On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 04-10-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Fuentes and Simonelli.
Defendant Timothy Kakembo was tried before a jury and convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and second degree endangering the welfare of a child over whom defendant had a duty of care, N.J.S.A. 2C:24-4a.
The victim was defendant's nine-year-old daughter. As to the aggravated sexual assault conviction, the court sentenced defendant to a term of eleven years. On the second degree conviction of endangering the welfare of a child, the court sentenced defendant to a concurrent term of six years of imprisonment. Both sentences are subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn1 The court also imposed all mandatory fines and penalties. We affirm.
The following facts will inform our discussion of the legal issues raised by defendant.
Defendant and his former wife, R.K., had two children together, a girl, K.K., born in 1995, and a boy, T.K., born in 1998. Although the children lived with their mother, defendant shared joint legal custody and had overnight parenting time with the children on the weekends. The incident that gave rise to this case first came to light during a conversation R.K. had with her daughter on the evening of August 11, 2004. R.K. gave the following account of what transpired that night:
It was at night and I had just gotten [K.K.] out of the bathtub and she was running around in her underwear. And I said, [K.K.] that's not something we do, put your pajamas on. I saw that she was in the bedroom, and I went in there to talk to her and I said we don't run around in our underwear at home. I said do you do that at your dad's house? And she said yes. So, I said okay. So, then I said, [K.K.], does your dad ever try to touch you? She said, no. She said well, one time I was wearing the days of the week underwear, and I had the days of the week printed on my underwear and he went to grab me and he grabbed me so hard that it felt like he punched me. And then she said that there was one time where he was walking around, or playing with her, in his pajamas and his private had come out of his pants. And I said, well, if that ever happens again, I said you tell him, I said you tell him to put that thing away. And I left her room and went into my bedroom. And it just didn't sit right with me. So, I went back in her bedroom, I said, [K.K], I said are you sure your dad never tried to touch you? She said no, but can I tell you what he did do? And I said, yes, [K.K.], you can tell me.
And she said when daddy gives me a hug at bath at night, he'll wrap me up in a towel and he'll make me sit on his lap. And then I didn't understand what she was talking about. I said, sit on his lap? And she said yes. And I said well, how does he make you sit on his lap? And she took her hands and put them like this. And I said, well, did it hurt? And she looked at me like she didn't understand me, and she said no.
R.K. immediately attempted to contact law enforcement authorities that night, but she was unable to reach anyone at the 800 number for the Family Crisis Center. The following morning R.K. took her daughter to their family doctor for a physical examination. R.K. thereafter contacted the Division of Youth and Family Services. The physician who examined K.K. did not find any physical evidence of sexual trauma or any other kind of molestation.
As part of the evidence presented by the State the jury watched and heard a video recording of an interview of K.K. conducted by the State's investigator.*fn2 The interview lasted approximately thirty minutes and took place in a room used to interview children alleging to have been sexually molested. The recording shows the investigator asking K.K. if any part of defendant ever touched her. The child nodded and stated that "his penis" touched her "in [her] private." The investigator then asked: "[D]oes it go inside you or just touch you or something else?" K.K. responded that "two times it touched me inside." When the investigator asked: "How did his penis touch you inside if he had underwear on?," K.K. explained that "[i]t stuck through the hole." The investigator then asked: "[Y]ou said his penis touched your private, did it go inside your private?" K.K. nodded, indicating "yes." When the investigator asked the child how she knew defendant's penis was sticking out of the hole in his underwear, K.K. answered: "I didn't feel his underwear. I felt his penis."
As the following exchange demonstrates, however, K.K.'s trial testimony did not include a clear reference to sexual penetration during the incident at defendant's residence:
Q: And when you would take your bath, or after you'd take your bath, what would you do?
A: I would get a towel and go into my --in his room.
Q: When you put your towel on did you have anything else on? Were you wearing anything else?
Q: And why did you go then into your dad's room?
A: Because that's where my clothes were.
Q: When you went into your dad's room what was in there, or who was in there?
A. At first no one, but then later my dad came in there. Like about five seconds after.
Q: And after he would come in, five seconds after, would you still be in a towel?
Q: When he came into his bedroom, where did he go?
Q: And did he tell you to do anything?
A: He told me to come over there.
Q: And I had just started to ask you, when your dad would come into the bedroom, at that point, what was he wearing?
Q: And when he came into the bedroom, in his boxers, what did he do?
A: He told me to come here.
Q: And where was your dad then, at ...