STATE OF NEW JERSEY v. M.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4042-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

October 18, 2012

Submitted August 27, 2012 - Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-08-0685.

Joseph W. Spagnoli, attorney for appellant.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant M.S. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-degree child endangering, N.J.S.A. 2C:24-4(a) (count three). On April 14, 2011, he was sentenced on count one to fifteen years imprisonment subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The judge merged count two with count one. On count three he imposed a concurrent seven-year term of imprisonment. For the reasons that follow, we reverse.

After defendant and his wife separated, and the children and their mother relocated to Utah, the children rarely visited with defendant over the course of six years. At trial, defendant's daughter, who had just turned seventeen at the time, testified that when she was six and seven and her mother, brother, and she still lived in New Jersey, defendant sexually assaulted her on four occasions. The child's mother also testified she said that her daughter told her about the assaults approximately two years prior to the trial when she warned her that defendant, concerned about the victim's relationship with a boyfriend, was planning to visit the family. Her daughter had responded that her father had no right to interfere "because he had behaved very badly towards her." The conversation took place in the summer of 2008, when the child was fourteen, and as a result the mother immediately contacted the Salt Lake City Police Department, who in turn contacted the police in this state.

In addition to describing the assaults, the victim added that defendant, claiming her mother was one of the women depicted on the screen, showed her pornography on his computer. She also recounted that her father asked her if she would agree to have sex with a friend while he had sex with his friend's daughter. The victim refused because defendant had excused the sexual assaults as being motivated by his love for her, and she did not understand how a stranger could love her. On another occasion, defendant came out of the shower wearing a towel. He approached her, removed it, put the towel back on and went into his room.

Defendant categorically denied any improper sexual behavior of any kind towards the victim. He claimed that when the victim was seven, he worked as a truck driver from 8:00 a.m. until 6:00 p.m. and was rarely, if ever, alone with his children. He also testified that because of his efforts to control his daughter talking to her boyfriend for hours on the phone on school nights, he and she stopped speaking. Eventually, after she had gone to the police, the victim sent him an email asking for his forgiveness.

The State presented a clinical psychologist who explained the Child Sexual Abuse Accommodation Syndrome (CSAAS) and detailed children's various responses to sexual abuse, including secrecy and delayed disclosure. The psychologist further testified that young children might not disclose abuse because they are too young to understand the nature of the activities, or even that they are being sexually abused.

On appeal, defendant raises the following issues:

POINT I

THE ADMISSION OF TESTIMONY, AS "FRESH" COMPLAINT, THAT [D.] TOLD HER MOTHER NEARLY EIGHT YEARS LATER THAT HER FATHER HAD SEXUALLY ABUSED HER, AND THE FATALLY DEFECTIVE INSTRUCTIONS ON "FRESH" COMPLAINT AND CSAAS TESTIMONY, DEPRIVED THE DEFENDANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO CONFRONTATION AND A FAIR TRIAL

A. The Introduction of [D.'s] Complaint Was Prejudicial Error

B. The Erroneous And Confusing Instructions On Fresh Complaint And CSAAS Testimony Were Fatally Flawed, As They Usurped The Jury's Role To Decide The Complainant's Credibility, In A Case Where Her Credibility Was The Core Issue. (Not Raised Below.)

POINT II

THE IMPROPER ADMISSION OF EXTREMELY PREJUDICIAL EVIDENCE THAT [M.S.] SUGGESTED THAT HE AND HIS DAUGHTER "SWAP" [WITH] ANOTHER FATHER AND HIS DAUGHTER DEPRIVED [M.S.] OF A FAIR TRIAL. (Not Raised Below)

I

We first address defendant's contention that the court erred in admitting the victim's and her mother's testimony as fresh complaint evidence. Since we agree it was inadmissible because the child's statements were not made within a "reasonable time" after the last aggravated sexual assault, we will not reach defendant's challenge to the jury instruction on the subject.

It is well-established that fresh complaint testimony is admissible to allow the State to neutralize the "persistent 'timing myth' that victims of sexual assault would cry out and alert others to the crime." State v. W.B., 205 N.J. 588, 616 (2011) (citing to State v. P.H., 178 N.J. 378, 392 (2004)). Even if not made under the stress of excitement or before an opportunity to deliberate or fabricate, such testimony refutes the notion that an "alleged victim confided in no one whom she might be expected to seek out for sympathy, solace, comfort, protection, advice, or guidance." Biunno, Current N.J. Rules of Evidence, comment 2 on R. 803(c)(2).

Nonetheless, a necessary foundational element is timeliness, in other words, that the statement was made within a reasonable time after the incident. W.B., supra, 205 N.J. at 616 (citing State v. Hill, 121 N.J. 150, 163 (1990)). Despite the fact that a fresh complaint must be made within a reasonable time after the event, the definition is "applied more flexibly in cases involving children than . . . those involving adults." State v. L.P., 352 N.J. Super. 369, 382 (App. Div.), certif. denied, 174 N.J. 546 (2002). But the delay in this case, however, approximately seven years, is more than a "reasonable time" for reporting.

This victim, although she visited with her father initially, had not lived in the same state or even visited with him for years. Because the child resided in a different state and had limited contact with her father, there was nothing inherently coercive in her living arrangements that would have caused her to fear the consequences had she disclosed and not kept silent. See State v. Pillar, 359 N.J. Super. 249, 285 (App. Div.), certif. denied, 177 N.J. 572 (2003). It is noteworthy that in Pillar, we found the admission of a statement by an alleged victim about abuse that had occurred six years earlier to be error, although in that case, defendant was acquitted of the most serious charge involving that victim and, as a result, the error was harmless. Ibid. Just as in Pillar, we conclude in this case that nearly seven years is too long of a delay, especially in light of the distance between the child's home and defendant.

Since the foundational element for admission of the evidence that the statement be made within a reasonable time is absent, the testimony should have been excluded. Its admission was prejudicial to defendant and requires reversal of his conviction. Given the expert testimony presented to the jury regarding CSAAS, we cannot say the evidence did not affect the outcome. See State v. Macon, 57 N.J. 325, 335 (1971) ("the question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict."). We note, however, that even though the material does not qualify as fresh complaint, the State is not precluded from offering it for some other purpose, after the appropriate Rule 104 hearing by the trial judge.

Defendant also contends that the instruction given to the jury regarding CSAAS testimony was prejudicial because it included the "automatically conclude" language disapproved in State v. W.B., 205 N.J. 588, 621-22 (2011). This issue is moot, however, as the Criminal Model Jury Charge that will be employed on retrial has been modified in accord with that opinion. See Model Jury Charge (Criminal), "Child Sexual Abuse Accommodation Syndrome (Where State Presents Evidence Thereof)" (2011).

II

We next turn to defendant's assertion that the victim's testimony about a "switch" with a friend's child had no probative value, was highly prejudicial, and should have been excluded. Because defendant did not previously object to the evidence, the court had no opportunity to set forth the reasons for admission. We suggest that on retrial a Rule 104 hearing be conducted on this subject as well.