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State ex rel H.K.

March 25, 2008

STATE OF NEW JERSE Y IN THE INTEREST OF H.K., JUVENILE-APPELLANT.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FJ-18-1143-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2008

Before Judges Parker and Lyons.

In this juvenile matter, H.K. appeals from a disposition entered on January 7, 2005, in which he was adjudicated delinquent on charges, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3. He was committed to the Juvenile Justice Center for a period not to exceed one year. H.K. was also ordered to complete a sex offender evaluation and to follow its recommendations and to comply with the Megan's Law notification requirements. He was required to provide a DNA as well as an HIV/AIDS testing sample, submit to fingerprinting, and to follow all recommendations in any court ordered evaluation. Lastly, he was ordered to have no contact with the victim, J.B. After giving due consideration to the contentions advanced on appeal, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. According to the trial testimony of the victim, J.B., on June 16, 2005, J.B., who was then sixteen, was at home alone. At approximately 3:00 p.m., H.K., then age fifteen, came to J.B.'s home and rang the doorbell. J.B. recognized H.K. as an acquaintance from high school. Initially, H.K. asked whether one of J.B.'s neighbors was home. J.B. went to make a telephone call to the neighbors to determine if anyone was home. Thereafter, H.K. entered J.B.'s home and began to run throughout the house. J.B. instructed H.K. to leave and eventually he did.

At 4:07 p.m., while J.B. was on the telephone with her cousin, C.C., H.K. returned to J.B.'s home. Again, he rang the doorbell. J.B. opened the front door, but kept the screen door shut. Without J.B.'s permission, H.K. opened the screen door and moved the victim out of his way by pushing her with his forearm.

H.K. then ran upstairs to the second floor of J.B.'s home. J.B. followed H.K. upstairs and demanded that he leave the house. Repeatedly, J.B. told H.K. that her father was on his way home and that he would be upset if he found H.K. in the house. H.K. eventually followed J.B. into her bedroom. Once inside her bedroom, H.K. started pushing J.B. onto her bed and lifting up her skirt, while trying to pull down her underpants. While J.B. was attempting to pull her underwear up, H.K. began hitting her hands away and her underwear began to rip. After J.B.'s unsuccessful attempts to fight off H.K., he eventually pulled J.B.'s underwear down.

Throughout this, J.B. repeatedly asked H.K. to leave the house. H.K. ignored J.B.'s request. At some point during this episode, H.K. got off the bed and walked toward J.B.'s bedroom door. He stopped at the door and stood with his back toward her. As J.B. testified at trial, she thought at that time H.K. was putting on a condom. Immediately after that, H.K. turned around and pushed J.B. onto the bed. J.B. testified she told H.K., "no, I don't want to do this." However, H.K. did not stop. Rather, he lifted up her skirt, held her arms over her head with her wrists together and inserted his penis inside of her. J.B. struggled and tried to break free. H.K. continued to assault her and eventually dragged her onto the floor. While on the floor, he again inserted his penis inside J.B. She tried to push away from him and told him that he was hurting her. At that point, H.K. stopped and J.B. ran into her bathroom. H.K. came to the bathroom door and asked J.B. if she was all right. J.B. responded that he should leave, and he did so.

At 4:25 p.m., C.C., J.B.'s cousin, testified that she received a telephone call from J.B. In her trial testimony, C.C. stated that J.B. was crying and upset. C.C. testified that J.B. outlined the details of the sexual assault incident to her. C.C. related that when she got off the telephone with J.B., she told her father what had happened. C.C.'s father told her to call J.B. back and have J.B. call her father so that the police could be notified.

At 5:15 p.m., Officer Dawn Breza was notified to respond to J.B.'s home. When she arrived on the scene, she found J.B. distraught and laying in her parent's bed. Officer Breza secured J.B.'s bedroom, obtained a brief statement as to what happened from J.B., and then notified headquarters so that a detective could arrive at the scene. At 5:45 p.m., Detective Shawn Hebbon was notified to come to the scene. Detective Hebbon testified that when he arrived on the scene, he noticed that J.B.'s bed was a little disheveled and that there was a trash can near the bed which contained a yellow condom. Detective Hebbon took a statement from J.B. and then arranged for her to be taken to a local hospital to be examined.

At the hospital, according to the testimony of nurse Dorothy DiFabio, J.B. was examined to determine if she was injured as a result of the assault. Nurse DiFabio was an employee of the county prosecutor's office and testified as a fact witness. Nurse DiFabio described J.B.'s appearance and emotional and physical condition. She noted that J.B. was crying at times during questioning and the examination. Nurse DiFabio related that J.B. answered specific questions concerning the incident. These questions called for a yes or no answer and did not make specific reference to H.K. or the details of the incident. For instance, she was asked questions such as, "Did suspect's fingers contact patient's genitals," and the answer recorded was "no." Nurse DiFabio stated during the testimony that following the examination, she was unable to find any injury to J.B. brought about by the incident. Nurse DiFabio stated that she had examined approximately thirty-six rape victims and found that in those instances in which women younger than twenty-one years old were assaulted, there was generally no injury.

While J.B. was being examined at the hospital, Detective Hebbon went to H.K.'s home and spoke with H.K.'s father. H.K. was not at home but soon returned. In the company of his father, Detective Hebbon asked H.K. if he had any contact with J.B. that day. According to the detective's testimony, H.K. stated that he was not near J.B.'s home that day. Upon hearing ...


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