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State in Interest of M.T.S.

Decided: April 5, 1991.

STATE OF NEW JERSEY, IN THE INTEREST OF M.T.S.


On appeal from the Superior Court of New Jersey, Family Part, Camden County.

J.h. Coleman, Dreier and Landau. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

[247 NJSuper Page 255] The juvenile, M.T.S., appeals from an adjudication of delinquency based upon conduct which if engaged in by an adult would constitute escape, N.J.S.A. 2C:29-5, theft of movable property, N.J.S.A. 2C:20-3a, and sexual assault, N.J.S.A.

2C:14-2c(1). The juvenile admitted the escape and theft charges, but contested the sexual assault. The judge imposed three concurrent two-year suspended sentences to the New Jersey Training School for Boys and placed the juvenile on a two-year period of probation with provisos that three $15 fines be paid; that there be no contact with both the victim of the sexual assault charge and the codefendant on the theft charge; that there be no alcohol or drug use; that there be urine monitoring; and that the juvenile be referred to a counselling program. He was also ordered to write an essay entitled "What I have Learned as a Result of My Offenses." Although the juvenile has appealed from the entire adjudication of delinquency, it is clear that he only challenges the finding of sexual assault.

The facts in this case are highly unusual. The juvenile and the victim were good friends. At the time of the incident she was 15 and he was 17. The juvenile was a temporary resident in the victim's mother's townhouse where the arrangements were that he would sleep on a couch in the downstairs living room. The victim had her own room on the second floor. Also residing in the townhouse were the victim's mother, two sisters, a brother, the juvenile's girlfriend (a good friend of the victim) and three other individuals. Although both the victim and the juvenile respectively had a boyfriend and girlfriend, they obviously were also attracted to each other. There had been earlier sessions of kissing, petting and on at least one occasion the juvenile putting his hands inside of the victim's pants, although he removed his hands upon the victim's request. Over the period that the juvenile lived in the home, he would often tease the victim and tell her that he was going to pay her a surprise visit to her bedroom.

Except for the account of the actual incident, the victim's and juvenile's stories about what transpired on the night in question were remarkably similar. According to the victim, at approximately 1:30 a.m. the juvenile appeared at the victim's door. His girlfriend was sleeping upstairs in a different room. The

juvenile had told the victim four or five times that day that he was going to pay her a surprise visit that night, although she contended she did not take him seriously. The victim then got up to go to the bathroom and saw the juvenile in her room, fully clothed, standing by the door. The victim had gone to sleep in shorts, a shirt, bra and underpants. According to the victim, she went back to bed with the juvenile still in her room and the next thing she knew she woke up with the juvenile on top of her; her pants and underpants had been removed and the juvenile was having intercourse with her. She did not cry out. She hit him once in the face, pushed him away and told him to leave. She contended that she had not indicated she wanted to have sex with him. The juvenile went downstairs and went to sleep. The next morning when the juvenile was out giving a ride to a friend, the victim informed her mother of what had occurred and the juvenile was excluded from the house, after which the victim and her mother made a complaint to the police.

The juvenile's story of the incident itself is much different. He contends that the victim had told him over the last few days to make a surprise visit to her room. When he got there on the night in question, she was walking out to the bathroom. When she came back, they started kissing and petting, and then undressed each other. They got into her bed, and after about five minutes of heavy petting, commenced to have intercourse. During the act the victim suddenly pushed the juvenile off of her and did not respond when the juvenile asked her what was wrong. He testified that she hit him once and said "how can you take advantage of me or something like that." The juvenile dressed and told the victim to calm down, since she had started to cry. He told her that he was leaving and would go with his real girlfriend, and requested that the victim not tell anyone about what had happened. He then went downstairs and went to sleep.

Faced with this sharply divergent testimony concerning the sexual activity, the trial judge made explicit factual findings. He determined that the couple had been kissing and petting,

had undressed and had gotten into the victim's bed and then had sex, but that the actual sex act had not been consented to by the victim. The juvenile penetrated the victim, but

I think that penetration was against her will, that it just went too far. There was never consent to the sexual act itself, and for that reason, there being no consent to the sex act itself, I have no alternative and I think that the State has proven beyond a reasonable doubt that ...


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