STATE OF NEW JERSEY v. D.M

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1050-07T41050-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.M.,

Defendant-Appellant.

________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Payne, Waugh and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-05-0483.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, D.M. appeals from a judgment of conviction of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of a lesser included offense of offensive touching, N.J.S.A. 2C:33-4(b). The trial judge imposed an aggregate sentence of sixty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

I

Between August 2001 and October 30, 2002, D.L. was sexually abused by defendant, a live-in boyfriend of her mother, C.W. During the summer of 2001, when D.L. was eight years old and about to start third grade, D.L. lived in an apartment with her three-year-old sister, C.W., and defendant. The sexual abuse usually occurred in D.L.'s bedroom before she went to school.

On the evening of October 30, 2002, when D.L. was nine years old, she told her mother that defendant touched her sexually that morning. That night, C.W., D.L., and her sister left the apartment and stayed in a hotel.

The next morning, C.W. took D.L. to a family doctor. The doctor referred the matter to the Division of Youth and Family Services (DYFS), and a caseworker requested that D.L. be examined by Dr. Martin A. Finkel, D.O. Dr. Finkel is a pediatrician employed by the University of Medicine and Dentistry of New Jersey. He is a professor of pediatrics and medical director of the Child Abuse Research Education and Service (CARES) Institute. The CARES Institute is a diagnostic and treatment center for children who are suspected of having experienced abuse. At trial, Dr. Finkel was qualified as an expert in the field of "pediatrics and in the diagnosis and treatment of child sexual abuse."

On October 31, 2002, Dr. Finkel examined D.L. Before the examination, Dr. Finkel obtained a separate medical history from C.W. and then from D.L. to avoid one from influencing the other.

Dr. Finkel explained that a diagnosis involving child sexual abuse is made the same way a doctor renders a diagnosis of any medical disorder. The doctor takes a history and then performs an examination. He said that "when [physicians] evaluate children [when] there's a concern for whether they've experienced something of a sexually inappropriate nature, the medical history is really [a] key and paramount component . . . ." In taking a child's history, Dr. Finkel first obtains information from an accompanying adult then the child. A complete medical history from birth to the present exam is obtained from the adult. He testified:

When there has been a concern that a child experiences something of a sexually inappropriate nature, [physicians] particularly focus on the gastrointestinal and genital urinary systems because those are[,] in a sense[,] the target organs[,] and so I ask a very detailed series of questions about [those systems. I]f I'm asking about [the] genital urinary system, I'll ask questions [such as: H]as the child ever had a kidney or bladder infection, a vaginal discharge, vaginal odor, [or] vaginal bleeding[? H]ave they ever had any accidental injuries[? H]ave they ever had discomfort with urination[? H]ave they ever had blood in their urine[? D]o they use bubble baths, [and] if so[,] have they ever complained of discomfort with that[? H]ave they ever had their private parts examined other than routine health care[?]

He noted that a small percentage of children require follow-up medical care for sexually transmitted diseases. The follow-up care includes re-culturing and blood tests.

During D.L.'s medical exam, C.W. was present. On the physical examination, Dr. Finkel reported:

Examination of genitalia was completed in the lithotomy position with use of gross macroscopic and colposcopic visualization at [four, six, and ten] magnification with white and green light. The labia majora and minora and clitoral hood are well formed without findings of trauma. With labial separation and traction, it is possible to visualize a slight estrogen affect to the hymenal tissues. There was an annular shaped configuration to the orifice. There are no interruptions in the integrity of the hymenal membrane. There are no acute or chronic signs of trauma. Examination of the external anal verge tissues revealed a symmetric rugal pattern, normal response to traction, normal symmetic tone[,] and no acute or chronic signs of trauma.

As part of the history, D.L. told Dr. Finkel that the touching was "both like wiping and inside" in the adult sense of the word. D.L. described to Dr. Finkel that defendant "pulled [her] over and put [her] on top of him." She said that this happened "in [her] room." D.L. told Dr. Finkel that this happened right before school. D.L. stated that defendant touched her private parts, which she referred to as her "pee pee and butt," with his finger. D.L. said that she was wearing her pajamas at the time that defendant touched her under her clothing, and that "it was hurting [her] inside."

Using a plastic model of the female genitalia, D.L. showed Dr. Finkel what defendant did. D.L. told him that defendant rubbed her vagina, and that it "hurt after when he stopped and[, she] went to the bathroom." She told the doctor that she felt "stinging" when she urinated. She told Dr. Finkel that defendant touched her with his "private" which was "long and nasty." She said that defendant would start "shaking it." She told the doctor that afterwards she had to clean her private because it was "creamy and wet." D.L. told the doctor that defendant would watch "nasty movies with two girls."

