                                       RECORD IMPOUNDED

                                  NOT FOR PUBLICATION WITHOUT THE
                                 APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this
               opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                          SUPERIOR COURT OF NEW JERSEY
                                                          APPELLATE DIVISION
                                                          DOCKET NO. A-1221-17T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

A.O.F.,

     Defendant-Appellant.
____________________________

                   Submitted January 21, 2020 – Decided May 4, 2020

                   Before Judges Messano, Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Indictment No. 15-04-0224.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Janet Anne Allegro, Designated Counsel, on
                   the briefs).

                   James L. Pfeiffer, Acting Warren County Prosecutor,
                   attorney for respondent (Kelly A. Shelton, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      After a bench trial, the court convicted defendant A.O.F. of two counts

of aggravated sexual assault of a child under thirteen, N.J.S.A. 2C:14-2(a)(1);

two counts of aggravated sexual assault of a related child between thirteen and

sixteen, N.J.S.A. 2C:14-2(a)(2)(a); two counts of second-degree sexual assault

of a child between thirteen and sixteen, with an actor four years older, N.J.S.A.

2C:14-2(c)(4); and third-degree endangering the welfare of child, N.J.S.A.

2C:24-4(a). The charges arose out of defendant's continual assaults of his niece,

B.D. (Beth), over more than three years. 1 We are constrained to agree with

defendant's contentions on appeal that the trial judge erred by admitting and then

misapplying fresh complaint testimony; and in relying on Child Sexual Abuse

Accommodation Syndrome (CSAAS) testimony, ruled inadmissible in State v.

J.L.G., 234 N.J. 265, 272 (2018). Therefore, we reverse defendant's conviction

and remand for a new trial.

                                        I.

      The State presented its case primarily through Beth's testimony. Her

allegations were unsupported by any eyewitness testimony or corroborating

physical evidence. The State bolstered Beth's testimony with that of two fresh



1
   In accord with Rule 1:38-3(c)(9), we use initials and pseudonyms for the
reader's convenience.
                                                                          A-1221-17T1
                                        2
complaint witnesses – each described Beth's disclosures roughly three and six

years, respectively, after the last assault – and Beth's mother, her grandmother,

and police officers, who described Beth's demeanor when she disclosed the

assaults to them in 2014.       The State also presented a Child Sex Abuse

Accommodation Syndrome expert, who described behaviors he opined were

typical of child victims of sexual assault.

      Beth testified that defendant, then in his late thirties and her uncle by

marriage, began assaulting her in July 2005, two months shy of her eleventh

birthday. She said defendant engaged in sex acts with her at least three times a

week for over three years.2      These assaults included mostly penal-vaginal

intercourse, but also digital-vaginal penetration, fellatio, cunnilingus, and anal

penetration.

      Beth's testimony at trial focused on the first-degree assaults, including the

first two times defendant assaulted her. In July 2005, Beth was with defendant

and her aunt in their apartment. They lived in the center unit of a modest row

home consisting of three side-by-side apartments, which defendant owned.

Beth, her mother, and baby brother lived next-door. Their two apartments



2
  Although Beth occasionally testified that the assaults occurred over a four-
year period, the dates she provided coincided with a three plus year period.
                                                                           A-1221-17T1
                                         3
shared a wall. After Beth's aunt went to bed leaving the two of them alone,

defendant complimented Beth on her looks at a time when she was overweight,

had few friends, and lacked self-esteem. He then began petting her, and soon

pulled down her pants and underwear and engaged in penal-vaginal intercourse.

      After the encounter ended, defendant told Beth that if she told anyone

about what had just happened, she, her brother, and her mother would have to

move out of the apartment, which would cause them great financial hardship,

since defendant allowed Beth's mother, who received public rental assistance,

to pay bills late, or not at all. Additionally, defendant implied Beth's aunt would

have to move out as well. Beth testified this convinced her not to tell anyone.

      The next night, once defendant and Beth were alone again in his

apartment, defendant asked Beth if she wanted to be his girlfriend.            She

responded, "I guess so." Then, defendant forced her to perform fellatio on him.

