STATE OF NEW JERSEY v. A.F.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.F.A., a/k/a A.E.A.,

Defendant-Appellant.

________________________________________________________________

May 27, 2015

Submitted September 10, 2014 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0322.

Joseph W. Spagnoli, attorney for appellant.

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged with multiple counts alleging sexual offenses involving his minor stepdaughter, A.J. (Alice),1 over a period of approximately nine years. He was convicted on one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). At his trial, the court admitted fresh complaint evidence from two witnesses regarding disclosures Alice made to them while the abuse was ongoing. There was no objection to the admission of this evidence. His appeal is limited to one issue regarding instructions given to the jury, which he raises as plain error. R. 2:10-2. He presents the issue as follows

IN THIS DELAYED-DISCLOSURE CASE, THE DELIVERY OF A FRESH COMPLAINT INSTRUCTION, WHICH TOLD THE JURORS THAT TESTIMONY ABOUT ALICE'S BELATED DISCLOSURES WAS ADMITTED IN ORDER TO NEGATE ANY INFERENCES FROM HER ASSUMED SILENCE THAT THE OFFENSES DID NOT OCCUR, DEPRIVED THE DEFENDANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).

For the reasons that follow, we conclude that the issue raised on appeal is one of invited error and, further, is not clearly capable of producing an unjust result. R. 2:10-2.

I.

In light of the limited scope of the appeal, we need not repeat all the details of the sexual abuse alleged by Alice. We summarize the facts relevant to the issue presented.

Alice described acts of sexual abuse that began when she was eight years old. Defendant introduced the abuse by calling it a game, "cushionees." He would lie on his back on the bed and have her lie on top of him with her chest on his and her vagina touching his penis. Defendant told her the game was a secret and she should not tell anyone about it. Alice testified that at that age, she did not understand what was going on.

When she was ten years old, defendant made her watch pornography to show her "the things that he would like to do and how to do them." When Alice was twelve or thirteen, the family moved to New Jersey from Brooklyn. The abuse escalated, occurring more often, and defendant now made her perform oral sex and have intercourse.

It was at this age that Alice developed an awareness of "what was going on" as a result of her health education class. Defendant told Alice she could not tell anybody, but she said, "I knew by then that I couldn't say anything, don't tell anyone." Alice testified she did not have a good relationship with her mother, that her mother "would just call [her] names and things, just beat me and just treat me awful."2 Alice explained why she did not tell her mother, saying, "I couldn t trust her and I didn't know how she would react or what would happen if I did tell her." Alice also explained why she did not feel she could tell anyone in her family, stating, "I told them about the abuse with my mom and no one helped, so I figured what was the use."

Alice tried asking defendant to stop, saying, "I don't want to do this anymore. Can you just stop?" Alice testified: "And he'd always say, 'Just one more time, just one more time,' and it would just continue. It just would never stop." If she did not comply, defendant complained to her mother that Alice was not doing her chores around the house. She described her mother's reaction: "[M]y mom would yell at me, punish me and ground me or scream at me, depending what she felt like doing."

Alice testified that, in high school, she wanted to date, but was not allowed to do so by her mother and stepfather. They specifically told her she was not permitted to date anyone who was not "of a white race." She had friends but did not trust them. The first person she felt close enough to and trusted enough to discuss what was happening to her was Michael Grant, an African-American she started dating in the tenth grade. Alice grew close to his parents as well.

The abuse was ongoing when Alice made her first disclosure to Michael in a telephone conversation in June 2009, when she was seventeen. Alice testified, "Sometimes I would just be really upset and need somebody to talk to, and Mike would be the only one that I would talk to about everything, and so I mentioned it to him, but I was too scared to tell him everything."

On October 26, 2009, Alice sent a text to Michael's father, Earl Grant, asking to talk to him. Alice had ended her relationship with Michael at the end of the summer, which upset both Michael and his parents. Alice could not recall everything she said to Earl when they met on November 3, 2009, but testified she told Earl she "wasn't able to see Mike without performing acts" of oral sex with defendant. She explained her feelings about confiding in Earl

I was upset, scared, and I was nervous that I was actually telling somebody what was going on that was an adult because I knew that somebody could actually do something to help.

. . . .

I trusted him. He was there for me when -- you know, a lot of things happened in our school year and his wife, and they just -- they advised me and they were caring and they loved me like their own daughter.

Earl went to the police department to report what Alice had told him at approximately 6:00 p.m. on November 4, 2009.

A few hours later, Alice sent Earl text messages, which read

[Defendant] was just doing stupid things, like, let's just do it one last time. He was saying, you know, you like how it feels and just trying to get me to do it. . . . I said everything you told me. He was mad and said he sees how this is going to be and walked away.

