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State ex rel R.D.

January 22, 2009

STATE OF NEW JERSEY IN THE INTEREST OF R.D.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FJ-20-1063-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2008

Before Judges R. B. Coleman, Sabatino and Simonelli.

Following a five-day bench trial, a Family Part judge convicted defendant R.D., a juvenile, of first-degree aggravated sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14-2a(1) (count one); and first-degree sexual assault of a victim aged thirteen to sixteen related by blood or affinity to the third-degree, N.J.S.A. 2C:14-2a(2)(a) (count two). The judge sentenced R.D. to two concurrent three-year terms of specialized probation and imposed the appropriate fines. The judge ordered R.D. to complete a psycho-sexual therapy program and to have no contact with the victim. The judge also ordered a restitution study for the victim's out-of-pocket therapy expenses. R.D. is subject to Megan's Law, N.J.S.A. 2C:7-1 to -19, and must provide DNA and fingerprint samples.

The following facts are summarized from the record. In 1999, the victim, T.W., and her mother moved into a home owned by R.D.'s father, C.V., a police officer and the mother's fiancé. Shortly thereafter, R.D., who also lived in the home, entered T.W.'s bedroom in the middle of the night while everyone was asleep and touched her buttocks and breasts over her clothes. Less than a month later, R.D. began repeating these acts every night. On a number of occasions, he tried inserting his penis into T.W.'s mouth, but she resisted by keeping her mouth closed.

One night, R.D. entered T.W.'s bedroom and pulled down her pants. Attempting to stop R.D., T.W. tried to pull her pants back up. However, R.D. held T.W.'s arms down with his hands and knees and anally penetrated her. R.D. was twelve years old at the time and T.W. was nine.*fn1

T.W. complained to her mother that R.D. was coming into her room late at night and touching her buttocks and breasts. She also complained that he had pulled down her panties. She did not reveal the anal penetration because she "wanted it all to go away and [] didn't want anything bad to happen."*fn2 She did not tell C.V. because she felt he would not believe her. However, T.W.'s mother told C.V. that R.D. and T.W. were "inappropriately touching or feeling on each other." C.V. and T.W.'s mother counseled R.D. that T.W. was "his sister and that, [] they shouldn't be touching on each other." They also took R.D. to their minister for further counseling and gave R.D. "a whooping."

T.W.'s mother and C.V. married on October 6, 2000. Thereafter, T.W. called C.V. "dad," she regarded R.D. as her brother and she told her friends that he was her brother. Also, C.V. regarded T.W. as his daughter, and described problems between R.D. and T.W. as "regular sibling arguments." T.W.'s mother regarded R.D. as her son.

Every day after the wedding, R.D. entered T.W.'s room at night and touched her buttocks and breasts under her clothing. Numerous times R.D. tried inserting his penis into T.W.'s mouth, but she resisted by keeping her mouth closed.

C.V. filed a divorce complaint in or about February 2004, and moved from the home in May 2004. R.D. joined his father sometime thereafter. However, R.D. sometimes slept at the home, and on those occasions, he entered T.W.'s room and touched her buttocks and breasts under her clothes. He also tried inserting his penis in her mouth, but she resisted by keeping her mouth closed.

In October 2005, C.V. and T.W.'s mother began "working on getting [their] family back together." In connection with this reconciliation attempt, C.V. and R.D. slept at the home on October 10, 2005. That night, and again two nights later, R.D. entered T.W.'s bedroom and pulled down her pants. Attempting to stop R.D., T.W. tried to pull her pants back up. However, R.D. held T.W.'s arms down with his hands and knees and anally penetrated her. T.W. did not report the incident because she was scared. R.D. was seventeen years old at the time and T.W. was fourteen.

On October 20, 2005, R.D.'s friend, T.H., approached T.W. during lunchtime at school and allegedly asked her in front of other students how she felt being molested by her brother. T.W. reported this to her mother, who later called the police. T.W. then told her mother that R.D. had never stopped touching her after her first report ...


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