Dr. Finkel examined her for sexually transmitted diseases, but all cultures were negative. He said that D.L.'s history was "augmented by symptom[-]specific complaints referable to specific events." According to the doctor, the touching "caused some local irritation or trauma and [D.L.] then described that after [defendant] stopped . . . it hurt." Specifically, it "stung" when D.L. went to the bathroom. Dr. Finkel explained that this discomfort when urinating is known as dysuria.

Dr. Finkel concluded that D.L. "had a symptom related to a specific event that reflect[ed] trauma to those tissues in the process of rubbing." He explained that "superficial [irritation] could easily heal within [twenty-four] hours." Dr. Finkel opined, within a reasonable medical certainty, that D.L. experienced trauma to the structures of the vaginal vestibule. His diagnosis was not only based upon the history provided by D.L. but also upon his particular knowledge of dysuria, and the sexually explicit details that one would not expect a nine-year-old to know.

Dr. Finkel's objective findings were consistent with penetration into the vaginal vestibule. Upon clinical examination he determined that "the degree of inside was not past the hymenal membrane, [and] that it was limited to [the] structure known as the vaginal vestibule." He explained that the touching was between the labia with a finger and a penis and the penetration was "[w]ith a finger and . . . a penis into the structures of the vaginal vestibule."

Through the history obtained from C.W., Dr. Finkle learned that D.L. had no past medical history of dysuria or discomfort with urination, no urinary tract infections, and no genital complaints. He found that the complaint of dysuria was "something that was specifically related to this specific event."

The doctor opined that D.L. experienced inappropriate genital touching and genital contact. He said,

In the context of that genital touching she experienced trauma to the tissues around the urethra that result[ed] in a symptom of dysuria. She also had the potential for contracting a sexually transmitted disease from a history that suggests there was contact with potentially infected genital secretions.

On November 1, 2002, D.L. was interviewed by Detective Frank Troso, and she gave a videotaped statement. This was her first contact with law enforcement. D.L's description to the detective of what defendant did was similar to what she told Dr. Finkel. She told Troso that defendant would enter the bedroom, pull down her pajamas and "do stuff to [her]." Defendant would "take off his clothes[,] and he would take his private part and put it inside [D.L.'s] private part." She described his private part as his penis and how defendant "put it in [her] private part." She stated, "every time it happened, that's mostly what he did." She said that defendant touched her private part with his hand, "but that didn't happen as much as the other thing happened."

"He would take his penis and shove it into my bottom," she also said. He would go inside her bottom and rub his penis on her bottom. Defendant put D.L.'s hand on his penis. She said that when these things happened, his penis was hard. She said that "white[,] foamy" stuff would come out of his penis, and it would go on her hand, on her bottom, and on her private part. She said that these things happened more than once.

D.L. told Troso that defendant put his penis in her vagina on at least three occasions, placed his penis inside her buttocks at least twice, and digitally penetrated her. Troso testified that D.L. "described very, very graphic and detailed accounts of what happened" between her and defendant.

II

On April 24, 2003, defendant was indicted. On May 4, 2004, the trial judge granted defendant's motion to dismiss the indictment based on the State's failure to present exculpatory evidence. The judge found that the State's failure was not an intentional subversion, and permitted the State to re-present the case to the grand jury.

On May 6, 2004, the State re-presented the matter to the grand jury. This time, the State offered additional evidence that there were no acute or chronic signs of trauma to D.L.'s vagina or anus. The State elicited the following testimony from Detective Troso:

Q: Now did you ever receive a report from Dr. Finkel?

A: Yes, I did.

Q: And Dr. Finkel, as you described him[,] is essentially . . . a pediatric gynecologist?

A: Yes.

Q: You reviewed that report after you received it?

A: Yes, I did.

Q: And you've reviewed it in preparation for . . . today's presentation?

A: Yes.

Q: Dr. Finkel had two areas which are of import . . . to your case. The first area was whether or not there were physical . . . findings concerning trauma or physical abuse to either the vagina or anus of [D.L.]?

A: Correct.

