On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1386.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Parrillo, Lihotz and Ashrafi.
Tried by a jury, defendant Reginald Helms was found guilty of the lesser-included offenses of second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree child endangerment, N.J.S.A. 2C:24-4a, involving S.B., born on June 3, 1995. On the second- degree crime, defendant was sentenced, as a persistent offender, N.J.S.A. 2C:44-3a, to an extended term of ten years, eighty-five percent without parole, and, on the third-degree offense, to a concurrent five-year term. Defendant appeals. Save for a limited remand to both correct the judgment of conviction and resentence to reflect the merger of the child endangerment conviction with the sexual assault conviction, we affirm.
According to the State's proofs, then nine-year old S.B. lived in an apartment in Newark with her mother, D.B., father, R.K., younger brother, K.K., and her father's friend, defendant Helms, whom she considered her uncle. Defendant has been living with S.B.'s family since the summer of 2004 and would take care of S.B. and her brother when her parents ran errands.
Normally, S.B. and her brother would go directly from school to the after-school program at the housing complex's recreation center, where their mother would later pick them up and drive them home. On November 12, 2004, however, D.B. had a medical appointment and gave S.B. a key to the apartment because she was not sure she would return in time to pick her children up. Instead of going straight to the after-school program, however, S.B. first went home to drop off her and her brother's book bags. When she opened the door and went upstairs, defendant came from behind her, held her arms and lifted her up.
S.B. dropped the book bags and tried to pull away, but was unsuccessful. Defendant carried her into a bedroom and threw her on the bed sideways. He then put his right hand on her chest, and with his other hand, pulled down her pants and placed his index finger into her vagina, which hurt her. S.B. had one of her legs hanging over the bed, and defendant was in front of her. When he stepped to the side, S.B. was able to run out the door.
S.B. went directly to the recreation center where she encountered school program aides Yolanda Berry and Selena Gilmore. When Berry told S.B. that her mother called and said she had to go home, S.B. burst out crying. Because she was crying loudly, Berry took S.B. to the back to comfort her, but S.B. kept crying. Berry called over Gilmore, who asked her what was wrong, and S.B. said that "her uncle was touching her in the wrong places." Berry then went next door to the program manager, Millie Mendez, while Gilmore remained with S.B. and asked her to explain the touching. S.B. responded that her uncle was putting his finger "down there," pointing to her vagina. The police were then summoned.
Newark Police Officer Quintar Mathis responded to the recreation center around 5:00 p.m., where he met with Gilmore, Berry and the child. S.B. was upset, and it was apparent she had been crying because her eyes were swollen and her face was red. Accompanied by S.B.'s mother, who had since arrived, Officer Mathis and his supervisor then went looking for defendant at the apartment, leaving S.B. with her Aunt Betty, who by then had also arrived at the recreation center. When they could not locate defendant, the officers returned to the recreation center and escorted S.B. to the hospital to be examined.
Thereafter, the Division of Youth and Family Services (DYFS) contacted the family to have S.B. come for a forensic interview, which took place on November 29, 2004 at the Wynona's House Child Advocacy Center. The interview was conducted by Arlin Alvarado, an employee of the Center,*fn1 who had been given a brief synopsis of the case by Detective Michelle Patrick of the Essex County Prosecutor's Office Child Abuse Unit. During the interview, Alvarado employed the five step RATAC method in which she was trained. She builds rapport with a child; transitions into anatomical male and female drawings to identify the child's language communication for body parts; goes into a touch inquiry defining abusive touch and non-abusive touch, such as hugs, kisses and tickles; provides the child with an opportunity to talk about their abuse; and discusses safety rules to give the child the chance to ask questions and provide closure. If during the phase where the child has the opportunity to talk about abuse she actually discloses an abuse, then Alvarado asks the child for specific facts as to who, what, where, and when, depending on age.
Only Alvarado and S.B. were present in the room although the interview was videotaped by Detective Patrick, who along with another detective from the Prosecutor's Office, an assistant prosecutor, and a therapist, observed the interview via a television monitor. None of them spoke to S.B. prior to Alvarado's interview. Before concluding the interview, Alvarado came to the observation room and asked if there were additional questions or the need for clarification.
During the interview, S.B. indicated that there were other acts of sexual abuse by defendant. She mentioned one occasion in her Aunt Betty's home when, watching television with her brother in her mother's bedroom, defendant grabbed her from behind, took her into another bedroom, and put his finger inside her vagina. This taped interview was played for the jury, but in redacted form, without reference to the other incidents of sexual abuse reported by S.B.
Defendant denied ever touching S.B. in an inappropriate or sexual manner on November 12, 2004. Although he lived with the family for about a year, he denied ever being in the apartment when S.B. and her brother came home from school, and admitted to being alone with them only once or twice during the entire year. Although he could not recall where he was after November 12th, defendant admitted that S.B.'s father told him that the police were looking for him, but he did not turn himself in.
Crediting the State's account, the jury convicted defendant of second-degree sexual assault and third-degree child endangerment.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT IMPROPERLY ADMITTED S.B.'S UNTRUSTWORTHY AND UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING ALLEGED SEXUAL ABUSE.
A. S.B.'s Statement Concerning Alleged Sexual Abuse Made During Her Forensic Interview With Ms. Alvarado Lacked Reliability And Trustworthiness As Said Statement Was Inconsistent With Her Trial Testimony and Because Ms. Alvarado Was Not An Impartial Party.
B. S.B.'s Statements To Ms. Berry And Ms. Gilmore Lacked Trustworthiness And Reliability Due To Prompting And S.B.'s Motive To Fabricate.
II. THE TRIAL COURT ERRED WHEN IT ADMITTED REPETITIVE CORROBORATING HEARSAY EVIDENCE PROFFERED PURSUANT TO N.J.R.E. 803(c)(27).
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED MR. HELMS' REMOTE CONVICTIONS.
IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. HELMS' MOTION FOR A NEW TRIAL BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE PRODUCED AT THE TRIAL.
V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENSE COUNSEL'S REQUEST FOR A JURY CHARGE IN ACCORDANCE WITH STATE V. CLAWANS, 38 N.J. 162 (1962).
VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO MERGE MR. HELMS' CONVICTION FOR THIRD-DEGREE ENDANGERING THE WELFARE OF A MINOR, N.J.S.A. § 2C:24-4(A), WITH HIS CONVICTION FOR ...