felt, and G.R. said that it was furry at the bottom, stuck up like a sword, and was hard and sticky. G.R. said he touched her private with it. G.R. then asked B.V. why her regular daddy always made her go in the bathroom with him when he used the bathroom.

According to B.V., a few days later she and G.R. were watching TV, and something was bothering G.R. Upon B.V.'s inquiry, G.R. said that it bothered her that her regular daddy touched her private, and that "it hurt like a knife sticking in her." B.V. asked if defendant had stuck his finger in her, but G.R. said "no, it was his tail." G.R. also said that she did not think that defendant loved her because he had smacked her in the face and pushed her into a toy box at her grandparents' house and made her cry. B.V. asked whether other men G.R. knew had tails, but G.R. said no.

Because of these new disclosures, B.V. brought G.R. back to meet with Morrissey at her office on November 30, 1999. Morrissey again conducted an unrecorded pre-interview during which G.R. said that her daddy's tail "growed out of his body" and that it hurt like a knife. G.R. also described the tail as a "long piece of squid." G.R. told Morrissey that her daddy took off his underwear and bent down and took off her underpants. Morrissey subsequently recorded a formal statement from G.R. during which, in addition to the above, she stated that her regular daddy touched her with his tail on her private.

At trial, G.R. testified that her regular daddy touched her privates with the sides and tip of his tail and that it was sticky. She stated that this happened in the bathroom at defendant's mother's (her grandmother's) house and that she was wearing only her underwear. According to G.R., her daddy threatened to kill her mommy if she revealed this. She acknowledged that she has eaten both squid and octopus. G.R. confirmed that no one told her to say the things about her regular daddy.

B.V. claimed that she did not immediately call the police when G.R. began making her disclosures because she was scared and did not want to believe G.R. She recalled that, after she spoke to defendant about some of G.R.'s statements, G.R. would not say anything unusual for a few visits. B.V. said that G.R. was often irritable after visits with defendant and would not let her or her husband hug her. She further recalled times when G.R. did not want to kiss defendant on the mouth and did not want to go with him for visitation.

B.V. admitted that she sent defendant an e-mail on February 3, 1999, in which she mentioned that her husband was willing to adopt G.R. to relieve defendant of his financial obligation towards her. She explained that she was frustrated with defendant's failure to pay his share of certain of G.R.'s bills on time and his unwillingness to pay for daycare, and she thought that this might spur him to pay more promptly. B.V. denied that she actually intended to pursue the matter of adoption by her husband. In this regard, she noted that she never took defendant to court over his failure to help with extra expenses and never denied either him or his parents any visitation until Soltren told her that she had to protect G.R.

Dr. Julia DeBellis, a pediatrician, examined G.R. on June 13, 2000, when she was five-and-one-half years old. The physical exam did not reveal any chronic or acute trauma, including no trauma to G.R.'s hymen, and neither confirmed nor dispelled the possibility of sexual abuse. DeBellis noted, though, that the painful urination G.R. experienced and the labia redness discovered at her November 18, 1999 exam were consistent with the sexual activity G.R. reported.

During the examination, DeBellis asked G.R. if she was going to help B.V., who was pregnant, with the new baby by changing his or her diapers. G.R. replied that she would not be allowed to touch the baby's privates, and that her "regular daddy" could not touch them either. According to DeBellis, G.R. then spontaneously stated that her regular daddy had touched her with his tail. When DeBellis asked what a "tail" was, G.R. pulled up her hospital gown, cupped her pubic region with her hand and then extended her hand out as if she were holding a flashlight while stating, "it goes like this and then it goes down." G.R. also stated that "peepee came out of it" when she saw it in the bathroom. DeBellis recalled that, shortly thereafter, G.R. pointed to her genitalia and related that this was where her regular daddy had touched her and that it hurt. G.R. further volunteered that she had also seen her regular daddy's tail sticking out of his underwear on other occasions.

M.M.F. testified that she met defendant in 1991 when she was fifteen and he was twenty-three years old. They began dating and, shortly thereafter, while M.M.F. was still fifteen, began having sex. M.M.F. recalled that they broke up when she was sixteen or seventeen, but that they dated again during the six months that preceded defendant's enlistment into the Navy, in February 1996.