The assistant prosecutor asked Troso to read Dr. Finkel's diagnostic assessment. He read the following:

The historical information that . . . has been provided clearly details this young girl experiencing a variety of age inappropriate sexual interactions that she explained in detail to [Dr. Finkle,] which involved genital fondling with penetration into the structures of the vaginal vestibule and genital[-]to[-]genital contact with placement between the labia and rubbing into the structures of the vagina[l] vestibule. As a result of the genital fondling, she complained of discomfort following the contact in the form of dysuria. This reflects trauma to the structures around the urethra. The only way that she could know this particular symptom [temporally] related to this event is by having experienced such. This confirms with medical certainty that she experienced trauma to the structures of the vaginal vestibule. Those injuries were superficial and have since healed without residual[s] as would be anticipated.

After this presentation, defendant was indicted on May 6, 2004, and charged with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Counts One, Three and Five); seven counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Counts Two, Four, Six, Eight, Ten, Twelve, and Fourteen); and four counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (Counts Seven, Nine, Eleven and Thirteen).

On April 7, 2005, the judge heard oral argument on defendant's second motion to dismiss the new indictment and defendant's motion to bar the testimony of Dr. Finkel. Defendant argued that the State failed to present sections of Dr. Finkel's report indicating that there was no finding of trauma surrounding the victim's labia and clitoral hood, that the hymen was intact, and that the victim's anal tissue was normal.

At the conclusion of oral argument, the trial judge denied defendant's second motion to dismiss the indictment having found that the State presented the pertinent, relevant parts of the victim's history, physical examination, and diagnostic assessment. The judge deferred a ruling on defendant's motion to bar Dr. Finkel's testimony until a Rule 104(a) hearing was conducted.

On June 7, 2005, we denied defendant's motion for leave to appeal the April 7, 2005 order.

On July 26, 2005, the trial judge conducted the Rule 104(a) hearing to determine the admissibility of Dr. Finkel's testimony. The judge concluded that Dr. Finkel's testimony was admissible. He determined that Dr. Finkel could testify as to what D.L. told him under N.J.R.E. 803(c)(4), which permits the introduction of hearsay statements offered for the purposes of medical treatment or diagnosis. The judge concluded that "the medical treatment purpose of the examination conducted by Dr. Finkle was evident."

Jury selection began, and on May 23, 2006, defendant requested to represent himself at trial. The judge granted that request and his further request for additional time, discharged the jury, and rescheduled the trial.

On January 9, 2007, the judge revisited defendant's desire to proceed pro se and found that defendant's waiver of counsel was knowing and voluntary.

Defendant was tried from January 10, 2007, through January 18, 2007. D.L. testified at trial. By using her fingers, she described to the jury what defendant did to her. She said:

If this is my private part[,] and my private part has two like flaps on it, he would take his middle finger[,] and he'[d] go like this, like that[,] and he'[d] stroke it up and down like this.

She showed the jury how defendant moved his finger from left to right, and how his finger went inside the two "flaps." She said that he did the same thing with his penis that he did with his hand. Defendant rubbed his penis on the "flaps."

Defendant was found guilty on January 18, 2007 on all counts except Counts Thirteen and Fourteen, and in connection with Count Fourteen, charging second-degree endangering the welfare of a child, he was found guilty of the lesser-included offense of offensive touching. Defendant was sentenced on June 8, 2007.

This appeal was filed on September 21, 2007.

III

On appeal, defendant raises the following points:

POINT I

THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION TO DISMISS THE INDICTMENT AS THE PROSECUTOR FAILED TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.

POINT II

THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION TO BAR MUCH OF DR. FINKEL'S TESTIMONY, AS THIS TESTIMONY VIOLATED [N.J.R.E 803(c)(4)] OF THE HEARSAY RULES.

POINT III

THE TRIAL JUDGE ERRED IN PERMITTING THE DOCTOR TO OPINE THAT THE COMPLAINANT WAS CREDIBLE IN THE ABSENCE OF ANY CORROBORATING EVIDENCE.

POINT IV

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Before turning to defendant's specific arguments, we outline our standard of review with respect to the various issues raised. A decision to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed "'only on the "clearest and plainest ground"'" where it is "manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (quoting State v. Perry, 124 N.J. 128, 168 (1991) (quoting State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984))).

"[O]nly in the exceptional case will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment." Hogan, supra, 144 N.J. at 239. "[A]n indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). The role of a grand jury is "not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced." Hogan, supra, 144 N.J. at 235. "Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." Ibid. The State, however, "may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Id. at 236. The prosecutor's limited duty to present exculpatory evidence is "triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237 (emphasis in original).

