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State ex rel Q.N.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 5, 2006

STATE OF NEW JERSEY IN THE INTEREST OF Q.N.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FJ-08-1937-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 12, 2006

Before Judges Lefelt, Sapp-Peterson and Sabatino.

Q.N., a juvenile who was born on November 25, 1989, appeals from an adjudication of delinquency for committing an act which, if committed by an adult, would have constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (Count One). The court imposed a three-year suspended term to the Juvenile Justice Commission and a three-year term of probation conditioned upon a psychiatric evaluation and counseling, with which the juvenile was expected to cooperate, and no unsupervised contact with children two or more years younger than he. Q.N. was also advised of his obligation to register under Megan's Law, N.J.S.A. 2C:7-1 et seq. In addition, appropriate fines and penalties were imposed.

On appeal, Q.N. presents the following arguments:

POINT I THE SECTION OF THE AGGRAVATED SEXUAL ASSAULT STATUTE WHICH PROSCRIBES PENETRATION OF A CHILD UNDER 13 YEARS OF AGE, IS UNCONSTITUTIONAL WHEN APPLIED TO AN ACTOR WHO HIMSELF OR HERSELF IS UNDER THE AGE OF 13.

POINT II TO THE EXTENT THAT N.J.S.A. 2C:14-2A(1) WAS CONSTITUTIONAL AS APPLIED TO CONSENSUAL SEXUAL PENETRATION BY JUVENILES LESS THAN 13 YEARS OLD, THE LEGISLATURE MUST HAVE INTENDED THAT THE PROVISION DID NOT APPLY TO AN ACTOR IN THAT AGE GROUP; AND IF SUCH A LIMITATION WAS NOT INTENDED, THE LEGISLATURE MUST HAVE INTENDED THAT THE STATUTE ONLY APPLIED WITH ADDITIONAL PROOF THAT THE ACTOR USED FORCE, OR IF PROOF OF THIS WAS NOT REQUIRED, THAT HE OR SHE COMMITTED THE ACT WITH AN INTENT TO GRATIFY OR AROUSE HIMSELF OR HERSELF OR TO HUMILIATE OR DEGRADE THE VICTIM.

POINT III D.H.'S STATEMENT TO DETECTIVE WILLIAMS CONSTITUTED INADMISSIBLE HEARSAY TESTIMONY. U.S. CONST., AMEND. VI; N.J. CONST., ART. I, PAR. 10.

POINT IV THE COURT'S ADJUDICATION OF DELINQUENCY WAS NOT SUPPORTED BY AND WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE, AND THE COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL OR REQUIRED A NEW TRIAL.

POINT V THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE; MOREOVER, THE COURT'S REQUIREMENT THAT THE JUVENILE REGISTER UNDER MEGAN'S LAW WAS CONTRARY TO THE INTENT OF THE LEGISLATURE.

After reviewing the record and the applicable law, we conclude that these arguments, except for the issue of whether Q.N. possessed the requisite knowledge to appreciate the sexual nature of his conduct, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). For reasons we explain, infra, the knowledge element is satisfied by the record. We therefore affirm the delinquency adjudication and the final disposition.

Prior to trial, Q.N. moved to suppress the audiotaped statement he gave to the police. The trial court granted the motion. We granted the State leave to file an interlocutory appeal and affirmed the trial court order. The Supreme Court granted the State's motion for leave to appeal and reversed, ruling the statement was admissible. State ex rel. Q.N., 179 N.J. 165 (2004).

The trial commenced on September 23, 2004, and was conducted over four non-consecutive days. The State presented several witnesses, including the investigating police officer; D.H., the victim; and B.S., the victim's mother. The defense presented a number of character witnesses on Q.N.'s behalf. In addition, Q.N.'s statement was admitted, and following a Rule 104 hearing, the trial judge admitted D.H.'s videotaped statement.

