On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0662-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 18, 2009
Before Judges Cuff, C.L. Miniman and Waugh.
Defendant K.S. appeals from an amended judgment of conviction of first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(1), on which a sentence of thirteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, was imposed; second-degree sexual assault of a victim under thirteen years contrary to N.J.S.A. 2C:14-2b, merged for sentencing purposes into the first-degree offense; and third-degree endangering the welfare of a child in his custody contrary to N.J.S.A. 2C:24-4a, on which a concurrent sentence of seven years was imposed. We affirm.
Defendant and V.A., the victim's biological parents, had a sporadic relationship but were residing together on November 29, 2004.*fn1 The victim was nearly six years old at the time. Defendant and V.A. had been living apart until 2003 when V.A. allowed him to return to her one-bedroom apartment because he had nowhere else to stay. The victim slept in a bunk bed in the living room. Her fifteen-year-old brother, who was living with his maternal grandmother, shared the bunk bed when he came to visit.
Defendant's relationship with his young daughter was troubled. From the beginning, he told the victim to call him by his first name rather than "Dad." She did so because she did not care for him. V.A. described defendant's attitude towards the victim as "cold" and asserted that he was rough with his young daughter. By all accounts, defendant was the family's disciplinarian. He would not "put up with [the victim's] antics" and was stricter than V.A., sometimes spanking the victim when she misbehaved. The victim testified that she was not happy when defendant moved into the apartment and did not like having him around.
Typically, defendant picked the victim up after school ended at 2:35 p.m. Under normal circumstances, defendant would bring the victim to her grandmother's house at 4:00 p.m., because V.A. worked the 11:00 a.m. to 7:00 p.m. shift at a nursing home. However, on November 29, the maternal grandmother was not available to watch the victim. Defendant called V.A. and offered to watch their daughter until V.A. came home from work that evening. Although defendant did not usually watch the victim, he had done so for brief periods of time in the past when V.A. ran errands.
After defendant picked the victim up from school that day, she told him that she did not have school the next day, which was not true. When defendant caught the victim lying, he became angry and told the victim that she was not going to get the special birthday present he had promised her, getting her ears pierced and picking out her first set of earrings, which made her upset. This was not the first time that the victim had lied.
V.A. came home from work that night at 7:30 p.m. She found the victim doing her homework on the living-room floor and defendant in the kitchen eating. Defendant immediately asked V.A. for intercourse. Although it was unusual for defendant and V.A. to have sex when she returned home, it happened "[o]nce in a blue moon." They went into the bedroom and closed the door, leaving the victim on the floor in the living room.
When they were finished, V.A. took a shower and began getting a bath ready for the victim. While in the bathroom, the victim remarked that she "was tired of touching it." When V.A. inquired if she was tired of touching herself, the victim told her that she was tired of touching defendant's "private." Specifically, the victim told her mother that defendant had the victim "touch his private and taste it." The victim told her mother that defendant's "private" looked "like a squirrel tail." She also told V.A. that defendant put his mouth on her "private" and it hurt. When asked to explain, she pointed to her vagina.
At trial, the victim expanded upon what happened. She stated that when she and defendant arrived home from school, defendant asked her to go into the bedroom with him.*fn2 Defendant then took off the victim's skirt and underwear and then his own pants and underwear, leaving their shirts on.*fn3 The victim stated that defendant then licked her "private" and told her to lick his "private." Using anatomically correct dolls, the victim demonstrated what had happened for the jury. The victim testified that when they were done, defendant pulled up his pants and told her not to tell anyone, and she went to the living room and turned on the television.
After the victim told V.A. what had happened, V.A. became extremely upset and asked her daughter if she wanted her to confront defendant. The victim said yes, and so V.A. called defendant into the hallway and asked him if he had molested the victim. Defendant calmly denied the accusation and said that the victim was "just twisting things because he's always telling her not to let anybody touch her in any way[,] shape or form." V.A. then asked the victim if it had in fact happened; the victim replied "no."