M.M.F. reported that defendant stayed in touch with her while he was in the Navy, and that they ultimately became involved again between February and July 1998. She confirmed that she met G.R. at defendant's parents' house during this time period and that she witnessed G.R. fall on the monkey bars and hurt her genital area. She denied that she ever saw G.R. display any reluctance to be affectionate with defendant.

M.M.F. recalled one occasion in 1998 when she was having lunch with G.R. and defendant at his parents' house, and G.R. asked her to accompany her to the bathroom. M.M.F. brought her upstairs and asked if she needed help. According to M.M.F., G.R. replied, "no, I don't have a tail." When M.M.F. asked G.R. what she meant, G.R. stated, "Daddy has a tail, girls don't have a tail."

Defendant elected not to testify. However, his mother confirmed that defendant went into the Navy in February 1996, and thereafter only returned home for brief visits that were as much as six months apart. She also confirmed that when defendant was home on leave in Midland Park, G.R. would come to visit for a few hours each day. Overnight visits were discontinued in 1998 or 1999 after G.R. developed an allergy to her cats.

Defendant's mother related that G.R. was always happy and bubbly around defendant, and appeared to love him. She denied that G.R. ever exhibited any fear of using her upstairs bathroom, and noted that it was not possible to fully shut the door to that bathroom.

Defendant's father and his brother also confirmed that defendant was only home sporadically for brief visits while he was in the Navy. They both recalled that there were always many people at the house when G.R. came over to visit and denied that G.R. ever acted strangely around defendant. The brother recalled that while G.R. was visiting defendant, she injured her genital region on two occasions - once falling on some monkey bars and then again falling out of a bunk bed onto a toy.

In addition, the State presented Dr. Anthony D'Urso, a psychologist, as an expert concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) and child interviewing techniques, while the defense presented its own expert, psychologist Dr. Gerald Cooke, on these matters and their applicability to this case. We see no need to recount this testimony in any detail.

II

Defendant contends that the trial court committed reversible error in permitting testimony regarding his prior consensual sexual relationship with fifteen-year-old M.M.F. We agree.

Prior to trial, defense counsel moved to preclude testimony by M.M.F. that she had engaged in a sexual relationship with defendant in 1991, when she was fifteen and he was twenty-three years old. Counsel emphasized that this relationship was remote in time from the instant allegations, and that it was an entirely different sort of relationship from that of father-child. The judge expressed concern that this testimony would be "very, very" prejudicial, "almost to the point that the prejudice would outweigh other aspects," noting that M.M.F. was not defendant's child or someone living in his house. He stated that he was leaning towards precluding it. However, he agreed to hear argument from the prosecutor the following day.

The next day, the prosecutor argued that M.M.F.'s testimony was admissible to prove defendant's motive or intent, i.e., his desire to obtain sexual gratification from young girls, and to rebut a defense of vendetta, fabrication or mistake. Defense counsel renewed his arguments from the prior day, emphasizing that defendant's intent could be inferred by the jury, without the necessity for testimony from M.M.F. Additionally, defense counsel made clear that the defense did not intend to argue mistake, but rather that the alleged events simply did not occur. He acknowledged that he did intend to suggest that the allegations may have been fabricated as a result of defendant's refusal to give up his parental rights, but insisted that defendant's relationship with M.M.F. was so dissimilar that it had no bearing on the credibility of G.R.'s allegations.

The judge ruled that under State v. G.V., 162 N.J. 252 (2000), he was allowed to admit the challenged testimony provided he administered a limiting instruction. He found that the testimony was relevant on the single point of whether G.R.'s allegations were fabricated. In the judge's view, there were substantial similarities between defendant's dealings with M.M.F., which he found were not too remote in time, and the instant allegations, including the fact that both victims were accessible to defendant, that they were underage, and that they lacked an adult's ability to resist. Although the judge conceded that the testimony had the capacity to be "devastating" to the defense because it could persuade jurors that what defendant had done once, he had done again, he was satisfied that there would, in fact, be no prejudice because he would provide an appropriate limiting instruction. However, this ruling was not made final until after a brief N.J.R.E. 104 hearing during which the judge listened to M.M.F.'s proposed testimony and determined that it clearly and convincingly established defendant's prior illegal conduct.

