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State v. Maben

Decided: August 3, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH MABEN, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

R.s. Cohen, Arnold M. Stein and Kestin. The opinion of the court was delivered by Arnold M. Stein, J.A.D.

Stein

Defendant was found guilty of first degree aggravated assault, N.J.S.A. 2C:14-2a(1); second degree sexual assault, N.J.S.A. 2C:14-2b; and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial Judge sentenced him to a twelve-year prison term for the aggravated assault and concurrent terms of six and four years for the other offenses.

The trial was brief. Three witnesses testified, a child, a social worker and a state trooper. The child and the adult testified as to hearsay statements reported to them by J.G., six years old when the events were reported to have occurred. The trooper read defendant's written confession to the jury.

G.H., age thirteen at the time of trial, testified that about two years before her court appearance J.G. had told her that in one afternoon she performed two acts of fellatio upon "Kenny," a baby-sitter.

G.H.'s father reported the incident to the state police and to the girl's mother, who immediately contacted Teresa Rudd, a social worker with the New Jersey Division of Youth and Family Services.

Rudd testified that she interviewed J.G. who told her about the two acts of fellatio performed upon Kenny. She also told Rudd that Kenny had twice touched her vagina and said that Kenny had attempted to put his penis in her vagina on two

occasions but that it would not fit. She later told Rudd that Kenny had ejaculated during fellatio.

We have not repeated the exact words attributed to J.G. in describing sexual organs and sexual acts. A more graphic account is not necessary for Disposition of this appeal.

Trooper Maruca of the New Jersey State Police read defendant's signed confession to the jury. The voluntariness of the confession is not in dispute. Defendant admitted to misconduct with J.G. when he was baby-sitting for her and her siblings at their family's trailer. He had been drinking. He admitted that J.G. performed two acts of fellatio upon him and that he ejaculated on the first occasion. He also stated that he put his hands into her pants and on her vagina but denied attempting to penetrate her vagina.

Defendant's confession alone could not support his conviction. Without the hearsay statements of the child, the proofs could not withstand a verdict of judgment of acquittal under R. 3:18-1. Aside from these statements there was no legal evidence independent of the confession to support the corpus delicti: the loss, harm or injury, including some criminal culpability, that would tend to reinforce the trustworthiness of the confession. State v. Di Frisco, 118 N.J. 253, 269, 571 A.2d 914 (1990); State v. Lucas, 30 N.J. 37, 56, 152 A.2d 50 (1959).

The trial Judge admitted the child's out-of-court statement under the authority of Evid.R. 63(33) which under certain conditions permits introduction of a hearsay statement made by a child who is an asserted victim of sexual abuse. The statement is admissible if the court finds that it is probably trustworthy and either the witness testified at trial or where the child is unavailable as a witness and there is independent admissible evidence corroborating the act of sexual abuse. Evid.R. 63(33)(b) and (c)(i) and (ii). State v. ...


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