STATE OF NEW JERSEY v. D.A.-A

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0035-07T40035-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.A.-A.,

Defendant-Appellant.

________________________________________________________________

 

Argued December 2, 2009 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-00205.

John J. Zarych argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Nathan R. Perry, on the briefs).

Peter J. Gallagher, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Gallagher, of counsel and on the brief).

PER CURIAM

Defendant appeals from his sentence and convictions for: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); second-degree sexual assault of a victim less than thirteen years old when the actor is at least four years older, N.J.S.A. 2C:14-2b (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). We affirm.

The victim of these offenses was his girlfriend's daughter, J.R. ("Jamie"), who was between seven and eight years old at the time. In 2004, Jamie resided with her biological father, A.R. ("Alex"), his wife, A.J. ("Anna") and her two children. The household of her biological mother, A.G. ("Amber"), consisted of defendant, their two children, B.A. ("Beth") and A.A. ("Andrew"), Jamie's sister, I.R. ("Ivy") and defendant's sister, M.A. ("Margo").

Jamie visited her mother every other weekend. On these occasions, she slept with her two stepsisters in a full size bed that was the lower bunk of a bunk bed. The girls slept side by side across the width of the bed. The upper bunk was used for storage. When she returned to her father's house, she customarily left her bag of clothing for her stepmother, Anna, to do her laundry.

Anna stated that she and Jamie were friends; that Jamie was like one of her children. She testified that in or about 2003, Jamie complained to her after returning from a visit with her mother that it hurt when she urinated. Anna did not take Jamie to a doctor or tell Alex about Jamie's complaint. She did, however, examine Jamie and saw "something red."

On November 4, 2004, after Jamie returned from a visit with her mother, Anna looked into her book bag to take out the laundry and found a book. Anna, who was born in Mexico, could not read English well. She opened the book and saw words written in English. She did not know it was a diary but became concerned when she saw the word "sex." When Jamie came home from school, Anna asked her what was happening at her mother's house. Anna testified that Jamie replied that defendant "would touch her breasts," "he would grab her intimate part," and "he touched her rear end." Anna did not know what part of Jamie's rear end defendant touched but stated that Jamie said that defendant had put his hand inside her pants.

On the following day, Anna took the book to Irmaris Cruz, her former social worker, so that Cruz could translate what was written in the book.

The entry in the book read as follows:

Dear Journal, Today I'm in my mom's house, and my mom's boyfriend always do the sex with me. Does it in the night like right now. When I was outside, he was touching my butt. I don't like when he do this with me because he already has a girlfriend, but he likes me. Well, I don't - I wish he never do that to me because I don't want to have a baby. I do - I love my dad would be mad. [sic] My dad doesn't like when I have a baby. I wish he does it with my mom. Well, I got to go. Bye. From [Jamie]

Cruz testified that, when she read this to her, Anna sat quietly and "big tears came out from the eyes." Anna asked her to accompany her to speak to Alex about its contents. Alex became very angry. Anna then went to Jamie's school to pick her up.

Alex and Anna brought Jamie to the Pleasantville Police Department and signed a complaint against defendant for sexual assault. Investigator Mary Ferguson Elliott of the Atlantic County Prosecutor's Office conducted a videotaped interview of Jamie on November 9, 2004. In the preliminary part of the interview, Jamie warmly responded to the investigator's questions, even seeming playful at times. She happily identified and described the people who lived in her house as Investigator Elliott drew a picture of each on a large piece of paper. She did the same for her mother's house but acknowledged that defendant lived with her mother only when pressed after mentioning her mother and siblings. Her demeanor changed noticeably when she spoke of defendant. Investigator Elliott also asked her to name parts of the body on diagrams of a girl and a boy. After the preliminary part of the interview, Investigator Elliott asked an open-ended question, "Does anybody touch you in places you don't like to be touched?" Although she had referred to everyone by name until then, Jamie answered by pointing to the drawing of defendant. Investigator Elliott asked where he had touched her and Jamie pointed to the genital area and chest area on the diagram of a girl. Jamie stated that defendant touched her in those places and on her "butt" with his hand and his "private boy stuff." She described incidents in her bedroom when defendant came in while she was sleeping and lifted the covers, pulled down her panties and either touched her with his hand or with his private boy stuff, his own pants pulled down. Although her sisters were asleep beside her, Jamie said that they did not see anything because she was covered with a blanket. She also described an incident that occurred when she was asleep in the living room as well as one when she was alone with defendant in the basement. Jamie said that she would tell defendant to stop but that he told her to be quiet and "don't tell nobody." When asked if she told anyone about these incidents, Jamie said that she did not; that she had just told her diary. Investigator Elliott asked if defendant had done anything else that bothered Jamie. She replied that she did not like him kissing her. He kissed her on the mouth all the time. She demonstrated how she closed her mouth very tight but he tried to open her mouth.

Jamie's descriptions of the incidents, which included defendant putting "his boy stuff" in her "girl stuff" and making her feel "horrible," led Investigator Elliott to conclude that she was describing both penile and digital penetration. Investigator Elliott was not surprised that a physical examination of Jamie showed no evidence of penetration. She explained, "[T]hat area heals rather quickly, and also, what a child perceives as penetration, it's not the same as what we as adults perceive as penetration. Usually it's just on the outer - or in the lip area versus in full penetration of an adult."

After her interview, Investigator Elliott and other officers went to defendant's home, where they retrieved bed sheets and some panties belonging to Jamie. They also took buccal swabs from both defendant and Jamie. The items were sent to the State Police Laboratory for DNA analysis. No DNA from defendant was found on either the sheets or the panties.

Jamie was nine years old at the time of trial. She testified in English with the assistance of a Spanish interpreter. She stated that she knew the difference between the truth and a lie; that it was wrong to tell a lie and that if she told a lie, she gets punished. During the course of her testimony, both on direct and on cross-examination, Jamie's answers were short. The record reflects comments and questions from both counsel and the court, asking her to get closer to the microphone so she could be heard; asking if she needs a break or "to take a couple of minutes[,]" if she is okay, if she is nervous, asking her to "[t]ake a deep breath."

Jamie identified the diary as her own and that inside, it said, "This journal belongs to [Jamie R.]" She did not recall when she wrote the entry. Jamie testified that she felt bad about defendant "because he did things to me." The following testimony was given through an interpreter:

Q. What did [defendant] do to you?

A. He touched me.

Q. Where did he touch you?

A. On my body.

Q. Where on your body?

A. My thing.

Q. What do you mean by your thing?

A. My private stuff.

Q. Okay, would that be girl private stuff?

A. Yes.

Asked to describe something that happened in the living room, Jamie said that she would fall asleep watching a movie, defendant would get on top of her while everyone else was asleep in their rooms. She woke up when she felt him touching her in her "girl privates," her shorts lowered a little bit. He touched her with his hands and also with "[t]he men's private part." As he did so, his hands were moving while he was holding "his private stuff." She stated that he was touching his private stuff "[o]n my private" but he did not go inside.

At first, Jamie stated that she could not remember what happened with defendant in her sister's bedroom. However, when she was asked a second time, Jamie stated that defendant "would come into my sister's room, and he would touch me. He would touch me all the time with his private part[.]" She stated that she was sleeping when he came in and that he would be leaning over her. Her sisters were in bed asleep. She would tell him to stop. She said she was not able to yell but could not remember why. Jamie testified that this happened "a lot of times[.]"