The scope of our review of a judge's evidentiary ruling is generally limited to ascertaining whether his or her discretion was mistakenly exercised, provided the ruling is not inconsistent with applicable law. State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)); State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008). Error in the admission of evidence will not be deemed harmful if the weight of the evidence against the defendant is great. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.)(citing State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984), aff'd, 103 N.J. 169 (1986)), certif. denied, 170 N.J. 209 (2001).

Finally, we "review sentences to determine if the legislative policies, here the sentencing guidelines, were violated . . . ." State v. Roth, 95 N.J. 334, 364 (1984). We also "review the aggravating and mitigating factors found below to determine whether those factors were based upon competent[,] credible evidence in the record . . . ." Ibid. We "determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of th[e] case makes the sentence clearly unreasonable so as to shock the judicial conscience." Id. at 364-65.

IV

In Point I, defendant contends that the trial judge erred by not granting his second motion to dismiss the indictment. We find to the contrary. Defendant argues that not dismissing the May 6, 2004, indictment was error because the prosecutor failed to present evidence that the hymen was intact, that the labia majora and minora and the clitoral hood were well formed and lacking any trauma, and that the victim's anal tissue was normal.

On May 6, 2004, Troso gave the following grand jury testimony:

Q: And what were Dr. Finkel's findings . . . specifically related to whether or not there was actual trauma that he observed to either her vagina or buttocks?

A: There was no acute or chronic signs of trauma.

Then, the prosecutor asked Detective Troso to read Dr. Finkel's diagnostic assessment. Troso read the following:

The historical information that . . . has been provided clearly details this young girl experiencing a variety of age inappropriate sexual interactions that she explained in detail to [Dr. Finkle,] which involved genital fondling with penetration into the structures of the vaginal vestibule and genital[-]to[-]genital contact with placement between the labia and rubbing into the structures of the vagina[l] vestibule. As a result of the genital fondling, she complained of discomfort following the contact in the form of dysuria. This reflects trauma to the structures around the urethra. The only way that she could know this particular symptom [temporally] related to this event is by having experienced such. This confirms with medical certainty that she experienced trauma to the structures of the vaginal vestibule. Those injuries were superficial and have since healed without residual as would be anticipated.

In denying the motion, the trial judge said:

The legal standard for the dismissal of an indictment is that an indictment should be dismissed based upon a grand jury presentment on only the clearest and plainest grounds. That does not exist in this case . . . .

The State in its presentation to the Grand Jury[,] through the detective[,] took the pertinent, relevant parts of the medical examination performed by Dr. Finkel[, and t]ook . . . the pertinent portions out of the historical section, out of the physical examination section[,] and out of the diagnostic assessment section and presented this to the Grand Jury. That information was certainly within the parameters that . . . the law requires the prosecutor to present by way of exculpatory information . . . .

Defendant contends that if the grand jury knew that D.L.'s labia, clitoral hood, anal tissue, and hymen displayed no signs of trauma, he would not be charged with the penetration crimes. We disagree. The evidence does not "directly negate[ defendant's] guilt," Hogan, supra, 144 N.J. at 237, and it is not "clearly exculpatory," Ibid.

Sexual penetration is defined as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime . . . ." N.J.S.A. 2C:14-1(c). The fact that there was no trauma to the labia, clitoral hood, anal tissue, and hymen of D.L. does not, then, negate allegations of penetration.

A finding that there was no trauma to the clitoral hood, anal tissue, and hymen of D.L. was not "clearly exculpatory," Hogan, supra, 144 N.J. at 237. Dr. Finkel opined that D.L. suffered trauma to her vaginal vestibule because D.L. complained of dysuria immediately after the improper touching. Therefore, the denial of defendant's second motion to dismiss the May 6, 2004 indictment was not an abuse of discretion.

In Point II, defendant contends that the trial judge erred by failing to bar certain testimony of Dr. Finkel. Specifically, defendant argues that D.L.'s statements to Dr. Finkel were given for purposes of litigation, not diagnosis or treatment. We disagree.

After the N.J.R.E. 104(a) hearing, the judge found that:

In this case[,] the medical treatment purpose of the examination conducted by Dr. Finkel is evident. Dr. Finkel mentioned several times during his examination that the sole purpose of . . . eliciting medical history from . . . the alleged victim's mother and the victim herself was to treat an unknown condition and that once he ascertained what that condition was[,] he would have treated it had treatment been necessary.