Beth could not breathe, so he stopped, and he then had penal-vaginal intercourse

with her. Beth stated most of the assaults occurred in the first floor living room,

after her aunt went upstairs to bed. Beth stated she remained quiet during the

assaults at defendant's direction, to avoid stirring her aunt.

      Beth also testified that shortly after her thirteenth birthday, defendant

performed cunnilingus on her, despite the fact she was menstruating; he washed


                                                                           A-1221-17T1
                                         4
the blood off his face and mustache; and then committed penal-vaginal

intercourse. Beth also described an incident of digital-vaginal penetration, while

he was helping her tidy up his van; and an incident of penal-vaginal intercourse

in the backyard, where Beth kept pet rabbits. She also recounted that defendant,

while drunk, once attempted to enter her second-floor bedroom window because

she had a friend over and refused to see him. Beth's mother saw him outside,

standing on an old washing machine, and told him to go home.

      As set forth at an N.J.R.E. 104 hearing, Beth first disclosed the abuse to

her high school boyfriend, J.W., in the summer of 2011 before her senior year,

after he revealed to her that he had been sexually abused as a child. He recalled

that she described three of the incidents she later described at trial – the first

assault; the instance in the backyard; and the time defendant tried to enter her

room. He testified that she was tearful and emotional as she related the assaults.

      Beth's family physician testified that at a sick visit in summer 2014, Beth

disclosed that she was feeling depressed. Responding to the physician's follow-

up questions, and once assured of confidentiality, Beth disclosed that her uncle

had sexually assaulted her. The physician noted that Beth was emotional as she

did so. Beth did not share details as she had with J.W.




                                                                          A-1221-17T1
                                        5
      The trial judge allowed both J.W. and the physician to testify as fresh

complaint witnesses. The judge found, "[t]he criteria for fresh complaint" were

satisfied, as "the statements were disclosed to two natural confidantes, . . . there

was no coercive questioning, and . . . an aura of intimidation existed." In

particular, the court found that Beth disclosed within a reasonable time,

notwithstanding she did so three and six years after the assaults ended. Citing

State v. L.P., 352 N.J. Super. 369 (App. Div. 2002), the court found that Beth

"did not disclose the abuse until after she was free from the aura of intimidation

which [d]efendant cast by threatening to evict her and her family should she

disclose." The court also relied on State v. R.E.B., 385 N.J. Super. 72 (App.

Div. 2006), where we permitted evidence of a fresh complaint two years after

the abuse.

      Both fresh complaint witnesses testified consistently with their pre -trial

testimony. Although J.W. did not describe the three incidents at trial, both

witnesses described Beth's distraught or emotional state when she disclosed.

Over objection, J.W. testified that Beth had difficulties with intimacy

throughout their relationship. Beth told him she did not disclose the assaults

because she thought no one would believe her. On cross-examination, J.W.




                                                                            A-1221-17T1
                                         6
admitted that he and Beth borrowed defendant's pick-up truck to move her

things, when she and J.W. began living together.

      In fall 2014, when she was 20 years old, Beth informed her mother of the

abuse during an argument, to explain why she sometimes acted the way she did.

Her mother testified that she supported her daughter. After learning of the

allegations, Beth's mother made arrangements to move to another apartment.

Once Beth's mother and children moved out, Beth's grandmother confronted

defendant with the allegations, which he denied. Outraged, Beth reported the

assaults to the police. Police officers who interviewed Beth testified about her

demeanor when she discussed the assaults.

      Defendant was the sole defense witness. His wife had passed away before

trial. He denied sexually assaulting Beth. He alleged that Beth's allegations

were prompted by a "family vendetta" against his wife, who he said was

considered the "black sheep" of the family. He maintained that he was working

very long hours, and attending trade classes, during much of the period when

Beth alleged the assaults occurred.     So, he was rarely home before Beth's

bedtime, and could not have committed the assaults.