The State's proofs consisted of the following. On January 15, 2003, Gloucester Police were notified by B.S. that she believed D.H. had been sexually assaulted by Q.N. The police interviewed D.H., who reported that Q.N. had touched her twice in her private parts. Thereafter, Q.N., in the presence of his mother and with her permission, was also interviewed and confessed that he touched D.H. in her vaginal area, kissed her and "humped" her. At the conclusion of the questioning, Q.N. was charged with aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(1), and sexual assault, N.J.S.A. 2C:14-2(c)(1). Other charges unrelated to D.H. were lodged against Q.N. at the same time, but those charges were later dismissed.

The testimonial stage of the trial concluded on November 10, 2004. The judge issued an oral decision from the bench on December 6, 2004, adjudicating Q.N. delinquent on the first- degree aggravated sexual assault charge and dismissing the second-degree sexual assault charge. In concluding that the State had proved, beyond a reasonable doubt, that Q.N. had committed an act of aggravated sexual assault, the judge found:

By [Q.N.'s] own testimony and admission, he did commit such an act of sexual penetration on [D.H.] when he touched her, by his own admission, with my finger. And he was asked what did you do with your finger, and he said put it inside.

Q: Put it inside her?

A: Yes.

I don't feel that there is any dispute that [D.H.] was six years old at the time, making her less than 13 years old.

I would note further that the testimony of [Q.N.] was by audio tape [sic]. That apparently had been preceded, by Detective Williams [sic] testimony, by [a] somewhat emotional statement regarding what happened.

He sounded fairly calm on the audio tape [sic], and my sense is that it was a person that was relieved to get this off his chest. There's a saying that confession is good for the soul. And that was my interpretation of the young boy that I heard on the tape. That he had calmed down sufficiently, that he was over the initial upset of having to blurt this out. And I find that testimony in the form of his taped statement to be credible. To be something that he would not have admitted to if he did not do it. And it's certainly consistent with the general complaint of [D.H.] regarding the sexual contact that [Q.N.] committed upon her.

I therefore make a finding, beyond a reasonable doubt, that [Q.N.] did commit an act of first[-]degree sexual assault by committing an act of sexual penetration upon a victim less than 13 years old, on or about December of 2001. Since I'm satisfied from the testimony I heard that it probably occurred before [Q.N.] moved while they were still at Gateway Apartments. And I will adjudicate him a delinquent for a violation of N.J.S.A. 2C:14-2A(1), which would be a first[-]degree offense if he were an adult.

Q.N. claims "there was insufficient evidence adduced that [he] was aware of the sexual nature of the penetration." See In re Registrant J.G., 169 N.J. 304, 336 (2001). We disagree.

N.J.S.A. 2C:14-2a(1) provides that an "actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person [when] . . . the victim is less than thirteen years old." Actor, for purposes of the commission of an offense under the statute, is defined as a "person accused of an offense proscribed under this act." N.J.S.A. 2C:14-1(a). The definition of sexual penetration includes the insertion of a finger into the anus or vagina, irrespective of the depth of the insertion. N.J.S.A. 2C:14-1(c). Because the language of N.J.S.A. 2C:14-2(a)(1) does not include an express mental state among the requisite proofs the State must satisfy, there is a presumption that the State must prove the element of knowledge as part of its case in chief. State v. Sewell, 127 N.J. 133 (1992). Knowledge is defined under the Criminal Code in N.J.S.A. 2C:2-2(b)(2):

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. 'Knowing,' 'with knowledge' or equivalent terms have the same meaning.

Thus, the State was required to prove beyond a reasonable doubt that Q.N.'s sexual penetration of D.H. was committed with the knowledge of the sexual nature of his conduct. State in the Interest of C.P. & R.D., 212 N.J. Super. 222 (Ch. Div. 1986). In his findings of fact, the trial judge quoted certain portions of Q.N.'s statement that he found particularly relevant:

When we was at my house, we used the bike to go to school, and we was playing and I touched her with her clothes on. The second time she didn't go to school because she -- something happened to her grandpop or something. She stayed over. Her mom had to go to work, and I touched her with her panties down. Then she told me to stop, and I stopped and moved away. And the third time, I kissed her, and the fourth time I humped her on the couch with her clothes off.