Jamie also testified about one incident that occurred in the basement. Defendant kept a dog, Buddy, in the basement. Jamie testified that defendant "started to touch me again" while they were in the basement. He was standing behind her, his hands on his hips. She was wearing shorts that he had lowered. She did not see how his pants were. He was touching her with his private part. She did not say anything to him; he just stopped to let the dog out. Jamie pulled up her pants and went upstairs. She told no one what had occurred.

At the outset of her testimony, Jamie stated that she did not remember writing the entry in the diary or when it was written. After describing the assaults, she was asked again about the diary. She now testified that she had purchased the diary at the school book fair. She provided the following testimony, again, through an interpreter:

Q. Okay. How come there's only one entry in this book?

A. Because it's the only thing I wanted to write down.

Q. Okay. So do you remember writing it down now?

A. Not much.

. . . .

Q. Do you recognize your handwriting from then?

. . . .

A. Not much.

Q. Do you see the name who it's from?

A. Yes.

Q. Who's it from?

A. Me.

Jamie testified that she loved her mother and father and Anna. Since her allegations came to light, she has only seen her mother when she has dropped off Ivy to visit with her father. When she asked her mother if she could go with her, Amber told her "No." Amber told Jamie that she had seen the videotape of her interview with Investigator Elliott and told Jamie that she "was lying, that it was a lie." Jamie testified that she did not say anything in response.

On cross-examination, Jamie acknowledged that she was a little angry at her mother for leaving her father; she wanted her parents to be together. She stated that there were times when she visited her mother and did not want to return to her father's. She cared about Anna; she thought that she was nice and agreed with defense counsel that sometimes she could be mean like any other parent. She also agreed that there were times when defendant was very nice and also times when he was mean. Both Anna and defendant punished her if she did something wrong and she agreed with counsel that she did not like that; that it should be her parents who punished her. When she asked her mother why she left, her mother stated that her father was hitting her and she did not know whether to believe her or not. Her father stated that was not the truth. She testified that she never heard her father saying bad things about defendant. She never talked to her father about defendant's assaults.

On re-direct, Jamie testified that she did not feel safe at her mother's house. When asked why, she replied, "I don't know why." Asked, "Are you afraid now?" She replied, "Yes." She was then asked to "try the best that you can to tell us why you are afraid at your mom's house."

A. I'm afraid because I would be said things, and I'm afraid those things would be said to me again.

Q. I'm sorry, what things were said to you?

A. That I was a liar.

Q. Okay. Your mom called you a liar?

A. Yes.

Jamie stated that her aunt also called her a liar.

Q. How did you feel after they called you a liar?

A. I felt bad.

Q. Did you cry?

A. A little bit.

Q. Before you told about [defendant], did you feel safe at your mom's house?

A. No.

Q. Can you tell us why you didn't feel safe at your mom's house then?

A. Because he still would do things to me.

Julie Lippman, Ph.D., a clinical psychologist and director of evaluation services at the New Jersey Child Abuse Research Education and Service Institute (NJ CARES) was qualified as an expert in the field of child sexual abuse. She explained the Child Sexual Abuse Accommodation Syndrome (CSAAS), a tool to help people understand why children may react to sexual abuse in ways that do not conform to "common-sense expectations." She discussed five elements commonly associated with CSAAS: secrecy; helplessness; delayed, conflicted or unconvincing disclosure; entrapment and accommodation; and recantation. CSAAS is not a diagnostic tool or a checklist of elements that each child abuse victim experiences, and does not assist in determining whether a child has been or abused or not. By describing conditions commonly experienced by victims, CSAAS helps others to understand "why it is that a child wouldn't tell right away," or "why . . . they might not be completely consistent in their disclosure or why a child might, at some point, retract or minimize . . . ." She stated that most children do not tell right away, that "the most normal response . . . is for a child to somehow find a way to just adjust to this happening."

Dr. Marita Lind, a pediatrician at NJ CARES, was qualified as an expert in the examination of child sexual assault victims. During the course of her examination of Jamie, Dr. Lind asked her what had happened that made her feel uncomfortable. Jamie replied that her mom's boyfriend had S-E-X with her, pausing after saying each letter. When asked what she meant by that, Jamie said that he touched her. Dr. Lind asked where and she pointed to her breast area, said in the front and the back, and pointed to her genital area and her buttocks. Jamie told Dr. Lind that defendant touched her private stuff with his private stuff. She said that the assaults occurred in the living room, in the basement and in her sister's bedroom. Asked if defendant put his mouth anywhere on her body, Jamie stated that he tried to kiss her and put his tongue in her mouth but she would not kiss him back.

Dr. Lind found no trauma or tearing of the hymen in her physical examination of Jamie. There was an opening in the hymen, however, that was big enough to accommodate a finger. Dr. Lind testified that these findings were not inconsistent with Jamie's disclosures to her.

Amber testified that she and Alex broke up in 1998. She started dating defendant in 1998 and that upset Alex, who tried to thwart that relationship. She stated that a few months after she started dating defendant, Alex grabbed her and bit her on her neck, leaving a mark. Amber testified that jealousy between Alex and defendant has been an ongoing issue during her relationship with defendant.

Amber also testified that, from the time that she became romantically involved with defendant in 1998, when Jamie was two, until November 2004 when the allegations were made, she never observed anything that caused her to suspect or be concerned regarding defendant and Jamie. When she first heard the allegation, she did not believe it happened.

The defense subpoenaed Alex and explored circumstances that would provide a basis for jealousy and hostility toward defendant. Alex had a prior relationship with a woman, J.G. ("Juanita"), with whom he had a daughter. At some point after they had stopped seeing one another, he learned that Juanita was dating defendant. He denied blaming defendant for their break-up but admitted to a confrontation when he went to Juanita's home to see his daughter and Juanita would not open the door because she was in bed with defendant. He later became romantically involved with and married Amber. That relationship became troubled when Amber admitted having sexual relations with another man who, Alex said, was not defendant. He stayed with Amber because she was pregnant with Jamie. Amber later started seeing defendant. Alex testified that he was not angered by this because Amber had left him with a different man when Jamie was approximately two and one-half months old. She later returned Jamie to him, stating that she could not keep both girls. Alex testified that he bore no ill will toward defendant as a result of these matters.

Defendant testified that he first met Alex when Alex arrived at Juanita's house one evening after midnight with two other people, two of whom were carrying knives. When the men started hitting the windows, he asked Juanita to distract them so he could run away through the back door and did so. He stayed in the relationship with Juanita for more than three years.

Defendant met Amber "in the street" in approximately 1998. He testified that he had no confrontations with Alex regarding that relationship, and that the confrontation regarding Juanita had occurred approximately ten years earlier. He had two children with Amber, a daughter, Beth, and a son, Andrew. He and Amber lived together from the time when Jamie was two years old and Ivy was one year old. He testified that he had a good relationship with Jamie and that, when she was five or six, she asked if she could call him "daddy." Jamie also called him by another nickname, "Viejito," which means "little old man." Defendant absolutely denied ever touching Jamie in a sexual way.

