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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 prior to the wedding. T.W. later admitted that R.D. had penetrated her with his penis.
T.W.'s mother told C.V. what had happened. Upon C.V.'s questioning, R.D. initially denied that anything inappropriate had occurred. However, after C.V.'s persistent questioning, R.D. admitted that he and T.W. "were fooling around with each other[,]" and "were grinding on each other, feeling each other." After C.V.'s further questioning and threats to deprive R.D. of his television, video games and cell phone, R.D. finally admitted that he and T.W. were "dry humping" and that he had anally penetrated her with his penis in 2004 and 2005. He also admitted touching T.W.'s buttocks and breasts. He claimed that the sexual contact was consensual.
Regarding the pre-October 2000 sexual penetration, R.D. contends for the first time that he is not legally responsible for the alleged anal penetration because: (1) R.D.'s and T.W.'s ages precluded a finding that either of them were capable of legally consenting to sexual penetration; and (2) there is no proof that he was capable of forming a knowing awareness of the symbolic nature of the actus reus of anal penetration. As to the post-October 2000 sexual penetration, R.D. contends for the first time that his conviction must be reversed because there is no legal definition of the statutory term "affinity to the third degree."
After the presentation of evidence, the judge questioned whether the sexual contact between R.D. and T.W. was consensual. Contrary to R.D.'s argument, the judge never concluded that consensual sexual activity occurred here. Rather, the judge found consent irrelevant under N.J.S.A. 2C:14-2a(1), concluding that the statute only requires proof that the act of sexual penetration occurred and that the victim was less than thirteen years old. The judge also found that R.D. and T.W. were related by affinity to the third degree because C.V. and T.W.'s mother were still married when the post-October 2000 anal penetrations occurred.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. We must uphold the trial court's factual findings "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted). We will not change the trial court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side." Johnson, supra, 42 N.J. at 162. Rather, we will reverse a trial court's findings only if we are convinced that the judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (citing Johnson, supra, 42 N.J. at 162). "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Applying these standards, we conclude that R.D.'s challenges to the judge's findings on the pre-October 2000 anal penetration are without merit. We agree that consent is not relevant to a finding of guilt under N.J.S.A. 2C:14-2a(1). All the statute requires is proof beyond a reasonable doubt of sexual penetration with a victim less than thirteen years old. Such proof exists here.
Also, we recognize that knowledge is an element necessary to prove aggravated sexual assault. See In re T.T., 188 N.J. 321, 333-34 (2006). "A person acts knowingly if he or she is aware of the nature of his or her conduct." State v. G.V., 162 N.J. 252, 271 (2000) (citing N.J.S.A. 2C:2-2b(2)). We are satisfied that the evidence proves beyond a reasonable doubt that R.D. was fully aware of and understood the nature of his conduct, and that he knowingly anally penetrated T.W. prior to October 2000. R.D. instigated the sexual contact with T.W. on a daily basis for several months prior to the wedding. He touched her buttocks and breasts and tried to insert his penis into her mouth while she resisted. More importantly, R.D. knew that T.W. resisted his attempts at anal penetration because she tried to stop him by pulling her pants back up. He proceeded anyway. R.D. provided no evidence indicating his incapability of understanding the wrongfulness of anal penetration. See State in Interest of C.P., 212 N.J. Super. 222, 230 (Ch. Div. 1986).
R.D.'s challenge to the judge's findings on the post-October 2000 anal penetrations is equally without merit. Under N.J.S.A. 2C:14-2a(2)(a), a person is guilty of aggravated sexual assault if he commits an act of sexual penetration with a person at least thirteen but less than sixteen years old who is related "by blood or affinity to the third degree." The definition of "affinity" is clear: it means "the relation which one spouse because of marriage has to blood relatives of another." State v. Brown, 311 N.J. Super. 273, 276 (Law Div. 1998) (citing Black's Law Dictionary). Thus, the definition of "affinity" clearly encompasses the relationship of step-brother and step-sister. Id. at 279.
C.V. and T.W.'s mother were still married and in the midst of reconciling, and R.D. and T.W. were still step-brother and step-sister, when R.D. anally penetrated her a second and third time. Accordingly, the trial judge had an ample legal basis to find R.D. guilty beyond a reasonable doubt of aggravated sexual assault under N.J.S.A. 2C:14-2a(2)(a).
Finally, we reject R.D.'s contention, raised for the first time, that his admission of anal penetration should have been suppressed because his father coerced it by threatening corporeal punishment. C.V. admitted that he acted in his role as a parent, not as a police officer, when he questioned his son and obtained the admission. Inculpatory statements elicited by a private individual are admissible as long as they are not obtained through force and threats of force. State v. Marczak, 344 N.J. Super. 388, 396-98 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Contrary to R.D.'s contention, there is no evidence that C.V. used or threatened to use any force or corporeal punishment when he obtained the admission. C.V.'s parental threat to take away certain teenage privileges does not constitute force. The judge was not obligated in these circumstances to conduct a Miranda*fn3 hearing as there was no governmental interrogation.