On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 03-06-2225-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2007
Before Judges Wefing, Parker, and R. B. Coleman.
Tried to a jury, defendant was convicted of sexual assault, a crime of the second degree, N.J.S.A. 2C:14-2(b), and endangering the welfare of a child, a crime of the third degree, N.J.S.A. 2C:24-4(a). He was found not guilty of lewdness, a crime of the fourth degree, N.J.S.A. 2C:14-4(b)(1). The trial court sentenced defendant to a term of seven years in prison for sexual assault and a concurrent four years in prison for endangering the welfare of a child. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to reverse and remand for a new trial.
Defendant was tried twice. His first trial resulted in a mistrial when the jury was unable to reach a verdict. After lengthy deliberations at his second trial, the jury reached a verdict finding defendant guilty of the crimes noted.
Defendant was accused of assaulting eleven-year-old T.C. on Sunday, March 9, 2003. On Saturday, T.C. and her mother C.A. had moved into the first-floor apartment in Newark. C.A. located the apartment through the efforts of her boyfriend, J.F. J.F. was an acquaintance of defendant, who owned the building and lived in the basement apartment.
J.F. helped C.A. move into the apartment on Saturday. Defendant was on the scene and offered C.A. several chairs which he had in storage nearby. J.F. and defendant retrieved the chairs and set them up in the apartment.
T.C. testified that when she woke up on Sunday morning her mother asked her to go to the nearby store to pick up a few items for breakfast. T.C. said that when she returned, she met defendant, who asked if she could baby-sit for his younger son while he took his older son to catechism class. T.C. checked with her mother, who gave her permission. T.C. said she stayed with the younger boy, who was nine years old. He played video games and then watched a movie until defendant returned with the older boy, who was twelve. T.C. said she remained to watch the balance of the movie. She testified that defendant joined her and one of the boys on the couch. She said that while they were watching the movie, defendant took one of the pillows from the couch and put it on his lap; he then took one of her hands and slid it under the pillow and placed it on his penis and slid it back and forth a few times. She said she grabbed her hand away, without saying anything to defendant. After a short period, she returned to her apartment upstairs but did not say anything to her mother about the incident.
Later that morning C.A.'s friend E.M and her daughter P.M. came to the apartment to help C.A. and T.C. settle in. When they arrived, defendant's dog was in the apartment and T.C. was giving the dog a bath. T.C. told P.M., who was her best friend, that she had something to tell her. After some period of time, when T.C. had not told P.M. to what she was referring, P.M. asked her what she had to say. T.C. then recounted what had happened earlier that morning. P.M. at first did not believe her because she knew that T.C. sometimes made up stories.
After a period of time C.A. became concerned that the dog was hungry, and she told T.C. to go downstairs and get food for the dog, but T.C. did not want to go. C.A. told her three times to go, and E.M. also told her to go. T.C. asked P.M. to go with her, but P.M. said no. T.C. said that when she finally did go, defendant was sitting in a chair outside the door to his apartment. According to T.C., defendant had his legs spread open and his penis was exposed. She told him she had come for food for the dog, and defendant called in to the apartment, and one of the boys brought out the dog's food. T.C. returned upstairs. She did not say anything to C.A. or E.M. but told P.M. what she had seen.
Later in the day, defendant told C.A. that he was taking his sons to the movies and asked if the girls could accompany them. T.C. was reluctant to do so, but the two mothers urged the girls to go. The trip to the movies was without incident, and defendant dropped off the girls at P.M.'s apartment, as had been arranged in advance. After they arrived there, P.M. urged T.C. to tell her mother about what had occurred, but T.C. was unwilling to do so; eventually P.M. told E.M. When C.A. arrived to pick up T.C., E.M. had T.C. tell her mother.
C.A. immediately called defendant on her cell phone to berate him. When the two returned to the apartment, she confronted defendant in person.
She did not, however, call J.F. that evening to complain to him; this, she said, was because J.F. had his cell phone turned off. J.F. testified to the same effect. Defendant, however, confronted J.F. during cross-examination with his testimony in the first trial in which he said that he had his cell phone on all day and evening on Sunday.
C.A. and J.F. did talk on Monday morning, and J.F. saw defendant at lunchtime. J.F. said he asked defendant why he had behaved in such a manner and that he answered that he had had a hole in his pants and had not been aware of it.
C.A. did not contact the police until Wednesday of that week. After the police took statements from C.A., E.M., and the two girls, they arrested defendant.
Defendant did not testify at the trial, but his two sons, both of whom were in the room at the time of the alleged assault, did so. Both testified that nothing untoward happened. They said defendant never put a pillow on his lap and that the couch did not even have any loose pillows.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED BY NOT SETTING ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE, GIVEN (A) THE FATAL INCONSISTENCIES AND CONTRADICTIONS IN THE TESTIMONY OF THE STATE'S WITNESSES, AND (B) THE AMBIGUOUS VERDICT WHICH FOLLOWED LENGTHY AND SEEEMINGLY AGONIZING ...