Defendant described his activities for the weekend of November 5, 2008. He testified that he finished work on that Friday at 4:00 p.m. and picked up Amber from her job at 6:00 p.m. The two of them went to pick up Jamie; they picked up his brother, and proceeded to drop Amber and Jamie off at home. Defendant and his brother then left to work on defendant's car at his brother's house. Defendant returned home after 10:00 p.m., took a shower and went to bed because he had to work in the morning. Defendant left the next morning to work from 8:00 a.m. to 4:00 p.m. Amber picked him up, with Jamie and defendant's oldest daughter. After dropping Amber and the girls off at his house, defendant stated that he went to pick up one of his brothers and went to his other brother's house, where he had two beers and they continued working on his car. He returned home with his brother and cousin, after 10:30 p.m., where they watched the end of a boxing match and he drank additional beers. After the fight, they watched a movie and he went to bed at about 2:30 a.m. He woke up on Sunday at approximately 9:30 a.m. Defendant testified that, during the entire weekend, he never got up during the night. At Amber's suggestion, he and his brothers went out for breakfast. He returned home between noon and 1:00 p.m. They returned Jamie to her father's house that afternoon.

On cross-examination, defendant stated that he never had a long conversation with Alex. He stated, "I didn't feel good saying hello to him because I know that I did something wrong with his ex." The incident when Amber told him Alex had given her a hickey against her will occurred approximately six years earlier. Defendant testified that, in the six years that he knew Jamie, he had never been alone with her in the house. Asked about Jamie's statement that while she was sleeping in the bed, he would lean up and she would awaken to find that he had stuck his fingers inside her, defendant stated, "Never did." Asked about Jamie's statement that he had pulled her pants down in the living room and put his boy private stuff inside her girl private stuff, defendant answered, "Never did it, and I never - and it never happened." He stated further that he was never alone in the basement with Jamie.

Although the children were allowed to stay up watching until he and Amber went to bed, as late as 2:00 a.m. on the weekends, defendant testified that Jamie had never fallen asleep watching television. In fact, he testified that no one ever fell asleep watching television at his house. He stated that Jamie was never sleeping alone in the living room or in the bedroom; that the three sisters always went to bed together. On cross-examination, he admitted that when he returned home on the evening of November 5, Jamie and Beth were watching television with defendant's sister, while Ivy was in the bedroom.

The defense also called several family members to testify on defendant's behalf.

Prior to trial, the court held a hearing pursuant to N.J.R.E. 104(a) to determine the admissibility of evidence defendant sought to introduce to support a defense of third party guilt, i.e., that Alex was guilty of the offenses alleged against Jamie.

To this end, Amber provided testimony regarding Alex's history of having sexual relations with underage females. She testified that she first lived with Alex and had sexual relations with him when she was thirteen years old and he was in his twenties. She stated that Alex was also having sexual relations with Juanita at that time, when she was also thirteen years old. She became pregnant with Jamie when she was sixteen and with Ivy when she was seventeen. She stated that she became pregnant with Ivy after splitting up with Alex, while she was living with someone other than defendant, and got back together with Alex while she was pregnant. Amber married Alex when she was eighteen. She began her sexual relationship with defendant when she was nineteen.

Amber testified about Alex's relations with other teen-aged females. She stated that she learned that Alex had a New York conviction for assault involving a thirteen-year-old girl. She also testified that Alex had been with Anna from the time that she was fifteen years old. In addition, Amber stated that Alex had stated that he blamed defendant for the break-up of their marriage, as recently as two weeks prior to trial, but she was not sure how many times he had made such statements.

Alex appeared at the hearing in response to a subpoena served by defendant. He testified that Juanita was about seventeen or eighteen years old when he first met her. When he met Amber, she was the girlfriend of one of his friends who he described as "an older gentleman." He did not know she was only thirteen years old. When a friend told him that she was young, he asked Amber her age and she told him that she was eighteen.

Alex admitted to pleading guilty to a third-degree charge of sexual assault of a minor in New York. He explained that they were in a dating relationship and she also had told him that she was older. He denied having sexual relations with any other female under the age of eighteen, including his wife, Anna. Upon questioning by the court, he stated that each of the underage females appeared to look like a woman rather than a girl. Alex also denied ever sexually assaulting his daughter or having sexual relationships with anyone related to him.

In a detailed oral opinion, the trial court denied the motion, observing:

In the case at bar, allegations of consensual, long- or short-term sexual relations with young women are diametrically opposed to the aggravated sexual assault of a child and endangering the welfare of a child aged seven of blood relation with the defendant - with the purported third-party guilt. Accordingly, these allegations are not remotely comparable to the allegations against the defendant. Further, although defendant has implicated [Alex] in the sexual assault, the evidence currently before this Court does not support even the mere conjecture of [Alex's] guilt because the proffered evidence does not support a reasonable doubt as to the identity of the sexual assailant as alleged in this case with the [S]tate's proof, defendant cannot convincingly link [Alex] to the crime, nor can he satisfy the Sturdivant standard. Here, there is no evidence that [Alex] ever did anything wrong to his daughter [Jamie]. The defense asserts the quantum leap that because [Alex] began sexual relations with [Jamie's] mother when she was 13 years old and because he had a series of sexual relationship[s] with other girls and women, even resulting in a conviction for one of these liaisons, he, therefore, committed acts of incestuous sexual penetration upon a pre-pubescent seven-year-old daughter. What the defense is really trying to do is set up a strawman to distract and confuse the jury with evidence about the victim's father as calculated to inflame their passions and misdirect them from the [S]tate's evidence relating to the defendant's alleged misconduct.

Noting further the requirement that proffered evidence of third party guilt must be admissible pursuant to the Rules of Evidence, the court characterized the proffered evidence as inadmissible hearsay and stated, "[P]roffered testimony of [Alex's] long term consensual relationship with young women has marginal relevance to whether [Jamie] was sexually assaulted and more than likely would mislead and confuse the jury." The court ruled that the defense was precluded from introducing evidence of Alex's prior conviction, unless he was called as a witness by the State, and his involvement with underage girls. However, the court did not preclude the defense from presenting evidence of bias and prejudice:

[Y]ou may cross-examine witnesses to the extent that it's relevant with respect to bad blood, ill feelings between the families which would give basis for fabrication, give reasons to come up [with] stories, put words in the child's mouth if that's the avenue you're going to go down, but with respect to [Alex] and his prior conviction, that's not coming in.

The court also conducted a hearing prior to trial regarding the State's request to introduce Jamie's videotaped statement to Investigator Elliott as a tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). After receiving the testimony of Investigator Elliott and reviewing the videotape, the trial court made detailed findings regarding the trustworthiness of the statement under the totality of the circumstances and concluded that the videotape was admissible.

At the close of the evidence, the trial court had a charge conference with counsel, which included the following exchange:

[STATE]: Oh, regarding Dr. Lippman's testimony, that has to be the specific one with the

THE COURT: I'm getting to that.

[STATE]: Oh, Okay.

THE COURT: Be right with you. Child Sexual Abuse Accommodation Syndrome where State presents evidence thereof is the charge that I'll give. It's the three page charge. If you want to take a look at it, counsel, to make sure that it comports with your understanding. It's the one most recently revised by the charge committee of March of '04.

[STATE]: You know what, Your Honor, I'm going to check - oh wait, you're right.

THE COURT: I pulled it off the website this morning.

[STATE]: Yes. No, no, no, I was - I didn't see that one case of P.H. Okay, that's-

THE COURT: As opposed to this one, counsel, which is what the Court is not giving . . . [w]hich is the fresh complaint . . . silence or failure thereof. Right. And I think she was admitted as an expert in - as a clinical child psychologist expert in the field of child sexual abuse.

Defense counsel did not object to the proposed charge during the charge conference and did not later object to the charge as given.

