STATE OF NEW JERSEY v. J.A.

This case can also be found at 337 N.J. Super. 114.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6752-98T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.A.,

Defendant-Appellant.

_____________________________________

Submitted: October 17, 2000 - Decided: February 5, 2001
 
Before Judges A. A. Rodr guez, Collester and Fall.
 
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Ind. #673-4-98.
 
Ivelisse Torres, Public Defender, attorney for appellant (Edward C. Lehman, Designated Counsel, of counsel and on the brief).
 
John J. Farmer, Jr., Attorney General, attorney for respondent (Kristen A. McKearney, Deputy Attorney General, of counsel and on the brief).
 
The opinion of the court has been filed by:
 
RODRIGUEZ, A. A., J.A.D.

In this appeal, we hold that penile penetration of the space between the labia majora or outer lips of the vulva constitutes "vaginal intercourse" within the meaning of N.J.S.A. 2C:14-2a(1). Following a jury trial, defendant, J.A., was convicted of first degree aggravated sexual assault on his daughter, who was then less than thirteen years old, N.J.S.A. 2C:14-2a(1); second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and fourth degree child abuse, N.J.S.A. 9:6-1. A report on examination at the Adult Diagnostic and Treatment Center, pursuant to N.J.S.A. 2C:47-2, indicated that defendant's conduct was not characterized by a pattern of repetitive, compulsive behavior. The judge merged all convictions and imposed an eighteen-year State Prison term with an eight-year period of parole ineligibility. We affirm the convictions and sentence.

I
 
The victim, "Nancy," is defendant's daughter.See footnote 11 She was born on June 20, 1987. When Nancy was five years old, defendant's wife moved to Massachusetts, leaving him to care for Nancy and her three-year old brother.
According to the State's proofs, on numerous occasions while Nancy was in the first and second grade, defendant molested her in their basement apartment. When the children would return from school, defendant would have his son take a nap in a separate room. He would place Nancy on some blankets that served as a bed and would pull down her pants. He would pull down his own pants and lay on top of her. Defendant would place his penis on top of Nancy's private parts and move from side to side. Although Nancy testified that defendant's penis was not between her legs and he never hurt her, the State's medical expert opined that at least the tip of the penis was placed just inside Nancy's labia majora.
Defendant threatened Nancy by telling her that he would throw her into the Hudson River if she ever told anybody about what he had done to her. Defendant showed her the spot where he would throw her in the river. Defendant also told Nancy that if anyone ever discovered that she had been sexually assaulted, she should say that one of his friends was responsible. Nancy, who was only six or seven at the time, believed her father's threats and never told anyone.
Sometime in August 1994, defendant brought Nancy and her brother to visit Cora, a family friend.See footnote 22 Defendant would bring his children for regular weekend visits to Cora's apartment in New York. In February 1995, defendant told Cora that he was experiencing financial difficulties and could no longer take care of the children. Although Cora was initially reluctant, she eventually allowed defendant, Nancy and her brother to move in with her. Soon thereafter, Cora filed a petition in New York's Family Court seeking custody of Nancy and her brother. Defendant consented. The Family Court awarded custody of the children to Cora. However, some months later, defendant changed his mind and sought to have custody returned to him. He was unsuccessful. Cora threw him out of her apartment.
At some point thereafter, Cora attempted to have custody of the children returned to defendant. However, the Family Court judge ordered Cora to maintain custody. That same month, defendant left with the children. He took them to live in a shelter. Upon discovering this, Cora removed the children from the shelter with police assistance and brought them back to live with her. Contemporaneously, Cora's uncle moved into her apartment. He lived with her and Nancy for a period of time.
When Nancy was eight years old, a routine physical examination revealed that she tested positive for chlamydia, a sexually transmitted infection. While Nancy was at Union Hospital for treatment of this infection, two social workers from the Administration for Children's Services investigated Cora and her home. During that investigation, Nancy revealed that she had been sexually molested. Initially, Nancy blamed the assault on one of her father's friends. Later, she admitted that her father had molested her repeatedly while they lived on Summit Avenue in Jersey City.
Two months later, Nancy came under the medical care of Linda Cahill, M.D. at Montefiore Medical Center. Thereafter, Cora brought Nancy to the Hudson County Prosecutor's Office to press a complaint against defendant. Investigator Richard Fiocco tape- recorded sworn statements from Nancy and Cora. Nancy told Fiocco that her father had sexually molested her while they lived in Jersey City. She was able to direct Fiocco to the location of the house where the molestations occurred, as well as identify the school she had attended at the time. Defendant was arrested and tried.
At trial, Lynn Taska, Ph. D., qualified as an expert in child sexual abuse accommodation syndrome. Dr. Taska is a clinical psychologist and a member of the faculty of the University of Medicine and Dentistry of New Jersey. She explained that the syndrome is marked by elements of secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction and recantation. Dr. Taska described the syndrome. She offered no opinion as to whether Nancy had been sexually abused.
Dr. Cahill, who is an associate professor of clinical pediatrics at Albert Einstein College of Medicine, testified for the State as an expert in the treatment of sexually transmitted diseases in children. She also testified as a fact witness. According to her, Nancy's hymen appeared red but had no scars. She opined that in order to transmit chlamydia, it is sufficient if an infected penis touches the "inside of labial lips . . . in the region of the vulva." In short, "penetration through the vaginal opening into the vagina" is not required. "It just requires touching of the penis against the vaginal opening against the hymen."
At trial, Nancy testified to several incidents of molestation by her father at their former apartment in Jersey City. She testified that defendant "put his private part on top of [her] private part, and moved from side to side." When asked, Nancy stated that this activity "didn't hurt."
Defendant testified and denied that he had ever molested Nancy or threatened to throw her in the river. He denied ever having chlamydia or any other sexually transmitted disease. He asserted that in October 1996, he was tested for chlamydia. The test was negative. However, he could not produce any documentation to corroborate this. Defendant alleged that Cora had convinced Nancy to falsely accuse him of the molestation in order to gain a tactical advantage in the ongoing custody battle over Nancy and her brother.
II
 
