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State ex rel C.K.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 6, 2007

STATE OF NEW JERSEY IN THE INTEREST OF C.K., JUVENILE-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-772-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2007

Before Judges Skillman, Holston, Jr. and Grall.

C.K. appeals from an adjudication of delinquency for conduct that would constitute aggravated sexual assault, N.J.S.A. 2C:14-2a(1), if C.K. were an adult. The juvenile complaint was based on an allegation made by C.K.'s next-door neighbor, Z.M. The five-year old Z.M. reported that at C.K.'s direction, he licked C.K.'s penis twice. C.K. was thirteen years old at the time. The matter was tried to a judge of the Family Part, who found that the State had proven the charge. The judge denied C.K.'s motion for a new trial and imposed an indeterminate eighteen-month term in the custody of the Juvenile Justice Commission at the State Home for Boys but suspended the sentence for three years conditioned upon C.K.'s completion of counseling and probation. The judge also required C.K. to pay a $30 VCCB assessment and a $15 LEOTEF assessment.

On Sunday evening, September 12, 2004, the K family and the M family had dinner together in the Ms' backyard. The plans were made earlier that afternoon. At Z.M.'s request, Mrs. M authorized the child to extend the invitation to the Ks. Mr. K accepted on behalf of his wife, his father-in-law, his son C.K. and C.K.'s older sister, Cy.K.

According to Z.M.'s parents, their son liked to play with C.K. whenever he could and looked up to the older, athletic boy, who had a lot of friends. Z.M.'s brother J.M. was only two years old. Although Z.M. went to school in a different town during the school year and in the summer, he had playmates closer to his own age in the neighborhood. Those playmates were C.B. and J.B. The Bs lived in the third house from the Ms' house. There was one house in between the Bs' house and the Ks' house. None of the backyards between the Bs' and the Ms' were separated by fences.

The Ks have a trampoline and a hot tub in their backyard. The hot tub is enclosed in a gazebo-like structure with tinted windows and a door with a spring-operated closing mechanism. The Bs have a swing set with a slide, a fireman's pole, a climbing net, rings, a ladder and a small fort. The fort is enclosed on three sides and has a roof.

The dinner was planned for five o'clock. Fifteen minutes before that hour, Mr. K saw Mr. M sitting outside with a beer and left his home to join him. He took his dogs with him. Near the appointed hour, Mrs. K, her father, C.K. and Cy.K. arrived, and Mrs. M brought appetizers to the table on the patio.

Because Z.M. and J.M. were feeding the dogs olives, Mr. K took the dogs back to his yard and tied them on his deck. While Mrs. M returned to the house to complete preparations for the meal, the others sat around the patio table. Z.M. poked Cy.K. in the arm with a toothpick, which he continued to do despite her protestations and Mrs. M's directions. The M children had been on C.K.'s trampoline in the past, and Mrs. K asked her son to take the younger boys to the trampoline to burn off some of their energy.

C.K. complied. According to C.K., he did not mind playing with the children, but he would have preferred to stay at the table with the adults and his older sister.

Z.M. was able to get on and off the trampoline by himself, but J.M. needed C.K.'s help. No one was permitted on the trampoline with shoes. According to C.K., he helped both children with their shoes when they got on and off the trampoline. Z.M. said he took his shoes on and off by himself.

During the first session on the trampoline, the boys played a game called "racecar," which involves running around the outer edge of the jumping area and tagging the person ahead of you. After about fifteen minutes, J.M. tired of the game and asked C.K. to play hide-and-seek.

C.K. lifted J.M. off the trampoline, but Z.M. did not want to leave. According to C.K., Z.M. said "f--- you." C.K. told Z.M. that if he played one game of hide-and-seek he could get back on the trampoline. Z.M. volunteered to count and seek.

C.K. and J.M. ran to the Bs' yard, where J.M. stopped in front of the fireman's pole and covered his face with his hands. C.K. stood next to him. Z.M. finished counting, saw J.M. and C.K. and ran toward them. Z.M. then went to the Bs' backdoor to see if C.B. and J.B. could come out to play. The younger children were not permitted to come outside.

