On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, Indictment No. 02-05-1036.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Rodríguez and Chambers.
Following a jury trial, defendant Frederick Britton was convicted of first degree aggravated sexual assault of K.M., a then seven-year-old boy, N.J.S.A. 2C:14-2a; third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; fourth degree abuse of a child, N.J.S.A. 9:6-3; and third degree attempt to lure or entice a minor with purpose to commit a criminal offense against the child, N.J.S.A. 2C:13-6. The judge merged the convictions and imposed: a seventeen-year term with a NERA*fn1 parole disqualifier; five year parole supervision upon release; and community supervision for life.*fn2 We affirm the convictions, but remand for resentencing.
These are the salient facts. K.M. is the son of M.M., who grew up in the same neighborhood as defendant. She enjoyed a good relationship with defendant and considered him a good friend. Her children considered defendant as an "uncle" and called him "Pooh-Bear." K.M. and his brother frequently played with defendant's nephew.
On the day of the incident, K.M. and his brother visited defendant's house to play with defendant's nephew. Defendant instructed the brother to leave and took K.M. upstairs into his bedroom. Defendant instructed K.M. to be "brave." Defendant removed his and K.M.s' pants and began touching K.M.'s buttocks. Defendant placed his penis inside K.M.'s buttocks. Following the assault, defendant gave K.M. money in exchange for not talking about the assault.
K.M. and his brother went on a trip to Ocean City for Easter with T.K., a family friend. During the return trip on the bus, K.M.'s brother told T.K. that defendant had touched K.M. K.M. declined to speak about the sexual assault. Upon their return to the friend's house, T.K. called M.M. and informed her that K.M's brother had something to tell her.
Upon returning to their home, K.M.'s brother forced K.M. to tell their mother about defendant's actions. K.M. was reluctant to talk, but eventually said that defendant took him upstairs into his bedroom and put a videotape into the VCR displaying images of naked women. K.M. then disclosed that defendant made him lie on the bed and inserted his penis into K.M's buttocks. Defendant left money on the bed. M.M. had noticed that K.M. had over two dollars on him on three prior occasions.
M.M. decided to confront defendant at his house. According to M.M., defendant answered the door. Defendant's nephew was standing next to him. Defendant instructed his nephew to "grab" M.M.'s "behind." The nephew would not do it. Defendant began kicking his nephew. M.M. left. Shortly after, defendant showed up at M.M.'s house. She told K.M. to tell defendant what he had told her. K.M. did so. According to M.M., defendant smiled and denied the allegation. She punched defendant and told him not to come to her house again.
M.M. took K.M. to the police station. Atlantic City Detective George Cohen spoke to K.M. alone. Following the interview, Cohen recommended that K.M. be seen by a physician.
M.M. made arrangements for Marita Elizabeth Lind, M.D., a pediatrician, to examine K.M. Dr. Lind spoke to K.M. outside the presence of his mother. K.M. indicated that defendant stuck his "hotdog" in his buttocks. Later, defendant had to wipe "lotion" off of the floor. According to Dr. Lind, it was significant that K.M. revealed that it hurt when he "pooped" because children heal rapidly and only exhibit symptoms immediately afterwards.
Pursuant to a search warrant, the police searched defendant's house. Detective Cohen confiscated four videotapes located in the front room on the entertainment center. Two videotapes containing children's movies, titled "Darrel" and "Page Master," had pornographic segments.
At trial, the State moved to admit the videotapes confiscated from defendant's home. Defense counsel objected on the grounds that it would be highly prejudicial. The judge ruled that the State could present evidence as to when and where the videotapes were found and a description of them. However, the judge found that admitting the tapes at that point in the trial would be ...