      He stated he was a supportive uncle who took an interest in all the children

in his wife's extended family. He admitted that he and Beth sometimes watched


                                                                          A-1221-17T1
                                        7
television together and went grocery shopping, and he attended her school

events. Addressing the incident outside Beth's bedroom window, he explained

that Beth and her friend had mischievously run into his apartment and turned off

his television. Unable to enter the front door of their apartment, he went around

the back, to try to scold the children. He admitted he had been drinking.

      On cross-examination, the State elicited inconsistencies between his

custodial statement to police after his arrest, and his trial testimony, in which he

seemed to downplay the closeness of his relationship with Beth. The State also

elicited that defendant's wife drank alcohol throughout the day and also took

prescription pain medicine, to counter the defense suggestion that she would

have heard the sexual assaults.

      In his extensive oral opinion, the trial judge reviewed the trial testimony

and said the case presented a credibility contest of "he said/she said." The judge

noted the State offered no eyewitnesses or physical evidence. The judge found

Beth very credible, and defendant not so. In crediting Beth, the court noted her

demeanor at trial. He found it "logical" that defendant preyed on Beth when she

was young, lacked friends and self-esteem, and was vulnerable to exploitation.

He also found Beth's testimony was "corroborated" by her prior consistent




                                                                            A-1221-17T1
                                         8
statements, as well as the fresh complaint witnesses' testimony. The judge also

gave some weight to the CSAAS testimony.

         The court found that defendant's inconsistent statements, and his effort to

minimize his relationship with Beth, undermined his credibility. The court

rejected his contention that a "family vendetta" motivated Beth to falsely accuse

him of assault.

         The judge sentenced defendant to an aggregate term of twenty years, with

a seventeen-year period of parole ineligibility under the No Early Release Act

(NERA) N.J.S.A. 2C:43-7.2. The court imposed concurrent twenty-year terms,

subject to NERA on the four first-degree counts; concurrent seven-year terms

on the two second-degree counts; and a concurrent four-year term on the third-

degree count. The court imposed parole supervision for life, and Megan's Law

requirements. The court also entered a permanent Nicole's Law restraining

order.

         Defendant raises the following points for our consideration:

                                      POINT I

               THE COURT IMPROPERLY ADMITTED FRESH
               COMPLAINT TESTIMONY OF TWO WITNESSES,
               DEPRIVING DEFENDANT OF A FAIR TRIAL AND
               WARRANTING REVERSAL.



                                                                            A-1221-17T1
                                          9
A. BETH's COMPLAINTS OF SEXUAL ASSAULT
WERE NOT MADE WITHIN A REASONABLE
TIME TO BE ADMISSIBLE AS FRESH-
COMPLAINTS.

B. THE TRIAL COURT ERRED BY ADMITTING
DUPLICATIVE FRESH-COMPLAINT TESTIMONY.

C. THE COURT ERRED IN ADMITTING THE
FRESH-COMPLAINT TESTIMONY SINCE THE
EXCESSIVE   DETAILS   PROVIDED    WENT
BEYOND THE LIMITED PURPOSE OF THE RULE.

                 POINT II

THE COURT VIOLATED DEFENDANT'S RIGHT
TO DUE PROCESS AND A FAIR TRIAL BY
ADMITTING TESTIMONY AS TO THE ALLEGED
CHILD SEXUAL ABUSE ACCOMMODATION
SYNDROME.

A. CSAAS IS NOT SUPPORTED BY GENERALLY
SCIENTIFIC RESEARCH.

B. CSAAS FAILS UNDER N.J.R.E. 702 SCRUTINY.

C. CSAAS DOES NOT APPLY           TO   THE
PARTICULAR FACTS OF THIS CASE.

                 POINT III

THE TRIAL COURT ERRED BY NOT GRANTING
DEFENDANT'S MOTION TO DISMISS AFTER THE
STATE RESTED ITS CASE.

                 POINT IV



                                              A-1221-17T1
                    10
              THE COURT'S CREDIBILITY DETERMINATION
              WAS NOT SUPPORTED BY SUFFICIENT
              CREDIBLE EVIDENCE IN THE RECORD AND
              MUST BE REVERSED SINCE THE COURT SAT AS
              THE TRIER OF FACT IN THIS MATTER.