As noted, M.M.F. testified at trial (at age twenty-five) that she met defendant in 1991, when she was fifteen and he was twenty-three years old. They began dating and, shortly thereafter, while M.M.F. was still fifteen, began having sex. M.M.F. recalled that they broke up when she was sixteen or seventeen, but that they dated again when she was nineteen during the six months that preceded defendant's enlistment into the Navy in February 1996. M.M.F. reported that defendant stayed in touch with her while he was in the Navy, and that they ultimately became involved again between February and July 1998.

The day after M.M.F.'s testimony, the judge administered the following limiting instruction:

You had heard some testimony yesterday from a [M.M.F.], and . . . I'm going to give you some instructions as to how you could use that testimony. The . . . State has introduced evidence that the defendant allegedly engaged in sexual intercourse with [M.M.F.] when she was a minor. Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude that evidence, that a defendant had or may have commit[ted] other crimes, wrongs or acts and is only offered to show that he may have a disposition or tendency to do wrongs and, therefore, must be guilty of the charged offense.

Before you give any weight to this evidence, you must be satisfied that the defendant committed the other crimes, wrongs or acts. If you're not so satisfied, you may not consider it for any purpose. However, our rules do permit . . . evidence of other crimes, wrongs or acts when the evidence is used for a specific narrow purpose. In this case, the evidence was admitted as it may bear on the issue of whether defendant's motive or intent was to obtain some sort of sexual gratification from G.R. . . . The evidence was also admitted to show that there was no mistake or accident about the defendant's actions and to rebut the defense of fabrication.

Whether this evidence does, in fact, demonstrate defendant's intent or motive to obtain sexual gratification or to rebut a defense of mistake or accidental viewing of the defendant by [G.R.], or to rebut the defense of fabrication, is for you to decide. You may decide that the evidence does not demonstrate these purposes and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you ma[y] decide that the evidence does demonstrate defendant's motive or intent to obtain some sort of sexual gratification or as to show that there was no mistake or accident about the defendant's action or to rebut [the] defense of fabrication and then you may use it for that specific purpose only.

However, you may not use this evidence to decide that the defendant has a tendency to commit other crimes or that he's a bad person. That is, you may not decide that just because the defendant may have committed other crimes, wrongs or acts, he must be guilty of the present crime.

I have admitted the evidence only to help you decide the specific question of whether defendant's motive or intent was to obtain some sort of sexual gratification or as to show that there was no mistake or accident about the defendant's actions or to rebut [the] defense of fabrication. You may not consider it for any other purpose, and you may not find defendant guilty now simply because the State has offered evidence that he may have committed other crimes, wrongs or acts.

Before the judge gave this instruction, defense counsel objected on the grounds that no instruction could cure the prejudice attendant to M.M.F.'s testimony, and also pointed out that the defense was not arguing mistake or accident and, as such, defendant's intent was not in issue. The judge, however, was of the opinion that he had to give a limiting instruction as to any possible defense.

In summation, the prosecutor argued as follows with respect to M.M.F.'s testimony:

The other thing I wanted to talk about is about the intent of the defendant because one of the things that we had to show is that these acts weren't accidental, obviously, that this was a purposeful act, intentional. One . . . evidence that you can use is [M.M.F.]'s relationship with the defendant when she was a minor. You can use it to establish the intent of the defendant that he can and did obtain sexual gratification from [G.R.], and the Judge is going to tell you the law on that.

Thereafter, the judge repeated the above instruction verbatim as part of his final charge to the jury.

Pursuant to 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 he acted in conformity therewith. Such 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.

The Court has held that such other crime evidence may be admitted provided it meets the following test:

1. The evidence of the other crime must be admissible as 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. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]

This analysis is intended to reduce the underlying danger that the jury may convict a defendant because he or she is "'a "bad" person in general.'" Id. at 336 (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). See State v. Stevens, 115 N.J. 289, 302-03 (1989) (discussing dangers of prior bad act evidence).

"Once evidence of other crimes or civil wrongs is offered by the prosecution, the trial court is required to conduct an [N.J.R.E. 104(a)] hearing, either in limine or at trial, to determine whether the particulars of the other crimes are admissible." State v. Ellis, 280 N.J. Super. 533, 546 (App. Div. 1995) (citing State v. Stevens, 222 N.J. Super. 602, 614 (App. Div. 1988), aff'd, 115 N.J. 289 (1989)). At this hearing, the State must prove by clear and convincing evidence that the other crimes occurred. Ibid. (citing State v. Harvey, 121 N.J. 407, 433 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991)).