Alice testified that the "stupid things" referred to defendant trying to have oral sex or intercourse with her and that it was not true she enjoyed it. She understood defendant's response to mean he was "going to cause trouble with [her] mom."

That evening, two intake workers from the Division of Youth and Family Services (DYFS)3 responded to defendant's home. Alice initially denied being sexually abused. However, she later disclosed details of the abuse to a female investigator from the Middlesex County Prosecutor's Office and to detectives from the Prosecutor's Office.

At trial, the State called Michael to testify about Alice's disclosure to him. Michael testified that, in the telephone conversation, he could tell Alice was shaking and upset about something and nervous to tell him about it. Eventually, she told him her stepfather "sexually harassed her and raped her," starting when she was eight years old.

Defense counsel then objected to the hearsay nature of Michael's testimony and the State replied it was offered as fresh complaint evidence. Defense counsel did not object to the introduction of Michael's testimony as fresh complaint evidence. Instead, he stated, "Judge, I would ask that the jury be told about [fresh complaint evidence] before the testimony comes out, so we understand how to take it." The court then gave the following instruction

In this case you're going to hear testimony, you've heard some testimony that sometime after the sexual offense, [Alice] complained to Michael Grant, the witness here, about what had taken place. More particularly, there's now been testimony that [Alice] told him that she was sexually harassed and raped by her stepfather.

The law recognizes that people might assume that anyone subjected to a sexual offense would complain within a reasonable time to someone whom she would ordinarily turn for sympathy, protection or advice.

If there was no evidence that [Alice] made such a complaint, some might conclude that no sexual offense occurred. As a result in cases involving an allegation of sexual offense, the State is permitted to introduce evidence of the -- the only reason that the evidence is permitted is to negate the inference that [Alice] failed to confide in anyone about the sexual offense.

In other words, the narrow purpose of the fresh complaint rule is to allow the State to introduce such evidence to negate any inference that [Alice] failed to tell anyone about the sexual offense and that, therefore, her later assertion could not be believed.

A fresh complaint is not evidence that the sexual offense actually occurred or that [Alice] is credible. It merely serves to negate an inference that because of her assumed silence, the offense did not occur.

It does not strengthen her credibility. It does not prove the underlying truth of the sexual offense. A [fresh] complaint only dispels any negative inference that might be made from her assumed silence.

In determining whether a complaint was, in fact, made, you may consider all the relevant factors in evidence. You may consider your observations of the age and demeanor of [Alice], your evaluation of her background, including her relationship, if any, with the Defendant, and the nature of her relationship with Michael Grant, the person to whom she made the complaint.

In this context you may consider the timeliness of the complaint and the likelihood that [Alice] would complain under the circumstances described. If there was a delay in making the complaint, you may consider whether any circumstances existed which would explain the delay.

You may consider the conduct and demeanor of [Alice] at the time the complaint -- of the complaint as well as her physical or mental condition.

You may also consider whether the complaint was volunteered by [Alice] or whether it was a result of an interrogation.

If you find that [Alice] made the complaint after being questioned, you may consider what prompted the questioning, whether the questions were in response to some conduct, emotional or physical condition, statement or pattern of behavior of [Alice] or whether they were initiated by the questioner without provocation.

You may also consider the nature and extent of the questions themselves and any motive on the part of the person who asked them in determining whether the complaint was truly that of [Alice] or was the product of suggestion by others.

It is, of course, up to you to determine what the facts are with regard to the circumstances of the complaint and what weight to give to these facts in determining whether or not the complaint was made.

As I have indicated earlier, this testimony is permitted for a limited purpose. The making of a complaint is not an element of the offense. Proof that a complaint was made is neither proof that sexual offense occurred nor proof that [Alice] was truthful. It merely dispels any negative inference that might rise from her assumed silence. It eliminates any negative inference that her claims of having been sexually assaulted are false because of her assumed failure to have confided in anyone about the sexual offense.

[Emphasis added.]

There was no objection to the substance of this charge. To the contrary, defense counsel thanked the judge and Michael's testimony continued. Both Alice and Michael testified she did not provide him with details about the abuse.

Earl also testified about Alice's disclosure to him. When they met, he said, "Okay, so you wanted to speak with me. Here I am." Before Earl described what Alice said, defense counsel interrupted and said, "Judge, at this point in time I would just ask that you give the instruction." The judge agreed to give the instruction after Earl described what was said to him.

Earl said Alice began by apologizing for the way she had treated him and his wife and then became "a lot more serious" and said the reason she had been acting this way was that she was being abused by her stepfather since the age of eight years old. Earl was shocked but tried to stay neutral because it was "obvious she had something to say" and "needed somebody to talk to." He asked her what she meant by "abused," and she replied, "sexually abused." He questioned her further and she said, "We have sex." He asked, "Is that it?" and when it was difficult for her to respond, he told her, "Just say it straight up." She replied, "Some people call it giving head."4 He asked her one more question, "Why did you let it go on?" There was an objection to the response, which was sustained.