Mr. K, who was seated at the table in a spot where he could see the back of the Ms' house, his own patio and the trampoline, heard the creaking of the trampoline springs and the laughter of the children. When things got quiet, he looked over and saw Z.M. standing near the trampoline and J.M. and C.K. jogging toward the Bs' property. He saw J.M. and C.K. stop near the swing set, and Z.M. run toward them. When he looked back, the children were near the Bs' backdoor.

The boys were called to dinner. As they ate, C.K. and his grandfather discussed the Yankees and the Red Sox. After the boys finished eating, Mrs. K again asked C.K. to take them to the trampoline. This request was prompted by Z.M.'s poking Cy.K. with a skewer.

C.K. and Z.M. made their second trip to the trampoline.

J.M., who had gone inside with his mother, joined them later. A few minutes after J.M. was on the trampoline, the boys again left the trampoline. C.K. ran up the steps of the Ks' rear deck and into his own house to use the bathroom. The younger boys played with the dogs until he returned. Mr. K saw his son go to the deck and the M children standing there and playing with the dogs.

When C.K. returned to the deck, the boys made their third trip to the trampoline. They played for a brief period, but Z.M. again asked C.K. about getting C.B. and J.B. to come outside. They got off the trampoline and returned to the B's house. Again, Mr. B declined to allow his children to leave the house. The boys were called back to the Ms' house for dessert.

After dessert, Cy.K. left the Ms' backyard to wait for a friend she was expecting at six forty-five. Mrs. K, who is a teacher, excused herself to prepare lesson plans that were due the following morning. Her father left with her. Mr. M and his children walked C.K. and Mr. K to their front yard. Mr. K opened the garage door, and the M children rolled baseballs and softballs down the Ks' driveway. It was an "impromptu game";

C.K. retrieved the balls. The children were laughing.

As Mrs. M put Z.M. to bed that night, he told his mother that he had "something disgusting to tell [her]." When she inquired, he pointed to his penis and then to his mouth, but he said nothing. Not understanding the gesture, Mrs. M asked Z.M. if he drank J.M.'s "pee pee" or his own. He said, "Mommy, I licked C.K.'s wienie. It was so disgusting. I'm sorry." (The M family used the noun "pee pee," not "wienie," when referring to a penis.) Z.M. told his mother that he had done this in the bathroom at the Ks' home after C.K. told him "that if he licked his wienie[, he could] go on the trampoline." Z.M. told his mother, "C.K. went into the bathroom[;] he peed[;] he wiped his penis on his pants, and told Z.M. that if he licked his wienie he could go on the trampoline." Although Z.M. "went on to say" that it also happened at C.B.'s house in the fort area, Mrs. M did not really know what he was talking about and did not remember to tell the police about that allegation when she spoke to them.

After talking to his mother, Z.M. went to sleep. Mrs. M described Z.M.'s demeanor during the bedtime conversation, as "edgy," "irritable," "tired" and "more grossed out by it than - anything else . . . ." She asked Z.M. whether he would want to play with C.K. again, and he said he did not think so.

After Z.M. was asleep, Mrs. M repeated Z.M.'s report to her husband. He went to the Ks' home, and Mrs. K left with him to talk to Mrs. M. Mrs. K spoke with Mrs. M and went back home. She spoke to her husband and then C.K. C.K. denied the allegations, went to visit Mr. and Mrs. M and told them he would not do anything like that.

On Monday morning Mr. M spoke to Z.M. before the child got out of bed. He told his son that his mother had told him about what happened with C.K. and asked Z.M. if he wanted to talk about it. According to Mr. M, Z.M. made the same gestures with his hand, a sucking motion with his mouth and said C.K. made him lick his wienie. Z.M. told his father it happened at C.B.'s house, and in the bathroom and hot tub room. According to Mr. M, when he asked Z.M. whether the site was the bathroom or the hot tub room, Z.M. "sounded a little confused" about "all the places it occurred." At breakfast, Z.M. asked his mother to talk to C.K. and tell him that Z.M. did not like what he did so that they could be friends again.

