On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-09-0855.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Simonelli.
A jury convicted defendant R.M. of second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24- 4a (count one); and third degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count two). Judge Waters sentenced defendant to a seven-year term of imprisonment on count one, and a concurrent four-year term of imprisonment on count two. The judge also imposed community supervision for life and the appropriate penalties, assessments, surcharges, and fees.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY RULING THAT "AM" WAS NOT COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601.
POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ADJOURNING THE TRIAL TO PERMIT THE TESTIMONY OF DYFS CASE WORKER MARY BRAWNER COOPER.
POINT III: THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED THE OFFENSES OF ENDANGERING THE WELFARE OF A CHILD AND AGGRAVATED CRIMINAL SEXUAL CONTACT BEYOND A REASONABLE DOUBT, THUS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IV: THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND THE TRIAL COURT FAILED TO CONSIDER MITIGATING FACTORS ON THE DEFENDANT'S BEHALF.
We reject these contentions and affirm.
The victim, B.B., was defendant's thirteen-year-old stepdaughter. At the time of the incident giving rise to defendant's conviction, B.B. lived with defendant, her mother, J.M.,*fn1 her sister, N.B., her seven-year-old half-sister, A.M., and her half-brother, C.M. B.B. testified that one evening in April 2003, she was getting ready for bed when defendant entered her room, which she shared with her sisters. B.B. thought her sisters were asleep in their nearby bunk-bed. B.B. was standing near her bed in pajamas when defendant came from behind, used one hand to grab one of her arms by the wrist, and pulled her arm back behind her,*fn2 placing her hand on top of his shorts and moving it around his genitals "in a circular motion" for a few seconds. As he performed this act, defendant said softly in B.B.'s ear, "You know you want to touch it." B.B. did not scream or yell. She took her hand away and sat on her bed. Defendant then exited the bedroom. B.B. did not immediately tell her mother or sisters about the incident.*fn3 A few days later, B.B. told her maternal grandmother, S.S.; and she told her father, E.B., about two weeks later.
E.B. reported the incident to the police. After a police investigation, defendant was arrested. At trial, defendant claimed that B.B. fabricated the story because she was upset over her parents' decision to ground her for a week over some "graphic" letters she had written to a neighbor's son.
In addition to denying any sexual contact with B.B., defendant sought to portray her as untrustworthy. To do so, he attempted to introduce A.M.'s testimony, alleging that A.M. was awake in the bedroom when the alleged incident occurred and would presumably deny any sexual contact occurred.*fn4 Defendant contends the trial judge erroneously precluded A.M.'s testimony.
We review the judge's evidentiary ruling under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991).
At a hearing, defense counsel questioned A.M. as follows:
Q: Okay. Let me ask you a question. Do you know what tell the truth means?
Q: Okay. If I show you this book here and I tell you that this color -- this is the 2001/2002 Criminal Code Annotated (inaudible) and I tell you that this color is blue up here, would I be telling the truth or not?
Q: Because what color is it?
Q: . . . Now, you know what it means to lie?
THE COURT: Ma'am -- the record will reflect that the child's grandmother was shaking her head yes, as is the Defendant. That's called non-verbal testimony, folks, and if I see it again, you will be removed from the courtroom and you will not be permitted to be in here. . .
Q: Okay. To tell the truth, what does it mean?
Q: So is tell the truth saying things the ...