When evidence is admitted for one purpose but is not admissible for another purpose, "the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly but may permit a party to waive a limiting instruction." N.J.R.E. 105. Notwithstanding the foregoing, in the context of other crime evidence, the Court has held that:

once the prosecution has demonstrated the necessity of the other-crime evidence to prove a genuine fact in issue and the court has carefully balanced the probative value of the evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence.

[State v. Cofield, supra, 127 N.J. at 340-41.]

This instruction must "'clarify for the jury the narrow distinction between the permissible and impermissible uses of the other-crime evidence.'" Id. at 341 (quoting Stevens, supra, 115 N.J. at 308-09).

Although the State insists that defendant's prior sexual relationship with M.M.F. while she was underage meets the four-part Cofield test for admissibility, we disagree. While this relationship may have been established by clear and convincing proof and may not have been too remote in time, we conclude that it was entirely dissimilar from the instant allegations. Defendant's decision to engage in consensual sexual relations with a post-pubescent, albeit slightly underage, girl to whom he was in no way related, as part of a relatively long-term dating relationship, is far removed from his alleged decision to opportunistically sexually abuse his own pre-pubescent daughter when she was barely more than a toddler.

We also believe that, contrary to the State's argument, even assuming defendant's actions with respect to M.M.F. were somehow similar to the instant allegations, testimony regarding this relationship was not admissible to show lack of mistake because defendant did not raise that defense. Moreover, the evidence was not admissible to show that defendant's motive was to obtain sexual gratification from G.R. because that was not a material issue in this case. See G.V., supra, 162 N.J. at 258-60 (other-crimes evidence is not admissible to show intent to obtain sexual gratification or absence of mistake when no such defense was raised and such defense would have been absurd in context of case). Compare State v. Cusick, 219 N.J. Super. 452, 464-66 (App. Div.) (evidence of similar prior sexual assault on child victim admissible at defendant's trial on unrelated child sexual abuse charges to establish defendant's lascivious intent and absence of mistake, where alleged fondling was equally consistent with accidental or grandfatherly touching), certif. denied, 109 N.J. 54 (1987).

We are also not persuaded that M.M.F.'s testimony was admissible to rebut a defense of fabrication. In G.V., supra, 162 N.J. at 263-65, the Court deemed admissible testimony from the victim's sister that she, too, had been sexually abused by their father, the defendant, when she was between the ages of four and eight, provided: (1) the defense chose to argue that the victim had fabricated her charges because she was angry with defendant for abandoning her mother for another woman; (2) the trial court was satisfied that the probative worth of this evidence outweighed its prejudicial effect; and (3) an appropriate limiting instruction was administered by the trial court. In so deciding, the G.V. Court reasoned that the "testimony of another daughter in this case would appear to make it more probable that bias was not the motivation for [the victim's] testimony." Id. at 264.

In the instant case, we fail to discern how M.M.F.'s testimony makes it more probable that B.V. had not instructed G.R. to lie out of a desire to remove defendant from G.R.'s life. Unlike the two daughters in G.V., the respective situations of M.M.F. and B.V. vis vis defendant are so different that one has no bearing on the other. Further, as discussed above, the lack of similarity between the instant offenses and M.M.F.'s underage sexual relationship with defendant undercuts what little probative value M.M.F.'s testimony might have on the issue of B.V.'s alleged bias. Thus, the only real link between M.M.F.'s testimony and B.V.'s possible bias is the impermissible one of defendant's propensity to commit sex crimes.

In any event, even assuming that M.M.F.'s testimony was admissible to respond to a defense charge of bias on B.V.'s part, it must be noted that the trial judge, in his limiting instruction, merely spoke of using the evidence to rebut a defense of fabrication, without specifically directing the jury's attention to B.V.'s alleged bias. Moreover, although the trial judge recognized that M.M.F.'s testimony was not admissible to show lack of mistake or an intent to obtain sexual gratification at the time he made his ruling on defendant's in limine motion, he nonetheless erroneously instructed the jury that the testimony could, in fact, be considered for such purposes. Thus, even assuming that there was one legitimate purpose for which the testimony could have been used, the trial judge fatally misdirected the jury. This error was compounded by the prosecutor in her closing remarks when she suggested that the jury use M.M.F.'s testimony as proof that defendant's actions with respect to G.R. were not accidental, but were intended for his own sexual gratification, and then by the reiteration of the faulty limiting instruction by the judge in his final charge.

