On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-02-0100.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges A. A. Rodríguez and C. S. Fisher.
Following a jury trial, defendant W.H. was found guilty of first-degree aggravated sexual assault of his fourteen-year-old stepson "J", N.J.S.A. 2C:14-2a (count 1); second-degree sexual assault, N.J.S.A. 2C:14-2c (count 2); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count 3). Judge Timothy G. Farrell merged counts 1 and 2 and imposed a twenty-year term with a NERA*fn1 parole disqualifier, parole supervision for life and five years mandatory parole supervision. The judge also ordered that defendant comply with Megan's Law*fn2 registration and notification requirements. On count 3, the judge imposed a concurrent ten-year term as well as parole supervision for life, five years mandatory parole supervision and compliance with Megan's Law requirements. We affirm.
The relevant State's proofs can be summarized as follows. Defendant lived with his wife and her five children. Defendant is the father of two of these children and the step-father to the other three. Defendant's wife worked nights and defendant worked days. On July 21, 2004, the wife worked the 11:00 p.m. to 7:00 a.m. shift. As per her usual practice, she called the home several times during the night, but on this particular night no one answered. She arrived home around 7:20 a.m. on July 22 and took a nap. Defendant was not home. When she got up, she telephoned her mother and mentioned that it was strange that no one answered the telephone during the night. One of her daughters, "V," overhead her mother and explained that around 6:00 a.m., while going to wake up her siblings, she opened the door and saw defendant with his boxers down and his buttocks exposed, standing in front of a couch. J was sitting on the couch, directly facing defendant's groin area. Upon noticing V, J quickly laid down. Defendant looked "like he was about to run." Shocked by what she saw, she immediately closed the door.
After V told her mother this, the mother spoke with J. J eventually testified that on the morning of July 22, he was awakened by V entering the room and there was defendant with his pants down standing over him. J explained to the jury that since September 2003 he had a sexual relationship with defendant, which he described as "like having sex - relations." He elaborated that the acts included anal sex and on each occasion defendant would "actually go inside" and "penetrate" him with his penis. J would not always "accept it" and defendant would leave the room. According to J, defendant put his penis in J's mouth "about 30 times." On some of these occasions, defendant actually ejaculated in J's mouth. On one occasion, J said that defendant pinned his hands down "so I couldn't do nothing" and penetrated him. These sexual attacks occurred most Saturdays when J would stay at his mother's home. J testified that while the sexual attacks were occurring, his mother was either in her bedroom sleeping or at work.
J explained that he did not scream during such attacks or tell anyone about them because he was afraid. Defendant was the disciplinarian in the home and often employed corporal punishment.
Defendant's wife called her mother and then the police. That same morning, Vineland Police Officer Dwight D. Adams went to defendant's residence and interviewed J and his mother. He then requested and received a warrant for defendant's arrest. Adams, along with Officer Robin Green, arrested defendant at his place of employment.
Vineland Police Detective Shane Harris interviewed defendant after reading him the Miranda*fn3 warnings. Defendant chose to not give a taped statement, but told Harris that he wanted to tell the truth and that his step-daughter, V, had not lied. He said that he "didn't want to put his children through this confusion anymore." Defendant admitted that he had oral sex with J on at least six occasions. On some of these occasions, defendant said he would be sleeping when J began performing oral sex on him and on one occasion he remembers kicking J away in an attempt to get him to stop. Regarding anal sex, defendant initially denied having engaged in it with J, but when asked again, responded "[I] didn't see how that could do [me] any good."
Regarding the incident on July 22, defendant told Harris that he was sleeping and that J came into defendant's room. The two went into J's room. Defendant stood in front of J, pulled his pants down slightly and placed his penis in J's mouth. Then defendant heard V enter the room and he immediately pulled up his pants, left the house and went to work.
Defendant testified at trial. Prior to testifying, defendant requested that he be able to discuss the fact that J is a homosexual. Judge Farrell properly ruled that J's sexual orientation was not at issue. Nor could defendant indicate that J had consented because consent was not a defense available to the defendant. The judge also denied defendant's request to discuss J's juvenile record*fn4 and defendant's motion to suppress his statement to the police.*fn5
According to defendant, on July 21 he fell asleep after playing video games and waiting for his wife's telephone call.
J then sexually assaulted defendant the following morning while defendant slept. Defendant testified that V was lying. He did not know why any of his children would make such allegations. As to why he was standing in front of J when V walked in the bedroom, defendant gave the following "explanation" to the jury:
Well, I went into the TV room where [J] was and I was angry at [J], very upset at [J]. And my intention was - was to teach [J] a lesson because of what he was doing to me in my sleep, you know, while I was trying to get rest.
And to be discrete and appropriate, I intended to urinate in [J's] face because I was angry, but still, on the same hand, intended to show [J] love and concern so that he would gain genuine contrition ...