Detective Williams:

Q: The first time, do you remember when this was?

[Q.N.]:

A: Around December when the Christmas stuff was up.

Q: Was it before Christmas or after Christmas?

A: Before.

Q: Can you tell me the first time that you touched her, she still had her clothes on?

A: Yes.

Q: And what part of her private area did you touch?

A: Where we got different parts.

Q: Okay. Are you telling me where she wears her underwear?

A: Yes.

Q: Okay. Front or back?

A: The front.

Q: Okay. The second time, prior to going on tape, you said that she was wearing a nightgown, is that correct?

A: Yes.

Q: And what did you do?

A: I touched her in the front.

Q: And did you remove her underwear?

A: Yes.

Q: And what did she say?

A: When I did it, she told me to stop and I stopped and I backed away.

Q: What did you -- how did you touch her?

A: With my finger.

Q: And what did you do with your finger?

A: Put it inside.

Q: Put it inside her?

A: Yes.

Q: Then what happened after that?

A: She told me to stop and I backed away, and she told me to leave her alone.

The judge did not, however, make a specific determination that Q.N. knew that inserting his finger into D.H.'s vagina was sexual in nature. In our view, a finding that Q.N.'s sexual penetration of D.H. was done with the knowledge of the sexual nature of his conduct was implicit in the trial judge's determination that Q.N. committed aggravated sexual assault. State in the Interest of N.L. 69 N.J. 342, 345 (1976). We nonetheless exercise original jurisdiction to render our own independent findings based on the record, "giving consideration to the trial judge's having fully credited the evidence presented by the State." Ibid.; R. 2:10-5.

The record discloses that Q.N. understood that he and D.H. had different private parts. His use of the word "kissing" and his description that he "humped [D.H.] on the couch with her clothes off" is evidence of QN's sexual maturity. The American Heritage Dictionary (2d ed. 1991) defines humping as "sexual intercourse" and also defines grinding as a "single erotic movement of the pelvis."

Moreover, later in the same audiotaped statement, Q.N. uses the words "romancing," "grinding," and "playing house." Although the words "grinding," "romancing," and "playing house" were not uttered in connection with Q.N.'s actions against D.H., they were part of the same audiotaped statement. Therefore, these words are probative of Q.N.'s mental sophistication at that time and are thus further indications that point to the level of his sexual maturity at the time he committed the acts against D.H. See State v. Budis, 125 N.J. 519 (1991), where we held that evidence of the child victim's prior sexual abuse was relevant to rebut the inference that the child victim could not have known of the sexual experiences she described in her statement unless they occurred in connection with the incident being prosecuted. See also Commonwealth v. Walter R., 610 N.E.2d 323 (1993), where the Supreme Judicial Court of Massachusetts noted that to the extent, under common law, the presumption that boys under fourteen were incapable of committing rape "rested on an assumption that males under the age of fourteen were not sexually mature, current medical information suggests otherwise." Id. at 325 (citing Stedman's Medical Dictionary 1289 (25th ed. 1990) defining "puberty" as sexual maturation, commencing in boys between ages ten and twelve; also citing S.R. Ambron & N.J. Salkind, Child Development 468 (4th ed. 1984) for the proposition that "the onset of puberty has gradually occurred at a younger age, and currently begins between the ages of ten and twelve."). Here, Q.N.'s use of words commonly associated with sexual activity, coupled with his conduct towards D.H., which on one occasion included removing her underwear before penetrating her vagina and on another occasion "humping" D.H. while she was on the couch, is highly probative of Q.N.'s sexual maturity and from which his "knowledge" may be inferred. State v. Benny, 20 N.J. 238, 256 (1955); Model Jury Charge (Criminal), "State of Mind" (1993).

Consequently, based upon our independent review of the record, we are satisfied the State proved beyond a reasonable doubt that Q.N.'s penetration of D.H. was done with his knowledge of the sexual nature of his actions. State in the Interest of C.P. & R.D., supra, 212 N.J. Super. at 230-31.

Affirmed.

20061205

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