On appeal from the Superior court of New Jersey, Law Division, Salem County.
Dreier and Havey. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from convictions of two counts of sexual assault, N.J.S.A. 2C:14-2b, and two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4, with the latter convictions merged into the former. He was sentenced to two concurrent, indeterminate terms not to exceed seven years each at the Youth Correction Reception Center. The offenses grew out of defendant's assault upon two boys, three-year-old G.C., and four-year-old M.S., between April and July 1985 at the "frog pond" and "haunted house" behind the apartments where the boys resided.
In the Spring of 1985 the mothers of the two boys began to notice that their children were exhibiting peculiar behavior. G.C.'s mother testified that G.C. became hyperactive, had trouble sleeping, stained his pants, used sexual words, made hickeys
on his arms and tried to perform fellatio on himself. On at least one occasion, G.C. screamed when his mother tried to wash his anus, and she noticed a series of bruises across his back from hip to hip. G.C.'s mother, who kept a diary to track her son's hyperactivity, testified that G.C.'s behavior would often become uncontrollable after he returned home from playing at the frog pond between 12:30 and 2:30 p.m.
Similarly, M.S.'s mother testified that M.S. acquired sexual vocabulary and that she saw him trying to pull down another little boy's pants and his own pants. Someone even told her that M.S. and another boy were "kissing each other on their privates." On one occasion, M.S. complained that his anus was sore, and when his mother examined him, she found leaves and dirt in his anus.
The mothers sought advice from the Salem County Community College counseling center, and the Prosecutor's office was called in. Their investigation revealed that the manager of the apartment complex had several confrontations with a suspicious individual in August and December 1984 and again in January 1985. He testified that in August 1984 an individual was parked in a blue and white late-1960's model Chevy with the windows rolled up and the engine running. When the manager asked him what he was doing, the man replied that he was looking for Donna Baxter, a resident of the apartments. In mid-December, a resident complained to the manager about a suspicious man lounging behind the complex. The manager approached the man who told him that his name was "Billy" and that he was looking for Donna Baxter. Again in January 1985, the manager received another complaint that a suspicious man had taken a chair from someone's porch and was sitting in the woods behind the apartment complex. When the manager asked him what he was doing, the man said "he was walking home from work from the nuclear plant*fn1 and stopped there in
the woods to urinate." The manager testified that he asked the man to leave. M.S.'s mother also testified that she had seen defendant early in January, standing in the woods by the area where the children played, and again in February at a location near the apartment laundry room. She recognized him as someone she had gone to school with in sixth, seventh or eighth grade. She identified defendant in court.
Although the manager never saw this man at the apartment complex again, the manager was also a meter reader for South Jersey Water Supply Company. In March 1985 he went to a house to read the meter and recognized the man as well as his blue and white Chevy which was parked in the driveway. The manager further testified that on August 23, 1985, he returned to this man's house to read his meter and to make a positive identification of him for the police.
Based on this information and the boys' description of the sexual games that they played with Fat Boy (known to them also as Fat Billy),*fn2 defendant Tod Davis was questioned and photographed by the police. G.C. selected defendant's photograph from an array of eight pictures.*fn3 M.S. chose another picture from the same array, but J., another little boy who alleged sexual abuse, also identified defendant.*fn4
At trial, G.C. once again identified defendant's photograph from the array, although the prosecutor never asked him to make an in-court identification.*fn5 G.C. said that defendant was Fat Boy, the man with whom he had played at the frog pond and the haunted house. However, G.C. was not able to describe any of the games they played. M.S., on the other hand, made an incorrect identification,*fn6 but testified that when it had been warm outside, he and Fat Boy played a game called "dick-dick" which involved "[t]ouching each other, and you take off clothes and you suck peepees." M.S. originally testified that he only played with Fat Boy alone; however, he later stated that G.C. played with them at the frog pond.
Also testifying regarding identification were the apartment manager, the defendant and the defendant's wife. The manager made both an in-court and an out-of-court photo identification, as well as an in-court identification, of defendant as the person he saw at the apartment complex and at defendant's
home. The description the manager gave to the police of the man known to him as "Billy" was that he was chubby with red hair and a red beard.
Defendant testified that he had been laid off from the nuclear power plant in mid-March 1985 until the summer of 1985 during which time he stayed at his home in Pennsgrove helping his wife prior to and after the birth of their baby in late April. Defendant admitted that the manager had asked him to leave the apartment complex when he went to visit Donna Baxter; however, defendant contended that he told the manager that his name was Tod Davis and not Bill. Both defendant and his wife testified that the manager could not have returned to their home on August 23, 1985 to make a positive identification of defendant for the police, because the couple moved at the end of July. Defendant testified that he was not familiar with the haunted house, the frog pond or any of the children.
Defendant raises the following five points on this appeal:
The trial court erred in ruling that both victims were competent to testify.
The trial court erred in denying defense counsel's motion for a judgment of acquittal.
The jury's verdicts were against the weight of ...