On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-05-0483.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Waugh and Fasciale.
Defendant, D.M. appeals from a judgment of conviction of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); three counts of second- degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of a lesser included offense of offensive touching, N.J.S.A. 2C:33-4(b). The trial judge imposed an aggregate sentence of sixty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
Between August 2001 and October 30, 2002, D.L. was sexually abused by defendant, a live-in boyfriend of her mother, C.W. During the summer of 2001, when D.L. was eight years old and about to start third grade, D.L. lived in an apartment with her three-year-old sister, C.W., and defendant. The sexual abuse usually occurred in D.L.'s bedroom before she went to school.
On the evening of October 30, 2002, when D.L. was nine years old, she told her mother that defendant touched her sexually that morning. That night, C.W., D.L., and her sister left the apartment and stayed in a hotel.
The next morning, C.W. took D.L. to a family doctor. The doctor referred the matter to the Division of Youth and Family Services (DYFS), and a caseworker requested that D.L. be examined by Dr. Martin A. Finkel, D.O. Dr. Finkel is a pediatrician employed by the University of Medicine and Dentistry of New Jersey. He is a professor of pediatrics and medical director of the Child Abuse Research Education and Service (CARES) Institute. The CARES Institute is a diagnostic and treatment center for children who are suspected of having experienced abuse. At trial, Dr. Finkel was qualified as an expert in the field of "pediatrics and in the diagnosis and treatment of child sexual abuse."
On October 31, 2002, Dr. Finkel examined D.L. Before the examination, Dr. Finkel obtained a separate medical history from C.W. and then from D.L. to avoid one from influencing the other.
Dr. Finkel explained that a diagnosis involving child sexual abuse is made the same way a doctor renders a diagnosis of any medical disorder. The doctor takes a history and then performs an examination. He said that "when [physicians] evaluate children [when] there's a concern for whether they've experienced something of a sexually inappropriate nature, the medical history is really [a] key and paramount component . . . ." In taking a child's history, Dr. Finkel first obtains information from an accompanying adult then the child. A complete medical history from birth to the present exam is obtained from the adult. He testified:
When there has been a concern that a child experiences something of a sexually inappropriate nature, [physicians] particularly focus on the gastrointestinal and genital urinary systems because those are[,] in a sense[,] the target organs[,] and so I ask a very detailed series of questions about [those systems. I]f I'm asking about [the] genital urinary system, I'll ask questions [such as: H]as the child ever had a kidney or bladder infection, a vaginal discharge, vaginal odor, [or] vaginal bleeding[? H]ave they ever had any accidental injuries[? H]ave they ever had discomfort with urination[? H]ave they ever had blood in their urine[? D]o they use bubble baths, [and] if so[,] have they ever complained of discomfort with that[? H]ave they ever had their private parts examined other than routine health care[?]
He noted that a small percentage of children require follow-up medical care for sexually transmitted diseases. The follow-up care includes re-culturing and blood tests.
During D.L.'s medical exam, C.W. was present. On the physical examination, Dr. Finkel reported:
Examination of genitalia was completed in the lithotomy position with use of gross macroscopic and colposcopic visualization at [four, six, and ten] magnification with white and green light. The labia majora and minora and clitoral hood are well formed without findings of trauma. With labial separation and traction, it is possible to visualize a slight estrogen affect to the hymenal tissues. There was an annular shaped configuration to the orifice. There are no interruptions in the integrity of the hymenal membrane. There are no acute or chronic signs of trauma. Examination of the external anal verge tissues revealed a symmetric rugal pattern, normal response to traction, normal symmetic tone[,] and no acute or chronic signs of trauma.
As part of the history, D.L. told Dr. Finkel that the touching was "both like wiping and inside" in the adult sense of the word. D.L. described to Dr. Finkel that defendant "pulled [her] over and put [her] on top of him." She said that this happened "in [her] room." D.L. told Dr. Finkel that this happened right before school. D.L. stated that defendant touched her private parts, which she referred to as her "pee pee and butt," with his finger. D.L. said that she was wearing her pajamas at the time that defendant touched her under her clothing, and that "it was hurting [her] inside."