In light of the foregoing, we conclude that the prejudice from M.M.F.'s testimony regarding her underage sexual relationship with defendant outweighed its non-existent probative value. N.J.R.E. 403. Notably, this potential for prejudice was repeatedly recognized by the trial judge, who even went so far as to say that the testimony would be "devastating" to the defense in the absence of a proper limiting instruction.

Although the State insists that any error in the admission of M.M.F.'s testimony was harmless because of the overwhelming proof of defendant's guilt, we do not agree. The harmless error test is not applied by assessing whether the admissible evidence was overwhelming. The proper inquiry is whether the erroneous evidence likely contributed to the jury's verdict. State v. Pillar, 359 N.J. Super. 249, 275-79 (App. Div.), certif. denied, 177 N.J. 572 (2003). In the absence of any physical proof or other independently corroborative evidence, this case came down to credibility. Because M.M.F.'s erroneously admitted testimony significantly enhanced G.R.'s testimony, and thereby fatally undercut defendant's trial strategy, we conclude he is entitled to a new trial. See id. at 279-80. For the reasons we have identified, M.M.F.'s testimony will not be admissible at the new trial.

III

Defendant contends that the trial court erred in instructing the jury that it was not to consider G.R.'s failure to complain as weighing against her credibility. We agree.

It is axiomatic that "'[a]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Jordan, 147 N.J. 409, 421 (1997) (quoting State v. Green, 86 N.J. 281, 287 (1981)). Erroneous instructions on "matters or issues that are material to the jury's deliberation" are presumed to be reversible error. Id. at 422; State v. Grunow, 102 N.J. 133, 148 (1986). The presumption of prejudicial error exists even when defense counsel raised no objection below. State v. Federico, 103 N.J. 169, 176 (1986). However, in order to constitute plain error warranting reversal, the error complained of must be clearly capable of producing an unjust result. R. 2:10-2.

At the conclusion of this trial, the judge properly instructed the jury regarding the appropriate uses of the CSAAS testimony offered by the experts, D'Urso and Cooke. However, at the State's request and without defense objection, the judge also incorporated into his charge the then-effective model jury charge on fresh complaint. That charge specifically instructed the jury, in pertinent part, "not [to] consider the child's failure to complain as evidence weighing against the credibility of the child." Model Jury Charge (Criminal), Fresh Complaint: Silence or Failure to Complain (1998).

Subsequent to defendant's trial, in State v. P.H., 178 N.J. 378, 396 (2004), the Court held that the 1998 model jury charge on fresh complaint went too far in placing a child sexual assault victim's silence or delayed disclosure beyond the jury's consideration when determining witness credibility. According to the Court, the jury need only be advised that silence or delay on the part of a child sexual assault victim is not, of itself, inconsistent with a claim of abuse. Id. at 397. The Court, therefore, mandated that the fresh complaint charge be amended, and suggested that, in cases where CSAAS evidence is offered, the following prefatory language be added to the standard CSAAS charge to address fresh complaint concerns:

The law recognizes that stereotypes about sexual assault complainants may lead some of you to question [complaining witness's] credibility based solely on the fact that [he or she] did not complain of the alleged abuse sooner. You may not automatically conclude that [complaining witness's] testimony is untruthful based only on [his or her] silence/delayed disclosure. Rather, you may consider the silence/delayed disclosure along with all of the other evidence including [complaining witness's] explanation for his/her silence/delayed disclosure when you decide how much weight to afford to [complaining witness's] testimony. You also may consider the expert testimony that explained that silence is, in fact, one of the many ways in which a child may respond to sexual abuse. Accordingly, your deliberations in this regard should be informed by the testimony you heard concerning child abuse accommodation syndrome.

[Id. at 400.]

This language was officially incorporated into the standard CSAAS charge in 2004, i.e., after defendant's trial.

Defendant contends that by administering the now-abrogated 1998 fresh complaint charge, the judge committed plain error warranting reversal. The State concedes that the new rule of law announced in P.H. is retroactively applicable to this case. Nonetheless, the State insists that because G.R.'s delay in this case was negligible and not the focal point of the defense, defendant was not so prejudiced by the administration of the 1998 fresh complaint charge that a new trial is warranted.

We see no need to resolve this issue. At the new trial, the Court will not give the offending charge but will instruct the jury in accordance with the new charge, adopted after P.H.

