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State ex rel K.K.

October 30, 2008

STATE OF NEW JERSEY IN THE INTEREST OF K.K.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-2516-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 8, 2008

Before Judges Parrillo and Messano.

Defendant, K.K., appeals from the Family Part's final dispositional order that 1) adjudicated him delinquent, having committed fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; 2) imposed a sentence of concurrent eighteen-month probationary terms with specific conditions and financial penalties; and 3) required defendant to register pursuant to Megan's Law, N.J.S.A. 2C:7-2.

K.K. raises the following issues for our consideration:

POINT I K.K.'S CONVICTION OF FOURTH-DEGREE CRIMINAL SEXUAL CONTACT AND THIRD-DEGREE ENDANGERING THE WELFARE OF A CHILD MUST BE VACATED. THE FORMER CHARGE MUST BE DISMISSED WITH PREJUDICE AND THE LATTER MUST BE MODIFIED TO A CONVICTION OF FOURTH-DEGREE LEWDNESS.

A. None Of The Elements Of Fourth-Degree Criminal Sexual Contact Were Established.

B. The Court Failed To Find All Of The Elements Of The Third-Degree Crime Of Endangering The Welfare Of A Child.

C. Based On The Court's Findings Concerning K.K.'S Conduct He Could Not Have Been Found Culpable For Anything Other Than Fourth-Degree Lewdness.

POINT II THE DOCTRINES OF DOUBLE JEOPARDY AND OF FUNDAMENTAL FAIRNESS REQUIRE THAT UPON DISMISSAL OF THE CHARGES OF CRIMINAL SEXUAL CONTACT AND THIRD-DEGREE ENDANGERING THE WELFARE OF A CHILD, THE STATE MUST ALSO BE BARRED FROM RETRYING THE JUVENILE IF PROSECUTION IS TO BE BASED ON THE SAME CONDUCT. (Not Raised Below).

A. Regarding The Charge Of Criminal Sexual Contact The Doctrines Of Double Jeopardy And Of Fundamental Fairness Preclude A Second Prosecution Of The Juvenile Based On The Same Facts.

B. Regarding The Endangering Charge The Doctrines Of Double Jeopardy And Of Fundamental Fairness Preclude A Second Prosecution Of The Juvenile Based On The Same Facts.

POINT III THE COURT VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND TO PRESENT A DEFENSE BY PRECLUDING HIM FROM PRESENTING EVIDENCE OF SPECIFIC INCIDENTS OF THE COMPLAINANT'S UNTRUTHFULNESS AND OF HER BIAS AGAINST HIM.

POINT IV THE IMPROPER ADMISSION OF THE INTERVIEWING OFFICER'S HEARSAY TESTIMONY AND THE CHILD'S UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING ALLEGED SEXUAL ABUSE DENIED DEFENDANT THE RIGHT TO CONFRONT WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal standards. We reverse the adjudication of delinquency as to the charge of criminal sexual contact, vacate the sentence imposed, and remand for the entry of an order dismissing that charge. In all other respects, we affirm.

I.

Defendant, who was thirteen years old at the time, lived with his mother, D.K., in the same residential complex as, but approximately three blocks away from, the alleged female victim, A.V., who was eight years old. A.V. lived with her mother, D.P., and her mother's fiancé, N.Z., who is also D.K.'s son. N.Z. and K.K. are half-brothers, and A.V. referred to defendant as her uncle.

Before trial commenced, the State advised that pursuant to N.J.R.E. 803(c)(27), it intended to introduce various statements that A.V. allegedly made to a number of people. It was agreed that procedurally the judge would conduct a Rule 104 hearing to determine the admissibility of the statements before the actual trial testimony commenced.

D.P. testified that during the fall of 2005, she was pregnant and, because it was a "high-risk pregnancy requiring bed rest," A.V. would occasionally spend the night at D.K.'s home. In January 2006, A.V.'s school counselor called and told D.P. that one of A.V.'s classmates claimed that A.V. told her that defendant was trying to have sex with her. D.P. confronted A.V. when she came home from school that afternoon, and the child acknowledged that defendant had "touch[ed] her in [her] private," pointing to her vaginal area. A.V. also told her mother that K.K. tried to "pull her panties down," "put his fingers into her vagina," and asked "why don't you kiss my private and I'll kiss yours . . . ." A.V. resisted, however, "pushing [K.K.] off, telling him not to do that." A.V. described to her mother how K.K. had masturbated in front of her.

D.P. acknowledged that A.V. could not "give [her] any definitive dates or times," though the child insisted one of the incidents occurred on September 24, 2005, the night of D.P.'s baby shower. On that occasion, after the party was over and everyone returned to D.K.'s home, K.K. approached A.V. in an upstairs bedroom and asked whether she wanted him "to put [his] private in [her] private." A.V. refused and K.K. left. On cross-examination, D.P. testified that according to A.V., the "baby shower [incident] was the last incident that occurred," and that the other events happened on two occasions prior to September 24, 2005. After hearing about these incidents from her daughter, D.P. immediately called the police.

A.V.'s friend, C.D., who was eleven years old at the time of trial, testified that A.V. told her and other friends, that "a boy in her [apartment] complex . . . put his private in her private and white . . . stuff [came] out of his." C.D. claimed that A.V. did not tell her when this occurred. C.D. was confused about where A.V. said this had happened, first telling investigator George Trillhaase from the prosecutor's office it happened in A.V.'s backyard, but later testifying that A.V. told her it happened in D.K.'s bedroom. C.D. told her mother about the conversation on the day it happened, but her mother did not believe anything had actually occurred between A.V. and the unnamed boy.

On cross-examination, C.D. acknowledged that she thought A.V. "was joking" about the incident because "she didn't look afraid, she didn't look worried. She just looked like she was trying to impress her friends [by] saying it out loud." C.D. claimed the conversation with A.V. took place "before school started," i.e., prior to September 2005.

Trillhaase interviewed both A.V. and D.P. on January 18, 2006, and recorded A.V.'s interview on a digital video disc that was played for the judge.*fn1 A.V. told Trillhaase that what defendant "did to [her]" "happened three times," and that the first "time was [after] [her] mom's shower." A.V. said she fell asleep and when she woke up [defendant] was right in [her] face." She "told him to get out because he was touching [her] private part" underneath the underwear she had on. After telling Trillhaase there were "[t]wo more" incidents, A.V. stated "I forgot, I just forgot both of them." A.V. told Trillhaase she "want[ed] to ask [her] mom," but the investigator continued to engage A.V. in conversation without interrupting the interview.

A.V. then recalled a second incident with defendant that occurred in D.K.'s bedroom, but she could not remember any specific details. A.V. recalled a third occasion, when she and defendant were in D.K.'s bedroom, and she was on the bed watching television. Defendant had his pants down, and A.V. described how he masturbated and she saw "white stuff" come out of his "private." After playing A.V.'s recorded statement, the State rested for purposes of the N.J.R.E. 104 hearing.

Defendant called his mother as his sole witness at the preliminary hearing. D.K. testified about the strained relationship she had with D.P., who she believed had become pregnant in hopes of "trapping" her son, N.Z., into marrying her.

Defense counsel argued that A.V.'s statements to Trillhaase, D.P., and C.D. should not be admitted into evidence for a variety of reasons that we discuss in greater detail below. The judge disagreed. Thereafter, the State and defendant stipulated to the admission of the testimony adduced at the N.J.R.E. 104 hearing, and the State called A.V. as its sole additional witness.

When asked in open-ended fashion to tell the judge about what had happened, A.V. testified that defendant "touched [her] and [] tried to put his private in [her] private." The following ...


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