Shortly after the confrontation, defendant went back to the bedroom and listened to music until he was picked up to go to his other daughter's house. V.A. questioned the victim again about whether the incident happened after defendant left, and the victim replied affirmatively. V.A. cooked dinner, gave the victim a bath, put her to bed, and then called a friend to discuss the incident. V.A.'s friend advised her to call the police, which V.A. did slightly after midnight.
When the police arrived, V.A. gave them the pajamas the victim had been wearing when V.A. came home from work along with the underwear that she had worn earlier.*fn4 The police then drove V.A. and the victim to the police precinct and then to the Union County Prosecutor's Child Advocacy Center (Advocacy Center). The Advocacy Center is a house that has been converted into an office and is more child-friendly than the prosecutor's office. The first floor consists of a children's interview room and a waiting area; the second floor is the detective division; and the third floor contains an office for the assistant prosecutor.
After the victim and V.A. arrived at around 3:00 a.m. on November 30, Detective Joseph Genna of the Union County Prosecutor's Office took the victim into the interview room and conducted a non-suggestive interview, which was videotaped and lasted about forty minutes. After the interview concluded, Genna took V.A.'s statement and then V.A. and the victim went home. Defendant called V.A. later that day to see if the victim needed to be picked up at school, but V.A. said she had not gone to school because she was not feeling well. Genna secured a warrant for defendant's arrest based on the information provided by the victim and her mother; the police arrested defendant around 9:50 p.m. that night at the victim's home. Defendant waived his Miranda*fn5 rights and gave a statement denying the allegations of sexual assault.
A few days later, the victim was referred to the Dorothy Hirsch Child Protection Center (Hirsch Center) in New Brunswick for a medical assessment. The victim was examined by Dr. Glad-ibel Medina, the clinical director for the pediatric outpatient clinic at Saint Peter's University Hospital and a consulting physician at the Hirsch Center. Dr. Medina met first with V.A. and the victim to introduce herself and explain the examination process. At trial, she described her role as allowing the family "to have the opportunity of a physical examination [of the victim] for the purpose of diagnosis and treatment of any abnormality found and I give them the opportunity to . . . ask any questions they may have and for us to refer them to counseling, if necessary."
After obtaining permission from both the victim and V.A., Dr. Medina conducted a full body examination of the victim, with a focus on the genitalia because the victim reported that her "private area" hurt when defendant was licking it. The exam was negative and Dr. Medina found no signs of trauma or sexually transmitted disease. Dr. Medina explained that based on the type of incident reported, she would not expect to find anything in the physical exam because "[u]sually there is no physical evidence" associated with cunnilingus. She further explained that the pain the victim reported as occurring during the incident was not uncommon. "Actually in a pre-pub[escent] child which is a child that has not gone through sexual development, the tissue between the . . . labia majora [is] very sensitive to the touch. . . . She gave a history it hurt when he was licking it. However, because of sensation not because of . . . injury."
Prior to trial, defendant filed an in limine motion to preclude the testimony of Dr. Medina as an expert witness or, alternatively, to limit her testimony to that of a fact witness. On March 3, 2006, the motion judge conducted a hearing on defendant's motion. The judge denied the motion and ruled that Dr. Medina's testimony was admissible expert testimony under the N.J.R.E. 803(c)(4) hearsay exception.
Defendant's first trial took place before the trial judge and a jury on March 15-17, 2006. The jury was unable to return a unanimous verdict, resulting in a mistrial. The matter was retried over five days between June 5 and June 15, 2006; this time the jury convicted defendant on all three counts.
Sentencing took place on October 13, 2006. The trial judge found aggravating factor nine*fn6 and mitigating factor seven*fn7 were applicable and equally weighted. She then sentenced defendant as described above. She ordered defendant to submit a DNA sample, granted him 681 days of jail credit, and imposed various applicable fees and costs.
The judge entered an amended judgment of conviction on November 1, 2006, reflecting her sentencing decision and also ordering defendant to be subject to community supervision for life. On January 3, 2007, the judge filed a second amended judgment of conviction, removing the community ...