                                    POINT V

              THE SENTENCE IMPOSED BY THE COURT WAS
              EXCESSIVE.

In his reply brief, defendant contended that the Supreme Court's decision in

J.L.G. should apply retroactively to his case.

      Only the issues pertaining to CSAAS and fresh complaint testimony

warrant extended discussion. We address those in turn.

                                       II.

      In J.L.G., 234 N.J. at 272, the Court held that "expert testimony about

CSAAS in general, and its component behaviors other than delayed disclosure,

may no longer be admitted at criminal trials." Those alleged behaviors are

secrecy, helplessness, accommodation, delayed disclosure, and retractions. Id.

at 282-83.     Although expert testimony about delayed disclosure may be

admissible at trial, such evidence must conform with the requirements of

N.J.R.E. 702. Id. at 272. "In particular, the State must show that the evidence

is beyond the understanding of the average juror," which is a fact-specific

inquiry.     Ibid.   Therefore, the Court found, "because the victim gave

                                                                       A-1221-17T1
                                       11
straightforward reasons about why she delayed reporting abuse, the jury did not

need help from an expert to evaluate her explanation. However, if a child cannot

offer a rational explanation, expert testimony may help the jury understand the

witness's behavior." Ibid.

      In State v. G.E.P., 458 N.J. Super. 436, 443 (App. Div.), certif. granted,

239 N.J. 598 (2019), we "accord[ed] J.L.G. pipeline retroactivity," thereby

applying it both to prospective cases and "pending cases where the parties have

not yet exhausted all avenues of direct review." Id. at 445 (quoting State v.

Burstein, 85 N.J. 394, 402-03 (1981)).

      As defendant had not yet "exhausted all avenues of direct review," we

apply J.L.G. to his case and conclude that it was plain error for the court to admit

CSAAS testimony. The CSAAS testimony at trial addressed all five aspects of

the "syndrome," including delayed disclosure. Even as to delayed disclosure,

expert testimony was unnecessary, as Beth provided a plausible explanation for

her delay, which was not beyond the ken of the fact-finder. See N. J. Div. of

Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 439 (App. Div. 2002)

(stating that the principles under N.J.R.E. 702 governing admissibility of expert

evidence in a jury trial apply equally to a bench trial). As noted, Beth testified

that she did not reveal the abuse until her disclosure to J.W. in August 2011


                                                                            A-1221-17T1
                                        12
because she feared defendant would evict or otherwise punish her family and

her aunt, who depended on defendant financially. Notably, even when she

disclosed to J.W. and her physician, she made sure they would keep that

information confidential. She also testified that she did not think anyone would

believe her.

      No CSAAS expert was needed to explain Beth's delay. See J.L.G., 234

N.J. at 273-74 (CSAAS testimony regarding delay not admissible where victim

said defendant pointed gun at her, and "threatened to hurt her, her mother, or her

brother if word got out"); G.E.P., 458 N.J. Super. at 455-56 (in companion case

to G.E.P., CSAAS testimony not admissible where victim delayed disclosure

because she was "frightened," and thought something bad would happen to her

mother or family members if she reported abuse); Id. at 458 (in companion case

to G.E.P., CSAAS testimony not admissible where defendant told victim that if

she told anyone she would not be able to see him anymore, which she interpreted

as not being able to also see her mother or brother).

      The trial court placed some weight, albeit not "great weight" on the

CSAAS testimony. In its decision, the court recognized that "CSAAS testimony

is not meant to be probative at all" and "it could be argued that presentation of

this type of expert testimony could unduly . . . prejudice the defendant or may


                                                                          A-1221-17T1
                                       13
confuse a jury," but the court concluded those concerns were "not present" in a

bench trial. Nonetheless, after referring to the CSAAS expert's testimony, the

court found evidence of secrecy, helplessness and accommodation – three

behaviors that are no longer admissible subjects of expert testimony. The judge

stated,

            [T]he [c]ourt took note that several of the factors are
            present, particularly that [Beth] kept the abuse a secret,
            felt helpless in attempting to preserve the family and
            protect her mother, and even the defendant, and her
            aunt from financial consequences, and that there was,
            perhaps, accommodation that he became her boyfriend
            and she thought of it as a relationship after the initial
            events . . . .