Later that day, Mr. M contacted the police and Mr. and Mrs. M met with a local police officer. A detective from the county prosecutor's office interviewed Z.M. on Tuesday, September 14. During that interview, which was videotaped in its entirety, Z.M. said he licked C.K.'s "pee pee" twice, once in the hot tub room and once in a little room, with no roof, which was in C.B.'s yard. Z.M. said that C.B. was outside. When he and C.K. were in the room, she said, "I know what you're doing." Z.M. did not mention the bathroom. He told the detective that C.K. did not take his pants off but exposed himself by opening a "little snap," a "little velcro" opening, and pulling it out.

At trial, Z.M. testified that C.K. "pulled down his zipper," and took out his "pee pee." Z.M. licked it because C.K. said "[i]f you want to go on my trampoline, you must lick my pee pee." It happened twice, once in the little house with the hot tub, where Z.M. found J.M. and C.K. hiding, and once in C.B.'s backyard in the three-sided fort that was part of the swing set. Z.M. could not say whether he and C.K. were standing, kneeling or sitting, but he demonstrated that he complied with C.K.'s demand by bending from the waist.

Z.M. has pants that close with velcro, buttons and snaps, but he did not remember if C.K.'s pants had velcro. C.K. did not own any pants with velcro closures in September 2004.

Neither Cy.K. nor any of the parents saw the boys near the hot tub room or heard the sound of its door opening or closing. No one noted any unusual behavior on Z.M.'s part during or after the meal or heard him complain or say anything about C.K.

Mrs. M recalled seeing the children playing on the trampoline in the Ks' backyard and playing with C.B. and J.B. in their yard. She admitted that her eyes were not always following the children, but she did not think that they were out of her sight for long periods of time.

Mr. B testified. He confirmed that Z.M. came to his back door twice that Sunday evening, once with C.K., but he did not allow C.B. or J.B. to go out to play either time.

Mr. M remembered the boys coming and going from the table and running around. He did not recall Mr. Ks' arrival at his home, the Ks' dogs, the food or beverages consumed at his home that night or the boys playing with the balls in the Ks' driveway at the end of the evening. Mr. M's only specific recollection was getting up to look for the children because he did not see them in the backyards. He found the boys in the front of the Ks' house.

At the conclusion of trial, the judge made the following findings. C.K. told Z.M. "twice that if he licked his wienie, he could go on the trampoline," and Z.M. obeyed his command on both occasions. C.K. created a "quid pro quo scenario with"

Z.M. C.K. was not interested in playing hide-and-seek, but he knew that Z.M. wanted to jump on the trampoline and would likely comply with his demand in order to gain access to the trampoline. C.K. was burdened with the responsibility of caring for the children so the adults could enjoy one another. C.K. found it difficult to take their shoes on and off and "raised the bar" to discourage Z.M. from asking to go on the trampoline.

The judge credited Z.M.'s testimony. He concluded that Z.M.'s inability to recall details about whether he and C.K. were standing, kneeling or sitting was not dispositive because the child "consistently stated the essential, critical part of the story . . . ." The judge concluded that Z.M.'s confusion about whether one incident occurred in the bathroom or the hot tub room was insignificant because "in both of these locations one would come in contact with water, and both the hot tub and the bathroom are associated with places where one bathes."

The judge found nothing remarkable in Z.M.'s failure to complain to one of the adults about C.K.'s conduct during the course of the evening. In his view, Z.M. considered his licking of C.K.'s penis to be a disgusting and dirty means to an end; it was not an act about which Z.M. would complain as long as he achieved his goal and got back on the trampoline.

The judge considered Mrs. M's testimony about Z.M.'s Monday morning plea for her to speak to C.K. so that they could be friends again in evaluating Z.M.'s credibility -- "he wanted to forgive [C.K.] and continue to play with him." The judge also considered Z.M.'s Monday morning plea as relevant to C.K.'s culpability and credibility -- "he betrayed the confidence and shattered the admiration that this five-year old had for him, [an] older friend whose affection and company he so cherished, that he . . . was even willing to make amends . . . ."

