On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-00205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Fisher and Espinosa.
Defendant appeals from his sentence and convictions for: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (count one); second-degree sexual assault of a victim less than thirteen years old when the actor is at least four years older, N.J.S.A. 2C:14-2b (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). We affirm.
The victim of these offenses was his girlfriend's daughter, J.R. ("Jamie"),*fn1 who was between seven and eight years old at the time. In 2004, Jamie resided with her biological father, A.R. ("Alex"), his wife, A.J. ("Anna") and her two children. The household of her biological mother, A.G. ("Amber"), consisted of defendant, their two children, B.A. ("Beth") and A.A. ("Andrew"), Jamie's sister, I.R. ("Ivy") and defendant's sister, M.A. ("Margo").
Jamie visited her mother every other weekend. On these occasions, she slept with her two stepsisters in a full size bed that was the lower bunk of a bunk bed. The girls slept side by side across the width of the bed. The upper bunk was used for storage. When she returned to her father's house, she customarily left her bag of clothing for her stepmother, Anna, to do her laundry.
Anna stated that she and Jamie were friends; that Jamie was like one of her children. She testified that in or about 2003, Jamie complained to her after returning from a visit with her mother that it hurt when she urinated. Anna did not take Jamie to a doctor or tell Alex about Jamie's complaint. She did, however, examine Jamie and saw "something red."
On November 4, 2004, after Jamie returned from a visit with her mother, Anna looked into her book bag to take out the laundry and found a book. Anna, who was born in Mexico, could not read English well. She opened the book and saw words written in English. She did not know it was a diary but became concerned when she saw the word "sex." When Jamie came home from school, Anna asked her what was happening at her mother's house. Anna testified that Jamie replied that defendant "would touch her breasts," "he would grab her intimate part," and "he touched her rear end." Anna did not know what part of Jamie's rear end defendant touched but stated that Jamie said that defendant had put his hand inside her pants.
On the following day, Anna took the book to Irmaris Cruz, her former social worker, so that Cruz could translate what was written in the book.
The entry in the book read as follows:
Dear Journal, Today I'm in my mom's house, and my mom's boyfriend always do the seX with me. Does it in the night like right now. When I was outside, he was touching my butt. I don't like when he do this with me because he already has a girlfriend, but he likes me. Well, I don't - I wish he never do that to me because I don't want to have a baby. I do - I love my dad would be mad. [sic] My dad doesn't like when I have a baby. I wish he does it with my mom. Well, I got to go. Bye. From [Jamie]
Cruz testified that, when she read this to her, Anna sat quietly and "big tears came out from the eyes." Anna asked her to accompany her to speak to Alex about its contents. Alex became very angry. Anna then went to Jamie's school to pick her up.
Alex and Anna brought Jamie to the Pleasantville Police Department and signed a complaint against defendant for sexual assault. Investigator Mary Ferguson Elliott of the Atlantic County Prosecutor's Office conducted a videotaped interview of Jamie on November 9, 2004. In the preliminary part of the interview, Jamie warmly responded to the investigator's questions, even seeming playful at times. She happily identified and described the people who lived in her house as Investigator Elliott drew a picture of each on a large piece of paper. She did the same for her mother's house but acknowledged that defendant lived with her mother only when pressed after mentioning her mother and siblings. Her demeanor changed noticeably when she spoke of defendant. Investigator Elliott also asked her to name parts of the body on diagrams of a girl and a boy. After the preliminary part of the interview, Investigator Elliott asked an open-ended question, "Does anybody touch you in places you don't like to be touched?" Although she had referred to everyone by name until then, Jamie answered by pointing to the drawing of defendant. Investigator Elliott asked where he had touched her and Jamie pointed to the genital area and chest area on the diagram of a girl. Jamie stated that defendant touched her in those places and on her "butt" with his hand and his "private boy stuff." She described incidents in her bedroom when defendant came in while she was sleeping and lifted the covers, pulled down her panties and either touched her with his hand or with his private boy stuff, his own pants pulled down. Although her sisters were asleep beside her, Jamie said that they did not see anything because she was covered with a blanket. She also described an incident that occurred when she was asleep in the living room as well as one when she was alone with defendant in the basement. Jamie said that she would tell defendant to stop but that he told her to be quiet and "don't tell nobody." When asked if she told anyone about these incidents, Jamie said that she did not; that she had just told her diary. Investigator Elliott asked if defendant had done anything else that bothered Jamie. She replied that she did not like him kissing her. He kissed her on the mouth all the time. She demonstrated how she closed her mouth very tight but he tried to open her mouth.
Jamie's descriptions of the incidents, which included defendant putting "his boy stuff" in her "girl stuff" and making her feel "horrible," led Investigator Elliott to conclude that she was describing both penile and digital penetration. Investigator Elliott was not surprised that a physical examination of Jamie showed no evidence of penetration. She explained, "[T]hat area heals rather quickly, and also, what a child perceives as penetration, it's not the same as what we as adults perceive as penetration. Usually it's just on the outer - or in the lip area versus in full penetration of an adult."
After her interview, Investigator Elliott and other officers went to defendant's home, where they retrieved bed sheets and some panties belonging to Jamie. They also took buccal swabs from both defendant and Jamie. The items were sent to the State Police Laboratory for DNA analysis. No DNA from defendant was found on either the sheets or the panties.
Jamie was nine years old at the time of trial. She testified in English with the assistance of a Spanish interpreter. She stated that she knew the difference between the truth and a lie; that it was wrong to tell a lie and that if she told a lie, she gets punished. During the course of her testimony, both on direct and on cross-examination, Jamie's answers were short. The record reflects comments and questions from both counsel and the court, asking her to get closer to the microphone so she could be heard; asking if she needs a break or "to take a couple of minutes[,]" if she is okay, if she is nervous, asking her to "[t]ake a deep breath."
