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State ex rel A.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 6, 2008

STATE OF NEW JERSEY IN THE INTEREST OF A.G., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FJ-13-562-07A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 13, 2008

Before Judges Cuff and King.

A juvenile delinquency complaint was filed against A.G. on August 14, 2006. The complaint charged him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (Counts Two and Three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (Count Four); fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1) (Count Five); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (Count Six). From May 9 through 16, 2007 the juvenile appeared for trial before Judge McGann, who adjudicated him delinquent on all charges on May 16, 2007.

On June 15, 2007 Judge McGann sentenced the juvenile to two years probation on Counts One, Two, Three, Four and Six and one year probation on Count Five and imposed a $30 Victims of Crime Compensation Board (VCCB) assessment on each count, and a $15 Law Enforcement Officers Training and Equipment Fund (LEOTF) assessment on Count One. The juvenile's probationary terms were concurrent. As part of the juvenile's probation, Judge McGann ordered him to abide by all requirements of Megan's Law, submit to a psychological evaluation, have no victim contact, and participate in all court ordered evaluations.

I.

Defendant raises two points on this appeal:

POINT I - DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE JUDGE MCGANN'S FINDINGS OF GUILT BEYOND A REASONABLE DOUBT WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.

A. [A.'s] Testimony Was Not Credible and Was Insufficient to Support Defendant's Guilt of the Crimes Alleged.

B. There Was No Testimony in the Record Other than [A's] Incredible Testimony to Support Her Allegations.

POINT II - DEFENDANT'S CONVICTION FOR LEWDNESS PURSUANT TO N.J.S.A. 2C:14-4 MUST BE REVERSED BECAUSE PROSECUTION WAS COMMENCED THEREON OUTSIDE THE FIVE YEAR STATUTE OF LIMITATIONS PRESCRIBED BY N.J.S.A. 2C:1-6.

We affirm the convictions as supported by substantial credible evidence in the record, except on Count Five, the lewdness count, which is barred by the statute of limitations because committed before April 6, 1994. The complaint was filed on August 18, 2007, beyond the pertinent five-year period of limitations.

The State presented these facts which the judge found credible. The age differential between the victim and the juvenile was about five years. During the relevant period of the offenses, from 1990 to 1994, the victim was about six to nine years of age and the juvenile was about eleven to fifteen years of age. A.G.'s date of birth was November 19, 1979; the victim's date of birth was October 12, 1984.

The State presented evidence of these facts in this bench trial. For about eighteen years, the juvenile A.G.'s family lived next door to the victim's family in Hazlet. While the victim's mother A.B., and her father worked, the juvenile's mother J. "babysat" the victim, then age six, and the victim's brother A.A. Typically, J. would turn on cartoons for A. and A.A. then fall asleep on the couch. The juvenile, his father, and his brother J.J. were usually home, but still asleep at this time.

One morning, after A.G. awoke, he joined J. in front of the television. A.G. said to A., the victim, that she "was a little teddy bear or something," started tickling her, then touched her breasts and vagina. The victim told the juvenile to stop and eventually he left the room.

Later in the day, the victim, A.A. and J.J. were playing video games in the juvenile's room until the juvenile came home and "kicked everyone out" but the victim. The victim then found herself alone with the juvenile behind a locked door. The juvenile told the victim to close her eyes and brought her over to the bed. He put his finger in the victim's mouth, then in his own mouth, after which he pulled down his pants. Still near the bed, the juvenile put his penis in the victim's mouth, and told her to keep her eyes closed. The victim kept opening her eyes, so the juvenile attempted to tie a T-shirt around her face. On more than on occasion, the victim's brother observed the juvenile on top of the victim in his bed.

On a typical day, J. would ask the victim to go upstairs and wake up the juvenile. The victim would try to shake the juvenile awake, then run out of the room before he got up. When the victim was unable to get out of the juvenile's room in time, he would grab her and force her onto his bed. When the juvenile had the victim on his bed, he would touch her "chest" and vagina and try to insert his penis into her buttocks and vagina. The victim asked the juvenile to stop. She screamed and tried to fight to the point that she broke his bed on one occasion. When the victim screamed, the juvenile would put his hand over her mouth. The juvenile would hit the victim and said he would kill her if she made noise. During one of these occurrences, the juvenile allegedly ejaculated onto the victim's T-shirt. At other times, the juvenile would run to the bathroom. At the time, the victim did not understand why.

