On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-416-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lyons and Espinosa.
This is an appeal by a juvenile, I.W., from an adjudication of delinquency for what would have been, if committed by an adult, sexual assault in the second degree (N.J.S.A. 2C:14-2b). The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
In the summer of 2006, I.W., who was fourteen years old at the time, and her mother, L.A., began residing in Ozanam Family Shelter in Edison. V.B. and her seven year old daughter, P.O., also resided at the shelter. Despite the seven year age difference, the two girls became friends. I.W. would assist P.O. with her homework and the children would play together on a regular basis.
On January 15, 2007, V.B. and P.O. moved from the shelter to an apartment as part of a transitional housing program in New Brunswick. Later that month, L.A. and I.W. also entered the transitional housing program and moved into an apartment across the hall from V.B. and P.O. The two girls continued their friendship, though V.B. observed that P.O. seemed distant from I.W. since moving from the shelter.
On a particular occasion in July 2007, the children were playing in the bedroom of V.B.'s apartment while she prepared food in the kitchen. When she did not hear the children laughing or playing, she walked toward the bedroom to check on them. The door was opened a crack and V.B. peered through. She observed P.O. wearing her bathing suit standing close to I.W., who was fully clothed and sitting on the bed. When V.B. asked what was going on, I.W. told her P.O. wanted the door closed.
Later that same day, I.W. asked V.B. if P.O. could spend the night at her apartment. V.B., concerned by what she observed in the bedroom of her apartment, refused. She testified that I.W. "seemed to get mad" at her. Based on what V.B. observed in the bedroom and I.W.'s reaction to P.O. not being permitted to sleep over, V.B. asked her daughter if I.W. had "ever touch[ed] her in any inappropriate way."
V.B. stated that, at first, P.O. denied any sexual contact between herself and I.W. However, after V.B. persisted, P.O. stated she and I.W. had played the "marriage game" and the "boyfriend-girlfriend" game. V.B. testified that P.O. told her both she and I.W. digitally penetrated each other, performed oral sex on each other and kissed each other on the mouth and chest. P.O. stated that she and I.W. had engaged in this behavior numerous times while living in the Ozanam Family Shelter and at the transitional housing apartments.
V.B. testified she was very distressed by her daughter's statements, but waited until she "calm[ed] down" before reporting her suspicions because she was close friends with L.A.. After five weeks passed, V.B. relayed P.O.'s story to her social worker. On August 15, 2007, Investigator Kent Arroya from the Middlesex County Prosecutor's Office interviewed V.B. and P.O., separately and together.
P.O.'s interview at the police station was video-recorded, and we have reviewed the disc.*fn1 During the interview, P.O. described how I.W. touched her mouth, chest and "private parts." She used an anatomically correct image of a female and dolls to depict how I.W. touched her and explained that I.W. touched her with her hands and mouth. She stated that I.W. engaged in this behavior, which I.W. called the "boyfriend-girlfriend" game, while they were living at the shelter and later at their apartments. P.O. informed Officer Arroya that I.W. told her she could not tell anyone what they were doing because they would both "get in trouble" and that she felt uncomfortable when I.W. touched her and it made her "sad."
Later that same day, Investigator Arroya questioned I.W. and L.A. at the Prosecutor's Office regarding P.O.'s allegation.
I.W. was questioned in the presence of her mother. Investigator Arroya testified that I.W.'s first response to the allegations was to ask "Was the child my age?" I.W. denied engaging in such behavior with P.O. and stated that, at most, she would give P.O. a kiss on the cheek. I.W. suggested that P.O. might have learned about the acts she described from her cousins.
On August 17, 2007, I.W. was charged with juvenile delinquency for conduct that would constitute aggravated sexual assault if committed by an adult, contrary to N.J.S.A. 2C:14-2a(1). The trial court tried the matter on February 15, 2008.
During the adjudication proceeding, V.B. testified to the incident in July when she observed P.O. wearing her bathing suit alone with I.W.; I.W.'s reactions when she would not allow P.O. to sleep over; and P.O.'s description of the alleged abuse.
V.B. also testified that the Monday before the adjudication proceeding, during an interview conducted by the prosecutor, P.O. stated that she had been abused by her two female cousins when she was five years old. V.B. testified that was the first time she had heard P.O. make such statements about anyone besides I.W.
P.O. also testified during trial. She stated that I.W. touched her in a "bad way" and, with the aid of an anatomically correct picture of a female, P.O. described how I.W. kissed her on her mouth, and touched her on her chest and genital area with her mouth and hands. P.O. testified that she performed these same acts on I.W. and I.W. called this behavior playing "the marriage game" and the "boyfriend-girlfriend" game. P.O. was also able to describe a large scar on I.W.'s chest, stating that it is shaped like a cross and is between one-and-a-half to two- feet long. P.O. testified that I.W. instructed her not to tell anyone about their "games" because they would be punished.
P.O. also described the incident in the bedroom of her apartment when she was alone with I.W. and wearing her bathing suit. She stated she only tried the suit on to see if it fit and denied that anything inappropriate occurred. P.O. also testified that her mother never came into the room or asked what was going on. When P.O. was questioned about the alleged abuse by her cousins, her responses were contradictory and incomprehensible. The State, over the defense's objection, also played the Arroya interview during trial.
I.W. testified in her defense. She denied ever touching P.O. inappropriately and said she never played a "marriage" or "boyfriend-girlfriend" game with her. I.W. further denied ever kissing P.O. on the cheek, though this testimony was inconsistent with the statements she made during her interview with Investigator Arroya. I.W. also described the scar on her chest, stating it was "[l]ike an upside-down Mercedes sign." She testified that both P.O. and V.B. had seen the scar, though she could not remember a particular incident when she had shown it to them. She explained that part of the scar is visible when she wears a bathing suit, so P.O. had probably seen it when the girls had gone swimming together while they were living at the shelter.
Regarding the incident in July 2007, when V.B. found P.O. alone wearing her bathing suit with I.W., I.W. denied that anything inappropriate occurred. She testified that P.O. was "playing dress-up" and put the bathing suit on over her underwear.
At the conclusion of the trial, the court found P.O. to be credible. The court explained that it made its credibility determinations based ...