On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-10-01017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2010
Before Judges Stern, Sabatino and Newman.
On October 26, 2006, a Union County Grand Jury returned Superseding Indictment No. 06-10-01017, charging defendant R.A. with committing first-degree aggravated sexual assault upon A.C. in Rahway between May 1, 2004, and August 31, 2005 (count one); second-degree sexual assault upon A.C. in Rahway between May 1, 2004, and August 31, 2005 (count two); third-degree endangering the welfare of a child, A.C., in Rahway between May 1, 2004, and June 1, 2005 (count three); first-degree aggravated sexual assault upon A.C. between July 17 and 18, 2004, in Princeton (count four); second-degree sexual assault in Princeton upon A.C. between July 17 and 18, 2004 (count five); third-degree endangering welfare of a child, A.C., in Princeton between July 17 and 18, 2004 (count six); first-degree aggravated sexual assault upon A.C. between June 4, 2004 and April 3, 2005 in Franklin/Somerset (count seven); second-degree sexual assault upon A.C. between June 4, 2004, and April 3, 2005, in Franklin/Somerset (count eight); third-degree endangering welfare of a child, A.C., between July 17 and 18, 2004, in Franklin/Somerset, (count nine); first-degree aggravated sexual assault upon S.C. between July 17 and 18, 2004, in Princeton (count ten); second-degree sexual assault in Princeton upon S.C. between July 17 and 18, 2004 (count eleven); and third-degree endangering welfare of a child, S.C., in Princeton between July 17 and 18, 2004 (count twelve).
The jury returned a guilty verdict on all counts of the indictment. The trial court sentenced defendant to an aggregate term of forty-years imprisonment, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentencing court merged counts 2, 3, 5, 6, 8, 9, 11, and 12. Concurrent fifteen years sentences were imposed on counts 1 and 4; a consecutive thirteen-year sentence was imposed on count 7; and a consecutive sentence of twelve years was imposed on count 10.
Defendant appeals. Except to remand to correct the judgment of conviction regarding the fines imposed, we affirm.
The relevant facts shown by the State's proofs may be summarized as follows. In 2004 and 2005, defendant, the boyfriend of D.C., sexually assaulted two of D.C.'s young daughters at different times and in different places. The children, S.C. and A.C., were only six and eight years old when defendant began abusing them.
A.C., nicknamed "Girly," was born in May 1995, and her sister, S.C., was born three years later in May 1998. They lived with their mother and three other siblings in Rahway from 2002 to June 2004. Defendant spent overnights there with the family. When D.C. had to shop, run errands, and take her oldest son to his father's residence in Newark, defendant watched her children.
One night, when A.C. was in second grade and everyone else was sleeping, defendant entered her room where she slept with S.C. and S.C.'s twin sister, R.C. He kissed A.C., unclothed her, placed his penis inside her vagina, and "was moving" on top of her. After a while, defendant got up and just walked out of the children's bedroom without waking up the other two sisters.
Defendant molested A.C. at least three more times in Rahway. One time he told her "I love you," as he again penetrated her vagina with his penis. On another occasion, she fell asleep downstairs, he again penetrated her and touched her vagina and buttocks. On a third time, he carried A.C. from her bed to her mother's bed and again penetrated her vagina with his penis. Afraid that her mother would "put . . . [her] out [of] the house," A.C. kept defendant's molestations a secret.
From June 2004 until March 2005, D.C. and her children lived with D.C.'s parents in Scotch Plains. Defendant did not stay there with them. However, on a number of weekends, D.C. and her children would go to nearby hotels to give her parents some respite from the noise and inconvenience fostered by five children in a two-bedroom, one-bathroom home. Defendant would join them. It was at the hotels that defendant again took advantage of A.C. and began molesting S.C.
D.C. and her children stayed at the Marriott Residence Inns in Princeton and Somerset between June 4, 2004 and April 3, 2005.
One of the hotel rooms had an upstairs and a downstairs.
D.C. often conducted work on one floor while the children and defendant either were on the other floor or swimming in the hotel pool. On one occasion, defendant sexually assaulted A.C. and S.C. in the hotel bedroom by climbing on top of A.C. and penetrating her vagina with his penis and by performing cunnilingus upon S.C., according to A.C. and not corroborated by S.C. On another occasion, defendant penetrated A.C.'s vagina with his penis.
On a third occasion, defendant took both sisters into the hotel bathroom with him. S.C. did not want to go, but he forced her inside. There, he made both girls "hump" his legs while he smoked a cigarette. Then he unclothed them, touched their vaginas, and penetrated them with his penis. During the extended period of abuse, both girls noticed that defendant had scars or stretch marks on his outer thighs.
In January 2005, D.C. and defendant broke up but remained friends. Two months later, D.C. and her children moved to Honeybrook, Pennsylvania. During the summer of 2005, defendant would visit them there. He again watched the children for D.C. and again sexually assaulted A.C. and S.C. As A.C. explained it, defendant did "the same thing he always did, private in private."
D.C. was scheduled to attend a business trip in late October 2005 in Annapolis, Maryland. She asked defendant if he could watch her children which he agreed to do. D.C. told her five children of the arrangement in early October.
A week before D.C. was to leave for Annapolis, A.C. and S.C. both came to her, with S.C. prodding her older sister, saying "just tell her, Girly, just tell her." A.C. began to cry, asking her mother "can you just punish us now?" When D.C. inquired "punish you for what?," A.C. disclosed that "Uncle R. raped us." When D.C. asked A.C. what she meant by "rape," her ten-year-old daughter replied "like when a man humps on a woman to make her have a baby." A.C. told her mother that defendant had assaulted her and S.C. in Rahway, in the hotels in New Jersey, and in Pennsylvania. Both girls were crying, and S.C. was biting her fingers.
Within minutes of hearing what had happened to her two young daughters, D.C. called defendant. He denied abusing her daughters. When D.C. asked what she should do, he suggested that she go to the police, which she did.
On November 3, 2005, Detective Donna Carroll of the Child Abuse Unit of the Chester County District Attorney's Office Child Abuse Unit interviewed A.C. and S.C. separately. The interviews were videotaped and transcribed. The sisters discussed defendant's attacks upon them. Detective Carroll explained that children's concept of time is different from that of adults.
In the latter part of November 2005, with police assistance, D.C. telephoned defendant in an attempt to get him to confess his crimes. Defendant did not, but he told D.C. that he would "admit," if it helped her get her family back together. He would not call the girls liars.
On February 26, 2006, Detective Stephen McGuire of the Union County Prosecutor's Office's Child Abuse Unit also interviewed the girls on videotape.
On March 15, 2006, police arrived at a Willingboro address during the early morning hours to arrest defendant, but could not locate him. Two hours later at 5:55 a.m., they went to his mother's house in Freehold and told her that they had a warrant for his arrest. Defendant was not at the house.
At trial, defendant testified. Defendant denied sexually assaulting A.C. and S.C., called them liars, but could not explain what would motivate them to lie. He confirmed that he had smoked in hotel room bathrooms and had scars or stretch marks on his legs. Defendant denied that he had any telephone conversations with his mother between February and April 2006.
On rebuttal, Detective McGuire testified that telephone records showed defendant's mother called her son immediately after police questioned her about his whereabouts. On surrebuttal, defendant then recalled having spoken to his mother on March 15, 2006. He admitted that he had not turned himself in because he allegedly needed to earn money to pay for his defense.
On appeal, defendant raises the following issues for our consideration:
THE COURT SHOULD HAVE EXCLUDED THE HIGHLY PREJUDICIAL VIDEOTAPED STATEMENTS OF THE TWO GIRLS TAKEN IN ...