On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 02-09-0847.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges A. A. Rodríguez and C. S. Fisher.
Following a jury trial, defendant T.W.M. was convicted of several offenses stemming from his sexual abuse of "Diane,"*fn1 the twelve-year-old daughter of his paramour. Specifically, defendant was convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); second degree sexual assault, N.J.S.A. 2C:14-2b (count two); second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. The Adult Diagnostic and Treatment Unit determined that defendant was not a compulsive sex offender. The judge imposed concurrent state prison terms aggregating fifteen years with a NERA*fn2 parole disqualifier.
Prior to trial, defendant sought to bar the prosecution's use of an oral statement, which he made to police, and to exclude DNA evidence taken from a blanket from the bed where the sexual assault of Diane allegedly took place. With respect to the oral statement, the judge ruled that it was admissible.
Regarding the DNA evidence, the prosecutor represented to the judge that the proofs would show that: (a) defendant sexually assaulted Diane on a blanket (marked S-4 in evidence), which was taken by the police as evidence; (b) there was a stain on the blanket which was composed of both sperm and non-sperm matter; and (c) DNA tests disclosed that defendant's DNA was found in the sperm portion of the stain on the blanket, and that there was a likelihood that defendant's DNA was present in the non-sperm portion of the stain.
Defendant moved to exclude the DNA evidence, arguing he lived in that bedroom for over eight years, during which time he and Diane's mother were sexually intimate. Counsel urged the judge to exclude the evidence because it was not surprising or probative to find defendant's DNA in a stain on a blanket on his own bed. Defense counsel further argued that DNA testimony should be excluded because of the lack of probative value, and because of the prejudice and confusion that the evidence would cause the jury. The judge ruled that the evidence was inadmissible pursuant to N.J.R.E. 403.
The State moved for reconsideration and presented the testimony of Robin Schwartz, a forensic scientist employed by the New Jersey State Police. Schwartz testified that buccal swabs were taken from defendant and from Diane. These samples were compared to the DNA extracted from the stains on the blanket. According to Schwartz, defendant was the source of the sperm portion of the stain on the blanket and could not be excluded as being a source of the non-sperm portion of the stain on the blanket. Schwartz also opined that the non-sperm portion of the stain had at least two other contributors, and that Diane could not be excluded as a partial contributor to the stain. The State represented that the blanket was under Diane and defendant when the assault occurred. Upon reconsideration, the judge ruled that the DNA evidence was not as confusing as he had originally believed and decided to admit the DNA evidence.
The trial proofs are summarized as follows. Defendant is the longtime boyfriend of Diane's mother. He has had a relationship with Diane's mother for nine years. Defendant is also the biological father of three of Diane's younger siblings. Occasionally, defendant stayed at Diane's mother's apartment and sometimes only visited on weekends. On July 23 through July 25, 2002, Diane's mother was in the hospital giving birth to defendant's child. Therefore, defendant moved temporarily into the house to care for the other children, including Diane. During the daytime, defendant's mother cared for the children. At night, when defendant returned from work, his mother would leave and he would resume the caretaking responsibilities for the children.
According to Diane, on July 23, 2002, shortly after midnight, she was asleep in her mother's bedroom. Her younger sister was on the bed with her when she went to sleep. While asleep on her stomach, Diane awakened to find defendant on top of her. Her nightgown was over her head and her panties were down. Diane felt defendant's penis inside her vagina. Defendant was moving around and moaning. Defendant asked her if she was okay. Then he stopped and left the bedroom. Diane noticed that her sister was no longer in the bed.
On the following night, Diane went to bed in her mother's bed with several of her siblings. She was wearing a nightgown and panties. Again, Diane awakened to find defendant pressing against her vagina. Her nightgown was off and her panties were down around her legs. Her hands were inside strings that were used to hold up the mattress. She felt something gooey on her back. Diane did not scream because she did not want to awaken her siblings. Defendant took out a knife that he kept in the nightstand and told Diane not to tell "or else." After defendant left the bedroom, Diane went to the bathroom. She found blood in her underwear and on the toilet paper when she wiped herself. The next morning, when Diane woke up, defendant was in the bedroom. He touched her chest with his hands and told her that she was a "foxy lady."
Diane told defendant's mother what happened. Defendant's mother slapped her and told her not to lie about her son.
Eventually, Diane told her own mother what had taken place and her mother took her to the hospital.
Diane's mother testified that on July 26, 2002, defendant was arrested at her home for domestic violence. After defendant was arrested, Diane told her that defendant had sexually assaulted her. Diane's mother took her daughter to the hospital for an examination. At the hospital, Diane gave a statement to the police and a DYFS investigator. Diane's mother permitted the police to seize a knife from the bedstand next to her bed and a blanket (S-4) from her bed. At trial, the knife was identified by Diane as the knife she was threatened with by defendant.
Millville Police Sergeant Edward Zadroga testified that Diane gave a taped statement inculpating defendant. After defendant was arrested, he was advised of his Miranda warnings. Subsequently, defendant gave an oral statement.
Martin Finkel, M.D., a pediatrician, testified that he examined Diane on July 31, 2002. He observed a number of superficial abrasions and small tears on the skin around Diane's clitoral head. In his opinion, that type of trauma can ...