C.K. raises the following issues on appeal:

I. IN VIOLATION OF APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL, THE TRIAL COURT ERRONEOUSLY RELIED ON (1) A HEARSAY STATEMENT FROM Z.M.'S MOTHER THAT WAS NOT NOTICED BY THE STATE OR ADMITTED INTO EVIDENCE AFTER THE 104 HEARING AND (2) IMPROPER DOUBLE HEARSAY TESTIMONY FROM Z.M.'S PARENTS.

II. IN VIOLATION OF APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL, THE PROSECUTOR UNFAIRLY TAINTED THE CREDIBILITY OF THE JUVENILE'S FATHER AS A WITNESS BY DISCLOSING TO THE COURT AN UNSUBSTANTIATED ALLEGATION OF THREATENING BEHAVIOR TOWARDS THE ACCUSER'S FATHER.

III. THE TRIAL COURT'S ADJUDICATION OF DELINQUENCY WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE IN VIOLATION OF C.K.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AND THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL.

1. Credibility of Z.M.

2. Credibility of [Mrs.] M.

3. [Mr. K.] was found to be not credible by the court without sufficient explanation.

4. C.K. was found to be not credible by the court based upon findings not supported by the record below.

IV. C.K.'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT'S CONTINUATION OF COURT PROCEEDINGS WHILE DEFENDANT WAS UNCONSCIOUS IN THE COURTROOM AND THE COURT WAS AWARE OF HIS MEDICAL STATE.

V. JUVENILE'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE INEFFECTIVE ASSISTANCE PROVIDED BY HIS TRIAL COUNSEL.

The claim raised in Point I of C.K.'s brief has merit. With no notice to the parties, the trial judge based his decision on the merits of this case, in part, upon Mrs. M's testimony about her son's Monday morning plea for her to speak to C.K. so that the boys could be friends again. That course of action deprived C.K. of a meaningful opportunity to challenge the trustworthiness of the statement, to cross-examine Z.M. about the statement and to present argument on its significance. We cannot conclude that this error was harmless. R. 2:10-2.

Statements of "a child under the age of [twelve] relating to sexual misconduct with or against that child" may be admitted at trial under specified circumstances. N.J.R.E. 803(c)(27). "[T]he proponent of the hearsay statement [must] provide[] sufficient notice of the intent to offer the statement at trial . . . ." State v. Burr, 392 N.J. Super. 538, 565 (App. Div. 2007). The court must conduct a hearing pursuant to N.J.R.E. 104(a) to determine whether "there is a probability that the statement is trustworthy." N.J.R.E. 803(c)(27); see State v. D.G., 157 N.J. 112, 127-28 (1999) (discussing the importance of a pretrial hearing on notice); Burr, supra, 392 N.J. Super. at 569-70 (discussing trustworthiness). Where, as here, there is no corroboration of the sexual abuse, there must be an opportunity to cross-examine the child at trial. See N.J.R.E. 803(c)(27); Burr, supra, 392 N.J. Super. at 563-69 (discussing the relationship between N.J.R.E. 803(c)(27) and a defendant's right to confrontation as explained in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) and questioning whether, after Crawford, an extra-judicial testimonial statement may be admitted if the child is not a witness at trial).

In this case, the State gave notice of its intention to introduce only three out-of-court statements made by Z.M. The first was his Sunday night statement to his mother. The second was his Monday morning statement to his father, and the third was the statement that was videotaped by the detective. Z.M.'s Monday morning plea to his mother was not included in that notice. Mrs. M simply repeated that statement during her testimony at the hearing on admissibility of Z.M.'s Sunday night statement. Defense counsel did not object, but hearsay is admissible during a hearing conducted pursuant to N.J.R.E. 104(a).

The State argues that defense counsel cannot claim error on the basis of the judge's consideration of the hearsay because defense counsel subsequently stipulated to admission of the evidence presented at the hearing. Defense counsel advised the judge that he had no "objection to [admission into evidence of] that testimony that was heard on the pretrial hearing."