The jury began its deliberations at 12:30 p.m. on July 20, 2006 and the court was "closed for deliberations." The record then reflects the following statement from the court to counsel:

Please be seated. During the break, I received a note from the jury requesting the ability to view the tape so . . . television and . . . the tape. Additionally, there was a question relative to the identification of one of the participants in a defense picture to identify one of them.

The trial judge stated that he was waiting for the note to be brought in and then read the note:

The jury would like to view and hear videotape. We had trouble during trial hearing.

The court then stated, "So they viewed that," and then read the jury's question:

On defense photo number 7, who was man on [the] right?

The court discussed the note with counsel and it was agreed that the man in the photo was defendant's brother. The jury was so informed, with the caution that their recollection of the evidence controlled. No objection was posed to the procedure followed by the court in giving the jury the videotape to review during deliberations.

Defendant was convicted of aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2b (count two); and endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). He was sentenced on count one to a term of seventeen years, with parole ineligibility of 85% subject to N.J.S.A. 2C:43-7.2, No Early Release Act (NERA), Megan's Law registration and community notification requirements, N.J.S.A. 2C:7-1 to -19, and parole supervision for life. He was sentenced on count two to a consecutive term of seven years, with parole ineligibility of 85% subject to NERA and similar conditions. He was sentenced to a concurrent term of seven years on count three. Appropriate fines, penalties and surcharges were imposed on all counts.

Defendant presents the following issues for our consideration in this appeal:

POINT I

DEFENDANT WAS DEPRIVED OF DUE PROCESS RIGHTS AND RIGHT TO FAIR TRIAL UNDER FEDERAL AND STATE CONSTITUTIONS BY THE TRIAL COURT'S DENIAL OF DEFENSE MOTION TO COMPEL PRODUCTION OF [ALEX'S] CRIMINAL HISTORY.

A. DEFENDANT WAS ENTITLED TO THE SOUGHT AFTER MATERIAL PURSUANT TO RULES OF DISCOVERY.

POINT II

DEFENDANT WAS DEPRIVED OF DUE PROCESS RIGHTS, RIGHT TO FAIR TRIAL AND CONFRONTATION UNDER STATE AND FEDERAL CONSTITUTIONS BY THE TRIAL COURT'S GRANTING OF STATE'S MOTION TO ADMIT AS SUBSTANTIVE EVIDENCE VIDEOTAPED STATEMENT UNDER THE SO-CALLED "TENDER YEARS" EXCEPTION.

A. TRUSTWORTHINESS OF "TENDER YEARS" STATEMENT WAS FATALLY UNDERMINED INSASMUCH AS THE ALLEGED VICTIM WAS PERMITTED TO LOOK THROUGH THE STATE'S INVESTIGATION FILE DURING THE INTERVIEW PROCESS.

B. PROPER EVALUATION OF TRUSTWORTHINESS OF "TENDER YEARS" STATEMENT COULD NOT HAVE BEEN UNDERTAKEN INASMUCH AS TRIAL COURT PREMATURELY RULED BEFORE HEARING THE BALANCE OF N.J.R.E. 104 TESTIMONY.

C. REVERSIBLE ERROR OCCURRED BY PLAYING OF "TENDER YEARS" VIDEO FOR JURY PRIOR TO J.R.'S TRIAL TESTIMONY BECAUSE DOING SO CREATED A VIOLATION OF DEFENDANT'S RIGHT TO CONFRONTATION UNDER FEDERAL AND STATE CONSTITUTIONS.

POINT III

DEFENDANT WAS DEPRIVED OF DUE PROCESS RIGHTS AND RIGHT TO FAIR TRIAL UNDER FEDERAL AND STATE CONSTITUTIONS BY GRANTING OF STATE'S MOTION TO PERMIT "FRESH COMPLAINT" TESTIMONY.

POINT IV

DEFENDANT WAS DEPRIVED OF DUE PROCESS RIGHTS AND RIGHT TO FAIR TRIAL UNDER FEDERAL AND STATE CONSTITUTIONS BY THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO PERMIT DEFENSE ON THE BASIS OF "THIRD PARTY GUILT."

POINT V

DEFENDANT WAS DEPRIVED OF DUE PROCESS RIGHTS AND RIGHT TO FAIR TRIAL BY THE MANNER IN WHICH THE JURY WAS PERMITTED TO, AGAIN, VIEW THE "TENDER YEARS" VIDEO DURING JURY DELIBERATION (NOT RAISED BELOW).

POINT VI

TRIAL COURT'S FAILURE TO INSTRUCT JURY ON PROPER HANDLING OF "FRESH COMPLAINT" TESTIMONY WAS PLAIN ERROR AND DEPRIVED DEFENDANT OF DUE PROCESS RIGHTS AND RIGHT TO FAIR TRIAL UNDER STATE AND FEDERAL CONSTITUTIONS (NOT RAISED BELOW).

POINT VII

PROSECUTOR'S MISCONDUCT IN INFLAMING THE PASSION OF THE JURY DURING CLOSING ARGUMENT BY, AMONG OTHER THINGS, USE OF THE WORD "PEDOPHILE" AND THE MISLEADING NATURE OF HER INCORRECT STATEMENT OF THE LAW JOINTLY AND INDIVIDUALLY DEPRIVED DEFENDANT OF A FAIR TRIAL AS GUARANTEED BY FEDERAL AND STATE CONSTITUTIONS.

A. OVERLY EMOTIONAL APPEAL FOR SYMPATHY IN AN EMOTIONALLY CHARGED CASE, COMBINED WITH HIGHLY INFLAMMATORY REMARK WARRANTS REVERSAL.

B. PROSECUTOR'S MISSTATEMENT OF THE LAW WARRANTS REVERSAL (NOT RAISED BELOW).

POINT VIII

MULTIPLE AND CUMULATIVE TRIAL ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AS GUARANTEED BY STATE AND FEDERAL CONSTITUTIONS.

A. DEFENSE COUNSEL ARGUED TO THE JURY CONFUSING AND IMPROPER DEFINITIONS FOR "REASONABLE DOUBT," AND THE TRIAL COURT FAILED TO PROVIDE CURATIVE INSTRUCTION.

POINT IX

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT X

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

A. DEFENSE COUNSEL SHOULD HAVE OBJECTED TO THE JURY'S REQUEST TO VIEW, AGAIN, "TENDER YEARS" VIDEOTAPE.

B. DEFENSE COUNSEL'S FAILURE TO TAILOR A JURY CHARGE SO THAT THE JURY WOULD KNOW HOW TO HANDLE THE "FRESH COMPLAINT" TESTIMONY OF [ANNA] AND/OR FAILURE TO OBJECT TO THE CHARGE THAT WAS GIVEN AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

C. FAILURE TO DEMAND A "BILL OF PARTICULARS" AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT XI

THE SENTENCE IMPOSED WAS HARSH AND EXCESSIVE.

A. THE TRIAL COURT ERRED IN MERGER ANALYSIS.

B. THE TRIAL COURT ERRED IN SENTENCING ABOVE THE STATUTORY PRESUMPTIVE TERM.

After carefully reviewing the record, briefs and arguments of counsel, we are satisfied that none of these arguments have merit and that the arguments raised in Points VIII and IX lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).

I

In Points I and IV, defendant alleges that the court committed reversible error in denying his motion to compel the disclosure of Alex's criminal history and in denying his request to present certain testimony to support a claim of third party guilt.