N.J.R.E. 803(c)(4) renders admissible as an exception to the hearsay rule

[s]tatements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.

The hearsay exception is premised on the notion that "the declarant is more interested in obtaining a diagnosis and treatment culminating in a medical recovery than he is in obtaining a favorable medical opinion culminating in a legal recovery." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (2010) (citing In re Registrant C.A., 146 N.J. 71, 99 (1996); Cestero v. Ferrara, 57 N.J. 497, 501 (1971); Bober v. Indep. Plating Corp., 28 N.J. 160, 170 (1958); State v. Gruich, 96 N.J.L. 202, 204 (E. & A. 1921); Palmisano v. Pear, 306 N.J. Super. 395, 400 (App. Div. 1997)). Hearsay obtained during evidence-gathering, medical consultations conducted purely in preparation for litigation remains inadmissible. State in Interest of C.A., 201 N.J. Super. 28, 33-34 (App. Div. 1985).

At the N.J.R.E. 104(a) hearing, Dr. Finkel made it clear that he examined D.L. for purposes of medical diagnosis and treatment. The following exchange took place:

Q: [D]o you ever do evaluations on children for the purposes of rendering opinions in [c]ourt?

A: No. I do examinations when children are suspected of experiencing something that is inappropriate, either physical or sexual abuse. . . . [T]he purpose of my examination is to diagnose and treat any residual to the effects of alleged physical or sexual abuse.

. . . .

Q: [W]hen did you make th[e] change from doing clinical pediatric work to the sexual evaluation?

A: [O]ver these [twenty-three] years I gradually moved from . . . doing general pediatrics to focusing on the development of a center and ultimately this institute to provide state[-]of[-]the[-]art medical[,] diagnostic and treatment services.

. . . .

Q. Doctor, what's the difference between a center that does diagnostic and treatment evaluations and one that does forensic evaluations?

A: I view what I do as for diagnostic and treatment purposes, and that's the purpose of why I see kids . . . .

. . . .

Q: [I]n conducting any given examination of a patient[,] do you attempt to obtain a history?

A: Yes, I do.

. . . .

Q: And, with respect to [D.L.] . . . did you make some introductory comments to her?

A: Yes, I did.

Q: What were those comments?

A: I explained to her that one of the things that I do [that is] a little bit different than most kid's doctors is that I talk to young girls like her.

. . . .

Q: Now, you indicated part of . . . the history that was taken from [D.L. was] . . . strictly for diagnostic purposes?

A: Yes.

Q: Is any part of your evaluation or question[ing] done for the purpose of gaining evidence to be used in court?

A: No.

Q: Or to be referred to the police?

A: No.

That D.L. made statements in good faith for purposes of medical diagnosis or treatment also appears from the following exchange:

Q: Did you then begin to discuss with her any previous interactions she may have had with doctors?

A: Yes. . . . Then I asked her if it's important to tell the doctor the truth[,] and she said yes. And, I asked why, and she said because if you don't[,] the doctor will never know what's the matter.

Defendant argues that Dr. Finkel had no diagnostic reason to ask about a washcloth D.L. used to clean herself. However, when asked why he questioned D.L. about this subject, Dr. Finkel said:

[W]hat I'm trying to do is make an assessment as to whether she was at risk for contracting a sexually transmitted disease[,] and the way she'd be at risk for contracting a sexually transmitted disease is if she got in contact with ejaculate. . . . [S]o if she's describing removing something from her belly that was not there before[,] that would suggest that it was potentially ejaculate and, therefore, I would do cultures and evaluate her for sexually transmitted diseases, which I did.

Defendant relies on State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied, 177 N.J. 572 (2003), arguing that D.L.'s statements contained in the medical history are inadmissible. In Pillar, the defendant was accused of sexually assaulting P.T., a female minor. Id. at 257. After the indictment, P.T. was taken to a DYFS doctor where she indicated that "'the kind of sexual abuse she was alleging included penile to genital area touching.'" Id. at 287 (quoting physician's testimony). "If the examination . . . was conducted for evidence gathering purposes, the hearsay statements contained in the medical history would not be admissible as falling within [N.J.R.E. 803(c)(4)]." Id. at 289. In excluding only that part of the doctor's testimony relating to the specifics of sexual abuse alleged by P.T., we said that "[t]he record is not entirely clear as to why P.T. was referred to [the doctor] for examination." Ibid.

