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State ex rel A.M.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 6, 2009

STATE OF NEW JERSEY IN THE INTEREST OF A.M.L., A JUVENILE.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FJ-08-1747-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2008

Before Judges Collester and Graves.

Juvenile defendant A.M.L., born on September 11, 1993, appeals from an adjudication of juvenile delinquency in the Family Part. We affirm.

Juvenile delinquency complaints charged that in November 2005, A.M.L. committed the following sexual offenses upon A.P., while both were twelve years old: (1) sexual intercourse, constituting aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(4); (2) sexual assault upon A.P., contrary to N.J.S.A. 2C:14-2c(1); (3) aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a), by forcing A.P. to touch his penis while holding a knife to her throat; (4) criminal sexual contact upon A.P., contrary to N.J.S.A. 2C:14-3(b); (5) possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d); and (6) lewdness, contrary to N.J.S.A. 2C:14-4(a). After a four-day trial, the judge rendered a lengthy oral decision in which she concluded that the victim A.P. was a credible witness and that there was "no reasonable doubt" as to A.M.L.'s guilt. We affirm.

In November 2005, the victim, A.P., lived with her mother, W.B. She had visitation with her father, J.P., every other weekend. Since J.P. was involved in a relationship with S.M., A.M.L.'s mother, they would regularly go to S.M.'s residence. At such times, A.P. would visit with A.M.L. and his sister during the day and when she and her father slept over at S.M.'s house. As of November 2005 A.P. was about 5'2" tall and weighed about 130 pounds while A.M.L. was 4'10" or 11" tall and weighed about seventy-five pounds. A.P. testified that when she was eleven, A.M.L. would try to touch her on her breasts or vaginal area and ask her to touch his penis. The first incident occurred when they were playing video games in A.M.L.'s room.

A.M.L. grabbed A.P.'s hand and forced her to touch his erection on top of his pants. A.P. pulled her hand away and left the room. She did not tell anyone about the incident.

A month or so later she and A.M.L. were again playing video games in his bedroom. A.M.L. left the room for a short time and upon his return he sat down and started "playing" with A.P. She felt a sharp point touching her neck and later saw that it was a knife. A.M.L. grabbed her hand and rubbed it up and down on his erection over his clothing. As he loosened his grip, A.P. was able to pull away and run downstairs. She testified that there were other incidents when A.M.L. touched her breasts and rubbed her on her "private part" above her clothing.

A.P. said that matters escalated to an incident in November 2005, while she was sleeping on a blow-up mattress in the bedroom of A.M.L.'s sister, but awoke to find that A.M.L. was pulling her by her arms. When she complained, he put his hand over her mouth, held her arms together with his other hand, and dragged her into the spare bedroom where he ripped off her pants and underwear. A.P. said that A.M.L. then "tried to force sexual intercourse" with her, but "only succeeded in a couple of times." She eventually kicked him in the groin area, ran into the sister's room, and leaned against the door so that A.M.L. could not get in. She said that A.M.L. banged on the door for five or ten minutes while asking her, "don't tell anyone." After a period of silence, she opened the door and saw that A.M.L. was sleeping. She got dressed, went downstairs, and stayed up the remainder of the night.

A.P. testified that the following morning she tried to tell her father about the incident, but said "I don't really think he believed me or just paid attention to what I was saying." A.P. later told her best friend that she had been raped once by A.M.L. and sexually abused other times. Although A.P. did not tell her mother about the sexual incidents at A.M.L.'s home, she did tell her mother that she did not want to go with her father to S.M.'s house with A.M.L. and said once she was "praying and hoping that her father doesn't spend the night there."

A.P.'s mother testified about changes in her daughter's behavior including cutting herself with sharp objects until she bled. Before she started school in September 2005, A.P. told her that A.M.L. touched her in her private area and she was afraid to go to sleep at his house. W.B. said she believed her daughter and told A.P.'s father what A.P. had said, asking him to find out what was going on. Later in April 2006, W.B. found her daughter's diary and read that she had been raped by A.M.L. and threatened with a knife. She confronted A.P. who told her that A.M.L. had sexually touched her and threatened her with a knife on many occasions. W.B. then notified the police.

Detective Stacey Lick of the Gloucester County Prosecutor's Office interviewed A.P. on May 10, 2006. A.P. said she told her father she had been sexually assaulted about a week after it happened, but he had not believed her. She also told Detective Lick that the incident when A.M.L. threatened her with a knife was after she was sexually penetrated. Detective Lick further testified that after A.M.L. was brought to the prosecutor's office, she advised him of the charges. She said A.M.L. turned to his mother and said, "so, they can't prove it."