Because Alex was not a prosecution witness, the State had no independent obligation to produce evidence of prior criminal history in discovery. See R. 3:13-3(c)(6); State v. Nelson, 330 N.J. Super. 206 (App. Div. 2000). Defendant sought Alex's prior criminal history to support a defense of third party guilt, or, in the alternative, to support an argument that Alex had the motive and opportunity to persuade Jamie to make false allegations against defendant. In addition, defendant sought to present testimony from Amber to support this defense.

The court's decision to exclude such evidence is subject to an abuse of discretion standard. See State v. Fortin, 178 N.J. 540, 591 (2004); State v. Koedatich, 112 N.J. 225, 300 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Although a defendant has the right to offer a defense that the offense was committed by someone else, this right "does not address whether specific evidence is admissible in support of such a defense." Fortin, supra, 178 N.J. at 591. "Such evidence cannot be withheld from the jury 'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Ibid. (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). The evidence is inadmissible if it leaves the connection between the third party and the crime to conjecture. Sturdivant, supra, 31 N.J. at 179. Rather, the evidence must provide "some link . . . between the third party and the victim or crime," Koedatich II, supra, 112 N.J. at 300, that is "capable of inducing reasonable" people to regard the evidence "as bearing upon the State's case." Sturdivant, supra, 31 N.J. at 179. See also State v. Mosner, 407 N.J. Super. 40, 58 (App. Div. 2009).

At best, the proffered testimony here depicted Alex as a man who had engaged in four sexual relationships with underage females, two of whom he married. None of the relationships were incestuous. None of the females were pre-pubescent or under his care or supervision. There was a total dearth of any evidence that Alex ever acted inappropriately with his daughter. In addition, the evidence to support a claim that Alex manipulated Amber into fabricating an allegation against defendant was also lacking. The alleged abuse was inadvertently discovered by Anna when she opened Jamie's diary. The evidence from both Anna and Cruz, a disinterested third party, was that Alex first learned of the abuse from them. He played no role in the discovery or the initial articulation of the alleged abuse. Moreover, despite the claims of defendant and Amber of ongoing jealousy and hostility by Alex, Jamie testified that Alex never spoke ill of defendant to her. Finally, Jamie was unwavering in her identification of defendant as the person who abused her. Under these circumstances, the trial court did not abuse its discretion when it concluded that the proffered evidence failed to engender a reasonable doubt about defendant's guilt.

The court's discovery ruling is also subject to an abuse of discretion standard. See State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010); State v. Gilchrist, 381 N.J. Super. 138, 147 (App. Div. 2005). Although entitled to broad discovery under Rule 3:13-3, defendants "are not entitled to turn the discovery process into a fishing expedition." Broom-Smith, supra, 406 N.J. Super. at 239. Defendant was not prejudiced by the denial of his demand for Alex's criminal history, which was admitted during the N.J.R.E. 104(a) hearing, because Alex did not testify as a prosecution witness and that information failed to meet the standard for admission as evidence of third-party guilt. Nonetheless, defendant subpoenaed Alex to testify at trial. Defense counsel thoroughly explored areas of his potential bias and prejudice as permitted by the trial court and used such testimony in summation. Therefore, we conclude that the trial court did not abuse its discretion in denying defendant's motion to compel production of Alex's criminal history.

II

In Points II and V, defendant argues that there were several reversible errors associated with the introduction of the videotape as a "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), and the court's decision to allow the jury to view the tape during its deliberations.

A

N.J.R.E. 803(c)(27) was enacted in 1993 and provides the following exception to the hearsay rule:

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, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to [N.J.R.E.] 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; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601 [the general competency rule].

[(Emphasis added).]

For a statement to be admissible pursuant to this Rule, the trial court is required to conduct a hearing pursuant to N.J.R.E. 104(a) and find "that on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy." State v. D.G., 157 N.J. 112, 128 (1999).

The trial court conducted the required hearing prior to trial and made detailed and expansive findings regarding relevant factors, see Idaho v. Wright, 497 U.S. 805, 814, 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638, 651 (1990); D.G., supra, 157 N.J. at 125-26, that included the following:

Number one, spontaneity and consistent repetition. During the interview there were several instances of spontaneous relation of facts and details, particularly regarding pain experienced by the child when opening her legs or moving her legs; the way that the clothing of the victim and the Defendant were displayed during the alleged incidents of abuse; the placement of the bed coverings and the placement of the child and her sister under it. I found that those statements were made openly, directly, spontaneously and not necessarily in response to particular questions by the investigator.

The second factor is the mental state of the declarant. Here, the child, I found her to be alert, cooperative, bright, intelligent. She gave every indication of being forthright and direct in responding to the interview. Any precociousness on her part I attributed to reasonable nervousness and given the circumstances that she was under. Perhaps there was some appearance of her desiring to be pleasing to the investigator, but I didn't find that anything that she said was the result of anything so suggestive that it put words in her mouth or thoughts in her mind that may not have already been there before she came in for the interview.

Number three, the use of terminology unexpected of a child of seven years of age, or similar age of the child. Now, the child used terminology that may be described as the vernacular for certain sexual - - for certain parts of the body, particularly the sexual organs of the body; using the word titties for breasts, butt for buttocks, private stuff for both the male and female genitalia, and the child described it both as a boy's private stuff, girl's private stuff, or words to that affect. . . . [G]iven the exposure that children will have to modern culture and the world around them, the words appear to be age appropriate to me in my view of what she had to say.

Whether the child had motive to fabricate is the fourth element to consider. There was no apparent motive to the Court of the child fabricating anything. . . .

The next element to consider is whether, given the child's age, the statement's the type that one would expect the child to fabricate. . . . [A]gain, given her age appropriateness and being mindful of what the world is like today, her describing that, you know, people on top of each other, that it's painful, certainly for a seven year old's understanding of what the sex act might be, it may very well be that it is painful rather than pleasurable. . . . So, I didn't find that there was any basis for fabrication based on what the child had to say. . . .

The trial court discussed its scrutiny of the investigator's questioning and noted that she did not act as partisan during the interview; that the questions were "not suggestive, they were not leading and they weren't designed to get to any predetermined outcome."

Defendant has not identified any portion of the interview that showed otherwise. Instead, he attacks the trustworthiness of the statement as fatally undermined by Jamie's access to the investigative file prior to giving the statement. He also argues that the trial court erred in ruling on the State's motion before hearing additional testimony and in playing the videotape for the jury before Jamie testified. We are satisfied that none of these challenges have merit.

Defendant argues that playing the videotape prior to Jamie's testimony resulted in a violation of his right under the Confrontation Clause, U.S. Const. amend. VI. However, where a child testifies, such an issue arises only when "[she] cannot remember sufficient details of the offense to provide meaningful testimony . . . on cross-examination." State v. Burr, 392 N.J. Super. 538, 568 (App. Div. 2007), aff'd, 195 N.J. 119 (2008). Although it would have been more prudent to see if Jamie were able to provide meaningful testimony prior to playing the videotape to avoid this issue, the potential problem identified in Burr did not materialize here. Jamie was able to provide details about where defendant touched her on her body, where the assaults occurred, and was able to discuss the circumstances. The mere fact that Jamie occasionally stated that she did not recall in response to a question does not demonstrate a violation of defendant's confrontation clause rights. Defendant has not identified any statement in the videotape that he was unable to explore on cross-examination because Jamie was unable to recall sufficient details.