Occasionally, the victim would swim in the juvenile's backyard pool. The juvenile's mother would send the juvenile with the victim to the victim's house for a bathing suit. When the juvenile would accompany the victim to her room to retrieve a bathing suit, he would touch her "chest" and "vaginal area" underneath her clothing. More than once, the juvenile allegedly penetrated the victim's vagina. The juvenile threatened the victim and told her not to tell anyone. He made a specific reference to a girl who was taken from her bedroom, raped and killed and said that if the victim talked, the same thing would happen to her. While making threats, the juvenile held a real gun to the victim's face and a knife to her throat. The sexual assaults and threats continued for about three and one-half years until the victim "got really sick of it."

At 9 p.m. on Easter Sunday in 1994, the victim, then age nine, cried out for her mother from her bedroom. The victim told her mother that the juvenile had touched her. When A.B. asked for clarification, the victim said, "in my private parts." Out of fear and anger, the victim gave her mother scant information about the pattern of sexual assaults.

The mother went back to her bedroom and told her husband, the victim's father, what the victim said. With some prompting by his father, A.A. admitted that he had observed the juvenile on top of the victim in bed. After the victim repeated to her father that the juvenile touched her, they all went next door to confront the juvenile's parents.

The juvenile's parents did not believe the victim. They called the juvenile downstairs. Everyone tried to persuade the victim to describe what the juvenile had done to her, but she was afraid the juvenile would retaliate against her and she refused to discuss the assaults. After Easter Sunday of 1994, A.B. stopped allowing J. to look after her children.

A few days later, the victim and her parents went to the Hazlet Township police station. At the police station the victim refused to talk. Her parents decided not to file a complaint until they found out more details. The officer instructed the victim's parents that they could come back at anytime and press charges. From this point forward, contact with the juvenile's family was limited to inadvertent and infrequent encounters. The victim continued to feel "horrible." On one occasion, while the victim was driving by the juvenile in her car, he said something to the effect of "[I] wouldn't have done it to [you] if [I] knew [you would turn] out a different way."

In November 2005, a little more than ten years after the victim first reported the sexual assaults to her parents, she was working at Ulta, a cosmetics store. The juvenile entered Ulta and asked the victim for help, but she promptly refused. The victim's encounter with the juvenile "brought [] emotions back from [when she] was little" and made her cry. Shortly thereafter, the victim and her mother, father and boyfriend, S. celebrated Thanksgiving at their home in Hazlet. The victim was "pretty depressed" that night. To everyone, she appeared extremely agitated. The victim's demeanor sparked an argument with her father and, without eating Thanksgiving dinner, the victim got into her car and "took off." When the victim returned home later that evening, she told her mother she had been acting unusual because of her chance encounter that day with the juvenile. The victim's father must have overheard their conversation, because he went next door and started yelling.

Subsequently, the victim went to the Monmouth County Prosecutor's Office to reopen the case. During an interview, A.G. told Monmouth County Prosecutor's Office Detective Ellen Cannon that the alleged inappropriate touching could have occurred while he was wrestling with the victim. When asked what he would like to see happen as a result of the investigation, the juvenile said he "would just like it to be over with and move on from it."

II.

We conclude that under our standard of review in a non-jury proceeding there was sufficient credible evidence to sustain the judge's findings beyond a reasonable doubt.

Appellate review of a judge's decision in a non-jury case is limited. State v. Johnson, 42 N.J. 146, 161 (1964). See R. 1:7-4. The aim of this limited review is to determine whether the trial judge's findings could reasonably have been made on sufficient credible evidence present in the record. Johnson, supra, 42 N.J. at 162; State v. Breslin, 392 N.J. Super. 584, 589 (App. Div. 2007). In evaluating the evidence, appellate courts must defer to a trial judge's credibility findings because they "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999); Johnson, supra, 42 N.J. at 161; State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). When the reviewing court is satisfied that the findings and result are based on sufficient credible evidence, "its task is complete and it should not disturb the result, even [if] it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162.

III.

Pursuant to N.J.S.A. 2C:14-2(a)(1), "An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under" the age of thirteen. Pursuant to subsection (c)(1) of the same statute, "An actor is guilty of sexual assault if he commits an act of sexual penetration with another person . . . and uses physical force or coercion, but the victim does not sustain severe personal injury." N.J.S.A. 2C:14-1(c) defines sexual penetration as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction." The statute says that the "depth of insertion shall not be relevant as to the question of commission of the crime[.]" See N.J.S.A. 2C:14-1(c).

