July 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIMOTHY KAKEMBO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?
A. He sat on his bed.
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?
A. His boxers.
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 that point?
A. On the bed.
Q: What was he doing on the bed?
Q: And when he asked you to come here, what did you do?
A. I came.
Q: And could you tell us where you went when he asked you that?
A: I went in front of him.
Q: And where in front of him did you go?
A. He was sitting on the bed and I stood in front of him.
Q: And after you stood in front of him, did you do anything else?
A: I had to sit on him.
Q: And why did you sit on him?
A. He told me to.
Q: Can you describe how you sat on him?
A: I sat facing him.
Q: So, you were facing his face?
Q: Can you tell us where your body was, how it was positioned on his body?
A: We were facing each other.
Q: When you were facing him, where were your other parts? Where were you arms and your legs?
A. My legs were on his legs.
Q: And when this would happen were you wearing anything?
A: My towel.
Q: Did you have any underwear on or anything?
Q: Your body parts, could you tell us [which] of your body parts were touching his body parts?
A: My private part was on his private part.
Q: Okay. And when this would happen, when your private part was on his private part, how did his private part feel?
A. It felt like he was -- his underwear was on me.
Q: And how did that feel to you?
A: It hurt.
Defendant testified in his own defense, denying that anything untoward occurred between him and his daughter. He also called a number of character witnesses, including the woman he had been engaged to at the time of the alleged molestation. The defense's trial strategy consisted of characterizing what may have occurred between father and daughter as an innocent and loving gesture that was taken out of context and given sinister connotations by a disgruntled former wife and an overly zealous, prosecutorial-minded system. Ultimately, the question turned on K.K.'s credibility.
This case was tried over a three-day period. The record shows that, at the commencement of each trial day, the judge questioned the jurors as to whether they had been exposed to "any newspapers, listen[ed] to anything on the radio, or [had] talked to [ ] by any friends or loved ones about this trial." The judge reminded them of their obligation to not speak to anyone about the trial or to permit anyone to speak to them about it.
On the second day of trial, the judge made the following comment to counsel outside the presence of the jury:
It's been brought to my attention that there is an Atlantic City Press article that contains material that's obviously not anything that needs to be brought to the jurors' attention. What I want to do is get started as soon as possible. So, we can see if anybody read the article and deal with it one at a time. Obviously, it's prejudicial material. Hopefully, the jurors will be - -will have been good about complying with the directive not to read the Atlantic City Press.
In response, defense counsel moved for a mistrial or alternatively for sequestration of the jury. In the absence of any evidence that any of the jurors had read the article, the court denied the motion. In so doing, the judge made the following statement:
None of the jurors this morning seemed at all hesitant about responding to the effect that no, they had not read anything in the paper. I have no reason to doubt their response. There is a presumption in the law that jurors will follow instruction[s]. The system depends on them following instruction. It is best to continue with the trial, to continue to remind the jury that at every opportunity, even though it's very tedious for them, [I'm] sure, they can't speak to anyone about the case, or read the local newspaper, or listen to radio or TV. That's the most that we can do and the most that we need to do at this time.
If the situation changes I will certainly take a different tact, but at this point there is no basis for either . . . a sequestration of the jury or the grant of a mistrial.
That same day, the court also instructed the jury as follows:
[t]he first question is one I'll be asking you each day, and that is, did anyone read the Atlantic City Press? Did anyone have [a] conversation about the case with another juror or another person? [No response indicated from the jury.] At this point, given those responses, we will proceed. Folks, the instruction that you not read the Atlantic City Press is even more important today than yesterday. I will say it again before the end of the day, when you recess, in the morning and in the afternoon and for lunch, if you see a copy of the Press on a table in a restaurant, just like don't even let your eyes stray over it, please. It really is important. This is supposed to be a fair process. The only way that that can be accomplished, and we all want it to be a fair process, is if you follow this instruction. Do not let anyone talk to you about any media accounts about the case, okay? So, having reiterated that, and please remember, if an hour from now you remember that maybe somebody said something to you and you just forgot about it, feel free to send a message then that you need to speak with me individually, and I'll gladly do that with the attorneys and [defendant] present.
Before the jury was dismissed on the second day of trial, the court gave the jurors the following instructions: "I don't know how to stress this more than I have the importance of you avoiding media accounts; radio, TV, newspapers. No Atlantic City Press, No Herald, no local paper whatsoever . . . [P]lease, avoid media accounts. Don't let anybody talk to you about this."
On the third day of trial, the court brought to counsel's attention that "there's a juror who has been exposed to a media account. I want to address it, get it out of the way."
According to the juror, at a work meeting that he attended after being dismissed from court for the day he was accidentally wearing his juror badge when a co-worker approached and asked him, ["]are you in the trial where the individual waived his appeal?["] I said I can't respond to that. I really don't know anything about that. I'm just -- you know, I thought to myself I don't know if there's another trial going on or what have you. But --
THE COURT: Thankfully, that doesn't apply to us . . . that brick landed two feet away, so we're okay.
[JUROR]: Okay. That's fine. Again, I didn't know if there was another trial going whether that was inaccurate, because evidently she had read that in the paper.
The juror further confirmed that he had not talked to any of the other jurors about this conversation. The following exchange then occurred between the juror, counsel, and the court:
[DEFENSE COUNSEL]: Was anything said about what this appeal meant by the person?
