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State of New Jersey In

April 27, 2011

STATE OF NEW JERSEY IN THE INTEREST OF B.H., A JUVENILE.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FJ-15-1217-09; FJ-15-200-09; and FJ-15-201-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2011

Before Judges Kestin and Newman.

Tried by a judge, B.H. (the juvenile) was adjudicated delinquent for second-degree sexual assault, N.J.S.A. 2C:14-2c(1), petty disorderly persons defiant trespass, N.J.S.A. 2C:18-3b, and disorderly persons underage consumption of alcohol, N.J.S.A. 2C:33-15a. The trial judge found the juvenile not guilty of third-degree terroristic threat to kill, N.J.S.A. 2C:12-3b, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The juvenile later pleaded guilty to a separate disorderly persons offense of defiant trespass under Docket No. FJ-15-200-09, and criminal mischief, under Docket No. FJ-15-201-09.

The trial judge sentenced B.H. to serve a three-year term of detention for sexual assault, concurrent terms of thirty days for two counts of defiant trespass, and two concurrent terms of sixty days for criminal mischief and underage consumption of alcohol. B.H. appeals. We affirm.

The incident which gave rise to the criminal charges arose out of a party of high school students at the Middletown house of S.E.'s grandmother. S.E. was the best friend of the victim, H.S. The party took place while the grandmother was away in North Carolina, and no one had permission to be in her house while she was absent. H.S. was fourteen years old, drank alcohol excessively to the point where she felt intoxicated, and threw up. Later, S.E.'s uncle, who was responsible for S.E. while S.E.'s grandmother was away, arrived at the house, ordered everyone to leave, and took S.E. home with him. H.S. went to a nearby parking lot by the A&P supermarket with a group of four boys, P.C., K.T., J.F., and B.H. They returned to S.E.'s grandmother's house. S.E. entered the house to retrieve her shoes, but could not locate her cellular telephone. She then went to the backyard. H.S. separated from three of the other boys and was alone with B.H. near a large tree in the backyard.

According to H.S., B.H. pinned her against the tree, unbuckled her belt, and pulled down her pants. H.S. told B.H. to stop and attempted to flee, but was not physically able to do so. According to H.S., B.H. penetrated her vagina with a thrusting motion. The episode lasted five to ten minutes. During the assault, the juvenile ignored her telling him to stop and told her to "spread [her] legs or [he would] fucking kill [her]." She cried and B.H. would not stop until J.F. appeared and caused him to stop.

When H.S. was able to pull up her pants and saw P.C., K.T., and J.F. standing nearby, she walked over to them. B.H. told her not to tell anyone what had happened because he did not want his girlfriend to find out. He also told her that he was someone else by providing a false name. The victim knew him and was certain that he was the person who forcibly raped her. P.C. and K.T. accompanied the victim back to her house, which was only a few blocks away.

When H.S. got home, she took off her clothes and went to bed. Her vagina was hurting. The next morning she washed the clothes she had worn the night before and saw drops of blood inside her pants. That same morning, H.S. text messaged S.E. and told her that she was raped by the juvenile. The victim also told her friends, S.B. and K.K., about the sexual assault.

S.E. testified that she had hosted a party at her grandmother's house, attended by twenty-five to thirty teenagers. She indicated she received an instant message from the victim the following morning, indicating that the juvenile had raped her. The following day, S.E. went outside to clean the backyard and noticed that the gravel and sand around the tree where her friend reported to have been sexually assaulted appeared to be "pushed back and out of place." S.E. also found a navy blue Yankee hat at the base of the tree, which the juvenile had worn the night before.

S.B. testified that she attended the party, but left before S.E.'s uncle arrived. She recalled the juvenile was at the party, was wearing jeans, a T-shirt, and a blue Yankee hat. She acknowledged that she received a text message from the victim, stating that she was raped the previous night, and that the victim identified the juvenile as the person who raped her.

Approximately a week later, K.K.'s father, a police officer, learned of the sexual assault. He contacted S.B.'s mother and told her that the sexual assault had to be reported to the victim's parents and the police. The victim and her mother went over to S.B.'s house at which time the victim's mother was told about the details of the ...


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