Here, the victim testified that on many occasions starting when she was age six, the juvenile performed acts of sexual penetration. Specifically, the victim testified that the juvenile put his penis in her mouth, and described an incident that took place in the juvenile's locked bedroom. The victim also testified that the juvenile would hit her and said he would kill her if she made noise during the sexual assaults. He also threatened the victim with a knife and gun. After hearing the testimony of all the witnesses, Judge McGann concluded that the juvenile did put his penis in the victim's mouth, and such conduct constituted fellatio in violation of the statute. Judge McGann also found that the juvenile forced and coerced the victim to perform fellatio.

The juvenile attacks Judge McGann's credibility findings by asserting they "necessarily implied that every person who alleges she was a victim of sexual assault is telling the truth because no one would make up such things." Judge McGann's findings were based on specific evidence in the record. He reached his decision after hearing the testimony and observing the demeanor of all the witnesses over the course of the trial. Locurto, supra, 157 N.J. at 474; Johnson, supra, 42 N.J. at 161; Cerefice, supra, 335 N.J. Super. at 382-83.

For example, Judge McGann found the victim's testimony "quite descriptive" and emphasized that her answers were "not evasive." He found that there were "very few discrepancies" in her testimony. Judge McGann found that the victim was not motivated by criminal charges against her father by the juvenile's family to "manufacture" a retaliatory story. He stated that he "believe[d] the victim] was in fear during this period of time" because there was a gun and knife pointed at her by the juvenile and that was the reason she did not come forward sooner. Finally, Judge McGann acknowledged that the "credible" testimony of A.A., the victim's brother, corroborated her account and contradicted the juvenile's.

In contrast, Judge McGann observed that the juvenile "ha[d] a great deal at stake" and his testimony was "contradicted somewhat by the detective." The judge also relied upon A.G.'s statement to the victim, "If I knew you were going to turn out this way, I wouldn't have done those things to you." The juvenile's admission that he may have touched the victim inappropriately while wrestling was also a factor in Judge McGann's decision.

In attacking the victim's credibility on appeal, the juvenile makes much of the victim's "false allegations" regarding V.G. More than once during the trial, the victim admitted that when she was nine she could have misinterpreted what occurred between the juvenile and V.G. Judge McGann had the benefit of observing both her allegation and her explanations before affording it the appropriate weight. Locurto, supra, 157 N.J. at 474; Johnson, supra, 42 N.J. at 161; Cerefice, supra, 335 N.J. Super. at 382-83. This court does not have this advantage. This advantage explains the deferential standard of review which controls this court.

The juvenile also challenges Judge McGann's findings by stressing the "lack of physical evidence" or eyewitness testimony. Physical evidence or testimony from eyewitnesses is not necessary to support a finding of guilt in a sexual assault case. As stated by the Supreme Court:

Acts of child sexual abuse are seldom committed in the presence of anyone other than the perpetrator and the victim. Frequently, there is no visible physical evidence that acts of sexual molestation have occurred. Absent a confession, the victim's account of the sexual abuse may be the best and sometimes the only evidence that a sexual assault has taken place. [State v. D.R., 109 N.J. 348, 358-59 (1988)].

Here, the State presented credible testimony of the victim and of A.A., who corroborated the victim's allegations. This testimony was sufficient, if believed, for Judge McGann to find the juvenile guilty of the offenses charged. The juvenile has not met his burden on appeal to establish that there was insufficient evidence to support the fact-finder's adjudication of guilt. State v. Trotman, 366 N.J. Super. 226, 235 (App. Div. 2004). We will not "disturb the result" reached by the trial judge and affirm the adjudication. Johnson, supra, 42 N.J. at 162.

IV.

Pursuant to N.J.S.A. 2C:14-2(b), "An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." Sexual contact is defined as the intentional touching by the victim or actor either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually or sexually gratifying the actor. See N.J.S.A. 2C:14-1(d).

Here, the State urges that the evidence presented clearly supported a conviction of at least two counts of sexual assault. The juvenile can be found guilty of two separate charges of sexual assault because, on the same day he touched the victim's breasts and vagina, he later forced her to perform fellatio on him. Separate facts support each offense of sexual assault. Furthermore, there were separate offenses insofar as the "victim suffered separate and distinct indignities," even though the episodes were close in time. State v. Faction, 206 N.J. Super. 532, 539-40 (App. Div. 1985).

