On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
On April 28, 2006, a Middlesex Grand Jury indicted defendant Robert Knutsen on one count of first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), in connection with the death of Nikolas Chavez, the three-year-old son of his former fianceee Nicole Rosol. The petit jury empanelled to try this case was unable to reach a unanimous decision, requiring the court to declare a mistrial.
In February 2008, defendant was again indicted in connection with the death of Nikolas Chavez. This time, in addition to the charge of first degree aggravated manslaughter reflected in count one, the State charged defendant with two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Count two alleged that defendant, having assumed responsibility for his care, caused Nikolas harm making him "an abused or neglected child" within the meaning of N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 by willfully failing to provide him with medical care in a reasonably timely fashion. Count three alleged that defendant harmed Nikolas by inflicting physical injury upon him by other than accidental means.
The jury acquitted defendant of the charges in counts one and three and found him guilty as to count two. The court sentenced defendant to a term of seven years, without any period of parole ineligibility, and imposed the mandatory fines and penalties. Defendant now appeals. We affirm.
We gather the following facts from the evidence presented at trial.
In the fall of 2005, defendant shared a two-bedroom apartment in North Brunswick with Rosol and three-year-old Nikolas. Rosol and defendant had been romantically involved for over a year and were engaged to be married. According to Rosol, she had ended her relationship with Nikolas's father in May 2004. Although Nikolas's father did not have regular contact with his son immediately after the end of his relationship with Rosol, by the fall of 2005 he had resumed his parental involvement.
Around the same time Nikolas renewed contact with his father, the child began to express anxiety and a general unwillingness to be with defendant. Rosol thus decided not to permit defendant to baby-sit Nikolas during the times she was not able to care for him. She testified that Nikolas started reacting to Rob [defendant] in a strange way. He started not wanting Rob in his life. He would cry and say 'No Rob' and he would cling to me so I felt uncomfortable with it.
Q. Did you discuss this with [defendant]?
Q. What was that discussion like?
A. Well, I basically told him I wasn't going to allow him to drop [Nikolas] off or pick him up from my grandmother's and when I had to work late I was going to let him stay at my grandmother's for Nikolas' benefit because . . . Nikolas was obviously uncomfortable the way he was reacting to [defendant.] [S]o when I spoke to him about it he told me that he did understand but it did hurt his feelings because he loved Nikolas.
Q. Before September, October, November of 2005, when you were working would the defendant watch Nikolas sometimes for you?
Q. So he stopped watching him when?
A. He pretty much stopped watching him probably early October .
On cross-examination, Rosol acknowledged that by the time of Nikolas's death on November 30, 2005, the relationship between defendant and the child "had just started to get better." Rosol also answered affirmatively defense counsel's question whether, in her mind, there was never any question that defendant loved Nikolas.*fn1
On Friday, November 25, 2005, Rosol took Nikolas to see Dr. Keith Meloff, a pediatric neurologist, after the child was diagnosed with developmental delays requiring speech and physical therapy. Up to that point, Nikolas's medical history had been largely unremarkable. Dr. Meloff examined Nikolas, noting that there were no injuries or bruises on his back. From a neurological perspective, Dr. Meloff observed signs of some blank staring and blinking by Nikolas, a possible indication that he may be experiencing psychomotor seizures. He recommended that Nikolas undergo an electroencephalography*fn2 (EEG) test to rule out the possibility of seizure activity. Rosol emphasized, however, that Dr. Meloff was "very optimistic that [Nikolas] was not having seizures." He ordered the EEG only to rule out the possibility that he may be experiencing seizures. Based on her training and experience in dealing with autistic adults, Rosol testified that she was acutely aware of the signs associated with the seizures referred to by Dr. Meloff.
Rosol informed defendant that Nikolas might be experiencing seizures. She explained to defendant two types of seizures: a grand mal seizure involving more seizing behavior, and a psychomotor seizure, during which the person seems to space out and is non-responsive. According to Rosol, she instructed defendant:
Any type of seizure you don't touch a person while they're seizing. You watch them and make sure they become responsive and if they don't become responsive within a couple of minutes you would call 911. You should never touch them, never move them, clear the area and make sure they're safe.
On Saturday, November 26, 2005, Nikolas visited with his father and spent the night at his residence. Rosol testified that when the father returned Nikolas the following night, the child was in good condition. Rosol gave Nikolas a bath, then removed him from the tub, wrapped him in a towel, and turned and walked out of the room. At this point, she heard a thud, walked back to the tub, and saw Nikolas flat on his back. She immediately picked him up and, after he stopped crying, examined him to make sure he was not injured. She gave him Tylenol before putting him to bed.