            [(Emphasis added).]

      Although the judge went on to say he "did not place great weight on the

CSAAS testimony," and he "placed more weight on the testimony of the victim

and the defendant and their credibility determinations," the judge implied he

placed some weight on the CSAAS testimony. That reliance may have been

critical to the ultimate verdict in what the judge described as a "he said/she said"

credibility contest. As we noted in G.E.P., 458 N.J. Super. at 449, reversing the

conviction, "the corroboration of the victim's testimony . . . was far less than in

J.L.G.," where the State presented a recording of the assault.



                                                                            A-1221-17T1
                                        14
      We therefore conclude that the admission of the CSAAS testimony and

the court's reliance on it constitutes plain error, by "rais[ing] a doubt as to the

validity of the . . . verdict." G.E.P., 458 N.J. Super. at 448 (citing State v.

Daniels, 182 N.J. 80, 95 (2004)).3 In other words, it is an error "of sufficient

magnitude to raise a reasonable doubt as to whether it led the [court, sitting

without a jury] to a result it would otherwise not have reached." State v. Weston,

222 N.J. 277, 294 (2015) (quoting Pressler & Verniero, N.J. Court Rules, cmt.

2.1 on R. 2:10-2 (2015)).

      As we held when CSAAS testimony was misused in a case involving a

close credibility contest, "[i]t is . . . clear that any error that could have

appreciably tipped the credibility scale would have to be regarded as plain error

having the capacity to have affected the outcome of the trial." State v. W.L.,

278 N.J. Super. 295, 301 (App Div. 1995). That is so here. Therefore, the

admission of CSAAS testimony warrants reversal.

                                       III.




3
  Given our conclusion, we need not decide whether it is appropriate even to
apply the more demanding plain error standard in a case where the Court has
post-trial adopted a new rule of law that trial counsel may not reasonably have
anticipated. See G.E.P., 458 N.J. Super. at 448 (noting, but declining to decide
the same issue).
                                                                           A-1221-17T1
                                       15
      The court also erred by allowing Beth's physician to testify as a fresh

complaint witness – as Beth's complaint to the physician was not fresh by any

measure, and the testimony was cumulative – and by misusing both fresh

complaint witnesses' testimony to corroborate Beth's trial testimony.

      Well-settled principles govern our analysis. The fresh complaint doctrine

allows "evidence of a victim's complaint of sexual abuse, otherwise inadmissible

as hearsay, to negate the inference that the victim's initial silence or delay

indicates that the charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015);

see also State v. Hill, 121 N.J. 150, 163 (1990) (noting that "fresh-complaint

evidence serves a narrow purpose . . . [to] allow[] the State to negate the

inference that the victim was not sexually assaulted because of her silence").

      Consistent with that limited purpose, "the fresh complaint testimony is not

to be used 'to corroborate the victim's allegations concerning the crime.'" R.K.,

220 N.J. at 456 (quoting State v. Bethune, 121 N.J. 137, 146 (1990)). A jury, or

a court sitting without a jury, may not consider fresh-complaint testimony "as

substantive evidence of guilt, or as bolstering the credibility of the victim; it

may only be considered for the limited purpose of confirming that a complaint

was made." Ibid. For that reason, the testimony must exclude details of the

assault that the complaint may have conveyed.          "Only the facts that are


                                                                          A-1221-17T1
                                       16
minimally necessary to identify the subject matter of the complaint should be

admitted." Ibid. Also, given the testimony's "narrow purpose of negating

inferences that the victim had failed to complain," a trial court must "assess . . .

whether repeated testimony of the victim's complaint is irrelevant or prejudicial

to the defendant." Hill, 121 N.J. at 169.

      "[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."

