On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 03-03-0285 and 03-03-0385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 10, 2010
Before Judges Cuff, Payne and C.L. Miniman.
A jury found defendant J.E.J. guilty of second degree sexual assault. The victim is his step-daughter, who was eleven years old at the time defendant began to touch her inappropriately. He is serving a seven-year term of imprisonment subject to an 85% parole ineligibility term in accordance with the No Early Release Act (NERA).*fn1 The appropriate fines, penalties, assessments and fees were also imposed.
Defendant married Charlotte*fn2 in May 1996; her daughter Karen was six years old. Defendant and Karen had a close father-daughter relationship. Having known him since she was two years old, Karen thought he was her biological father and did not learn to the contrary until she was ten years old. Karen testified, however, that their relationship changed when she turned eleven years of age. At that time, defendant began to touch her in inappropriate places. Charlotte also discovered a letter written by defendant to Karen in which he professed his love for her. Charlotte called the police.
At trial, Karen testified that defendant began "touching [her] inner thigh, telling [her] stuff like, I love you, [and] hugs that just weren't like before." She said that he usually touched her inner thigh when the family was sitting in the bedroom watching television together and that such behavior occurred on more than fifteen occasions. A few times after defendant did this, he approached her and told her that "it was okay that was just the way he felt for [her] and things like that." He also told her that "he felt like [she] was telling him, it was okay, and that he could show his feelings for [her] and that there wasn't anything wrong with it."
Karen also testified that defendant's hugs became tighter and more aggressive as if he was trying to make her stay with him. She also recalled a particular instance when defendant tried to "french kiss" her and she "just closed [her] mouth and gritted [her] teeth to try to prevent his tongue from going inside [her] mouth." On another occasion, defendant, wearing only a towel and underwear, pulled Karen's sleeping bag off and her pants fell. She stated that defendant told her he was not trying to do anything, but he just wanted to touch her. This made her uncomfortable, so she kicked him away, arose and backed away from him. As a result of defendant's actions, Karen began to fear being around him, but she never told her mother. She was afraid it would affect her parents' relationship.
On July 21, 2002, while preparing to take Karen and the other two children to meet defendant at a soccer game in the park, Charlotte picked up a pair of defendant's pants and a letter fell out of his wallet. The letter was written in Spanish. She recognized defendant's handwriting and the paper he used. She had used the same paper a few days earlier. The contents of the letter, as translated by Detective Robert Meoqui, are as follows:
Nena*fn3 forgive my conduct but this is not strange for you. Because  not speak to you, not say good-bye, not give you the good mornings, not play, not be by your side, not kiss you, we didn't last the years this is something stupid between a father and daughter. I do this thinking that it is the only path that I have in order not touch you, not to kiss you. But I am mistaken all this I need the only thing I achieve is to have my spirit without life without desire for anything. Without dreams as if I were dead, in life.
For the first time in my life I am afraid. A lot of fear. . . . Because each day I need you very much this sentiment I have for your mother and now with you. But with you it is different because you are my daughter. I cannot make love to you. I can't deceive your mother with another woman or with you. What I feel is love and not evil. Never am I going to do something bad to you. The bad thing is what I am doing. No speaking to you, no greeting you, no kissing you, no touching you. Because the truth is that I want to want you. My little one, for me there are three paths. 1) that you call the police and put me in jail for sexual harassment. 2) that you tell your mother all of the truth so that she throws me out of the house. 3) Accept my love unconditionally until the law of God . . . decides what to do with our lives. You will grow up, become a beautiful woman, and get married. I will continue with your mother until the end of my life.
But for now accept that we need each other.
Because despite that you do not like that I caress you. I know . . . In the bottom of you[r] heart you also need me. . . . . Nena at times I ask myself why I fell in love with you, you being only a little girl and over all you being my daughter. And I find no answer. The only thing I know is that for love there are no limits, there is no age. Despite that you are hardly a little girl, you have awakened the sentiment of love. . . . Nena to leave. Always have I looked for the wrong path, and the truth is that I don't find it and don't go on and tell me that the path is God. Because God is love and he does not get involved in those things.
Charlotte said she knew from the letter that something was not right and was confused because she did not know what was happening in her house with her daughter and the man to whom she was married. Charlotte told the children about the letter and questioned Karen. At first, Karen denied that there was any misconduct, but then admitted that defendant had kissed her. When Charlotte asked Karen how defendant had kissed her, she responded, "the way he kisses you." With this disclosure, Charlotte drove the children to the home of the family pastor. After the pastor read the letter and spoke to Karen, Charlotte and the pastor decided to call the police.
Defendant testified at trial. He spoke about his marriage and stated that he felt that his marriage became strained because his wife became overcommitted to their church. He also described an incident when he struck Karen because she entered the bathroom to help her fourteen-year old male cousin. He stated the letter to Karen was an apology for hitting her and a way to ...