We do not find Pillar to be determinative. Dr. Finkel made it clear that he examined D.L. for purposes of medical diagnosis and treatment. The purpose of the examination was to "diagnose and treat any residual to the effects of alleged physical or sexual abuse." He performed the exam at an institute that provided "state[-]of[-]the[-]art[,] medical diagnostic and treatment services." D.L. answered Dr. Finkel knowing that "if you don't [tell the truth] the doctor will never know what's the matter." Here, unlike in Pillar, the record is clear that the examination was for medical diagnosis and treatment.

Lastly, the trial judge admitted the video-taped statement D.L. gave to Troso under N.J.R.E. 803(c)(27), statements by a child relating to a sexual offense, finding the statements inherently trustworthy. The statements D.L. provided to Troso were consistent with the statements she gave Dr. Finkel. The jury was able to see and hear D.L. describe, in graphic detail, the sexual abuse.

In Point III, defendant argues that Dr. Finkel's acceptance of D.L's description of what occurred, and his recitation of that description at trial, served to bolster her credibility improperly. We disagree.

An expert is not permitted to bolster the testimony of another witness by vouching for his or her credibility. State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993). That is so because it would improperly encroach upon the province of the jury's fact-finding mandate. Ibid.; see also State v. Frisby, 174 N.J. 583, 594 (2002) ("[T]he mere assessment of another witness's credibility is prohibited."); State v. Papasavvas, 163 N.J. 565, 653 (2000) ("'It is not a medical function to weigh the truth of assertions or statements.'" (quoting In re Hyett, 61 N.J. 518, 533 (1972))).

On direct examination, Dr. Finkel testified that D.L.'s history, the temporal relationship between the dysuria and the event, and the sexually explicit details one would not expect a nine-year-old to know, such as her contact with ejaculate, formed the basis of his diagnosis. He testified that his physical, objective findings that the hymenal membrane was intact, together with D.L.'s disclosures, were consistent with penetration into the vaginal vestibule.

On cross-examination, Dr. Finkel testified that D.L. had "local irritation[]trauma that was superficial and could easily heal within [twenty-four] hours . . . that resulted in the symptom of dysuria." He said "that local irritation causes discomfort with urination[,] . . . [. D.L.] said she was rubbed, [and the rubbing] caused irritation[. S]he had a symptom related to that with no alternate explanation." D.L. never had any similar complaints after taking bubble baths.

As an expert in the field of "pediatrics and in the diagnosis and treatment of child sexual abuse," Dr. Finkle explained that his opinion was not solely based on the temporal relationship between what D.L. described and the dysuria. His opinion was also based on details he would not expect a nine-year-old to know, such as contact with ejaculate.

It was necessary for Dr. Finkel, relying on his many years of experience with nine-year-olds, to weigh the details provided by D.L. to determine whether they were physically consistent with her condition and whether they showed a knowledge of sexual practices that a nine-year-old would not know unless abused. We do not find impermissible bolstering.

As a final matter, we reject defendant's arguments, set forth in Point IV of his brief, that his sentence is excessive.

In 1981, defendant was found guilty of murder and sentenced to forty-five years in prison with nineteen years of parole ineligibility. Within nine months of release, while on parole, he committed the acts of sexual abuse at issue in this case.

Defendant was sentenced on three first-degree aggravated sexual assault convictions to consecutive twenty-year terms in prison subject to NERA. Each conviction pertained to separate acts of sexual behavior committed at different times. Defendant was sentenced on three second-degree sexual assault convictions to concurrent ten-year terms in prison subject to NERA. The judge merged the six endangering convictions. Megan's law applied and all the appropriate fines and penalties were imposed.

The sentencing judge did not violate the sentencing guidelines and properly exercised his discretion in running the first-degree convictions consecutively. See State v. Yarbough, 100 N.J. 627, 643-44 (1985) (holding that in imposing consecutive sentences a court is to consider whether each act by the defendant was a separate crime committed at a different time because "there can be no free crimes"). In this case, the offenses were not so closely related because they required different proofs and occurred on distinct occasions. Further, with each offense came a new risk of bodily harm to D.L. To require a one-term sentence would permit "free crimes" contrary to Yarbough, id. at 643. Thus, the judge properly imposed consecutive sentences. In imposing the maximum sentence, the judge properly found that aggravating factors three, six, and nine outweighed non-existent mitigating factors. The sentence was not clearly unreasonable so as to shock the judicial conscience.

 
Affirmed.

(continued)

(continued)

27

A-1050-07T4

RECORD IMPOUNDED

July 21, 2010