The argument that the court should have waited for additional testimony before ruling is completely lacking in merit. This was the State's motion and it was up to the State to offer evidence sufficient to meet its burden. Defense counsel did not ask for an adjournment of the motion hearing so that a witness who was then unavailable could testify. He described no anticipated testimony from any witness that would refute any evidence presented by the State.

The trial court also specifically addressed the contention that Jamie was unduly influenced by her access to the investigative file:

Based on the testimony here today, there was apparently in the folder anatomical sketches of a male child and a girl child and un-annotated, blank, as I could see from looking at the tape, what appear to be a folder containing a legal pad and, according to the statements of the investigator, the name of the child victim, the name of the Defendant and the date of birth of the child victim. That might be of some concern regarding the suggestiveness that the Defendant was the person that the investigator was interested in and, therefore, the child should give statements pleasing to the investigator regarding [defendant], or the person indicated on there. I didn't find it as such though. The child seemed to be more interested in how the name was spel[led] and how the name should be pronounced; perhaps an innocent, intelligent thing for a bright child to be concerned with.

Giving appropriate deference to the opportunity of the trial court to assess credibility, we are satisfied that the record does not support a contention that Jamie's statement was rendered untrustworthy by any contact with the "investigative file."

The trial court's findings were more than adequate to support the court's conclusion that there was a probability that the videotaped statement was trustworthy and therefore admissible. See Wright, supra, 497 U.S. at 814, 110 S. Ct. at 3146, 111 L. Ed. 2d at 651; D.G., supra, 157 N.J. at 125-26.

B

In Point V, defendant argues that the trial court committed plain error in granting the jury's request to view the videotape during deliberations without any inquiry or cautionary instruction. In essence, defendant argues that the procedure established in State v. Burr, 195 N.J. 119 (2008), should be applied retroactively as the basis for plain error. However, as the Supreme Court observed in Burr, the "issue of whether a taped pretrial statement, which has been introduced into evidence, may be reviewed by the jury during deliberations ha[d] never before been decided by our courts." Id. at 132. Burr was decided after this trial was completed and, by its terms, it is to be applied prospectively. Id. at 134. Therefore, the trial court's failure to follow the mandated procedure did not constitute plain error. Cf. State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009).

The question is then, whether the court abused its discretion in allowing the jury to view the videotape in the jury room. We recognize that in most cases, a "read back" is preferable to replaying the videotape. See Burr, supra, 195 N.J. at 134; State v. Michaels, 264 N.J. Super. 579, 644 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). However, it is not clear that a read back was available in this case. The interview was recorded by videotape. The record does not reflect that a transcript was prepared or that the videotaped interview was transcribed as part of the court proceedings. This case is, then, similar to State v. Miller, 411 N.J. Super. 521 (App. Div.), certif. granted, 202 N.J. 44 (2010). Because the proceedings were videotaped and not transcribed by a stenographer, a "'read back' would not have been possible without an adjournment of sufficient duration to permit preparation of either a transcript or stenographic record of the testimony from the recording." Therefore, we found that a "read back" was not an available option. Id. at 531. Accordingly, the record fails to show any abuse of discretion by the trial court.

III

In Points III and VI, defendant argues both that the trial court erred in admitting Anna's testimony as "fresh complaint" evidence and committed plain error in its charge to the jury.

Defendant challenges both the admissibility and the scope of the testimony Anna gave at trial. In State v. Hill, 121 N.J. 150, 163 (1990), our Supreme Court described "fresh complaint" evidence as follows:

[T]o qualify as fresh complaint, the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary. At trial, fresh-complaint evidence serves a narrow purpose. It allows the State to negate the inference that the victim was not sexually assaulted because of her silence. Only the fact of the complaint, not the details, is admissible. In addition, the victim must be a witness in order for the State to introduce fresh-complaint evidence.

[(Citations omitted).]

"Fresh complaints" may also be admissible when "made in response to general, or non-coercive, questioning," with greater latitude shown in cases dealing with young children. Id. at 167, 170.

In response to the State's motion to introduce Anna's conversation with Jamie after discovering the journal as "fresh complaint" evidence, the trial court held a hearing prior to trial. The evidence that the prosecutor sought to introduce as fresh complaint can be summarized briefly. After the diary entry was translated for her, Anna asked Jamie what was going on at her mother's house. Jamie responded, "You read my diary." Anna replied yes, and asked if what it said was true. Jamie then answered, "Yes," and told Anna that defendant touched her on her breasts and her intimate parts with his finger and also touched her buttocks. Defense counsel argued that the testimony was not actually "fresh complaint" because the alleged abuse occurred over the course of a year and the allegation came to light not because Jamie confided in any person but rather, because her stepmother found the diary.

In reviewing the evidence at the hearing, the court stated that it considered the "age of the child, the child's relationship with the stepmother, the circumstances under which . . . the questioning took place, and whether the child initiated the discussion." The court found that Anna's questioning was "[v]ery open-ended, very direct . . . and not at all suggestive" and that the "confessional nature" of the diary as a way for Jamie "to express innermost thoughts" was compelling evidence of the fact that the disclosure in the diary was self-motivated. Accordingly, the court concluded that the information pertaining to Anna's first discussion with Jamie would be admissible. We agree with the trial court's determination that the circumstances demonstrate that Jamie's statements to Anna following the discovery of her diary qualified as fresh complaint evidence. See Hill, supra, 121 N.J. at 163.

It is clear that when evidence is admitted as fresh complaint evidence, it is for a narrow purpose and requires a limiting instruction as to the manner in which jurors may use the evidence. In State v. R.E.B., 385 N.J. Super. 72 (App. Div. 2006), we found the absence of an instruction limiting the use of fresh complaint evidence to be plain error in a case that also contained other significant errors. See also State v. Buscham, 360 N.J. Super. 346, 359 (App. Div. 2003). If the only grounds for the admission of this evidence was that it constituted fresh complaint, a limiting instruction would be required. In addition, it would be questionable whether Anna's testimony regarding the facts of abuse provided by Jamie fell within the parameters of permissible fresh complaint testimony. See State v. P.H., 178 N.J. 378, 393 (2004); Hill, supra, 121 N.J. at 163.

However, in this case, Anna's testimony was not solely admissible as "fresh complaint" evidence. Unlike R.E.B. and Buscham, where the victims were all over the age of twelve, Jamie was well below the age of twelve when she made the statement to Anna. Therefore, while the extra-judicial statements of those victims could only be admissible as fresh complaint evidence subject to the restrictions on the permissible scope of such evidence and a limiting instruction as to its use, Jamie's statements to Anna were admissible as substantive evidence if the statements met the requirements of admissibility under the tender years exception, N.J.R.E. 803(c)(27).

In considering the procedural requirements for the admission of evidence pursuant to that Rule, we note that defendant had notice of the prosecutor's intention to offer this testimony and its particulars and had a fair opportunity to meet it in defense. A hearing was conducted pursuant to N.J.R.E. 104(a) to determine its admissibility. The court made findings as to the timing of the statement within days of the last alleged assault, the circumstances of the statement, including the confessional nature of the diary, the relationship between Anna and Jamie and the fact that Anna was not suggestive in her questioning. Because the procedural criteria for the admissibility of the statements pursuant to N.J.R.E. 803(c)(27) were substantially met, we find no error in the scope of Anna's testimony.