Hill, 121 N.J. at 163. The "reasonable time" requirement has been relaxed where

the complainant is a child, "'in light of the reluctance of children to report a

sexual assault and their limited understanding of what was done to them.'" State

v. W.B., 205 N.J. 588, 618 (2011) (quoting State v. P.H., 178 N.J. 378, 393

(2004)); see also R.E.B., 385 N.J. Super. at 88 (stating two-year gap between

abuse and fresh complaint permissible, especially where neither party contended

the complaint did not satisfy fresh complaint components); State v. Pillar, 359

N.J. Super. 249, 281-82 (App. Div. 2003) (stating "even a substantial lapse of

time between the assault and the complaint may be permissible if satisfactorily

explainable by the age of the victim and the circumstances surrounding the

making of the complaint"); L.P., 352 N.J. Super. at 383 (permitting roughly


                                                                            A-1221-17T1
                                        17
year-long delay after adoptive father ceased abuse, where father threatened to

kill the child, and the child then lived in foster home with father's biological

daughter who physically abused her, and child disclosed several weeks after

leaving the foster home); State v. Hummel, 132 N.J. Super. 412 (App. Div. 1975)

(allowing fresh complaint testimony three years after repeated assaults began,

but just a few weeks after child left the foster home where she lived with the

abuser, and victim also confided in a fellow victim shortly after the assaults

began). The W.B. Court also cited approvingly to a Massachusetts decision

finding a "two-year delay reasonable where [the] first disclosure was to [her]

boyfriend when he tried to kiss [the] victim and she had been fearful of

disrupting [the] home where she and [the] defendant continued to live." W.B.,

205 N.J. at 619 (citing Commonwealth v. Hyatt, 579 N.E.2d 1365, 1367-68

(Mass. 1991)).

      Applying these principles, we are convinced the court abused its

discretion in admitting the physician's testimony. See L.P., 352 N.J. Super. at

380-81 (stating admissibility of fresh complaint testimony left to trial court's

discretion).   We focus on the doctrine's "reasonable time" requirement. 4


4
  We do not question the spontaneity or voluntariness of Beth's complaints.
"The spontaneity prong merely requires that the complaint not be the result of

                                                                        A-1221-17T1
                                      18
Although the court's decision to admit J.W.'s testimony is questionable, as the

three-year delay puts the disclosure at the outer limit of what our courts have

deemed a "reasonable time," the six-year delay between when the alleged

assaults stopped and Beth complained to the physician far exceeds that. 5 See

Pillar, 359 N.J. Super. at 285 (court erred admitting a "fresh" complaint six years

after the abuse).

      In permitting the fresh complaint testimony, notwithstanding the

complaint was anything but fresh, the court relied on an "aura of intimidation"

that deterred Beth's complaint. Yet, this case is unlike in L.P., where the

intimidation lifted when the victim left the foster home, freeing her to disclose

the assaults several weeks later. L.P., 352 N.J. Super. at 384-85. Here, the

retaliation threat continued unabated. Until shortly before defendant's arrest, he

remained Beth's mother's landlord who, Beth feared, could inflict financial



coercive interrogation." W.B., 205 N.J. at 617 (citing Bethune, 121 N.J. at 145).
Here, Beth's complaints to both J.W. and the physician were uncoerced. She
disclosed to J.W. in response to his own confession, and she invited her
physician's inquiries by disclosing feelings of depression.
5
    We recognize that some courts have jettisoned the "reasonable time"
requirement entirely. People v. Brown, 883 P.2d 949, 950 (Cal. 1994).
However, our Court has not done so, see, e.g. R.K., 220 N.J. at 455 (reciting the
"reasonable time" requirement), although the Court has endorsed flexibility in
children's cases, W.B., 205 N.J. at 618.

                                                                           A-1221-17T1
                                       19
hardship.6 Fear of retaliation certainly may explain a victim's silence. But,

unabated fear does not explain why a victim like Beth would break her silence.

Nor does it justify admitting the physician's testimony of Beth's report six years

after the assaults stopped. The Supreme Court has recognized that under some

"factual circumstances . . . the child's disclosure is delayed sufficiently that there

is no fresh complaint." P.H., 178 N.J. at 393. This is such a case, at least with

respect to the physician's testimony.