IV

Defendant contends that the trial court erred in admitting G.R.'s out-of-court statements to Morrissey.

N.J.R.E. 803(c)(27) provides in pertinent part that:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse[.]

Factors which the trial judge should consider in assessing the trustworthiness of the statement include: (1) the spontaneity and consistent repetition of the statement; (2) the mental state of the declarant; (3) the use of terminology unexpected of a child of similar age; (4) the lack of motive to fabricate; (5) interrogation; and (6) manipulation by adults. State v. D.G., 157 N.J. 112, 125 (1999) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)). The judge may also take into account any bias on the part of the interviewer, as well as the quality of his or her observations and recollections. State v. R.M., 245 N.J. Super. 504, 516 (App. Div.), certif. denied, 126 N.J. 338 (1991). Notably, although there is no requirement that the statement sought to be admitted be taped, it has been recognized that videotape greatly enhances the ability of the fact-finder to evaluate the trustworthiness of the statement. State v. Donegan, 265 N.J. Super. 180, 185-86 (App. Div. 1993).

Prior to trial, the judge conducted a hearing regarding the admissibility of the various hearsay statements made by G.R. During this hearing, the prosecutor presented the testimony of Morrissey, M.M.F., and B.V., as well as child psychiatrist Levine. The testimony of Morrissey, M.M.F., and B.V. was essentially consistent with their later trial testimony, which we have set out at length earlier. Relevant to this issue, Levine testified that he spoke to B.V. and her husband and learned of the allegations before speaking with G.R. about the abuse during four separate unrecorded forty-five-minute sessions in late March and April 1999.

At the conclusion of the hearing, the judge ruled that the statements made by G.R. to B.V., M.M.F., and Morrissey were admissible. The judge was satisfied that G.R.'s statements to each of these individuals had been made spontaneously and in terminology consistent with her age, and that she had not been suggestively questioned or prompted. The judge rejected the notion that G.R. possessed any motive to fabricate.

Defendant contends that, contrary to the trial judge's findings, G.R.'s statements to Morrissey did not possess particularized guarantees of trustworthiness because: (1) Morrissey had a preconceived notion of what had occurred based upon her interview with B.V. and may have aggressively tried to convince G.R. to report abuse; (2) G.R. had been interviewed on numerous occasions by her mother, Levine, and Morrissey; (3) G.R.'s pre-interview with Morrissey was not taped; and (4) Morrissey did not conduct a neutral final interview, but continued questioning G.R. with repeated references to their earlier conversation until G.R. repeated all of her earlier statements. We disagree.

Our review of the transcripts of G.R.'s taped statements does not indicate that Morrissey aggressively questioned her in an attempt to persuade her to report abuse consistent with what Morrissey had learned from B.V.. This case is distinguishable from the one on which defendant relies, State v. D.G., supra, 157 N.J. at 117-18, where the child victim, who had recanted on several occasions (at least once as a result of a beating by her mother) and had other credibility issues, refused, during a taped interview with a police examiner, to confirm some of her earlier allegations despite relentless questioning until after an unrecorded break during which she was reassured by both the interviewer and a relative and promised a reward for telling the truth.

While it is true that Morrissey did make a few references to the untaped pre-interviews on both May 3 and November 30, 1999, she was not being argumentative or trying to put words in G.R.'s mouth. The record reflects that G.R. was very forthcoming and that Morrissey was simply trying to focus her attention. Additionally, although it is troubling that G.R. was interviewed on so many occasions and by so many people prior to the police becoming involved, there is no indication that she was subjected to the overtly suggestive type of questioning deemed objectionable in State v. Michaels, 136 N.J. 299 (1994). Rather, the record reflects that B.V. did not want to believe the worst of defendant and was very restrained in her questioning of G.R. whenever G.R. made a new disclosure. Further, there is no indication that G.R.'s story changed immediately after Levine interviewed her.

As a result, we reject defendant's argument. G.R.'s out-of-court statements were properly admitted and will be admissible at the new trial.

V

As noted at the outset, since there must be a new trial, there is no need for us to address the various sentencing issues. Of course, if defendant is again convicted, the judge will sentence in accordance with State v. Natale, 184 N.J. 458 (2005) (Natale II).

Reversed and remanded for a new trial.

 

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A-2412-02T4

RECORD IMPOUNDED

 

March 28, 2006