On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-2042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Parker and LeWinn.
Defendant R.P. appeals from a judgment of conviction entered on May 25, 2007 after a jury found him guilty of four counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and four counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. After the second degree counts were merged into the first degree counts, defendant was sentenced to four consecutive terms of eighteen years for an aggregate term of seventy-two years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The facts relevant to this appeal are as follows. On the night of July 7, 2005, defendant's wife, G.G., awoke and heard sounds coming from their fourteen-year-old daughter's bedroom. G.G. found defendant having sexual intercourse with the girl on her bedroom floor. The girl was blindfolded and believed that "spirits" had come to her through the night as defendant had told her they would during their morning runs.
After interrupting defendant's conduct with the girl, G.G. took the girl into her bedroom, locked the door and called the police and a family member. Defendant threatened suicide and fled.
The police arrived and interviewed the girl, who was transported to the hospital for a sexual assault examination. Numerous injuries to the girl's genitals were noted and a DNA test confirmed that semen in the child's vagina and cervix was defendant's.
During interviews with investigators, the girl stated that defendant had sexually penetrated her on at least four occasions and possibly as many as twenty times beginning in June 2005. The girl stated that she had been grounded for the summer because she was communicating with a boy and defendant told her that if she did as the "spirits" told her, her punishment would be taken away. All of the sexual assaults occurred while the girl was blindfolded and lying on the floor.
Defendant was located and arrested shortly thereafter. During an interview with investigators on July 8, 2005, he was advised of his Miranda*fn1 rights and reported to the investigators that he had been working with his daughter "spiritually" for a period of time. He reported that he was afraid the girl would have sex with an eighteen-year-old boy she had met on the internet, so he allowed the "spirit" to use his body to communicate with the girl. He acknowledged that the first assault occurred in June 2005. He indicated that a second "spiritual" episode occurred a few days later and that the third and fourth incidents occurred because he believed the "spirits" were good for the girl and would make her more "mature" for a beauty pageant she was entering.
During her interviews with the police, the girl expressed concern that her father would be in trouble and that her family would be sent back to Chile. Nevertheless, she gave graphic accounts of the assaults.
Prior to trial, defendant was evaluated for competency to stand trial. Christine Joseph, Ph.D., performed the evaluation and determined that defendant was competent to assist in his defense and stand trial. During the evaluation, defendant stated that he was a "medium" who works with "spirits" and was acting on his own beliefs as to what was appropriate for his daughter. The trial court found him competent.
Defendant testified at trial about his interaction with the "spirits." He denied sexual contact with his daughter, stating, "[i]t's impossible for a spirit to have sex with a human being." He claimed "that she had had sex with the spirit while using my body." He acknowledged that he ...