      Furthermore, the physician's testimony was cumulative. To the extent the

State wished to negate the inference drawn from the "timing myth" – "the

mistaken perception that a victim will report a sexual assault immediately," id.

at 392 – J.W.'s testimony sufficed. Evidence of the second disclosure added

little to negate the inference – especially since it occurred three years after the

first one. Rather, it inappropriately served to bolster Beth's trial testimony, by

providing evidence of Beth's prior consistent statement, and her demeanor when

she delivered it. In short, "repeated testimony of the victim's complaint [was]

irrelevant [and] prejudicial to the defendant." Hill, 121 N.J. at 169.


6
   In his decision allowing the fresh complaint testimony, the trial judge also
mistakenly stated "[d]efendant in this case moved out of the home three years
before the victim first disclosed abuse." The record clearly established that
defendant remained in his apartment until his arrest. Beth moved out in 2012,
to live with J.W. Beth's mother moved out after Beth disclosed to her.
                                                                              A-1221-17T1
                                        20
      Unlike when we review a jury trial, we need not speculate in this case

whether the fact-finder misused the fresh complaint testimony. The trial judge

expressly stated that he used J.W.'s and the physician's testimony to corroborate

Beth's trial testimony. The judge stated, "[Beth] showed those flashes of anger

when she had to answer questions about the particularities of the abuse. Her

testimony was consistent with earlier statements made and corroborated by

testimony of – and consistent with the testimony of the [f]resh [c]omplaint

witnesses."

      That was error. "The testimony did more than rebut a charge of fabrication

based on silence." R.K., 220 N.J. at 460. The court used it to corroborate Beth's

testimony, and to bolster her credibility.       As we have noted, that is an

impermissible use of fresh complaint testimony, which otherwise would be

barred by the hearsay rule. R.K., 220 N.J. at 455.7 Furthermore, in light of the


7
   The State does not argue that Beth's complaints were admissible as prior
consistent statements to support her credibility, see N.J.R.E. 607 (stating "[a]
prior consistent statement shall not be admitted to support the credibility of a
witness except to rebut an express or implied charge against the witness of recent
fabrication or of improper influence or motive and except as otherwise provided
by the law of evidence"), or to establish the truth of the matters asserted in those
prior statements, see N.J.R.E. 803(a)(2) (stating that the hearsay rule does not
apply to statements made by a trial witness, which "would have been admissible
if made by the declarant while testifying and the statement . . . is consistent with
the witness' testimony and is offered to rebut an express or implied charge
against the witness of recent fabrication or improper influence or motive").
                                                                            A-1221-17T1
                                        21
court's statement, we cannot be confident that the court did not consider the

details of the assault that J.W. shared in the N.J.R.E. 104 hearing. Lastly,

"consistency alone does not constitute corroboration." N.J. Div. of Child Prot.

& Permanency v. N.B., 452 N.J. Super. 513, 523 (App. Div. 2017) (analyzing

N.J.S.A. 9:6-8.46(a)(4)).

      In R.K., the Supreme Court held it was reversible error to omit a limiting

instruction and to permit a fresh complaint witness to provide excessive and

prejudicial details. 220 N.J. at 460. The Court evidently presumed that the jury

misused the testimony, absent appropriate instructions.           Here, we are

constrained to conclude that the court, sitting without a jury, misused the fresh

complaint testimony as well, and denied defendant a fair trial.

                                      IV.

      Defendant's remaining arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Finally, we are constrained to remand to a new fact-finder. Since "the

trial court previously made credibility findings, we deem it appropriate that the

matter be assigned to a different trial court." R.L. v. Voytac, 199 N.J. 285, 306

(2009); see also Matter of Guardianship of R., 155 N.J. Super. 186, 195 (App.

Div. 1977) (remanding to a different trial judge, where "[t]he judge who heard


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the matter below ha[d] already engaged in weighing the evidence and ha[d]

rendered a conclusion on the credibility of the . . . witnesses.").

      Reversed and remanded. We do not retain jurisdiction.




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