On appeal, defendant first contends that the trial judge should have dismissed the aggravated sexual assault count because the State failed to prove sexual penetration, an essential element of the crime. He also contends that the judge gave an erroneously expanded definition of the term "penetration."
Sexual penetration, an element of aggravated sexual assault, is defined by the Criminal Code 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:14-1c.]
 
There is no definition of the term "vaginal intercourse." Defendant argues that the Legislature intended the term vaginal intercourse to mean penile penetration of some portion of the vagina canal beyond the hymen. Defendant contends that because there is no evidence of such penetration, the State has failed to establish a prima facie case of aggravated sexual assault pursuant to N.J.S.A. 2C:14-2a(1).
The judge defined "sexual penetration" as follows:
'Sexual penetration' means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina by the defendant. Any amount of insertion, however slight, constitutes penetration. The depth of the insertion is not relevant. This means that if you find from all of the evidence presented beyond a reasonable doubt that there was penile penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law. (emphasis added).
 
Defendant contends that this instruction is incorrect. We disagree.
When construing a statute, a court should always effectuate the Legislature's intent. We are mindful that although penal statutes are generally strictly construed in favor of a defendant, the rule of strict construction does not mean that manifestations of the Legislature's intent should be disregarded. State v. Ferencsik, 326 N.J. Super. 228, 231 (App. Div. 1999) (citing State v. Edwards, 28 N.J. 292, 298 (1958)).
The source of N.J.S.A. 2C:14-1 and -2 is the Model Penal Code. The Sponsor's statement to the 1978 adoption of the New Jersey Code of Criminal Justice states:
This code is based upon the final report of the New Jersey Criminal Law Revision Commission of October 1971 and is the result of a year's review by the Assembly Judiciary, Law, Public Safety and Defense Committee of a draft which was prepared pursuant to Assembly Resolution No. 13 of 1972 and which was approved by the commission.
 
The Final Report of the New Jersey Criminal Law Revision Commission (Commission)See footnote 33 addresses the concept of "penetration" within the context of what was then called aggravated rape. This Report cites the Commentary to the 1953 Model Penal Code draft, which is instructive. The Commentary states:
The chief issue which has arisen in defining the behavior to be treated as rape is whether to require proof of something more than 'slight penetration' of the outer female genitalia. It is settled law that the crime can be completed without orgasm or complete penetration of the male organ into the vagina. Predominantly the present statutes call for 'actual penetration' or 'any penetration however slight.' Under either formula it is held that the slightest penetration of the outer part of the female genitalia is sufficient; it need not be shown that the male organ reached the vagina.
 