[JUROR]: No. I -- as soon as I heard that. I said I can't comment.
[DEFENSE COUNSEL]: Did you draw any inferences or deductions yourself about what this could possibly mean?
[JUROR]: Not really. Not that it would sway me one way or another, I don't think.
THE COURT: Especially since it has nothing to do with this case, it shouldn't.
[DEFENSE COUNSEL]: Well, I wonder if -- I mean did you draw an inference that it had to deal with this case, since she asked you?
[JUROR]: No. Well, in the back of my mind I'm thinking if it is this case, then I'll need to let the judge know.
[DEFENSE COUNSEL]: Okay. And did you know what it even meant, like what she was talking about, or the colleague was talking about, about waiving an appeal?
[JUROR]: I guess the assumption there would be that --
[DEFENSE COUNSEL]: Just throw it out.
[JUROR]: -- go through the process of the trial rather than plead --
[DEFENSE COUNSEL]: Guilty.
[JUROR]: -- plead guilty and bargain for --
[DEFENSE COUNSEL]: A deal.
[JUROR]: -- a deal.
[PROSECUTION:] You said initially, sir, that you kind of thought that maybe it had to do with another possible trial going on some other place in --
[JUROR]: I just didn't know.
At the conclusion of this exchange the court reminded this juror "[a]gain, don't talk to [the other jurors] about this until it's all over." The court denied defense counsel's motion to excuse the juror.
At the end of the third day of trial, the court reversed its decision and excused the juror, stating: "I have been thinking all day and I'm concerned about allowing you to remain on the jury." Before dismissing the juror, the court confirmed that he had not "mentioned anything to anyone." On the last day of trial, defense counsel renewed his motion for a mistrial based on a newspaper article that discussed the court's dismissal of a juror in the case. The court denied the motion and again asked the jurors if they read or heard anything that could affect their ability to remain on the jury; none of the jurors responded that they had.
Against this record, defendant now raises the following arguments on appeal:
THE TRIAL COURT ERRED IN FINDING THAT THERE WAS SUFFICIENT EVIDENCE OF PENETRATION TO SURVIVE A MOTION TO DISMISS THE FIRST-DEGREE CHARGE.
THE TRIAL WAS IRREPARABLY TAINTED WHEN THE COURT REFUSED TO REMOVE A SITTING JUROR TO WHOM A COMMENT HAD BEEN MADE BY AN ACQUAINTANCE AT WORK ABOUT DEFENDANT'S [sic] POSSIBLY HAVING "WAIVED HIS APPEAL."
DUE TO THE PROFUSION AND WEIGHT OF EVIDENCE ATTESTING TO DEFENDANT'S HONESTY, TRUSTWORTHINESS, AND OVERALL GOOD CHARACTER, THE COURT ERRED IN REFUSING TO SENTENCE HIM TO A TERM WITHIN THE SECOND-DEGREE RANGE.
We reject defendant's arguments and affirm. We will first address defendant's argument as reflected in Point I.
The standard for deciding a motion for judgment of acquittal under Rule 3:18-1 is well-settled. The court must determine whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R. 3:7-6. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
We apply the same standard on appeal. State v. Bunch, 180 N.J. 534, 548-49 (2004). In this review, "no consideration may be given to any evidence or inferences from the defendant's case." Reyes, supra, 50 N.J. at 459; see also Pressler, Current N.J. Court Rules, comment 5 on R. 3:18-1 (2010) (explaining that an "appellate court, reviewing the denial of a motion for judgment of acquittal, is similarly constrained to consider only the State's proofs to determine if the burden has been met").
Defendant argues that the State failed to prove, beyond a reasonable doubt, the element of "penetration" in the crime of aggravated sexual assault. We disagree.
N.J.S.A. 2C:14-1 defines "sexual penetration" in relevant part as "insertion of the hand, finger or object into the anus or vagina . . . The depth of insertion shall not be relevant as to the question of commission of the crime." "[P]enile penetration of the space between the labia majora or outer lips of the vulva constitutes 'vaginal intercourse' within the meaning of N.J.S.A. 2C:14-2a(1)." State v. J.A., 337 N.J. Super. 114, 115 (App. Div.), certif. denied, 169 N.J. 606 (2001).
If accepted as credible, K.K.'s testimony, both in the DVD recording of the interview conducted at the prosecutor's office and at trial, established beyond a reasonable doubt the element of "penetration." The child's description of how she was positioned in relation to defendant, coupled with her state of undress and defendant's own limited clothing created the scenario in which penetration was possible. In the DVD, K.K. clearly stated that penetration occurred. At trial, she testified that "it hurt" when defendant's penis came into contact with her. This evidence is sufficient to satisfy the State's burden of proof.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reject defendant's argument in Point II of his appellate brief that an incident with one of the jurors irreparably tainted the trial and impugned the reliability of the verdict.
The court's efforts in aggressively admonishing all jurors to refrain from reading or viewing any materials about the trial was exemplary. The court's decision to remove one juror, despite evidence that he may not have been affected by what was said to him, displayed an abundance of caution and further reassures us that the court took all of the steps necessary to safeguard the integrity of defendant's trial. The court's actions in this respect were well within its discretionary authority. State v. R.D., 169 N.J. 551, 558 (2001).
Finally, the sentence imposed by the court was at the bottom of the first degree range and was well-supported by the record. State v. Cassady, 198 N.J. 165, 180-81 (2009).