On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Defendant was tried for three offenses committed against his stepdaughter, K.M. The charges arose out of three incidents that occurred between September 1999 and November 2001, when K.M., who was born on June 26, 1991, was nine or ten years old. The jury found defendant guilty of all three counts: (1) first- degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); (2) second-degree sexual assault, N.J.S.A. 2C:14-2b; and (3) second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The judge sentenced defendant on count one to twenty years imprisonment with a ten-year parole disqualifier. On count two, he sentenced defendant to a concurrent term of ten years imprisonment with a five-year parole disqualifier. On count three, the judge imposed a consecutive term of ten years imprisonment with a five-year parole disqualifier. The judge also sentenced defendant to community supervision for life and imposed appropriate mandatory monetary assessments.
On appeal, defendant argues:
THE CHILD'S OUT-OF-COURT STATEMENT REGARDING ALLEGED SEXUAL ABUSE SHOULD HAVE BEEN HELD PER-SE INADMISSIBLE BECAUSE IT WAS NOT VIDEOTAPED. IN THE ALTERNATIVE, THE STATEMENT SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT WAS UNRELIABLE. (Partially Raised Below).
A. The Child Victim's Hearsay Statement Should be Held Per-Se Inadmissible Because the Interview of the Child Was Not Electronically Recorded.
B. Even if the Tape Were Not Per-Se Inadmissible, it Should Have Been Excluded Because It Was Not Sufficiently Reliable.
THE TRIAL COURT'S RULING THAT IF DEFENSE COUNSEL CROSS EXAMINED THE VICTIM AND/OR VICTIM'S MOTHER ON THEIR MOTIVE TO FABRICATE THE ALLEGATIONS OF ABUSE THEN THE STATE WOULD BE PERMITTED TO INTRODUCE HIGHLY PREJUDICIAL AND IRRELEVANT 404(B) EVIDENCE DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
THE DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION WHEN HE WAS IMPROPERLY BARRED BY THE RAPE SHIELD LAW FROM PUTTING INTO EVIDENCE THE FACT OF THE CHILD VICTIM'S PRIOR SEXUAL EXPERIENCE.
THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWENTY-YEAR TERM WITH TEN YEARS OF PAROLE INELIGIBILITY ON HIS FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT CONVICTION AND TO A TEN-YEAR TERM WITH A FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY ON HIS ENDANGERING THE WELFARE OF A CHILD CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We reject Points 1, 2, 3 and 5 and affirm defendant's conviction on all counts and his sentence on counts one and two. With respect to defendant's fourth argument, we remand for reconsideration of the sentence imposed on count three.
Defendant and K.M.'s mother began living together in the late 1990s, and they married in 2001. At the time of the offenses, they, K.M., and K.M.'s younger brother lived together. K.M. and her brother shared a bedroom, in which they slept in bunk beds. At trial, K.M., then fifteen years old, described the assaults by defendant specifically and graphically. All occurred in the home. The first two occurred while her mother was at work. In the first incident, defendant called K.M. into his bedroom. He pushed her on the bed on her back. He turned her over, pulled up her nightgown, and "he put his private part in [her] butt." K.M. said it hurt. She tried to scream, but defendant pushed her face into the pillow. When the incident ended, defendant told K.M. that if she said anything to anyone he would kill her.
In the second incident, defendant was home alone with K.M. and her brother. K.M. was in her room, on her lower bunk bed watching television. Her brother was in the top bed. Defendant came into the room, "pushed [K.M.] back on the bed and put his private in [her] butt." K.M. again said it hurt. This time she did not try to scream. When asked how it ended, she said: "He -- something -- yellow stuff came out. I know what -- well, cum came out and he got up." When asked where the cum came out of, she said "[h]is private part." When asked whether she knew what it was at that time, K.M. responded in the negative.
When the third incident occurred, K.M.'s mother was also in the house and was sleeping in her room. K.M. was sleeping in her bunk bed face down. Defendant entered the room and "put his private part in [her] butt." He then "turned [her] over" and "put it in [her] private part." K.M. clarified that by her "front" she meant her "private part," and by her "back" she meant her "butt." K.M. again described that it hurt. She did not attempt to scream. When defendant finished, he said he would kill K.M. if she told anyone.
K.M. did not reveal these abuses to anyone until about two years later. She feared defendant, and she feared that if she told her mother her mother would beat her. Finally, on April 24, 2003, at age eleven, she told her grandmother that her "private was hurting," even though it was not, "[b]ecause I felt like that was my way to tell her" what defendant had done to her. This conversation took place at the grandmother's house, where K.M. customarily went after school, until her mother picked her up after work. K.M.'s grandmother told her she should tell her mother. When the mother arrived to pick up K.M., the grandmother advised the mother that K.M. had something of a serious nature to tell her.
When they got home, K.M.'s mother asked her what she had to tell her. She asked her whether anyone had touched her. K.M. twice said no, but then disclosed that "[defendant] had touched me."
K.M.'s mother took her immediately to a hospital, where K.M. was examined. The medical evaluation was inconclusive as to sexual abuse. Therefore, there was no forensic evidence to verify whether any abuse had occurred.
After leaving the hospital, K.M. and her mother returned home and waited for the police to arrive. The police came and arrested defendant, who, with police present, ...