The reasoning behind this is said to be that the essence of the offense is the outrage to the person and feelings of the female, . . .
[Model Penal Code 207.4 cmts. (Tentative Draft No. 4, 1953) (emphasis added)]
 
The Commentary also addresses the evidentiary difficulties inherent in requiring "proof of penetration beyond the hymen...[because] some membranes are sufficiently elastic or have natural openings large enough to permit penetration without rupture."
Based on this Commentary, which sheds light on the legislative view of the essence of the offense, we conclude that the Legislature intended the term "vaginal intercourse" to be broader than intercourse in the vagina canal beyond the hymen. We conclude that penile penetration of the space between the labia majora or outer lips comes within the concept of vaginal intercourse to which N.J.S.A. 2C:14-1c refers. See also State v. Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986) (holding that cunnilingus, by licking the labia, constitutes an act of sexual penetration, although the actor's tongue is not inserted into the vagina); State in the Interest of S.M., 284 N.J. Super. 611, 617 (App. Div. 1995) (holding that fellatio constitutes an act of sexual penetration notwithstanding the fact that the victim's penis does not enter the actor's mouth because touching of the mouth and penis is sufficient to prove a violation). But see State v. Gallagher, 286 N.J. Super. 1, 15 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996) (holding that insertion of the penis between the buttocks is not anal intercourse).
Therefore, the instruction that penile penetration of the outer area of the vaginal opening constitutes sexual penetration, was an accurate construction of N.J.S.A. 2C:14-1a. Here, there was circumstantial evidence that defendant's penis penetrated at least Nancy's labia. Therefore, a prima facie case of sexual penetration was presented by the State. The judge properly denied the motion to dismiss this charge.
III
 
Defendant also challenges Dr. Taska's testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS). It is settled that expert testimony on CSAAS is not admissible to prove a defendant's guilt or innocence, but it may be used to rehabilitate a child-victim's credibility by explaining the child's post-assault behavior, including delayed disclosure and recantation. State v. J.Q., 130 N.J. 554, 574 (1993); see also State v. Michaels, 264 N.J. Super. 579, 593-94 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). Defense counsel may request a N.J.R.E. 104(a) hearing so that the trial court can assess the qualifications of the expert and determine whether the research basis for the proposition to be stated is generally accepted within the relevant scientific community. J.Q., supra, 130 N.J. at 583. If the trial court admits the expert testimony on CSAAS, it must provide a limiting instruction such that the jurors are advised that they cannot consider the testimony as substantive proof, but only as evidence that supports or rehabilitates the victim's credibility. State v. W.L., 278 N.J. Super. 295, 302-04 (App. Div. 1995). The timing of such limiting instructions is not mandated to occur either contemporaneously or at the close of the trial. See State v. Hummel, 132 N.J. Super. 412, 424 (App. Div.), certif. denied, 67 N.J. 102 (1975). Nonetheless, it is apparent that limiting instructions given during criminal cases should generally be given contemporaneously with the trial event that prompts them. See State v. Hawk, 327 N.J. Super. 276, 283 (App. Div. 2000).
Here, defendant makes three arguments regarding the testimony offered regarding CSAAS. First, the evidence was offered to improperly bolster the State's case and not to rehabilitate Nancy's credibility. Second, the judge erred by not holding a N.J.R.E. 104(a) hearing to determine admissibility. Third, the limiting instruction should have been repeated during the final charge to the jury. We disagree with defendant.
The record is replete with challenges to Nancy's credibility. These challenges entitle the State to bolster Nancy's credibility through CSAAS testimony. Moreover, Dr. Taska testified that she never interviewed Nancy. Thus, it was clear that Dr. Taska was testifying in the abstract in order to explain a sexually-abused child's post-assault behavior.
Next, we note that a N.J.R.E. 104(a) hearing was not requested. Defendant did not challenge the qualifications of Dr. Taska or whether the basis of the research is generally accepted in the scientific community. J.Q., supra, 130 N.J. at 583. Therefore, we conclude that even if it was an error not to hold a N.J.R.E. 104(a) hearing, such error was harmless. R. 2:10-2.
As we have already noted, there is no requirement that the limiting instruction be repeated in the final charge. Here, the judge gave a lengthy and appropriate charge just prior to Dr. Taska's testimony. The record shows that the Assistant Prosecutor asked for a limiting instruction during the final charge. The judge denied this request because it would unduly highlight the testimony. Defense counsel agreed with the judge's ruling. We perceive no error.
IV
 
