On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 95-02-0257.
Before Judges Havey, Wefing and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2001
A Mercer County jury convicted defendant L.P. of two counts of first-degree aggravated assault and of endangering a child's welfare for sexually penetrating his niece, Lucy (a fictitious name), during two separate time periods when Lucy was less than thirteen years old and when she was older than thirteen but less than sixteen. N.J.S.A. 2C:14-2(a); N.J.S.A. 2C:24-4(a). While defendant's assaults preceded and included the time periods for which L.P. was indicted and convicted, he was charged solely with those assaults commencing on the date of his eighteenth birthday. After merging the endangering convictions into the aggravated assaults, Judge Sapp-Peterson sentenced defendant to two consecutive sixteen-year terms of imprisonment.
Defendant appealed, challenging his convictions and sentence. The most troubling trial error alleged by defendant relates to the State presenting evidence that defendant sexually abused Lucy before the two periods charged in the indictment. After considering this allegation together with all other alleged points of error, however, we nevertheless affirm.
Defendant's niece, Lucy, was twenty-five years old at the time of trial. When Lucy was eight years old and defendant was fifteen or sixteen, in about 1979, she alleged that the assaults began. They began at her grandmother's house, where her uncle lived, during a six-month period when she and her family were temporarily living with her grandmother.
One evening after dinner, Lucy was having a bath when defendant entered the bathroom and asked if he could wash her back. She agreed and, after washing her back, defendant touched her vagina and chest. Lucy was "shooken" and called for her grandmother, who came into the room. Defendant left the bathroom but Lucy did not tell her grandmother what defendant had done because she "was scared" and "really wasn't sure what happened" to her. Her grandmother was the only other adult in the house at the time.
The next assault occurred the following weekend. While at her grandmother's home, Lucy slept in her grandmother's bedroom. She went to bed at her usual time of 8:00 p.m. Her grandmother was downstairs watching television. Defendant came into the room five minutes later, gave her a hug, told her "it was allright," and put his hand in her vagina. He licked his hand, and then climbed on top of her and "raped" her. She begged him to stop and told him he was hurting her. Defendant responded that he was going to "pee" inside her, which he did. Then he got up, telling Lucy that if she told anybody, he would say it was her fault. He threatened to hurt Lucy, and her mother and father. Lucy did not tell her grandmother what happened when her grandmother came up to sleep because she believed defendant's threats.
The next day Lucy found "a lot" of dried blood on her underwear and legs when she went to the bathroom. Her vaginal area was "burning," and "hurt" and "felt like it had been torn." She called down to her grandmother and told her about the blood. Her grandmother just told her to "put on a pad." Lucy trusted her grandmother and "thought the world of her." That night, Lucy told her mother about the blood. Lucy testified that her mother said the "[s]ame thing my grandmother did, to put on a pad." (Lucy did not actually begin menstruating until she was fourteen.)
On another weekend shortly after these incidents, Lucy was playing in the basement and defendant came downstairs. He laid her down on a pile of clothes and raped her again. Lucy testified: "I was screaming, and I was telling him no, and he just kept going and going. Then he said he was going to pee and he got up off me and that was it, and he always reminded me that, remember what [he] said, and then [']you're my girl[']." Lucy believed that no one else was in the house because she was screaming and no one came to help her.
After six months, Lucy's family moved to nearby Hamilton. Lucy's parents would drop off Lucy and one of her brothers at her grandmother's home for an overnight stay, every Friday and Sunday when they went bowling. The children also stayed at her grandmother's home when Lucy's parents went to weddings or other events of that nature. This arrangement continued until Lucy was twelve or thirteen when, first, her other grandmother, and then her other uncle, moved into Lucy's home and took over baby-sitting responsibilities.
The assaults occurred every weekend that Lucy was at her grandmother's house, about fifty times, until she was twelve years old. Defendant would penetrate her and ejaculate each time, telling her he was going to "pee" inside her. Most of the assaults occurred in Lucy's grandmother's room, just after Lucy went to bed, or in the bathroom. Her grandmother would be in the kitchen or living room downstairs. On occasion, they could hear her grandmother coming upstairs, and defendant would get out of bed and run into the bathroom.
Defendant "was very dirty" and smelled "really bad," like alcohol or "dirty feet." He had "green teeth" and Lucy would turn away when he tried to kiss her. He covered her face with his hand or a pillow if she yelled or screamed during the rapes. After the rapes, defendant would go into the bathroom.
When Lucy would tell him to stop, defendant told her "to be quiet." Eventually, Lucy "just let it happen" because she knew she "couldn't do anything to stop him." She "use[d] to stare off at whatever was there . . . the closet door or the window, just trying to . . . make time go by faster." After the assaults, defendant would tell Lucy that she "was his girl," kiss her on the head, and "walk out like nothing ever happened." Around the age of twelve, Lucy stopped sleeping at her grandmother's house.
In August or September 1986, however, when she was fifteen, Lucy stayed with her grandmother while her family went on a camping trip. Lucy fell asleep on the couch. Defendant came home at around 11:00 p.m., smelling of alcohol, and he lay next to her. Lucy pushed defendant off the couch, but he got up, unbuttoned her jeans, and raped her. She struggled in the beginning, but after a while she "just let it happen" because, she said, "I knew there was nothing I could do to stop him because I could never stop him before."
Lucy complained about this last incident to her boyfriend at the time, T.S. She told T.S. "everything that was done to me" and specifically described the latest incident. T.S. became very upset and subsequently confronted defendant about the rape. According to Lucy, defendant assured T.S. that "it would never happen again." Lucy did not inform the police because she was still afraid of defendant and ...