The fact that evidence of Jamie's statements would have been admissible pursuant to N.J.R.E. 803(c)(27) also defeats the argument that the court committed plain error in failing to give a limiting instruction regarding Anna's testimony.

"[A]ppropriate and proper jury charges are essential to a fair trial[,]" State v. Savage, 172 N.J. 374, 387 (2002), and are even more critical in criminal cases, State v. Jordan, 147 N.J. 409, 422 (1997). However, defendant was required to object to the charge at trial to preserve his right to challenge the instruction on appeal. R. 1:7-2. At the time of the fresh complaint hearing, the trial court reviewed with counsel the charge it intended to give, based upon the Supreme Court's decision in P.H., supra, 178 N.J. 378. There was no objection either at the time of the fresh complaint hearing or when the charge was delivered to the jury. No limiting instruction was requested or given. Our review is therefore limited to a determination whether the failure to give a limiting instruction constituted plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).

N.J.R.E. 803(c)(27) constitutes an exception to the fresh complaint rule and to the prior consistent statement rule of N.J.R.E. 607 when child sexual-abuse allegations are involved. State v. E.B., 348 N.J. Super. 336, 347 (App. Div.), certif. denied, 174 N.J. 192 (2002). Its "evidential consequence" is that it "permit[s] the repeated admission of the child's extra-judicial statements even where the child herself is fully competent to testify and does testify." Id. at 346. If Jamie's statements to Anna had been admitted as substantive evidence pursuant to N.J.R.E. 803(c)(27), no limiting instruction would have been required.

Where evidence proffered as fresh complaint evidence was also admissible pursuant to the tender years exception, our Supreme Court has observed that a strict application of the restrictions on fresh complaint evidence has limited usefulness. In State v. Bethune, 121 N.J. 137 (1990), fresh complaint evidence was challenged as overly detailed and as the product of coercive questioning. Although each of these factors would run afoul of the restrictions on fresh complaint evidence, the Court concluded that it was unnecessary to determine whether the evidence was inadmissible as fresh complaint:

[I]f we were to remand for a new trial, there is a strong likelihood that [the fresh-complaint witness's] testimony would be admissible pursuant to Evidence Rule 63(33) (enacted subsequent to the Bethune trial), governing the tender-years exception to the hearsay rule. Thus, [the witness's] testimony would establish not merely that [the victim] had complained but also the substance and details of her conversation with the child. [The witness's] testimony, then, would not be excluded on remand. Therefore, we find that even if the trial court erred when it admitted [this] testimony, the error was harmless.

[Id. at 146 (citation omitted).]

See also id. at 147; State v. D.R., 109 N.J. 348 (1988). Similarly, even though a limiting instruction would have been required if Anna's testimony is viewed solely as fresh complaint evidence, the fact that this testimony could have been admitted as substantive evidence pursuant to N.J.R.E. 803(c)(27) leads us to conclude that defendant was not prejudiced by the failure to provide a limiting instruction.

Finally, we consider the capacity of the failure to give a limiting instruction to bring about an unjust result in this case. Investigator Elliott's videotaped interview of Jamie occurred within a few days of Anna's conversation with Jamie. Both the testimony given by Investigator Elliott and the videotape of her interview of Jamie provided considerably more detailed accounts of Jamie's allegations and were admitted as substantive evidence. We discern no reasonable basis to conclude that a jury entitled to weigh more detailed statements as substantive evidence would be derailed from a just result by less descriptive statements that were consistent with the substantive evidence. Moreover, there was additional evidence that corroborated Jamie's version of events. Dr. Lind's physical examination of Jamie revealed an opening in her hymen big enough to accommodate a finger, a finding she characterized as not inconsistent with Jamie's disclosures. Although there was no DNA evidence, the absence of such evidence did not undermine Jamie's credibility. It was unlikely that such evidence would be available in light of Jamie's answers to Investigator Elliott's questions, indicating that defendant had not ejaculated. In addition, Jamie's submission to defendant's demands that she be quiet during the assaults and not tell anybody, only disclosing the abuse as the sole entry in a diary she purchased, was conduct that was consistent with Dr. Lippman's testimony describing CSAAS. Ultimately, it was for the jury to decide whether it found Jamie to be credible. Defense counsel explored the grounds argued for her possible bias. The jury had the opportunity to observe and evaluate Jamie, both as a witness and in the videotaped interview and determine whether her statements were true or fabricated. We are satisfied that neither the scope of Anna's testimony nor the failure to give a limiting instruction resulted in an unjust conviction.

IV

In Point VII, defendant argues that the prosecutor committed misconduct warranting a reversal in attacking Amber's failure to be supportive of Jamie, using the term "pedophile," and in allegedly misstating the law (an argument not raised below). These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond these brief comments.

A summation must be viewed as a whole and within the context of the trial in evaluating a claim of prosecutorial misconduct. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008). Here, the challenges regarding the attacks upon Amber are to isolated comments regarding Amber's bias, an appropriate area of argument, State v. Josephs, 174 N.J. 44, 128 (2002), that can also reasonably be characterized as responsive to defense counsel's arguments in summation. The thrust of defense counsel's summation was to attack Jamie's credibility and propose an alternative version of events, which relied in part upon Amber's testimony. The prosecutor's comments, made in response to defense arguments, did not stray beyond the evidence and were not improper. See State v. Munoz, 340 N.J. Super. 204, 217-19 (App. Div.), certif. denied sub. nom., State v. Pontoja, 169 N.J. 610 (2001). To the extent that the prosecutor's arguments may be construed as an impermissible plea for sympathy, the issue was adequately addressed by the court's instruction to the jury to weigh the evidence "without passion, prejudice or sympathy." Following an objection, the trial court also agreed to give a curative instruction regarding the prosecutor's use of the term "pedophile" and did so. No objection has been asserted as to that instruction. See State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). In sum, the challenged comments are neither clearly and unmistakably improper nor capable of substantially prejudicing defendant's "right to have a jury fairly assess the persuasiveness of his case." State v. Williams, 113 N.J. 393, 452 (1988).

V

In Point X of his brief, defendant alleges that he was denied the effective assistance of counsel.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

See State v. Fritz, supra, 105 N.J. at 58.

In essence, the first prong of the Strickland/Fritz test requires a determination of whether counsel's performance on these matters fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970). The second prong requires defendant's showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

"In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991). State v. Castagna, 376 N.J. Super. 323, 360 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006). Counsel is ineffective only in those "'rare instances' [that] trial mistakes [are] of such magnitude 'as to thwart the fundamental guarantee of [a] fair trial.'" Castagna, supra, 376 N.J. Super. at 360 (quoting State v. Dennis, 43 N.J. 418, 428 (l964)).

Defendant identifies the following as examples of his counsel's alleged deficiencies: his failure to object to the jury's request to view the "tender years" videotape a second time during deliberations; his failure to create a jury charge regarding Anna's "fresh complaint" testimony or to object to the charge given; his failure to demand a bill of particulars and a misstatement regarding the definition of "reasonable doubt" in his summation. We are satisfied that none of these allegations have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

A bill of particulars shall be ordered pursuant to Rule 3:7-5 when the indictment "is not sufficiently specific to enable a defendant to prepare a defense." The indictment here alleged an aggravated sexual assault, a sexual assault and endangering the welfare of a child, all within a one-year period. Defendant was well aware that the allegations were based upon conduct involving his girlfriend's daughter at his home during her weekend visits. "[B]ecause the precise date on which the offense of sexual assault occurs is not a legal constituent of the crime, the date need not be set forth in the complaint." State in Interest of K.A.W., 104 N.J. 112, 120 (1986). Since the indictment was sufficiently specific, counsel's failure to request a bill of particulars does not suggest deficient performance.

