On appeal from Superior Court, Law Division, Essex County.
King, Landau and Thomas. The opinion of the court was delivered by Thomas, J.A.D.
Defendant appeals from convictions of second degree sexual assault, contrary to N.J.S.A. 2C:14-2b (count one); endangering the welfare of a child, a crime of the third degree, contrary to N.J.S.A. 2C:24-4 (count two); two counts of first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1) (counts three and four); second degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2b (count five); and endangering the welfare of a child, a crime of the third degree, contrary to N.J.S.A. 2C:24-2 (count six).
At sentencing, the trial Judge first merged count one with count two and count five with count six. The court then imposed a five year custodial term as to count one, a fifteen year custodial term as to count three, a fifteen year custodial term as to count four and a five year term as to count five. All terms are to run concurrently. Defendant was also assessed a $120 Violent Crimes Compensation Board penalty.
This case involves a young girl (A.P.) who told numerous witnesses about how she was sexually abused. The acts complained of focused on April 23, 1988, while A.P. was visiting overnight at the home of her aunt. It was then that defendant, the aunt's live-in boyfriend, came into her bedroom, placed his penis on her face and attempted to insert it into her mouth. Unable to enter her mouth, defendant held A.P.'s nose in order to force her mouth open. A.P. opened her mouth, but defendant still was unable to insert his penis. Defendant ejaculated on her face allowing some of his semen to enter A.P.'s mouth. Defendant also placed his tongue in A.P.'s vagina and digitally penetrated her.
Defendant's sexual activity stopped when he heard a noise which caused him to leave the room.
The following day, A.P., who was age eight at the time, told family members about the incident. After discussing the matter among themselves for several days, the family members met with a Division of Youth and Family Services social worker, Deborah Maasi. When the social worker interviewed A.P. privately, A.P. told Ms. Maasi that she was sleeping at her aunt's home when defendant entered the room and attempted to "put his privacy in her mouth." She further told the caseworker that when she resisted, defendant held her nose in order to open her mouth. A.P. recounted that defendant "peed in her face" and "touched her privates with his fingers" but stated nothing to indicate that digital penetration had occurred. A.P. also related that a similar incident had occurred previously. Ms. Maasi stated that A.P. had not told her parents the entire story because she was ashamed and embarrassed. Ms. Maasi referred the family to Dr. Julie Ashton, a resident in pediatrics who examined A.P. on May 2, 1988.
Dr. Ashton testified that A.P., without prompting, recounted that her aunt's boyfriend went to the bathroom on her face, describing the substance as white in color. A.P. also stated that defendant used his fingers and mouth in her genital area and that he attempted to insert his penis into her mouth. Dr. Ashton further recounted that A.P. told her defendant had done this on three occasions in the bedroom of her aunt's home. The doctor indicated that examination of A.P. revealed no physical signs of sexual abuse, but that this was not inconsistent with the story A.P. had unfolded.
Dr. Susan Cohen-Esquilian, a psychologist at the United Medical Center in Newark also examined A.P. According to Dr. Cohen-Esquilian's testimony, A.P. told her that her aunt's boyfriend had entered her bedroom and touched her "privacy" with his hand and mouth and attempted to place his penis in her mouth. She relayed that she turned away but that he peed on her face.
She also told the doctor that this happened on numerous occasions, but defendant had warned her not to tell anyone about the incident.
On May 3, 1988, Detective Bonita Johnson took a statement from A.P. The detective testified that A.P. recounted how her aunt's boyfriend "tried to put his privacy in her mouth and he peed in her face and felt her vagina, her privacy with his tongue and his hand."
Based upon an evidentiary hearing held pursuant to Evid.R. 63(33), the trial Judge determined that these witnesses were qualified to give this testimony about what A.P. had told them.
By the time this case reached trial, A.P. was eleven years old. She gave the following testimony on direct examination:
Prosecutor: Now, I want you to tell the jury as best you can on that night what happened when you slept over there.
A. He put his -- tried to put his privacy in my mouth.
Q. And when you say, privacy, could you tell us what you mean by that?
Q. Did you know that it was his penis three years ago when you were eight?
Q. And did you know where that was?
Q. Can you point where it was?
Q. And you said he tried to put it in your mouth?
Q. How did he try to do that?
A. He just laid it there.
Q. What did you do when he did that?
Q. How did you turn around?
A. On the other side of the bed.
Q. What did he do when you turned around?
Q. What did you do when you turned around, what did he do?
A. He held my nose. He held my nose.
Q. And what did he do when he held your nose?
A. He tried to get me to open my mouth so I couldn't breathe.
Q. What did you do when he did that?
A. Well, my mouth opened. I turned back around.
Q. What happened when your mouth opened?
Q. Did he get inside your mouth?
Q. Did he touch you outside your mouth?
Q. And when it touched the outside of your mouth, what did it feel like?
Q. Did it taste like anything -- is that a yes or no?
Q. How do you know it was sperm?
A. Because it wasn't pee.
Q. How did you know it wasn't pee?
A. Because pee is watery.
Q. At the time this happened did you think it was pee?
Q. And why did you think that?
A. Because I didn't know what it was.
Q. When is it that you started thinking it was something other than pee?
A. When I learned what it was.
Q. Was this after this happened?
Q. When you say that you tasted this, do you know where it came from?
Q. Could you tell if it was a lot or a little that came out?
Q. And what happened after it came out?
Q. Did he do anything else?
A. He wiped it off with my ...