On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-4094.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010 - Decided Before Judges Gilroy and Ashrafi.
Defendant M.Z.Z. appeals from his conviction by a jury and sentence on charges that he sexually assaulted and endangered the welfare of his daughter while she was less than thirteen years old. We affirm the conviction but remand for resentencing.
Defendant stood trial on six counts of an indictment: two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one and three); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two and four); and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts five and six). Counts one and two pertained to anal intercourse allegedly committed against the victim L.Z. on August 22, 2007, when she was eleven years old. The other four counts alleged sexual penetration and contact on "divers[e] dates between September, 2004 and August 21, 2007." A seventh count of the indictment charged defendant's wife and the victim's mother, X.Z., with endangering the welfare of a child by failing to take steps to protect her from sexual abuse by defendant.
The evidence at trial showed the following. On August 22, 2007, the Division of Youth and Family Services (DYFS) received an anonymous referral of suspected child sexual abuse occurring in defendant's home. Two DYFS workers in the Special Response Unit, Quiana Cooper and Sean Ludwig, went to defendant's home that evening to investigate. The victim's younger brother R.Z., answered the door. Defendant was not home. Cooper and Ludwig spoke to the children's mother. Because she did not speak English well and a translator was not available, the children translated the conversation. The mother did not want the DYFS workers to speak to her children. DYFS requested the assistance of Child Abuse Investigator Amy Pisano of the Gloucester County Prosecutor's Office.
When Pisano arrived, she and Cooper spoke with the victim away from her mother. Pisano explained the difference between "good touches" and "bad touches" and asked if anyone had touched the victim where her bathing suit covers. She answered "yes." The DYFS workers decided that an emergency removal of the two children was necessary for their protection.
The children were taken to the Gloucester City Police Department to be interviewed. In a videotaped interview, the victim stated that her father had engaged in sexual conduct with her since she was in the third grade. R.Z. stated that his sister had told him about his father's sexual conduct with her. The victim was then taken for medical evaluation at New Jersey Cares.
Dr. Monica Weiner examined the victim. She did not find residual physical evidence of sexual abuse but explained at trial that the nature of the acts alleged and the passage of time would not necessarily leave such physical evidence. Dr. Weiner collected a sexual assault kit from the victim, which included vaginal and anal smears and her underwear.
A forensic scientist testified that an anal swab of the victim revealed "a weak positive 55 second result" for acid phosphates, a substance found in high concentration in seminal fluid. The witness also testified that "such things as vaginal secretions can cause a weak positive result." The underwear contained staining on the inside crotch panel. Testing of the stain revealed a weak positive for acid phosphates and for blood. No seminal fluid was found on the swabs or underwear.
The day after their initial contact with the children, investigators went back to the home and retrieved the victim's bed sheets, comforter, and pajama pants. Of twelve stained areas found on the sheets, two tested positive for acid phosphates. An expert testified that the two samples taken from the victim's sheets matched defendant's DNA.
The victim testified at trial. She said that the night before DYFS came to her home, she woke up at 1:00 or 2:00 a.m. because she felt her father touching her. Her pants and underwear were off, and she felt his penis against her. She testified that he "had been putting his penis in [her] backhole," but he stopped when she woke up. She testified further that defendant "would stick his penis in [her] back part" during incidents that occurred when she was in the third, fourth, and fifth grades. She explained that her "back part" meant her "butt hole." On earlier occasions, defendant had also touched her breasts, put his tongue in her mouth, and touched her "front private part" with his penis.
On August 22, 2007, the victim told her mother about defendant's conduct, as she had done previously. In the past, her mother had told her to stay away from her father and not to tell anyone about the incidents because it would cause great embarrassment to the family and no man would want her as a wife in the future. On August 22, the mother installed a new lock on the inside of her bedroom door.
Defendant testified in his own defense, denying that he ever touched his daughter in any kind of sexual manner. He said he would sometimes go into her room to make sure that she was sleeping and that her blanket had not fallen off. Sometimes he would "just touch her back a little bit." In addition, he would sometimes punish her by "hit[ting] her on the buttock . . . [and] on the hand," and, when playing, he would "tickle her a little bit." He said he never touched his daughter with his penis. When asked if he ever touched her breasts, he responded, "I cannot answer these questions precisely because sometimes when we play around, kidding around, my hand might touch there."
Defendant testified that he had installed a lock on his daughter's door a few days before he was arrested but that his wife had changed the lock because the one he installed was big and ugly. He also testified that the week of the incident, he had sexual relations with his wife in the victim's room. At the time, his daughter was sleeping in the parents' room because that was the only place in the home with air conditioning.
The jury found defendant not guilty of aggravated sexual assault on count one, which required evidence of penetration on August 22, 2007. It found defendant guilty of the lesser-included offense of second-degree sexual assault on that count, which required a finding of criminal sexual contact on that date. The jury found defendant not guilty on counts three, five, and six. Those counts charged aggravated sexual assault and sexual assault during the earlier time period, from September 2004 through August 21, 2007, by defendant engaging in anal intercourse and touching his daughter's vagina and buttocks. The jury found defendant guilty of second-degree endangering the welfare of a child as charged in counts two and four for both the specific date of August 22, 2007, and the earlier time period.
The trial judge sentenced defendant to eight years' imprisonment on count one, eighty-five percent of the sentence to be served before parole eligibility, and parole supervision for three years after the term of imprisonment, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count two, defendant was sentenced to an eight-year term of imprisonment concurrent to the sentence imposed on count one. On count four, the endangering count for the earlier time period, the court sentenced defendant to a seven-year term of imprisonment consecutive to the sentences imposed on counts one and two.
On appeal, defendant raises the following arguments:
POINT I THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST THAT THE COURT DECLARE A MISTRIAL, INSTEAD REQUIRING THE JURY TO CONTINUE DELIBERATIONS ...