On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-00430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Defendant Kiwanie Salter appeals from his conviction by a jury on charges of aggravated sexual assault, criminal sexual contact, and endangering the welfare of a child. Because the prosecutor presented prejudicial, inadmissible evidence, we reverse and remand for a new trial.
Charges against defendant were filed after his exgirlfriend's twelve-year-old son, T.B., wrote a note to his mother stating that defendant had sexually abused him. The mother contacted the police, and the boy was examined by a doctor and interviewed by a police detective. The medical examination was normal, finding no signs of sexual assault, but the boy reported details of sexual conduct to the police detective. Upon learning that he had been charged with sexual crimes, defendant turned himself in to the police. He has been in custody since September 2006.
An Essex County grand jury indicted defendant on seven counts: two counts of first-degree aggravated sexual assault by anal penetration and two counts of first-degree aggravated sexual assault by oral penetration, in violation of N.J.S.A. 2C:14-2a(1); two counts of third-degree aggravated criminal sexual contact by putting the victim's hand on defendant's penis, in violation of N.J.S.A. 2C:14-3a; and one count of third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. The indictment charged that all the crimes were committed on or about September 2 through 5, 2006, against T.B., whose date of birth is April 11, 1994.
Although the indictment stated in every count that the boy's age was twelve, the fifth and sixth counts did not charge second-degree sexual assault under N.J.S.A. 2C:14-2b, as the facts alleged would have permitted. They charged the lesser-degree offense of aggravated criminal sexual contact under N.J.S.A. 2C:14-3a, when, according to the indictment, "the victim was 13 but less than 16 years old." After the jury was selected for trial, defense counsel moved to dismiss counts five and six on the ground that the child was in fact twelve years old, not between thirteen and sixteen, and therefore the prosecution could not prove those counts. In response, the prosecutor offered, and the court permitted, amendment of the indictment to charges of fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3b.
At trial, T.B. testified that in early September 2006, he was living in Newark with his mother, his college-age sister, and his four younger sisters and female cousins. He identified defendant as his mother's former boyfriend who had lived with them off-and-on in the previous year. He said that his mother and defendant were no longer in a relationship in September 2006. He also testified that he did not like defendant, or any of his mother's boyfriends, because he wanted his father to be with them.
T.B. testified that at about eleven o'clock on Sunday morning, which was September 3, 2006, he was sleeping in the living room. His younger sister woke him up and told him "that Kiwanie was here." T.B. knew that defendant would usually sleep in an enclosed porch off the kitchen that the family referred to as a pantry. He went into the pantry to see if defendant was there. Defendant was lying on a bed wearing a T-shirt and boxers. He woke up and sat up on the bed. Defendant then grabbed T.B.'s arm and pulled him down to his knees. T.B. testified that defendant moved T.B.'s head toward his "private part" and that defendant put his penis into T.B.'s mouth and started to move his head up and down. T.B. did not feel anything come out of defendant's penis. He stood up and walked away after about a minute.
T.B. testified that he did not call to anyone during this incident although his mother and all his sisters and cousins were home. He also testified that neither defendant nor any of his mother's other boyfriends had ever sexually abused him previously, and defendant did not threaten him at the time of this incident.
T.B.'s mother, C.B., testified that she had ended a relationship with defendant earlier that summer, but they were still friendly at the time of Labor Day weekend in September 2006. Defendant called her and then came to her home at about 3:00 a.m. on Sunday, September 3, 2006. He had been drinking, as was his habit. The two spent some time in her bedroom, and their conversation led to oral sex. Defendant then went to the pantry to sleep. C.B. testified further that she woke up at about ten o'clock on Sunday morning and cooked breakfast, which all the children ate. She then went back to sleep at about noon.
T.B. testified that on the afternoon of the same day, Sunday, September 3, he and his younger sisters and cousins were playing hide-and-seek in a vacant apartment downstairs from their home. The girls went upstairs to hide, leaving T.B. alone in the vacant apartment. Defendant came downstairs and started touching T.B.'s "private parts." Defendant then pulled T.B.'s and his own pants down to their thighs and took his penis out. He pulled T.B. to his knees and again caused T.B. to perform fellatio on him. After about a minute, defendant turned T.B. onto his stomach on the stairs and anally penetrated him with his penis for about another minute. T.B. testified that the anal penetration did not hurt. Again, nothing came out of defendant's penis. T.B. did not call out for help and did not tell anyone about the incident when he went back upstairs. Later, he felt some pain for a couple of hours when he was sitting down.
C.B. testified that on Sunday night going into Monday, she and defendant fell asleep together on the couch in the living room. T.B. testified that later that night, when everybody else was asleep, defendant was lying down in the living room when T.B. walked to the kitchen. Defendant got up and indicated with movement of his head for T.B. to come into the pantry with him. T.B. followed defendant into the pantry, where defendant caused T.B. to perform fellatio again and then anally penetrated T.B. on the bed. After about two minutes, T.B. got up and went to his room.
T.B. testified that before these incidents, defendant never physically hurt him or threatened him or his family members. He never saw defendant hit his mother or sisters. When asked why he allowed defendant to do the sexual acts, T.B. answered, "I said I let it happen because I didn't know what he was going to do to me and my family. I saw him with a gun before, but still I didn't know what he was going to do." The prosecutor followed up this answer by asking T.B. whether he was afraid of defendant. T.B. answered no. When asked next whether T.B. was curious about his sexuality, he answered no. He said he did not know why he allowed defendant to touch him.
Near the end of T.B.'s direct testimony, the prosecutor asked him whether defendant ever said anything to him during the sexual acts. T.B. answered, "The second time he said 'don't tell nobody.'" The questioning then proceeded as follows:
Q: Now, while this was going on, did he ever say anything else to you?
Q: Did he ever not yell at you, and talk to you - did he talk to you softly while this was going on?
A: No, he was like whispering. I don't know what he was saying.
Q: When he was whispering, where was he whispering?
Q: And what was happening when he was whispering?
A: He was whispering in my ear.
Q: When he was whispering in your ear, what was he doing at that moment ...