On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-01-0010-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Collester and Graves.
Tried to a jury, defendant T.M. was convicted of the following criminal offenses: first-degree aggravated sexual assault by committing an act or acts of sexual penetration upon J.F. between the dates of May 18, 1996 to June 28, 2001 when J.F. was less than 13 years old, contrary to N.J.S.A. 2C:14-2a (count one); first-degree aggravated sexual assault by committing an act or acts of sexual penetration upon J.F. between June 29, 2001 and May 18, 2002 when J.F. was less than 13 years old, contrary to N.J.S.A. 2C:14-2a (count two); first-degree aggravated sexual assault in that he committed an act or acts of sexual penetration upon J.F. between May 18, 2002 to December 30, 2002 when J.F. was l3 years old but less than 16 years old and defendant was a foster parent, a guardian or he stood in loco parentis within the household, contrary to N.J.S.A. 2C:14-2a (count three); second-degree sexual assault by committing an act or acts of sexual contact with J.F. between May 18, 1996 to June 28, 2001 when J.F. was under 13 years old and defendant was at least four years older, contrary to N.J.S.A. 2C:14-2b (count four); second-degree sexual assault in that defendant committed an act or acts of sexual contact with J.F. between June 29, 2001 and May 18, 2002 when J.F. was under the age of 13, contrary to N.J.S.A. 2C:14-2b (count five); second-degree endangering the welfare of a child when defendant had a legal duty or assumed the responsibility for J.F.'s care and engaged in sexual conduct that impaired or debauched J.F.'s morals, contrary to N.J.S.A. 2C:24-2a (count six); first-degree endangering the welfare of a child when defendant was a parent, guardian or person legally charged for the care of J.F. and caused J.F. to engage in prohibited sexual acts knowing they were being photographed, filmed or reproduced, contrary to N.J.S.A. 2C:24-4b(3) (count seven); and second-degree endangering the welfare of a child in that defendant knowingly photographed or filmed J.F. in a prohibited sexual act and knowingly used a computer to reproduce or reconstruct the image of J.F. in the prohibited sexual act, contrary to N.J.S.A. 2C:24-4b(4) (count eight).
On February 6, 2006, the trial judge sentenced defendant to twenty years in state prison, ten years without parole, on count one. Concurrent terms of twenty years subject to the eighty-five percent parole bar under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1, was imposed on counts two and three. A ten-year concurrent sentence with five years parole ineligibility was imposed on count four, and a ten-year concurrent term was imposed on count five. The court sentenced defendant to a ten-year consecutive term with five years parole ineligibility on count six. Defendant received a concurrent term of twenty years in prison with ten years parole ineligibility on count seven. Finally, on count eight defendant was sentenced to a ten-year concurrent term in prison with five years parole ineligibility. On March 16, 2006, the trial judge re-sentenced defendant to a ten-year term with five years parole ineligibility on count seven to be served consecutively to count one and concurrently with counts six and eight.
Based on the trial testimony, the salient facts are as follows. Jane F.*fn1 was born on May 18, 1989. After her parents divorced in 1991, Jane was placed in the residential custody of her mother, Sally F. Shortly after the divorce, Sally began dating the defendant. After a time, she moved in with him and took Jane with her. In 1993 or 1994 they moved into a house on Creek Road in Bricktown. During Sally's work hours from noon to 9 p.m., defendant would take charge of Jane. Jane testified that when she was seven or eight defendant came to her bedroom one night when her mother was not at home. He asked her to undress and then touched her breast area. At first defendant touched Jane infrequently, but the incidents soon escalated to once a week. He then began touching her vaginal area. At these times defendant told Jane that her doctor asked him to check her to make sure that she was all right.
In 1996 Sally gave birth to another daughter named Rebecca, and defendant was father to the child. A year or so later in 1997 to 1998 they moved across the street to a larger house, and the sexual abuse of Jane escalated. Defendant began to perform oral sex on Jane and rubbed his penis against her vagina while maintaining that Jane's doctor needed him to help Jane's "sickness."
In 1999 financial troubles caused the family to split up. Jane went to live with her father. Sally went to California with Rebecca, but they returned after a few months to live with defendant in South River. Jane continued to live with her father but spent every other weekend with her mother in defendant's house. Jane testified that defendant soon resumed sexually abusing her, which now included oral sex and sexual intercourse.
In the fall of 1999, Jane told her mother that defendant had been sexually abusing her. Sally confronted defendant, and he denied the allegations. Sally said she was unwilling to believe that defendant would abuse Jane so she decided to "let it go." As a result, defendant continued to abuse Jane by having sexual intercourse with her. Moreover, he used a digital camera to take post-coital photographs of Jane with close-ups of her vagina, telling her that he was sending the photographs to her doctor. At this time, Jane was about twelve or thirteen.
In December 2003, Jane was fourteen years old and in the eighth grade when she confided to Sandra, her classmate and best friend. About a month later Jane was at a restaurant with Sandra and Kate, a woman dating Sandra's father. During dinner Jane said that she had a friend who had been molested by defendant. When Kate asked Jane if defendant had molested her, Jane told her defendant had been abusing her since she was in the first grade. Kate informed Jane's father of the situation, and the Middlesex County Prosecutor's Office was advised on January 14, 2004.
The following day detectives went to the house occupied by defendant and Sally, and pursuant to a consent search, seized a computer and digital camera. At trial Investigator John Szilagyi from the Middlesex County Prosecutor's Office testified as an expert in computer forensics. He examined both the computer and the digital camera seized from defendant's residence. Nothing pornographic or evidential was found on the digital camera, but Szilagyi used special software to recover deleted information on the computer. He found twenty-nine photographs of J.F. in a virus file, and thirty more that had been deleted. He testified the images were created on December 16, 2003 and were deleted January 2, 2004. He said the photographs were not downloaded from the internet but were transferred from the digital camera to the computer using interface software. The photographs depicted a naked girl, some with her legs spread, others with the girl's knees over her head, and others in which the girl was holding her vagina open. One photograph showed an adult hand holding open the child's vagina. In her testimony, Jane identified herself as the naked girl in twenty photographs. She said the pictures were taken by defendant, and he told her the poses he wanted for each photograph.
Defendant testified on his own behalf and denied ever sexually abusing Jane or having any kind of sexual contact with her. He said that Jane never liked him. He also denied taking the nude photographs extracted from the computer and transferring them from the digital camera to the computer. He ...