On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-08-0849.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010 - Decided Before Judges Fuentes and Ashrafi.
Defendant Brett Barden was indicted by a Mercer County Grand Jury and charged with five counts of first degree aggravated sexual assault against a child less than thirteen years old, N.J.S.A. 2C:14-2a(1), and two counts of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. Defendant was tried before a jury and found guilty of all the charges, except for one count of first degree aggravated sexual assault that the court dismissed during the trial.
After merging the convictions of third degree endangering the welfare of a child with the convictions of first degree aggravated sexual assault, the court sentenced defendant to an aggregate term of seventeen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.
We gather the following facts from the record developed in the course of the trial.
As with most child sexual abuse cases, the State's principal witness was the alleged victim, "Patty"*fn1 , a girl who was nearly fifteen years old at the time of trial. We derive the following account of events from her trial testimony.
At all times relevant to this case, "Patty" and "Cary"*fn2
were best friends; the girls' mothers were co-workers and
defendant is Cary's father. Patty had known defendant for nine years
and described him as "like a dad . . . [who] was real cool." When Patty
was approximately twelve years old, defendant "mentioned that he
wanted to teach [her and Cary] about sex." He also said that "there
[was] going to be a lot of hands-on activity and whatever was said
would be kept between [them.]" There was no one else present when
defendant allegedly made these statements to Patty.
On June 8 or 9, 2004, defendant went to Patty's house when she was home from school. After defendant confirmed that Patty was alone, the following occurred:
[W]e went to my room and we were on the bed. And he took his penis out of his pants and he said, see what it looks like, and I said okay. And he told me to take my pants off. I said, I don't want to. And then he took my pants off for me and he gave me oral sex. And then after that, he put a condom on and he gave me vaginal sex.
Defendant told Patty that that was her "first lesson"; Patty did not tell anyone about the encounter because defendant told her that "whatever was done was between us three," meaning defendant, Patty, and Cary.*fn3
A similar incident occurred the following month. On that occasion, Patty was in defendant's house in connection with a sleepover with Cary. Sometime during the middle of the night, defendant beckoned Patty from Cary's bedroom to meet him downstairs where he had sexual intercourse with her. Patty again did not tell anyone about this incident because "he said it was kept between [them]."
Patty testified that over the next several months these interactions happened "a lot"; "[s]ometimes it was in [defendant's] room, sometimes it was upstairs on the couch. Sometimes he would give me oral sex and sometimes he wouldn't. And sometimes he would use a condom and sometimes he wouldn't." The last incident took place on January 14, 2005, when defendant physically forced Patty to perform fellatio on him. As Patty described it, "[he] asked me to give him oral sex and I said I didn't want to. And then he grabbed the back of my head and put his penis in my mouth."
In August 2004, Patty told her sixteen-year-old cousin "Tammy"*fn4 about the abuse. She asked her not to disclose the information, however, because "[Patty] didn't want to get in trouble." Tammy testified that Patty told her that she and defendant "had sex or he raped her or, you know." Tammy decided to honor Patty's request not to tell anyone about the abuse because "no one ever . . . told [her] anything like [that] before."
Patty finally disclosed the abuse to her mother on March 8, 2005. According to the mother, after finding a note in Patty's room "talking about boys," she asked her daughter if she had ever had sex, willingly or unwillingly. This prompted Patty to tell her mother about her sexual encounters with defendant. The mother reported the abuse to the Lawrence Township Police the following day. Lawrence Township police officers took statements from Patty and her cousin Tammy. No physical evidence was collected because of the time delay between the last sexual incident and the time it was reported. Lawrence Township officers also contacted the Trenton Police Department because some of the sexual encounters occurred in that jurisdiction. Trenton officers also interviewed Patty, who identified a ...