cdTOCtest

trial. Thus, the jury is given an opportunity to assess
child’s credibility, and defendant’s right to confronta-
tion and cross-examination is not violated.

Sexual abuse victims, 16 years of age or younger, may
testify at trial via closed circuit television. See N.J.S.A.
2A:84A-32. See also, State v. Bass, 221 N.J. Super. 466
(App. Div. 1987)(videotaped trial testimony of
defendant’s five-year-old son, who was eyewitness to his
younger brother’s murder, “constitutionally adequate”
and not violative of defendant’s right to face-to-face
confrontation). But see, Coy v. Iowa, 478 U.S. 1012
(1988) (placement of screen between defendant and two
13-year-old victims of sexual assault which blocked him
from their sight but allowed defendant to see and hear
victims, violated defendant’s right to confrontation). (See
also, SEXUAL OFFENSE AND OFFENDERS, this
Digest).

In prosecution for sexual assault of an 11-year-old
victim, cumulative effect of trial errors, i.e., permitting
victim to testify as to defendant’s admission of a prior
similar crime and prosecutor’s comments on defendant’s
silence after being advised of Miranda rights and his
decision not to testify, constituted reversible error. State
v. Schumann, 218 N.J. Super. 521 (App. Div. 1987),
mod. o.g., 111 N.J. 470 (1988).

D. Jury Instruction

In State v. Hackett, supra, the Supreme Court found
the instruction on third degree endangering, which
mirrored the model charge, contained a problematic
reference to “nudity” when explaining “sexual conduct,”
and lacked sufficient clarity. While the Court required
reversal of defendant’s conviction on this basis, it noted
that the subsequently revised Model Jury Charge
appeared to address the problems in the charge used here,
but “entrust[ed]” to the Model Jury Charge Committee
the question of whether any further amendment of the
model charge was necessary.

In State v. Collier, 90 N.J. 117 (1982), defendant was
charged with the rape of a 16-year-old girl and
contributing to the girl’s delinquency. The fact of sexual
intercourse was uncontested, but defendant testified that
the intercourse was consensual, while the victim testified
she was forced to engage in sexual intercourse. At the
close of the evidence, the trial court directed the jury to
return a guilty verdict on the charge of contributing to
the girl’s delinquency because the mere act of sexual
intercourse with a minor is illegal. Defendant was
subsequently found guilty of both charges. On appeal,

the Appellate Division found the trial court’s

instructions on the guilty verdict to be erroneous;

however, the convictions were affirmed as harmless error.

On further appeal, the New Jersey Supreme Court agreed

with the Appellate Division’s determination of error, but

disagreed that it was harmless. The Court reversed after

finding that the error in the trial court’s instructions

contributed to the guilty verdict below because its effect

was to communicate to the jurors that defendant was

guilty, regardless of whose testimony they believed.

E. Merger

A conviction under N.J.S.A. 2C:24-4a will not merge

with convictions under N.J.S.A. 2C:14-2a and b (sexual

assault) because of the legislative intent to punish

separately sexual assaults committed by strangers and

those committed by family members. State v. Miller, 108

N.J. 112, 118-119 (1987). Therefore, the emphasis of

N.J.S.A. 2C:24-4a is defendant’s violation of the duty of

care owed to a child for whom he had responsibility. See

State v. Bass, 221 N.J. Super. 466 (App. Div. 1987),

where the court held that Miller applied to the

circumstances of each case, thus precluding merger.

Accord State v. South, 136 N.J. Super. 402 (App. Div.

1975) (lewdness and impairing the morals of a minor do

not merge but defendant’s sentence modified from two

consecutive indeterminate terms to one indeterminate

term because conduct which led to defendant’s

convictions of both charges was the same). Compare State

v. Still, 257 N.J. Super. 255 (App. Div. 1992)

(convictions held to merge where defendant convicted of

sexual assault and child endangerment, but he was not

child’s parent and endangerment based solely on the

assault). Compare also, State v. McCauley, 157 N.J. Super.

349 (App. Div. 1978) (conviction for impairing the

morals of a minor and assault with intent to rape merged

because they arose out of the same incident with a 14-

year-old girl; thus, such a single criminal transaction

required only one conviction and one sentence be

imposed), certif. denied, 77 N.J. 500 (1978).

II. CHILD ABUSE

N.J.S.A. 2C:24-4a criminalizes the conduct

described in N.J.S.A. 9:6-1 (abuse, abandonment,

cruelty and neglect of a child) and distinguishes between

offenders in terms of their relationship to the child as well

as the age of the child.

In State v. Galloway, 133 N.J. 631 (1993), the

Supreme Court reversed defendant’s convictions for

murder and third degree endangering the welfare of a