Viewing the evidence in the light most favorable to the State, a reasonable inference can be drawn that the juvenile did not commit the acts of sexual assault on the victim out of curiosity, State ex rel. G.B., 365 N.J. Super. 179, 185 (App. Div. 2004), or inadvertently while wrestling, because of the frequency of the sexual contact. The victim testified that the juvenile made sexual contact through touching her vagina and breasts on numerous occasions. According to the victim, after the juvenile engaged in sexual contact with her, he would usually run to the bathroom. Once he did not run to the bathroom, he ejaculated on her T-shirt. From this testimony, one can infer that the juvenile's purpose was sexual gratification. See N.J.S.A. 2C:14-2(b).

In his decision, Judge McGann found that the juvenile "touch[ed the victim] in the areas of the vagina and [her] breast and other areas." Based on the victim's credible testimony, there was sufficient evidence to find the juvenile guilty of sexual assault. The trial judge's adjudication of delinquency as to Counts Two and Three is affirmed.

An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim by physical force or coercion, but the victim does not sustain severe personal injury. See N.J.S.A. 2C:14-3(b); N.J.S.A. 2C:14-2(c)(1). After hearing the testimony of the victim, Judge McGann found that the juvenile engaged in sexual contact with the victim by forcing her to perform fellatio, touching her breasts and vagina, and threatening her not to scream or tell. For these reasons and those stated in I and II above, there was sufficient credible evidence to support the trial judge's adjudication on Count Four of criminal sexual conduct and endangering, Count Six.

The juvenile in the overall contends that because the judge did not accept his testimony in full about vaginal penetration, genitally or digitally, or anal penetration, the judge had no right to convict the juvenile as described above. We reject this argument. On this record the judge was not required to accept beyond a reasonable doubt every word of the victim's testimony about every single sexual affront alleged in order to adjudicate him delinquent on the counts described.

For example, the judge described instances where he found from the evidence:

She was -- the duty was impressed upon her of waking up [A.G.] every day and that he was a light sleeper and that she had to wake him up hard, that is by shake -- by pushing him. And he said -- her testimony was, he used to grab her and force her onto the bed and used to touch her breasts and vagina and he would try to put his penis in her anus and vagina, but was unsuccessful. She indicated that she tried to scream and he put his hands over her mouth.

and elsewhere the judge found that

The -- she also indicated that [A.G.] would hit her on the legs and the stomach as part of the -- as part of the fear, and also indicated that on one occasion she bit his penis and that he hit her.

The judge was very careful in his findings, giving the juvenile the benefit of the doubt on the claims of vaginal and anal penetration but he had no doubt on the oral penetration claim. The judge said:

The Court is to consider whether an act of sexual penetration took place in this case. Sexual penetration being defined under 2C:14-1(c) has vaginal intercourse, cunnilingus, fellatio, or anal intercourse between persons or insertion of the hand, finger, or object into the anus or vagina either by the actor or the actor's instructions, and depth of the insertion shall not be relevant or the question of time.

It is the testimony of [the victim] that all of those occurred except for the act of cunnilingus. The Court has considered the testimony of both parties in this case. The Court, as to whether sexual -- as to whether the vaginal intercourse or anal intercourse occurred, is the -- as to anal intercourse, the Court is unable to find that that occurred here. The -- there was no testimony that there was actual insertion, and my recollection was that she, [the victim] insisted that -- or not insisted, I should say testified that he tried to insert his penis in her anus. The -- but she did say that he penetrated her vagina with a finger more than once and with the -- and with his penis more than once.

As to those, the Court, it would seem that there would be some sort of evidence of bleeding or more severe pain in this case. The Court believes that there may have been some -- may have been some attempts, but I am unable to determine from the evidence whether -- whether there was actual insertion or not. That would leave with the Court with whether there is -- whether there was any act of fellatio that occurred.

Fellatio under -- and I should note that the testimony was that the -- that the sex occurred on a regular basis. Under State v. C.H., 264 N.J. Super. 112, fellatio. Fellatio is the practice of obtaining sexual satisfaction by oral stimulation of the penis. Certainly if one were to stick a penis -- in this case if he were to stick his penis in her mouth, that would be -- that would be under the statute. That would qualify as aggravated sexual assault. The Court has considered all of the testimony with regard to that. I find that the victim's testimony was quite descriptive as to that. She said that he --he had -- he put his penis in her mouth and she was able to see it and -- and that on one occasion she bit it.

The judge found the victim's testimony in the overall "not evasive" with "few discrepancies" and those which did exist were "not significant." In contrast, the judge concluded that the juvenile's general denial testimony was unimpressive and unconvincing.

We affirm on Counts One, Two, Three, Four and Six. We reverse on Count Five (lewdness) and vacate that sentence. The disposition is otherwise undisturbed.

Affirmed, as modified.

20080606

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