On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-01272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges A. A. Rodríguez, C. S. Fisher and C. L. Miniman.
These appeals, which we have calendared back to back, arise from a single indictment that resulted in two trials. The indictment charged defendant D.K., a police officer, with several counts of endangering the welfare of A.D., a fourteen- year old girl, and two counts of sexual assault against B.D., defendant's fourteen-year old stepson. The first jury convicted defendant of the counts pertaining to A.D., which were: second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4b(3) and -4b(4) (counts one and two); third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a (count three); and second-degree official misconduct, in violation of N.J.S.A. 2C:30-2 (count four). The jury could not reach a verdict on two other counts of the indictment pertaining to B.D., which were: first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a (count five); and second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c (count six). At the second trial, the jury convicted defendant of counts five and six.
Following merger of convictions, defendant was sentenced to an aggregate term of seventeen years with a six-year parole disqualifier, mandatory fines and penalties, community supervision for life, full compliance with Megan's Law*fn1 and forfeiture of his public office. We now reverse all convictions.
ALLEGATIONS CONCERNING A.D.
Defendant, responded to the residence of A.D. to investigate a complaint of theft of a friend's camera. While speaking with the complainant and A.D.'s mother, defendant commented that A.D. was beautiful. Subsequently, defendant made a number of visits to the home to socialize with A.D.'s mother. On several occasions, defendant was on duty when visiting A.D.'s mother. Eventually defendant and A.D.'s mother began a sexual relationship. Defendant professed to be an amateur photographer, showing A.D. and her mother various photographs that he had taken. According to A.D.'s mother, it was defendant who offered to photograph A.D. Defendant took several photographs of A.D., photographs which eventually formed the basis of counts one through four of the indictment. A.D.'s mother testified that it was always defendant who directed A.D. how to pose and that on occasion he would even buy A.D. lingerie to wear during the photo shoots.
A.D. and her mother both testified that at one point during a shoot, A.D. took her panties off at the request of defendant. A.D. testified that another time defendant told her to lose her bra because it looked "stupid." Many of the photographs entered into evidence depict A.D. topless and without panties, however in none are her bare breasts completely showing. On another occasion, defendant took photographs of both A.D. and her mother together. Defendant compiled all of the photographs in a binder.
A.D.'s mother testified that on Palm Sunday, 2005, defendant asked if he could take more photographs of A.D. When she refused to allow it, defendant became angry. On another occasion, A.D.'s sister saw her mother and A.D. showing off some of the photos taken by defendant. She told her mother that she "didn't think it was right" the way A.D. was posing.
A.D.'s stepmother testified that she was "shocked" by the photographs she saw of A.D. topless. She immediately brought the matter to the attention of A.D.'s father. He saw the photographs and contacted the Division of Youth and Family Services, which in turn referred the matter to the Middlesex County Prosecutor's Office. About one month later, the Prosecutor's Office received a second referral from the Division. This one was regarding defendant's stepson B.D. B.D. alleged that defendant sexually abused him approximately eight years earlier when he was a minor.
Defendant testified at the first trial that it was A.D.'s mother who asked him to take photographs of her daughter after he had shown her some photographs he had taken of his own daughter. According to defendant, A.D.'s mother was hoping to use the photographs to persuade A.D. to lose weight. A.D. was anxious about having her picture taken because she wanted to be a model. Defendant testified that he never claimed to be a professional photographer, although he did own professional equipment. He denied ever having bought A.D. lingerie.
Defendant testified that the photographs in no way sexually excited him and that he never told A.D. to touch her breasts during the shoots, except to cover them. He did admit that on one occasion A.D. came out topless and he did tell her to cover up. He denied that A.D.'s vagina was ever exposed. Defendant testified that he never kept any of the photographs or any computer discs of the photographs.
Sometime after the final photo shoot, defendant and A.D.'s mother began a sexual relationship. During their sexual encounters, defendant took photographs at the request of A.D.'s mother.
ALLEGATIONS CONCERNING B.D.
B.D. testified at the first trial that he was nine-years old when his mother married defendant. Defendant began engaging in sexual touching, and then intercourse, with him when he was fourteen years old until he was seventeen years old. According to B.D., on one or two occasions defendant would take photographs of him when he was nude and erect. Defendant would direct B.D. how to pose before each photograph, such as telling him to look a certain way or to place his hand on his penis.
B.D. said that defendant never took photographs of him while they were engaged in sexual activity.
At the second trial, Middlesex County Prosecutor's Investigator Raj Chopra testified that in May 2005, defendant was under investigation by his office. However, he did not testify as to why or the nature of the other allegations. Chopra said that his office received a referral from Woodbridge Police that defendant had sexually abused B.D.
B.D.'s girlfriend testified for the State at the second trial. According to her, B.D. confided in her during their relationship that defendant had sexually abused him. B.D. disclosed this information to her almost six years prior to trial, but she did not tell the police or anyone else because she was afraid of defendant. She could not recall any details of the allegations.
B.D. testified at the second trial. He explained how he lived with defendant and while growing up defendant acted as the father-figure in the home. B.D. described how defendant treated him like an outcast, throwing him out of the house every day "to play with [his] friends." He said "it was like [defendant and B.D.'s mother] wanted nothing to do with [him]."
According to B.D., the first incident was when defendant and B.D.'s mother approached him. They told B.D. that defendant was going to teach B.D. how to use a condom. According to B.D., defendant told him to get naked and then masturbated him. B.D. and defendant then performed oral sex on one another. B.D. testified that he never told anyone about what happened because he was scared of defendant and was afraid no one would believe him.
B.D. described a number of subsequent sexual encounters between him and defendant, including oral and anal penetration. The abuse stopped when he was seventeen. B.D. explained that the only people who he told were his sister, who died in 2001, and his girlfriend. He did not tell the police until May or June, 2005, when he learned that there was an investigation of defendant regarding the abuse of A.D.
Anthony D'Urso, Ph.D., an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS) testified for the State. He opined that B.D. likely waited so long to come forward because he was suffering from symptoms of CSAAS. He testified as to the specifics of CSAAS. He had not interviewed B.D.
Defendant testified at the second trial consistently with his testimony at the first trial. Defendant's wife and several character witnesses testified for the defense.
On appeal from the first trial convictions (A-3688-06T2), defendant raises the following contention:
THE TRIAL JUDGE ABUSED HIS DISCRETION IN REFUSING TO SEVER THE COUNTS OF THE INDICTMENT RELATING TO A.D. FROM THE COUNTS RELATING TO B.D., THEREBY DENYING DEFENDANT A FAIR TRIAL.
A trial court's decision not to sever counts of a single indictment is a discretionary one "and we defer to that decision absent an abuse of discretion." State v. Urcinoli, 321 N.J. Super. 519, 541 (App. Div.), certif. denied, 162 N.J. 132 (1999). "Denial of such a motion will not be reversed in the absence of a clear showing of a mistaken exercise of discretion." State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002).
Rule 3:7-6 permits the joinder of two or more offenses in a single indictment when the offenses "are of the same or similar character or are based on the same act or transaction" or are part of a continuing scheme. A defendant may seek severance when joinder is potentially prejudicial. R. 3:15-2(b). Because of the highly prejudicial nature of other-crimes or wrongs evidence, a court should not take such a motion ...