This is the trial of A.N., a juvenile standing charged with sexual assault in violation of N.J.S.A. 2C:14-2b, a crime of the second degree if committed by an adult. A.N. was originally charged with criminal sexual contact in violation of N.J.S.A. 2C:14-3, a crime of the fourth degree if committed by an adult. However, the charge was upgraded prior to trial on motion by the State.
[a]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least 4 years older than the victim.
Pursuant to N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1), which pertain to N.J.S.A. 2C:14-2b,*fn1 an actor has committed a sexual contact if physical force or coercion is used which causes no severe personal injury to the victim.
Finally, pursuant to N.J.S.A. 2C:14-1d, sexual contact is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor."
Based upon the statutory mandates, the State must prove the following beyond a reasonable doubt in order to obtain a finding of guilt: 1) the defendant is at least four years older than the victim, who was less than 13 at the time of the alleged sexual assault; and 2) that a sexual contact has occurred through the use of physical force or coercion which caused no severe personal injury to the victim.
As will be outlined below, this case presents a question of novel impression in this State. The question is as follows: when may evidence of physical appearance alone be sufficient to satisfy the State's burden of proof as to age when age is an element of the crime charged?
At trial, the State presented two witnesses, R.W., Sr. ("Senior") and R.W., Jr. ("Junior"). Senior testified that on September 28, 1991, he was sitting in the living room of his two family house when he heard shuffling noises in the hallway. Senior opened the living room door to check out the noise. He had direct vision from his living room, through the hallway and into the front vestibule. In the vestibule he saw A.N. on top of his son. His son was lying on his back with his pants down. A.N. was face down on top of Junior. A.N.'s naked buttocks were exposed.
Senior rushed to the vestibule, and A.N. jumped into his grasp. Senior shoved A.N. into the corner of the vestibule and held him there while he unlocked the front door. A.N. struggled to pull his pants up while Junior remained in the vestibule crying. Upon opening the door, Senior pushed A.N., whom he identified in open court, outside. This completed Senior's testimony.
Junior testified that he is now 9 1/2 years old. He further testified that on September 28, 1991, he was playing in the street with A.N. whom he had known for some time since they live next door to each other. While playing, A.N. told Junior to follow him to Junior's porch. Junior unlocked the porch door for A.N. Upon entering, A.N. told Junior to pull down his pants. ...