On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-02-00140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Graves, J. N. Harris and Newman.
On a retrial following a reversal by this court, State v. R.E.B., 385 N.J. Super. 72 (App. Div. 2006), the jury found defendant R.E.B. guilty of first-degree aggravated sexual assault of his biological daughter, J.B., and second-degree endangering her welfare. The trial court sentenced defendant to a ten-year prison term on the sexual assault charge and a consecutive five-year term on the endangering conviction. Defendant appeals. We affirm the conviction and sentence.
The relevant facts developed at trial may be summarized as follows. J.B. was born in 1985 to M.O., her mother, and defendant. In 1987, R.B., J.B.'s younger brother, was born to M.O. and defendant. M.O. and defendant separated in 1990 and later divorced. After the separation, J.B. regularly visited the home of defendant, her paternal grandmother, K.S., her paternal step-grandfather, B.B., and her step-great-aunt, L.B. Defendant later married L.B., who was B.B.'s sister and defendant's step-aunt through his mother's marriage to B.B.
On November 30, 1993, B.B. was arrested for sexually assaulting J.B., pled guilty, and served a five-year sentence at the Adult Diagnostic and Treatment Center in Avenel, New Jersey. Following B.B.'s guilty plea to the charge of sexually assaulting defendant's daughter, defendant continued to live with B.B. Because defendant continued to associate with B.B. after he pled guilty to the sexual assault of J.B., M.O. prohibited J.B. from visiting defendant.
J.B. resumed visiting defendant at his new residence shortly after B.B. was incarcerated. M.O. would take J.B. to visit defendant for the weekend. J.B. typically spent Friday through Sunday with her father. J.B. testified defendant began having sex with her when she was "eight, nine, ten, maybe older" until she was "[b]etween thirteen and fifteen." She later testified the sexual assaults stopped occurring approximately in 1999 or 2000.
J.B. claimed defendant had sexual intercourse with her multiple times, generally when they were alone in defendant's new home together, although she could not remember how many times it happened. Defendant told J.B. not to tell anyone about their encounters, and gave her money, alcohol, cigarettes, and candy in an attempt to keep others from learning about the abuse.
Unlike the first trial, J.B. recalled three specific instances where her father sexually assaulted her, although she could not recall the dates or their chronological order.
One of the instances was when J.B. was in her room with no one else in the house. She was not wearing underwear nor pants. According to her, defendant "penetrated me and he got off on my stomach," after which he got a towel and "wiped it off" before leaving the room. She was on her back on the bottom bunk with her legs on the floor and her father was between her legs.
A second occurrence took place in defendant's bedroom which he shared with L.B. On that occasion, defendant was laying on his back on the waterbed and she was on top and "riding him" with his penis inside her. She did not recall if he ejaculated.
She described a third occasion involving a similar type of assault while she was lying on her back as the bunk beds were separated. Defendant ejaculated on her stomach, and she subsequently cleaned it off with a towel.
J.B. stated that the instances would last "until he got off." Once her father finished doing what he was doing, he "went about his day."
Before J.B. stopped visiting her father, she decreased the amount of time she would be alone at his residence. She asked one of her cousins to accompany her for the weekend in order to avoid being alone with him. She began working at Burger King which affected the amount of time she had to spend in his company. She did not tell anyone because she did not want to put her mother and brother through the same experience they had been through before involving B.B.
J.B.'s cousin, H.O., testified that on January 18, 2002, J.B. told H.O. about defendant's sexual assaults against her.
At that time, H.O. and J.B. were living and working together, shared a room, and had a "very close" relationship. When revealing her father's sexual assaults, J.B. became "really upset" and "kind of shut down," then "curled up into a ball . . . . she was just crying and crying . . . . [H.O.] just kept asking her what happened . . . she wouldn't say anything more than that." H.O. claimed J.B. "said that she had never told anybody" and "wanted [H.O.] to keep it a secret." However, H.O. testified that she repeated to M.O. what J.B. had told her and later the police came to investigate.
H.O. testified J.B. was "very upset" and "a little bit" angry with her for failing to keep J.B.'s secret, but "forgave" H.O. and "understood why [H.O.] did it." J.B. testified she made H.O. promise not to tell anyone, and now wished she had never trusted H.O. with the information. J.B. also testified she was afraid for her mother's health after learning about the sexual assaults and that the news would destroy her family.
J.B. claimed her father's sexual abuse "was something [she] had every intention of going to the grave with. Nobody would have ever known."
After H.O. revealed to M.O. what J.B. had told her, M.O. confronted J.B., and J.B. admitted defendant had sexually assaulted her. M.O. testified that J.B. was "frantic," "devastated," and "didn't want anybody to ever know. She didn't want her father to be in trouble. She didn't want me to be upset. She had the weight of the world on her." In response to hearing that defendant had sexually assaulted their daughter, M.O. "started shaking uncontrollably and couldn't breathe and passed out on the floor." J.B.'s maternal grandmother called an ambulance, which soon arrived along with the police. J.B. provided a statement to the Lower Township Police the same day, January 19, 2002, indicating that defendant had repeatedly sexually assaulted her. J.B. was sixteen years old at that time.
On January 25, 2002, the Lower Township Police arrested defendant and transported him to police headquarters, where he signed a waiver of rights form and provided a ninety-minute statement during which he was questioned by two detectives. The detectives' interrogation tactics included providing false information to defendant that J.B. had passed a polygraph test as to her allegations and that she was suicidal and might harm herself if defendant did not confess.
While speaking with Detective Keywood of the Lower Township Police Department, defendant stated, "If it happened it must have been while I was drunk or something otherwise I don't remember. I really wish I could." In response to a detective's direct question regarding J.B.'s accusation, defendant answered, "Probably when I was drunk, if it did happen." Although defendant claimed, "Honestly inside . . . . No, I don't think nothing happened[,]" when the detectives stated, "so ...