The court announced, "I think now may be the appropriate [time] for an instruction." Defense counsel thanked the court and the court proceeded to repeat the fresh complaint instruction given during Michael's testimony. Again, defense counsel did not object to the substance of the instruction.

Earl testified that he went to the police after Alice's disclosure.

During the course of the trial, the State also presented the testimony of a psychologist, Jamila Irons-Johnson, Psy. D., who provided expert testimony regarding the Child Sexual Abuse Accommodation Syndrome (CSAAS). She described patterns of behavior that may be exhibited by sexually abused children, which include five elements: secrecy, a sense of helplessness, entrapment and accommodation, delayed disclosure of the abuse, and recantation. Defense counsel did not object to her testimony and, indeed, elicited the fact that Dr. Irons-Johnson was not providing any opinion as to whether Alice was being truthful or untruthful. Following her testimony, the court provided the jury with the model jury charge on CSAAS. There was no objection to this instruction.

The court conducted a charge conference with counsel. Addressing the issue of the fresh complaint instruction, the court had the following colloquy with counsel

THE COURT: Fresh complaint, the two recipients of the fresh complaint are Earl Grant and Michael Grant. Right?

[DEFENSE COUNSEL]: Right.

[PROSECUTOR]: Yes, Judge.

THE COURT: All right. And I think I say what they say. That, more particularly there was testimony that [Alice] complained to both of them that her stepfather had sexually assaulted her. That's the essence of what they say.

There was no objection to the inclusion of a fresh complaint charge or a CSAAS charge, either at the charge conference or following the charge to the jury.

II.

In this appeal, defendant acknowledges it was appropriate to provide the jury with the CSAAS instruction to address Alice's "delayed disclosure." For the first time on appeal, defendant argues he was denied his right to confrontation of Alice because the court also gave the very instruction on fresh complaint he requested.

Defendant's argument is subject to the invited-error doctrine.

Under that settled principle of law, trial errors that "'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. . . .'" In other words, if a party has "invited" the error, he is barred from raising an objection for the first time on appeal. The doctrine acknowledges the common-sense notion that a "'disappointed litigant'" cannot argue on appeal that a prior ruling was erroneous "'when that party urged the lower court to adopt the proposition now alleged to be error.'"

[State v. A.R., 213 N.J. 542, 561 (2013) (internal citations omitted).]

We do not automatically bar review of issues subject to the invited error doctrine, but do subject them to review for plain error. Id. at 562; N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010).

The issue presented by defendant is further complicated by the fact there was neither an objection to the admission of the fresh complaint evidence at trial nor an argument on appeal that the evidence was admitted in error. Defendant therefore tacitly acknowledges that Alice's disclosures were made "within a reasonable time after the alleged assault." State v. R.K., 220 N.J. 444, 455 (2015) ("In order to qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support." (emphasis added)).

Nonetheless, defendant contends it was error to give the model jury charge on fresh complaint because that charge is only designed for cases in which the victim "spontaneously complained of the crime within a reasonable amount of time," quoting State v. Scherzer, 301 N.J. Super. 363, 419 (App. Div.), certif. denied, 151 N.J. 466 (1997). He argues the model jury charge precluded the jury from considering Alice's long silence in its assessment of her overall credibility and that modification was required here to comply with the Court's instructions in State v. P.H., 178 N.J. 378, 398 (2004). We disagree, finding P.H. both factually and legally distinguishable.

In P.H., "Susan" alleged she had been sexually abused by her father for a period of seven years, between 1984 and 1990, with the last assault occurring when she was twelve years old. P.H., supra, 178 N.J. at 383-84. Unlike the facts of this case, she "did not report the incidents . . . during the period in which the abuse allegedly occurred, or for several years thereafter, despite having numerous occasions to communicate with adults about her relationship with her father." Id. at 384. Those occasions included investigations by DYFS and the Morris County Prosecutor's Office. Ibid. It was not until 1996 that Susan, then an adult, first claimed she had been sexually assaulted by her father. Id. at 385.