Jamie identified the diary as her own and that inside, it said, "This journal belongs to [Jamie R.]" She did not recall when she wrote the entry. Jamie testified that she felt bad about defendant "because he did things to me." The following testimony was given through an interpreter:
Q: What did [defendant] do to you?
Q: Where did he touch you?
Q: What do you mean by your thing?
Q: Okay, would that be girl private stuff?
Asked to describe something that happened in the living room, Jamie said that she would fall asleep watching a movie, defendant would get on top of her while everyone else was asleep in their rooms. She woke up when she felt him touching her in her "girl privates," her shorts lowered a little bit. He touched her with his hands and also with "[t]he men's private part." As he did so, his hands were moving while he was holding "his private stuff." She stated that he was touching his private stuff "[o]n my private" but he did not go inside.
At first, Jamie stated that she could not remember what happened with defendant in her sister's bedroom. However, when she was asked a second time, Jamie stated that defendant "would come into my sister's room, and he would touch me. He would touch me all the time with his private part[.]" She stated that she was sleeping when he came in and that he would be leaning over her. Her sisters were in bed asleep. She would tell him to stop. She said she was not able to yell but could not remember why. Jamie testified that this happened "a lot of times[.]"
Jamie also testified about one incident that occurred in the basement. Defendant kept a dog, Buddy, in the basement. Jamie testified that defendant "started to touch me again" while they were in the basement. He was standing behind her, his hands on his hips. She was wearing shorts that he had lowered. She did not see how his pants were. He was touching her with his private part. She did not say anything to him; he just stopped to let the dog out. Jamie pulled up her pants and went upstairs. She told no one what had occurred.
At the outset of her testimony, Jamie stated that she did not remember writing the entry in the diary or when it was written. After describing the assaults, she was asked again about the diary. She now testified that she had purchased the diary at the school book fair. She provided the following testimony, again, through an interpreter:
Q: Okay. How come there's only one entry in this book?
A.: Because it's the only thing I wanted to write down.
Q: Okay. So do you remember writing it down now?
Q: Do you recognize your handwriting from then?
Q: Do you see the name who it's from?
Jamie testified that she loved her mother and father and Anna. Since her allegations came to light, she has only seen her mother when she has dropped off Ivy to visit with her father. When she asked her mother if she could go with her, Amber told her "No." Amber told Jamie that she had seen the videotape of her interview with Investigator Elliott and told Jamie that she "was lying, that it was a lie." Jamie testified that she did not say anything in response.
On cross-examination, Jamie acknowledged that she was a little angry at her mother for leaving her father; she wanted her parents to be together. She stated that there were times when she visited her mother and did not want to return to her father's. She cared about Anna; she thought that she was nice and agreed with defense counsel that sometimes she could be mean like any other parent. She also agreed that there were times when defendant was very nice and also times when he was mean. Both Anna and defendant punished her if she did something wrong and she agreed with counsel that she did not like that; that it should be her parents who punished her. When she asked her mother why she left, her mother stated that her father was hitting her and she did not know whether to believe her or not.
Her father stated that was not the truth. She testified that she never heard her father saying bad things about defendant. She never talked to her father about defendant's assaults.
On re-direct, Jamie testified that she did not feel safe at her mother's house. When asked why, she replied, "I don't know why." Asked, "Are you afraid now?" She replied, "Yes." She was then asked to "try the best that you can to tell us why you are afraid at your mom's house."
A: I'm afraid because I would be said things, and I'm afraid those things would be said to me again.
Q: I'm sorry, what things were said to you?
Q: Okay. Your mom called you a liar?
Jamie stated that her aunt also called her a liar.
Q: How did you feel after they called you a liar?
Q: Before you told about [defendant], did you feel safe at your mom's house?
Q: Can you tell us why you didn't feel safe at your mom's house then?
A: Because he still would do things to me.
Julie Lippman, Ph.D., a clinical psychologist and director of evaluation services at the New Jersey Child Abuse Research Education and Service Institute (NJ CARES) was qualified as an expert in the field of child sexual abuse. She explained the Child Sexual Abuse Accommodation Syndrome (CSAAS), a tool to help people understand why children may react to sexual abuse in ways that do not conform to "common-sense expectations." She discussed five elements commonly associated with CSAAS: secrecy; helplessness; delayed, conflicted or unconvincing disclosure; entrapment and accommodation; and recantation. CSAAS is not a diagnostic tool or a checklist of elements that each child abuse victim experiences, and does not assist in determining whether a child has been or abused or not. By describing conditions commonly experienced by victims, CSAAS helps others to understand "why it is that a child wouldn't tell right away," or "why . . . they might not be completely consistent in their disclosure or why a child might, at some point, retract or minimize . . . ." She stated that most children do not tell right away, that "the most normal response . . . is for a child to somehow find a way to just adjust to this happening."
Dr. Marita Lind, a pediatrician at NJ CARES, was qualified as an expert in the examination of child sexual assault victims. During the course of her examination of Jamie, Dr. Lind asked her what had happened that made her feel uncomfortable. Jamie replied that her mom's boyfriend had S-E-X with her, pausing after saying each letter. When asked what she meant by that, Jamie said that he touched her. Dr. Lind asked where and she pointed to her breast area, said in the front and the back, and pointed to her genital area and her buttocks. Jamie told Dr. Lind that defendant touched her private stuff with his private stuff. She said that the assaults occurred in the living room, in the basement and in ...