On appeal from the Superior Court of New Jersey, Law Division, Ocean ounty, Indictment No. 07-02-0392.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
Tried to a jury, defendant was convicted of five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and -2(a)(2)(a); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(a). He was sentenced to an aggregate term of forty years with a thirty-four-year parole ineligibility period, and assessed over $18,000 in penalties. We reverse and remand for a new trial.
The victim was defendant's step-niece, C.N., the daughter of his brother's wife. The indictment charged a course of sexual acts by defendant over a two-year period from June 2004 to September 2006, when the girl was between twelve and fifteen years old.
C.N. lived with her biological father, P.N., in Jackson, New Jersey, but would frequently visit her mother M.H., in Manchester, New Jersey on weekends, holidays and for extended periods of time during her summer vacation. M.H., her husband, P.H., and their two children shared a home with defendant, his wife and two children.
C.N. described her relationship with defendant initially as "an uncle/niece relationship." During the summer of 2004 when C.N. was twelve years old and staying with her mother, defendant engaged C.N. in a discussion of whether she had ever been kissed, and persuaded her to "practice kissing" with him. C.N. stated that she initially rejected defendant's attempts but finally gave in. C.N. stated that defendant told her not to tell anyone about the kissing "[b]ecause he c[ould] get into trouble."
C.N. testified that the kissing eventually "led to other things[,]" such as stripping to their underwear, lying together, kissing and touching. C.N. testified that defendant fondled her private areas with his hands while she was wearing underwear. These episodes would occur when defendant's wife and children were not home.
Sometime during the summer of 2004, before C.N.'s thirteenth birthday, defendant had vaginal intercourse with her in his bedroom. Again, defendant told C.N. not to tell anyone because, if she did, "he would get into trouble and the family would fall apart."
In September 2004, C.N. returned to her father's home to begin her eighth grade school year; defendant would talk to her by telephone frequently telling her "I love you" at the end of each conversation. During this time, C.N. described their relationship as "almost like a romantic type of relationship." After C.N. turned thirteen, she and defendant continued to engage in intercourse, as well as oral sex. This relationship continued through 2005 and into 2006.
Sometime during her eighth-grade school year, C.N. told a friend and a teacher about her relationship, but referred to defendant as "a kid from Manchester named Mike." When C.N. entered ninth grade in 2005, she gave another friend a note about "Mike from Manchester," as well. When C.N.'s stepmother discovered the note, C.N. reassured her and her father that it was a joke.
C.N. testified that defendant gave her a Valentine's Day card in February 2006, containing a handwritten message which read, "I love you me [sic] than words can say. I miss you all the time. I can't stop thinking about you. You are always in my mind. This card says it all. P.S.: Make love with me."
C.N. was staying at her mother's home at the time and she testified that defendant "came up to [her] room and handed [her] the card[,]" telling her "to make sure no one finds the card."
C.N. stated that when she returned to her father's home from that visit, she brought the card with her.
C.N. testified that toward the end of her freshman year in high school, in or about June 2006, she "would do things to make sure that [she] wasn't available to [defendant]." She would stay in her room with her mother, or talk on the phone in her room with her friends. She stated that defendant "never really said anything, but he would just bug [her] about it[,]" interrupting her when she was on the telephone and asking her if she "was going to do anything?"
C.N. testified that the "frequency of [her] sexual activity with [defendant]," changed during that time; "[i]t got to be less. . . . Instead of it being every night when [she] was there it was maybe just one time when . . . [she] was there. . . . One time on the weekends or one time during the week in the summer."
C.N. stated that she wrote a note for her friends, describing her sexual activities with "Mike from Manchester." In September 2006, during a weekend at Wildwood with her mother, stepfather and defendant and his family, C.N.'s mother found the note; C.N. refused to discuss it with her mother at that time. During that same weekend, C.N. and defendant had an unpleasant exchange when the family boarded a "tram car" and there was no room for C.N. and her stepsister.
The next day, C.N. told one of her friends about her mother finding the note and, for the first time, admitted that "Mike from Manchester" was, in fact, defendant. The friend's stepmother advised C.N. to tell her mother about it.
Later that day, C.N.'s father and stepmother came to pick her up in Manchester. C.N. was upset, and when she returned to her father's home, she asked to speak to her stepmother alone, started crying, and told her about her sexual relationship with defendant. C.N. then told her father, P.N., who drove to Manchester and told her mother that C.N. had been "raped" by defendant.
P.N. overheard a conversation in which defendant was confronted by his brother, P.H. who told defendant about C.N.'s accusation. P.N. heard defendant say, "we were fooling around, that's it."
P.H. testified that he confronted defendant about C.N.'s accusation, asking him, "did you do it"; and defendant answered, "yes."
Defendant testified and denied all of C.N.'s accusations.
He stated that he was never alone in the home with C.N., nor did he ever take her out alone.
Regarding the tram incident in Wildwood, defendant testified that he, his brother and their wives got on the tram; C.N. was sitting on a bench. Defendant told her there was room for her in the tram and "she didn't want that. So [he] said all right. So when the tram . . . started to go and then she kind of flipped me the bird, gave me the middle finger. So I got really mad and I told her to go "F" herself."
Defendant stated that when he answered "yes" to his brother's question, "did you do it?" he thought the reference was to the tram incident. Defendant also acknowledged that he had cursed at C.N. before because "[s]he used to whine over everything and [he] used to call her a big cry baby."
Regarding the Valentine's Day card, defendant testified that he bought it and inscribed it with the intention to give it to his wife. He "had it on the table downstairs in the kitchen[,] . . . started writing it out" but did not get a chance to finish and he left the card on the table. He did not know if C.N. "stole [the card] or not, but it was gone." He acknowledged that the card was not specifically addressed to a "wife," but denied that he intended the card for anyone else.
Following the prosecutor's cross-examination, the trial judge questioned defendant as follows:
Q: Just from a time frame clarification. That card, the Valentine's [D]ay card --
Q: You purchased this card for your wife in 2006?
Q: You went to a store and picked it out?
Q: And it is your testimony that you were writing it out at the upstairs kitchen table?
A: No. I was writing it downstairs.
Q: So you were downstairs at your kitchen table downstairs?
Q: And you got interrupted, you don't remember by what, and you were going to come back and finish writing it out to your wife?