As we have discussed, at the time of trial, the procedures discussed in Burr were not in place. A fair reading of the transcript indicates that the trial court responded to the jury's request to view the videotape during a break, without consulting with counsel. Therefore, even if an objection would have caused the trial court to handle the matter differently, defense counsel did not have an opportunity to object to the procedure. His failure to do so therefore reflects no deficiency in performance.

As we have noted, defendant was not prejudiced by the charge as to the "fresh complaint" evidence. Therefore, defendant does not make out a case of ineffective assistance of counsel based on this error.

Finally, defendant argues that counsel's misstatement of the law regarding reasonable doubt was so confusing and inaccurate as to constitute ineffective assistance. Defendant moved for a new trial prior to sentencing on this basis. The trial court rejected this argument, finding that counsel defended his client vigorously and effectively and that any error was cured by the court's instructions. The trial court included the customary charge instructing the jury that it must accept the law as given by the court and disregard any conflicting statement by counsel. The court also gave correct instructions on the State's burden and reasonable doubt, which were not objected to at trial or challenged in this appeal. We presume that a jury follows the instructions given by the court, see State v. Winder, 200 N.J. 231, 256 (2009); State v. Manley, 54 N.J. 259, 270 (1969); McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 599 (App. Div. 2002), and discern no reason to abandon that presumption here.

VI

In Point XI, defendant challenges his sentence on the grounds that the court erred in failing to merge counts two and three into count one and that the sentence was excessive.

A

The thrust of defendant's merger argument is that there is no way to determine whether the convictions on all counts refer to the same conduct or not. Accordingly, he argues that counts two and three should merge into count one.

"Merger is based on the principle that 'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" State v. Miller, 108 N.J. 112, 116 (1987) (quoting State v. Davis, 68 N.J. 69, 77 (1975)). "[T]he focus is on the elements of the crimes and the Legislature's intent in creating them." Miller, supra, 108 N.J. at 116. It is clear that the statutes that define the offenses for which defendant was convicted: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second-degree sexual assault on a child less than thirteen years old, N.J.S.A. 2C:14-2b; and endangering the welfare of a child, N.J.S.A. 2C:24-4, contain discrete elements that define separate crimes. In Miller, supra, the Court stated:

[M]erger may be improper even where a single course of conduct constitutes a violation of two different criminal statutes. The factor critical to the merger decision in this case stems from the different interests protected by the statutes violated.

 
[Miller, supra, 108 N.J. at 118.]

In Miller, the Court rejected an argument for the merger of the offenses charged in counts one and three here, aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Miller, supra, 108 N.J. at 120-21. The Court concluded that these offenses do not merge "because the crime of endangering the welfare of a child is aimed not only at specific conduct but also at the violation of the duty that a parent owes to a child." Id. at 118-119. As the Court noted, the Legislature has provided that abuse by those with a legal duty to care for a child constitutes a second-degree offense while abuses by others are third-degree offenses. Ibid.

Defendant's conviction for endangering the welfare of a child rested in part upon his status as "having legal duty for the care of, or having assumed responsibility for the care of" Jamie. Because this conviction therefore requires proof of that status in addition to proof of the sexual acts, it does not merge into either the aggravated sexual assault or sexual assault convictions. Ibid. See also D.R., supra, 109 N.J. at 377.

Count one charged defendant with committing an act of sexual penetration upon Jamie when she was less than thirteen years old, N.J.S.A. 2C:14-2a. The sexual assault charged in count two was not based upon an allegation that he committed an act of penetration but rather, that he "committed an act of sexual contact [upon a child of less than thirteen years of age], for the purpose of sexually arousing or sexually gratifying himself and/or to humiliate or degrade" her, and was at least four years older than the victim. Therefore, these convictions do not merge. State v. D.R., 214 N.J. Super. 278, 298-99 (App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988). See also State v. Fraction, 206 N.J. Super. 532 (App. Div. 1985).

Defendant's merger argument therefore lacks any merit.

B

Appellate review of a sentence entails the following determinations:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996).]

The standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; see also State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to "take into account a mitigating factor that is fully supported by the evidence," but "must [include such factor as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 504-05 (2005).

Defendant does not contend that the court found any aggravating factor that was not supported by the evidence or failed to find any mitigating factor that was supported by the evidence. Instead, he argues that the court gave undue importance to the following aggravating factors: N.J.S.A. 2C:44-1a(3) (likelihood that defendant would commit another offense) and N.J.S.A. 2C:44-1a(9) (need to deter the defendant and others from violating the law); and unduly discounted the following mitigating factors: N.J.S.A. 2C:44-1b(7) (lack of prior record) and N.J.S.A. 2C:44-1b(11) (excessive hardship).

After reviewing the court's detailed statement of reasons for the sentence imposed, including its balancing of the aggravating and mitigating factors, we are satisfied that the court engaged in an appropriate deliberative process, found factors and balanced them in accord with the credible evidence in the record and did not abuse its discretion in sentencing defendant.

 
Affirmed.

Because of the number of names that must be treated confidentially and the similarity of initials, fictitious names are used.

State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)

N.J.R.E. 803(c)(27) is virtually identical to the former Rule 63(33); the only material difference being that N.J.R.E. 803(c)(27) permits the statements to be used in juvenile and civil proceedings as well as criminal ones. State v. D.G., 157 N.J. 112, 124 n.4 (1999).

In P.H., the Court concluded that giving both Model Jury Charge (Criminal) Fresh Complaint - Silence or Failure to Complain (1998) and Model Jury Charge (Criminal) Child Sexual Abuse Accommodation Syndrome (2001) "clearly had the capacity to confuse the jury as to what possible use, if any, it might make of the belated disclosure evidence." P.H., supra, 178 N.J. at 399. Pursuant to the Court's recommendation, both charges were revised. The charge on failure to complain was revised on April 19, 2004 and contains the footnote, "This charge should be used when there is no Child Sexual Abuse Accommodation Syndrome testimony." Model Jury Charge (Criminal) Fresh Complaint - Silence or Failure to Complain (2004) (citing P.H., supra, 178 N.J. 378) (emphasis added). The charge on CSAAS was revised March 22, 2004 and contains a footnote advising that the language was "derived from that approved by the Supreme Court in [P.H.]" Model Jury Charge (Criminal) Child Sexual Abuse Accommodation Syndrome (2004).

We are not unmindful of the fact that the admission of repeated accounts of the victim's allegations require a heightened sensitivity to evidentiary rulings that limit a defendant's ability to present evidence relating to the credibility of the victim-witness. See E.B., supra, 348 N.J. Super. at 346. We are satisfied that defendant here was not restricted from exploring Jamie's possible bias arising from a desire to see her biological parents reunited and Alex's alleged hostility toward him.

N.J.R.E. 803(c)(27) is essentially a restatement of Evidence Rule 63(33).

When Miller was decided, this same disparity existed. However, at that time, the statute provided that abuse by a parent was a third-degree offense and abuse by others was a fourth-degree offense.

At trial, defense counsel correctly conceded that count three does not merge into count one and only argued that count two merged into count one.

(continued)

(continued)

7

A-0035-07T4

RECORD IMPOUNDED

August 20, 2010