Testifying for the State, Dr. Cynthia DeLago stated that she examined A.P. in May 2006 and found no evidence of trauma to the hymen and no interruption in the integrity of the hymenal tissue, but she further testified it is common to find no injury to the hymen of a sexual assault victim. Moreover, she related that A.P. told her that there was a "little bit of blood" on her underwear after she claimed sexual penetration, which would be consistent with a sexual assault.

A.M.L., his mother, and J.P., A.P.'s father, testified for the defense. A.M.L. denied all of A.P.'s allegations. He said that once he and A.P. were playing video games and A.P. suggested they play "Seven Minutes in Heaven" which she described as a game where a boy could do anything he wanted to a girl for seven minutes, and the girl then could do whatever she wanted to the boy for seven minutes. He said that A.P. lifted up her shirt to show him her breasts and pulled her pants down to show her vaginal area. She then told him, "it's your turn," and A.M.L. pulled his pants down to show A.P. his penis. He then heard footsteps. His mother knocked on the door and asked what they were doing. A.P. said they were playing hide and seek. A.M.L. testified that the following day he felt badly about what occurred the night before and told his mother what had taken place. He said that J.P. was nearby when he did so.

S.M. corroborated her son's account that she knocked on the door to check on the children and that A.P. said they were playing hide and seek. She said that the following day A.M.L. was upset and told her that he had been playing "Seven Minutes in Heaven," after which she spoke with J.P. J.P. testified that he saw A.M.L. come downstairs crying and telling his mother about "Seven Minutes in Heaven" involving sexual touching. He said that he later spoke to his daughter about inappropriate sexual behavior. He maintained that A.P. never told him she had been threatened or abused by A.M.L. and that he certainly would not have ignored any such comments by his daughter. He added that after the incident in November 2005, he and A.P. continued to go to S.M.'s house on weekends.

Following the testimony the judge reserved decision and later gave a lengthy oral opinion during which she made credibility findings in favor of the State's witnesses and adjudicated A.M.L. as a delinquent on each of the charges.

On appeal, the following arguments are made on behalf of A.M.L.:

POINT I - THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT THE JUVENILE WAS GUILTY OF THE VARIOUS OFFENSES, THEREBY ADJUDICATING HIM A DELINQUENT AS A RESULT THEREOF.

POINT II - THE TRIAL COURT ERRED IN CONCLUDING THAT CERTAIN TESTIMONY ELICITED BY THE STATE REGARDING THE JUVENILE'S ALLEGED ASSAULT WITH A KNIFE AGAINST HIS MOTHER'S BOYFRIEND WAS ADMISSIBLE PURSUANT TO N.J.R.E. 404(b).

As noted in State in the Interest of L.E.W., 239 N.J.

Super. 65, 76 (App. Div.), certif. denied, 122 N.J. 144 (1990), the nature and scope of our review in a juvenile delinquency matter is the same as in a non-jury matter. Under our limited scope of review of a non-jury trial we give deference to the fact-finding by the trial judge when the findings are supported by adequate competent evidence in the record, and we will not disturb the factual findings and legal conclusions unless we are convinced that they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Moreover, particular deference is given to the trial court's credibility findings. State v. Locurto, 157 N.J. 463, 470-74 (1999). In this case, we find substantial credible evidence in the record to support the trial judge's findings and her conclusions on the offenses charged.

The N.J.R.E. 404(b) issue raised by the defense involves the admission of testimony by R.D., a former boyfriend of S.M., that he had been threatened by A.M.L. with a knife and Detective Lick's statement that S.M. told her she put a set of steak knives out of A.M.L.'s reach because there was "a problem with him playing with the knives."

The trial judge permitted the testimony subject to her ruling on the admissibility under an exception to N.J.R.E. 404(b) at the conclusion of the State's case. The judge stated:

I know I will not be unduly swayed by the fact that this child may have lost his temper and picked up a knife at an adult in terms of it being it more likely to have - I can separate that from the fact that there's a knife involved and that's what's taken. If this was a jury, I don't know if they could separate that or they might be enflamed by the fact that this kind of aggressive behavior occurred toward an adult, period. I am not so enflamed.

Subsequently, the judge admitted the testimony finding that R.D.'s testimony was both credible and relevant, "not because [A.M.L.] did one bad thing, he probably did another bad thing, but the pattern and use of force here would equalize or cause at least a psychological belief by A.P. that A.M.L. was stronger than her and she might be harmed or that resistance might not work for her."

We do not agree with the determination of the trial judge that the testimony was admissible under an exception to N.J.R.E. 404(b), which excludes testimony as to prior bad acts by an accused. However, in light of the other evidence supported by the record, the court's credibility findings, and the judge's statements as to the limited weight given to the testimony at issue, any error was harmless. State v. Macon, 57 N.J. 325, 340 (1971).

Affirmed.

20090406

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