Defendant contends that prosecutorial misconduct deprived him of a fair trial. Specifically, defendant points to the following comments. In his opening statement, the Assistant Prosecutor referred to defendant's "despicable conduct." In his closing argument, the Assistant Prosecutor referred to defendant as a "monster." We disapprove of these remarks by Assistant Hudson County Prosecutor Peter H. Stoma. Such attacks are impermissible. See State v. Gregg, 278 N.J. Super. 190-91 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); see also State v. Pennington, 119 N.J. 547, 577 (1990). However, we perceive no prejudice to defendant. The State's proofs presented an incestuous relationship that lasted several years with a victim of tender age. The victim's silence was insured by a threat of death by drowning. The impact of the Assistant Prosecutor's comments has to be weighed in light of this evidence, which the jury apparently credited. In such light, we conclude that the improper remarks were not so egregious that they deprived defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).
Moreover, there was no "timely and proper objection." State v. Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953). Failing to object prevents the trial judge from taking an effective curative measure at the time the comments are made. State v. Frost, supra, 158 N.J. at 84. Thus, when a defendant fails to object at the time a comment is made, the remark will usually not be deemed prejudicial. State v. Ribalta, 277 N.J. Super. 277, 294 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995).
V
 
Defendant challenges his sentence by arguing that: the judge failed to adequately weigh the sentencing factors; there was insufficient evidence to support the existence of the aggravating factors; and, there was no basis for the judge to raise the presumptive term. We disagree.
This fifty-five year old defendant has no history of convictions. As to the most serious charge, aggravated sexual assault, the judge found four of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e. (1) the nature and circumstances of the offense including whether it was especially heinous, cruel, or depraved manner; (2) the gravity and seriousness of harm inflicted on the victim; (3) the risk that defendant will commit another offense; and (9) the need for deterrence.See footnote 44 The judge also found one mitigating factor listed in N.J.S.A. 2C:44-1b, i.e. (7) defendant has no history of prior delinquency or criminal activity. The judge weighed the sentencing factors and concluded that the aggravating outweighed the mitigating.
We conclude that the sentencing factors identified by the judge are supported by the evidence and are sufficiently weighty as to justify his imposition of a discretionary minimum term pursuant to N.J.S.A. 2C:43-6b. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989); see also State v. Towey, 114 N.J. 69, 84 (1989). The judge must perform a qualitative, as opposed to a quantitative, analysis with regards to the statutory criteria. State v. Kruse, 105 N.J. 354, 363 (1987). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 365 (1984). The imposition of a consecutive sentence is in accord with the sentencing philosophy of the Criminal Code that there can be no free crimes in a system which requires that the punishment fit the crime. State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
VI
The remaining contention is that the judge erred in the jury instruction defining the "knowingly" state of mind. We determine that this argument is without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note that, although the judge may have erred in instructing that the "knowing" mental state related to defendant knowing that he was performing "a sexual act," in other portions of the charge the judge made reference to the verdict sheet and instructed that the crime required knowingly performing an act of sexual penetration. A jury charge must be read as a whole, not just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973); see also State v. Thompson, 59 N.J. 396, 411 (1971).
Affirmed. Footnote: 1 1"Nancy" is a fictitious name. She is identified in the record as "N.A." Footnote: 2 2"Cora" is a fictitious name. She is identified in the record as "C.B." Footnote: 3 3 Final Report of the New Jersey Criminal Law Revision Commission, comment 5, N.J.S.A. 2C:14-1 (1971) Footnote: 4 4As to the remaining counts, the judge found the same sentencing factors, except for the first aggravating factor.