On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Number FJ-13-02659-01.
Before Judges Pressler, Ciancia and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2003
G.B., a juvenile, appeals from his adjudication of delinquency on a charge that would constitute second degree sexual contact, N.J.S.A. 2C:14-2b, if he were an adult. G.B. was sentenced to a term of three years probation on the condition he undergo psychiatric and psychological evaluations and attend a program for sex offenders who deny the accusations. He was also required to register under Megan's Law. We reverse.
The incident leading to the charge against this juvenile occurred on August 31, 2000, when four-year-old M.C. had been playing at G.B.'s home with G.B. and his five-year-old brother. G.B. was twelve years old at the time. The children's families were neighbors and friends. When M.C. came home that evening, her mother noticed the child scratching her vaginal area. When the mother asked why she was touching herself, the child told her that G.B. had been touching her. When her mother persisted in the questioning, the child pulled her underpants aside and rubbed her vagina to show her mother how G.B. had touched her.
The mother testified that the child said, "They had showed her their pee pees," and someone told her to "suck my big cock." The mother testified further that she started crying and was visibly upset when M.C. told her these things, leading M.C. to become upset because mommy was crying. When the mother attempted to question the child further, the child changed the subject.*fn1
The next morning, the mother took M.C. to her pediatrician, who found a normal hymen and no signs of bruising or redness. Nevertheless, the doctor told the mother to take the child to the emergency room for cultures. The mother did so and then called the police. When Detective Scully came to the home, he only spoke to the parents and did not question the child. On September 3, while taking her bath, the child told her mother that G.B. "put his pee pee in my mouth," and that G.B.'s "daddy came and slapped him in the face."
On September 12, 2000, the police attempted to interview the child, but she would not cooperate. On October 25, almost two months after the incident,*fn2 the child's father took her to the prosecutor's office, and this time, a videotaped interview was conducted.
Detective Natalie Jones-Zuppa, who conducted the videotaped interview, testified that she found the child credible. On the videotape, M.C. used the word "treasure" when referring to the genitals of both males and females and said that G.B. put his pee pee near her mouth. When asked by the detective, "Who put the pee pee in your mouth?" the child answered that G.B. did.
At trial, the child's testimony was fairly inarticulate. For example:
[Prosecutor] What did [G.B.] do to you?
Q. He sucked your treasure? Okay. Did he do anything else?
In another instance, the prosecutor showed the child a picture of a boy and asked M.C. to identify body parts. When she reached the genital area, the prosecutor said:
Q. Okay. And you can use any word you want for that. What would you call that part of the boy?
Q. You don't know, okay, you could call it a private part -
Q. Has that part of a boy's body ever touched you?
Q. No? Okay. And you said [G.B.] sucked ...