The next morning, Monday, November 28, 2005, Nikolas awoke without any complaint of pain and climbed out of his bed without assistance. Rosol did not see any signs of trauma or bruising when she changed his diaper.*fn3 She noticed, however, that he was walking somewhat "stiffly." After getting him dressed, Rosol took Nikolas to the home of her grandmother, Mary Snook, who regularly cared for Nikolas during Rosol's working hours. Rosol told Snook of Nikolas's fall the night before and asked her to observe whether he showed any problems with his back. Snook did not see Nikolas exhibit any discomfort, although he did take an unusually long nap.
Rosol picked up Nikolas that night and drove to her parents' home in Milltown. She spent the night with her younger brother and sister so that her mother could spend the evening with her father, who was in the hospital recovering from a heart attack.
While giving Nikolas a bath, Rosol noticed "a small lump on the bottom right-hand side of his back . . . a little above the buttock." Nikolas confirmed that the bump hurt when touched. He spent the remainder of the evening playing with Rosol and her siblings, although he was still walking "stiffly." Nikolas slept on an air mattress that night and Rosol slept beside him on a sofa. By the next morning, Tuesday, November 29, 2005, Nikolas no longer complained of pain from the lump. Despite this, Rosol made an appointment to bring Nikolas to pediatrician Dr. Vijay Radhakrishna that afternoon following his appointment with a speech therapist. According to the therapist, Nikolas did not show any signs of pain during the session, which included physical activities that required the child to sit and rise a number of times. While waiting to see Dr. Radhakrishna, Nikolas also ran around the doctor's waiting area without any apparent discomfort or difficulty.
Dr. Radhakrishna testified as a witness for the State. She did not see any signs of internal bleeding when she examined Nikolas on Tuesday, November 29, 2005.*fn4 Other than "a very tiny swelling" in the mid scapula, lower thoracic area of the child's back, for which she prescribed ice and Motrin, Dr. Radhakrishna did not see anything out of the ordinary. Nikolas's vital signs, mobility, and blood work were normal, and his abdomen was neither distended nor hard to the touch.
On Wednesday, November 30, 2005, Rosol awoke, checked on Nikolas who was still sleeping, and began to get ready for work. She asked defendant if he could drop Nikolas off at Snook's home when Nikolas woke up. Defendant agreed, since he was planning to spend the morning at home trying to contact the Division of Unemployment Insurance about obtaining unemployment benefits. Before she left for work, Rosol verbally instructed defendant to "watch out" for Nikolas's back, and also left him a note telling him to "be careful with his back." According to defendant, Rosol left the apartment at approximately eight o'clock in the morning.*fn5
The evidence describing the events that occurred from approximately 8:00 a.m. (the time Rosol left for work) to 10:41 a.m. (the time defendant called 911 for assistance) is central to the State's case against defendant. It is important to emphasize that defendant was the only adult who had access to Nikolas during this critical timeframe.
Defendant continued to sleep for approximately fifteen minutes after Rosol left for work. When defendant awoke, he walked out of his bedroom and walked into Nikolas's room to look in on him. The following account of what allegedly transpired from this point is taken verbatim from the statement defendant gave to the State's investigators:
[Nikolas was awake and said] hi. [I said] "hey buddy." [I] walked over . . . [and] checked to see if his diaper . . . was okay. It was wet. I placed him on the rug next to his crib; changed his diaper, and then, he said to me . . . I asked him, you want to get in your Batman car? You wanna' to go . . . you know, play with one of your trucks. He said, go back to bed and take a nap. So I put him back in his bed, and at the time I went back to my room and laid down. Close to, I guess, ten o'clock, I got a phone call . . . from unemployment office. I took the phone call, got outta' bed.
In response to the investigators' questions, defendant indicated that he received a telephone call from a representative of the Unemployment Office, to whom he spoke for an indeterminate period of time.*fn6 Defendant then gave the following account of what happened after speaking with the representative of the State unemployment agency:
At that time, I got up. I remember I put my contacts in and, you know, I went to the bathroom. I was kind of just fiddling around the house. I hadn't checked on Nikolas. I went back in my room. I had a cigarette, watched some TV. I heard some gurgling noises from his room. Uh . . . he looked like, as if was having a seizure. I, like, tried to see if he would come to. I was just kinda' like, kind of processing in my head what to do. Kinda' came from his feet, picked him up and . . . went to try to um . . .*fn7
Q. Did you rearrange your hands at that point?
A. At this point, after I picked him up, I rearranged my hands so that my hands were kind of around his waist.
A. I pulled him in like to shake him awake, and . . . uh . . . ...