The defense counsel's agreement to have the judge consider "testimony" presented at the preliminary hearing cannot be understood as an agreement to have the judge consider an extra-judicial statement of the child that had not been found to be trustworthy in accordance with the requirements of N.J.R.E. 803(c)(27). After the testimony at the preliminary hearing, the prosecutor and defense counsel presented argument on the admissibility of the three statements referenced in the prosecutor's notice. The judge granted the State's motion to admit those three statements and did not address the fourth. Moreover, neither the prosecutor nor the defense attorney referenced Z.M.'s Monday morning plea in closing arguments at the end of trial, which suggests that neither attorney understood that the statement had been admitted into evidence. N.J.R.E. 803(c)(27).

Putting aside the question whether Z.M.'s Monday morning plea for his mother to speak to C.K. and restore their relationship would qualify for admission pursuant to N.J.R.E. 803(c)(27), the defense had no notice of the State's or the judge's intention to rely upon that statement. Notice is a critical element of N.J.R.E. 803(c)(27), and there was none here. D.G., supra, 157 N.J. at 127-28. As a consequence, the defense had no reason to cross-examine Mrs. M so as to probe the trustworthiness of the statement or to ask Z.M. relevant questions. Similarly, without notice that the judge would consider the statement as evidential, defense counsel had no reason to present argument on reasonable inferences that might be drawn from that statement.

The judge expressly relied on Z.M.'s Monday morning plea in resolving the questions of credibility in this case in which the question of whether the sexual conduct occurred was "exceedingly close." D.G., supra, 157 N.J. at 127-28 (quoting State v. W.L., 292 N.J. Super. 100, 117-18 (App. Div. 1996)). There was no physical evidence of such conduct, and Z.M.'s descriptions included no detail that was confirmed or supported by other evidence in the case. None of the five witnesses on the nearby patio saw or heard the children enter the hot tub room or the fort. Z.M. reported that C.B. spoke to him when he and C.K. were in her fort, but C.B.'s father said he had not permitted C.B. to go outside that evening. The temporal relationship between the conduct Z.M. reported and the children's various trips to the trampoline was not at all clear.

Z.M.'s various accounts of the circumstances and manner in which C.K. committed the act included significant inconsistencies. At trial Z.M. said C.K.'s pants had a zipper. Prior to trial, however, Z.M. said that C.K.'s pants had velcro and snaps at the opening, which was a style of pants that C.K. did not own. Z.M. did not give a consistent description of C.K.'s conduct. In his first report, he said that C.K. told him to lick his wienie after C.K. used the bathroom and wiped himself on his pants. In subsequent descriptions, Z.M. made no mention of C.K.'s urinating. The difference in Z.M.'s descriptions of C.K.'s conduct in "rooms with water" is indicative of more than confusion about the "names" adults use for rooms with bathtubs and rooms with hot tubs.

Considered in light of the competent evidence presented, we conclude that the judge's reliance on Z.M.'s Monday morning plea, without prior notice to the defense, was clearly capable of producing an unjust result. R. 2:10-1. Where, as here, "the vital issue [of abuse is] exceedingly close . . . any error that could have appreciably tipped the credibility scale [must] be regarded as plain error . . . ." W.L., supra, 292 N.J. Super. at 117 (internal quotations omitted).

The error warrants a new trial. We do not agree with C.K.'s assertion that the evidence is inadequate to support the adjudication. When the evidence and reasonable inferences, viewed in the light most favorable to the State, are sufficient to permit a finding of each element of the act of delinquency charged beyond a reasonable doubt, the evidence is constitutionally adequate. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed. 2d 560, 573 (1979); In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed. 2d 368, 374 (1970); State v. Reyes, 50 N.J. 454, 458-59 (1967). Viewed in that light, Z.M.'s testimony is sufficient to support the adjudication.

Our disposition of the case makes it unnecessary to consider the additional issues that C.K. raises on this appeal. Given the difficulties with the preliminary hearing on the admissibility of Z.M.'s statements, the judge assigned to the case on remand should evaluate the admissibility of the extra-judicial statements made by Z.M. anew.

Reversed and remanded for a new trial.

20070806

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