On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
Tried to a jury, defendant was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and (2)(c), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), N.J.S.A. 2C:14-2(c)(1), and N.J.S.A. 2C:14-2(c)(4), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge merged defendant's convictions for sexual assault with his convictions for aggravated sexual assault and sentenced him to a seven-year term for endangering, and a fifteen-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on each count of aggravated sexual assault.*fn1 The sentences are concurrent and include a term of parole supervision for life, pursuant to N.J.S.A. 2C:43-6.4.
Defendant appeals contending that the prosecutor's closing argument and the judge's exclusion of evidence proffered by the defense without an adequate hearing on admissibility require reversal of his convictions. He also contends that his sentence is excessive. We affirm.
The indictment alleged conduct that spanned a one-year period from January 2005 to January 2006. The victim of all the offenses was defendant's stepdaughter, A.T. The charges were segregated into counts covering two periods, one before and the other after her thirteenth birthday.
From January to August 2005, defendant lived in Elizabeth with A.T., her mother, M.T., and A.T.'s twin half-siblings who were then four years old; defendant is the father of the twins. M.T. would drive A.T. to school in the morning and defendant would pick her up at the end of the school day. M.T. worked until approximately 5:00 p.m. and, after picking up the twins, usually returned home at about 6:00 p.m.
A.T. testified that the first incident of sexual abuse occurred in January or February 2005; although she could not remember the specific date, she recalled that her school was closed for the day and she and defendant were home alone. Defendant adjusted her clothing, touched her breasts and sucked on her breasts and vagina. During the incident, he held her wrists and her legs apart. He did not use his tongue. A.T. stated that she was frightened and did not know whom to tell. When defendant finished, he told her not to tell anyone and asked her if she knew why not. A.T. replied, "because it might be a disaster," to which defendant responded, "There is no might. It will."
When M.T. returned home on that occasion, A.T. testified that defendant behaved as if "nothing happened[,]" which made her "feel guilty." At trial, A.T. explained that she did not tell her mother about the incident because she was afraid her mother would not believe her and because defendant was "a great provider" and "helped a lot around the house." She thought the "family would break apart" if she told anyone, and her mother's happiness was important to her.
On the following day, defendant picked A.T. up from school and again engaged in the same course of conduct. A.T. said she felt nervous but did not try to fight him because she knew "he wasn't going to stop." Defendant ceased his conduct that day when he heard M.T. returning from work.
A.T. testified that defendant repeated the sexual acts approximately twice a week for the remainder of the school year. During that summer, A.T. stayed with relatives in South Carolina; she had lived with them when she was baby and returned to live with her mother when she was about four years of age. Upon her return after the summer of 2005, the family moved to Edison.
When school resumed in the fall, A.T. was in seventh grade, and the same pattern occurred with M.T. dropping A.T at school and defendant picking her up. Defendant again engaged in an ongoing course of sexual conduct with A.T.
A.T. testified that in November 2005, the frequency of defendant's sexual abuse decreased because her teacher began driving her to school in the morning and driving her to the teacher's house in the afternoon where M.T. would pick her up. A.T. stated that, from then on, the sexual abuse occurred only when M.T. was out of the house with the twins. A.T. testified that the last episode of sexual abuse occurred after her thirteenth birthday in November 2005 and "right before the Christmas break" from school.
In January 2006, A.T. told a school counselor that defendant had been "touching" her. A.T. said she told the counselor about the abuse because she trusted her and wanted it to stop.
M.T. was called and informed of what A.T. had said. M.T. testified that she called defendant and confronted him with A.T.'s allegations. Defendant denied that he had done anything; M.T. stated that she did not believe him and demanded that he leave the house. When M.T. picked up A.T. from school that day, A.T. told her mother about the course of sexual abuse to which defendant had subjected her.
In February 2006, A.T., accompanied by her mother, spoke to Elizabeth Police Detective Juan Colon. A warrant for defendant's arrest was issued on March 22, 2006. On the following day, Detective Colon along with Police Detective Leon Davis, went to the construction site where defendant was employed. When Davis identified himself as a police officer, defendant fled; Davis pursued him, again identified himself as a police officer and told defendant to stop; however, Davis stated, defendant continued "running . . . real fast."
Davis called for back-up and Officer Mike Tower responded. Tower testified that he saw defendant jogging at a fast pace on a bike path; he yelled "stop, police," pursued defendant and caught him as he attempted to run into a wooded area.
Defendant was arrested and brought to Elizabeth Police Headquarters. Colon read the Miranda*fn2 warnings to him; defendant signed a waiver and was then questioned by Colon and Davis. The interview was recorded on DVD; at trial, a transcript of the interview was admitted into evidence, with a copy given to the jury to read while they watched the DVD recording.
Colon confronted defendant with A.T.'s allegations that he had penetrated her vagina with his tongue and had sucked on her breasts. Colon asked defendant if he wanted to tell his side of the story, and defendant responded, "[w]ell, first of all I don't think I penetrated her." Defendant claimed he had only "played" with A.T., by running around the house grabbing, tickling, and hugging her. Defendant acknowledged that it was "a possibility" that in the course of playing with A.T. he had come into contact with her private parts; he admitted that he had put his face "down on her but . . . did not really penetrate her vagina."
The State presented testimony by Susan Cohen Esquilin, Ph.D., who was qualified as an expert in child sexual abuse; she described the child sexual abuse accommodation syndrome, and how it helped to explain why children often delay in reporting sexual abuse.
Defendant testified and denied sexually assaulting A.T. He admitted that he had "played" with her and had "tickled" her as he stated to the police, but denied that these touchings were sexual in nature. Defendant also stated that he had frequent "conflicts" ...