At trial, the P.H. court delivered a CSAAS charge which, as noted, includes an instruction that a failure or delay in disclosure can be consistent with the behavior of abused children. Id. at 387-88. In addition, over the defendant's objection, the court gave the jury the Model Jury Charge (Criminal), Fresh Complaint: Silence or Failure to Complain (1998), which informed the jury it could "not consider the child's failure to complain as evidence weighing against the credibility of the child." Id. at 383. The net result of combining the two instructions was to transform Susan's protracted silence to both a shield against the defendant's attack on her credibility and evidence her behavior was consistent with that of sexually abused children. The Court observed

The combination of the two charges clearly had the capacity to confuse the jury about how it was to evaluate Susan's credibility. By instructing the jury that Susan's silence could be given no weight "against" her credibility, the court effectively barred the jury from considering her delayed disclosure when assessing her credibility. Then, in respect of the expert testimony that the jury heard concerning CSAAS, the court instructed the jury that it may consider the patterns of behavior described in the syndrome, including delayed disclosure, when evaluating the defense's assertion that Susan was not truthful. If delayed disclosure could not be weighed against Susan's credibility, the instruction concerning the permissive use of the CSAAS evidence became a non sequitur. The conflicting instructions clearly had the capacity to confuse the jury as to what possible use, if any, it might make of the belated disclosure evidence. Just as clearly, defendant's right to have the jury fully evaluate witness credibility was impermissibly limited.

[Id. at 399 (emphasis added).]

The Court used the occasion to clarify what instructions are appropriate

In performing its exceedingly important task of assessing credibility, the jury should be permitted to consider all relevant testimony. Viewed in the context of all the facts surrounding the claimed abuse, the timing of the report of abuse, or silence about it, can be relevant for the jury to consider in the totality of the circumstances. So long as the jury is instructed that such silence or delay, in and of itself, is not inconsistent with a claim of abuse, the proper balance is struck.

[Id. at 397 (emphasis added).]

This case differs factually from P.H. in two significant respects. First, although the disclosures here were made following years of abuse, they were made while the abuse was ongoing not, as in P.H., years after the abuse had ended despite many opportunities for disclosure. Second, in P.H., the instruction at issue was given over defendant's objection; here, it was given at his request.

In addition, the charges themselves differ. A review of the fresh complaint instruction given here shows it fully meets the requirements established in P.H. Significantly, at no time did the court instruct the jury that Alice's failure to disclose over the years "could be given no weight 'against' her credibility." Id. at 399.

The court explained the narrow, limited purpose of fresh complaint evidence

[T]he narrow purpose of the fresh complaint rule is to allow the State to introduce such evidence to negate any inference that [Alice] failed to tell anyone about the sexual offense and that, therefore, her later assertion could not be believed.

The court cautioned the jury that fresh complaint evidence was not proof that the allegations were true or that Alice was truthful

A fresh complaint is not evidence that the sexual offense actually occurred or that [Alice] is credible. . . .

It does not strengthen her credibility. It does not prove the underlying truth of the sexual offense.

The instruction also provided guidance to the jury for its consideration regarding all the relevant factors in evidence, which included the following

[Y]ou may consider the timeliness of the complaint and the likelihood that [Alice] would complain under the circumstances described. If there was a delay in making the complaint, you may consider whether any circumstances existed which would explain the delay.

You may consider the conduct and demeanor of [Alice] at the time the complaint -- of the complaint as well as her physical or mental condition.

You may also consider whether the complaint was volunteered by [Alice] or whether it was a result of an interrogation.

The court clearly defined the jury's role in finding the facts and assessing their weight

It is, of course, up to you to determine what the facts are with regard to the circumstances of the complaint and what weight to give to these facts in determining whether or not the complaint was made.

And the challenged instruction closed with a reiteration of the limited purpose for the testimony

Proof that a complaint was made is neither proof that sexual offense occurred nor proof that [Alice] was truthful. It merely dispels any negative inference that might rise from her assumed silence. It eliminates any negative inference that her claims of having been sexually assaulted are false because of her assumed failure to have confided in anyone about the sexual offense.

Moreover, in the final charge to the jury, the court instructed that it was their role as judges of the facts "to determine the credibility of the witnesses." After reviewing the various factors the jury might consider in determining "whether a witness is worthy of belief or not," the court stated

Through this analysis, as judges of the facts, you weigh the testimony of each witness and then determine the weight to give to it. Through that process you may accept all of it, a portion of it or none of it.

In her testimony, Alice described the alleged sexual abuse and gave her reasons for failing to disclose the abuse because she was too young to understand; because she had a poor relationship with her mother and feared the consequences; because her prior complaints of abuse by her mother failed to result in help from family members; and because she had no one she trusted enough until she formed a relationship with Michael and his family. The instructions assisted the jury in evaluating the credibility of her testimony, including the timing of her disclosures as a relevant but not dispositive factor in determining her credibility. We discern no error, let alone plain error, in the combination of the CSAAS charge and the fresh complaint charge given under the facts of this case. See R.K., supra, 220 N.J. at 456; R. 2:10-2.

Affirmed.

1 We use initials and fictitious names to protect the identity of the victim.

2 Alice's mother is of European extraction and her biological father is African-American. Alice testified her mother made racist comments to her, such as stating she did not like the color of her skin.

3 Effective July 2, 2012, DYFS was renamed the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

4 Alice testified she told Earl defendant required her to perform oral sex on him before he would permit her to see Michael.