On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1495.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011 -
Before Judges R. B. Coleman and J. N. Harris.
Defendant V.F. appeals from a judgment of conviction stemming from engaging in sexual conduct with his minor daughter. We affirm.
An Essex County Grand Jury returned a ten-count indictment charging defendant with six counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a)(2)(a); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and a single count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a). Two counts were dismissed by the trial court at the conclusion of the State's case, and the jury convicted defendant of the remaining eight counts. The court imposed an aggregate sentence of eleven years imprisonment. This appeal followed.*fn1
J.F., the daughter of defendant, was born and raised in Haiti. Defendant and J.F.'s mother never married. When J.F. was ten years old, she moved to the United States, where she resided with defendant, a stepmother, and a sibling from her father's side of the family. In August 1999, J.F.'s stepmother died. J.F. testified that shortly thereafter, defendant began sexually touching her at least three to four times a week for the next "[t]wo, going on to three years." J.F. was thirteen years old when defendant's conduct started.
Defendant would come into J.F's bed at night, lay on top of her, and "put his hand under [her] shirt . . . put his tongue in [her] mouth, and he once put his hand . . . in her panties."
J.F. stated that defendant never exposed his penis to her or penetrated her, and that he touched her vagina only once.
According to J.F., when she told defendant not to touch her, he would tell her "to shut up," "it's not that serious," or in Creole say, "I'm going to do you," which she took to mean "I'm going to have sex with you." During the last incident J.F. could remember, she recalled defendant coming into her bed and touching her breasts under her shirt and put his hand "in [her] panties." When she tried to push him off, defendant punched her twice.
Following regular instances of this behavior, J.F. noticed moisture on her clothing after defendant had lain on top of her. Two of the garments -- a red skirt and a black pair of shorts that looked like a skirt -- she threw into a basket in her bedroom; the rest of the soiled clothing she washed or threw away. J.F. claimed that she saved the two stained clothing items because she learned in school that "there are certain . . . steps to take" when being sexually abused.
In June 2002, J.F. decided to tell her aunt about the touching after defendant threatened to kill her. J.F. also told her school principal, and her cousin's stepdaughter, about the abuse. The principal reported J.F.'s allegations to the New Jersey Division of Youth and Family Services (DYFS) by telephone, who in turn contacted the police. According to the principal, a DYFS worker and a police officer arrived at her office in less than one hour to meet J.F. after her initial call.
Later, at the police station, J.F. was questioned outside the presence of her aunt and brother. There, she divulged for the first time that she had preserved two articles of stained clothing in a basket in her bedroom. Her allegations were reduced to a typewritten statement which J.F. reviewed and signed.
Defendant was arrested shortly thereafter. The police obtained from defendant consent to search his home. The black shorts and red skirt were collected from J.F.'s bedroom and sent to the New Jersey State Police Forensic Laboratory for testing. The red ...