Using a plastic model of the female genitalia, D.L. showed Dr. Finkel what defendant did. D.L. told him that defendant rubbed her vagina, and that it "hurt after when he stopped and[, she] went to the bathroom." She told the doctor that she felt "stinging" when she urinated. She told Dr. Finkel that defendant touched her with his "private" which was "long and nasty." She said that defendant would start "shaking it." She told the doctor that afterwards she had to clean her private because it was "creamy and wet." D.L. told the doctor that defendant would watch "nasty movies with two girls."
Dr. Finkel examined her for sexually transmitted diseases, but all cultures were negative. He said that D.L.'s history was "augmented by symptom[-]specific complaints referable to specific events." According to the doctor, the touching "caused some local irritation or trauma and [D.L.] then described that after [defendant] stopped . . . it hurt." Specifically, it "stung" when D.L. went to the bathroom. Dr. Finkel explained that this discomfort when urinating is known as dysuria.
Dr. Finkel concluded that D.L. "had a symptom related to a specific event that reflect[ed] trauma to those tissues in the process of rubbing." He explained that "superficial [irritation] could easily heal within [twenty-four] hours." Dr. Finkel opined, within a reasonable medical certainty, that D.L. experienced trauma to the structures of the vaginal vestibule. His diagnosis was not only based upon the history provided by D.L. but also upon his particular knowledge of dysuria, and the sexually explicit details that one would not expect a nine-year-old to know.
Dr. Finkel's objective findings were consistent with penetration into the vaginal vestibule. Upon clinical examination he determined that "the degree of inside was not past the hymenal membrane, [and] that it was limited to [the] structure known as the vaginal vestibule." He explained that the touching was between the labia with a finger and a penis and the penetration was "[w]ith a finger and . . . a penis into the structures of the vaginal vestibule."
Through the history obtained from C.W., Dr. Finkle learned that D.L. had no past medical history of dysuria or discomfort with urination, no urinary tract infections, and no genital complaints. He found that the complaint of dysuria was "something that was specifically related to this specific event."
The doctor opined that D.L. experienced inappropriate genital touching and genital contact. He said,
In the context of that genital touching she experienced trauma to the tissues around the urethra that result[ed] in a symptom of dysuria. She also had the potential for contracting a sexually transmitted disease from a history that suggests there was contact with potentially infected genital secretions.
On November 1, 2002, D.L. was interviewed by Detective Frank Troso, and she gave a videotaped statement. This was her first contact with law enforcement. D.L's description to the detective of what defendant did was similar to what she told Dr. Finkel. She told Troso that defendant would enter the bedroom, pull down her pajamas and "do stuff to [her]." Defendant would "take off his clothes[,] and he would take his private part and put it inside [D.L.'s] private part." She described his private part as his penis and how defendant "put it in [her] private part." She stated, "every time it happened, that's mostly what he did." She said that defendant touched her private part with his hand, "but that didn't happen as much as the other thing happened."
"He would take his penis and shove it into my bottom," she also said. He would go inside her bottom and rub his penis on her bottom. Defendant put D.L.'s hand on his penis. She said that when these things happened, his penis was hard. She said that "white[,] foamy" stuff would come out of his penis, and it would go on her hand, on her bottom, and on her private part. She said that these things happened more than once.
D.L. told Troso that defendant put his penis in her vagina on at least three occasions, placed his penis inside her buttocks at least twice, and digitally penetrated her. Troso testified that D.L. "described very, very graphic and detailed accounts of what happened" between her and defendant.
On April 24, 2003, defendant was indicted. On May 4, 2004, the trial judge granted defendant's motion to dismiss the indictment based on the State's failure to present exculpatory evidence. The judge found that the State's failure was not an intentional subversion, and permitted the State to re-present the case to the grand jury.
On May 6, 2004, the State re-presented the matter to the grand jury. This time, the State offered additional evidence that there were no acute or chronic signs of trauma to D.L.'s vagina or anus. The State elicited the following testimony from Detective Troso:
Q: Now did you ever receive a report from Dr. Finkel?
Q: And Dr. Finkel, as you described him[,] is essentially . . . a pediatric gynecologist?
Q: You reviewed that report after you received it?
Q: And you've reviewed it in preparation for . . . ...