On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-3983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
Defendant Leonard G. Dennis was tried before a jury, which found him guilty on two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b), and one count of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). Defendant appeals from the convictions and the sentences imposed. We affirm.
At the trial of this matter, the State presented evidence that on May 4, 2007, C.R., who was six years old at the time, was at a community center in Camden, which was the site of a karate school. Defendant, a member of the center, had previously attained black belt status in karate. Defendant worked at the center performing janitorial services on a voluntary basis.
At 5:45 p.m., C.R. was dropped off at the center. Defendant was the only other person there. C.R. testified that defendant asked her to help him, and he gave her a dollar to go next door, where she purchased some candy. When she returned to the center, defendant called her into the weight room in the rear of the building. According to C.R., defendant put his hand under her clothes, touched her vagina and also kissed her on the mouth.
C.R. said that defendant then told her to go upstairs to the girls' bathroom, where he joined her. He told her to sit on top of him, fully clothed. C.R. touched defendant's penis through the opening in his pants. Defendant heard some girls coming and told C.R. that he would go downstairs by himself, after which she should come down. Defendant went down and, thereafter, C.R. followed.
C.R. testified that she felt "nervous" and "nasty" during this encounter with defendant. C.R. further testified that, when she went downstairs, she saw the two girls who had entered the center, A.K. and S.D. They told her to go upstairs with them, where they asked her what had happened and she told them. A.K. and S.D. reported what C.R. told them to a volunteer at the center. C.R.'s mother and grandmother were informed, and they contacted the police.
A.K. testified at the trial. She was thirteen years old at the time. A.K. stated that on May 4, 2007, she arrived at the center at around 6:45 p.m. S.D. and a boy arrived at the same time. A.K. went into a back room to change her clothes. When A.K. returned, she observed C.R. sitting between defendant's legs on a weight room chair. A.K. told C.R. to come upstairs with her.
A.K. asked C.R. if she had a "relationship" with defendant. C.R. replied that defendant was her uncle. C.R. then said that defendant was her grandfather. A.K. testified that C.R. looked "worried" and she told C.R. that she was not telling the truth. C.R. then asked A.K. to accompany her to the nearby store. A.K. agreed and they went to the store.
When they returned to the center, A.K. observed defendant leave the building. C.R. went upstairs and A.K. followed her. S.D. was speaking with C.R., and C.R. told them what had happened. A.K. asked C.R. why she never told anyone about this, and C.R. replied that defendant told her to always listen to "a black belt."
S.D. also testified at the trial. She was then twelve years old. S.D. stated that on May 4, 2007, she arrived at the center and saw C.R. in the weight room sitting between defendant's legs. She spoke with C.R. in the girls' locker room. According to S.D., C.R. was upset and crying. C.R. told her of the encounter with defendant.
After the State rested its case, the court dismissed the charge of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1). Defendant did not testify and called no witnesses on his behalf. After the jury was charged, it found defendant guilty on two counts of sexual assault and one count of endangering the welfare of a child. The court sentenced defendant on April 1, 2009, and entered a judgment of conviction on that date. This appeal followed.
Defendant raises the following issues for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION AND THUS DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ALLOWING THE PROSECUTOR TO ELICIT AND PRESENT TO THE JURY WITHOUT PROPER INSTRUCTION IRRELEVANT, INADMISSIBLE AND UNDULY PREJUDICIAL "FRESH-COMPLAINT" TESTIMONY (RAISED BELOW).
B. The so-called Fresh-Complaint testimony was irrelevant to the allegations ...