On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-04-0445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued October 9, 2009
Before Judges Carchman, Lihotz and Ashrafi.
Defendant Jerome Austin appeals his conviction and sentence for sexual assaults of a teenage relative. We affirm defendant's convictions; however, we vacate the aggregate sentence of thirty-five years in prison and remand for re-sentencing.
Defendant is the great uncle of J.M., who lived with her mother in New York State. In the summer of 2000, when J.M. was fifteen years old, she stayed at defendant's home in New Jersey because she and her mother were not getting along. Defendant was forty-nine years old and lived alone. At the end of the summer, J.M. returned to New York, but the situation with her mother had not improved. Defendant and J.M.'s mother agreed to have her live with him and go to school in New Jersey.
J.M. lived with defendant from the time she was fifteen until a few months after her nineteenth birthday. During that time, defendant cared for her like a father. He registered her for school, paid all her expenses, and made a home for her such as she did not have with her mother. J.M. called defendant "dad" so that she would not have to explain the relationship to others. In her high school yearbook, she wrote a glowing and grateful dedication to "dad," meaning defendant.
According to J.M.'s testimony at trial, soon after she moved into defendant's home permanently, he began to assault her sexually. She testified that the first time occurred in the late summer of 2000 shortly before she started school as a tenth-grader. Defendant was playfully teaching her how to box in a bedroom. She fell on the bed. He got on top of her and pinned her down. He took her clothes off and had oral sex and vaginal intercourse with her. She did not resist, but she began crying immediately afterwards. He assured her that the incident was not her fault.
J.M. testified that the sexual activity continued regularly during the next several months through her sixteenth birthday in December. It included oral sex by each on the other, digital penetration, and vaginal intercourse.
After her sixteenth birthday, the sexual activity occurred almost on a daily basis, and defendant also occasionally engaged in anal intercourse with her. Defendant never used force or threats of violence. J.M. did not tell him that his conduct was unwelcome because she feared that she would become homeless. She testified that she resigned herself to the sexual activity but often cried alone in her bedroom. As the months passed, defendant grew remorseful about his conduct. He told her it was wrong and they should go to church and seek forgiveness. Nevertheless, the sexual activity did not stop, although its frequency decreased.
After J.M. graduated from high school, she took a job, and she developed a relationship with a boyfriend. Defendant helped her buy a car. She became more independent and spent most of her time out of the house. She got into the habit of staying out late at night without telling him where she was. As a result, arguments escalated to the point in January 2004 of defendant ordering J.M. to leave the house. They both relented the following day, and defendant took J.M. back demanding that she live by his "house rules," such as maintaining a curfew and keeping her room neat.
Despite her promise, J.M. continued to stay out late. A second serious argument occurred in March 2004, and defendant again ordered her to leave his house. She called her boyfriend to come for her because defendant's truck was blocking her car in the driveway. She stayed at her boyfriend's house that night and never went back to live with defendant again.
The day after defendant ordered her out in March 2004, J.M. went to the police and reported that he had sexually abused her for several years. The police contacted the Prosecutor's Office, and they took a statement from J.M. On April 13, 2004, a detective arranged for a consensual interception and recording of a telephone call between J.M. and defendant.
In the recorded conversation, about seven minutes long, defendant was speaking on his cell phone while driving home from work. Following the instructions of the detective, J.M. feigned having received a positive test for a sexually transmitted disease, and she questioned defendant about whether he could have transmitted it to her. She discussed at length that she and her boyfriend were sexually active, but that her boyfriend was denying that he could be responsible. She made ten or more references to her engaging in sex with defendant and stated several times that her only sexual partners were her boyfriend and defendant.
Defendant never denied or questioned J.M.'s references to having sex with him. At one point she said, "nothing happened with us when we had unprotected sex for all this time. I mean it's been like what? Three, four years ain't nothing happened. So why would it happen with him?" Defendant said that she should not rely on her experience with him. He said he was an older man and might be sterile. He advised her always to use protection when engaged in sex with her boyfriend.
About nine months after the telephone recording, defendant was arrested and charged. A grand jury returned a ten-count indictment in April 2006. The indictment divided the charges into two time periods and five kinds of sexual activity. Counts one through four charged first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(2)(c), between August 2000 and J.M.'s sixteenth birthday in December 2000. Those counts charged separately that the sexual assaults had occurred by cunnilingus, vaginal intercourse, digital penetration, and fellatio. Count five charged second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, during the same time period before J.M.'s sixteenth birthday. Counts six through ten charged second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c(3)(c), from J.M.'s sixteenth birthday until December 2002 when she turned eighteen. The kinds of sexual assault charged separately in those counts were cunnilingus, vaginal intercourse, anal intercourse, fellatio, and digital penetration.
Defendant was tried before a jury in October 2007. Only two witnesses testified, J.M. and the detective who intercepted and recorded the telephone conversation. Defendant elected not to testify and did not present any witnesses or exhibits in evidence.
Deliberating during a full afternoon session, the jury asked no questions except to request that the recorded conversation be replayed. It returned a verdict of not guilty on the first four counts charging aggravated sexual assault before J.M.'s sixteenth birthday. It found defendant guilty of the endangering count and all five sexual assault charges for the time period between J.M.'s sixteenth and eighteenth birthdays.
In November 2008, defendant was sentenced to five consecutive seven-year terms of imprisonment on each of counts six through ten. The court did not impose a period of parole ineligibility. Count five, the endangering count, was merged into the other counts. The court also sentenced defendant to community supervision for life, compliance with Megan's Law, and monetary penalties.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S MISCONDUCT IN HIS OPENING AND SUMMATION WENT SO FAR BEYOND THE BOUNDS OF FAIRNESS AND PROPRIETY THAT DEFNDANT WAS THEREBY DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
A. THE PROSECUTOR'S FALSE FACTUAL ASSERTIONS.
B. THE PROSECUTOR['S] REPEATED COMMENTS ON DEFENDANT'S DECISION NOT TO TESTIFY OR CONTRADICT THE EVIDENCE PRESENTED INFRINGED DEFENDANT'S CONSTITUTIONAL RIGHTS.
C. OTHER IMPROPER PROSECUTORIAL OPENING AND SUMMATION COMMENTS.
DEFENDANT'S ACQUITTAL ON THE FOUR COUNTS CHARGING FIRST DEGREE AGGRAVATED SEXUAL ASSAULT OFFENSES WHEN THE COMPLAINANT WAS UNDER 16 YEARS OLD PRECLUDED HIS CONVICTION FOR CHILD ENDANGERMENT AS A MATTER OF LAW.
THE TRIAL COUT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.