On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-0050.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Lihotz and J.N. Harris.
Defendant -- now sixty-four years old -- appeals from his 2009 conviction and fifty-five-year sentence for numerous sexual offenses involving three children: his two granddaughters -- Eve and Meg -- ages eight and nine, and their neighborhood friend -- May -- age nine.*fn1 He claims entitlement to a new trial based upon alleged evidentiary errors, a failure to charge a putative lesser-included offense, and prosecutorial misconduct. He also claims that his sentence is excessive. We affirm.
The following facts are gleaned from the trial record as the State's version, which convinced the jury of defendant's guilt. On Monday, March 13, 2006, Susan Norton, a school social worker assigned to then nine-year-old Eve's child study team, received information about allegations that had been made over the prior weekend to Eve's and Meg's father concerning their grandfather, the defendant in this case. Arrangements were made for Eve and Meg to speak with counselors at their respective elementary schools the next day.
Because one counselor had taken a sick day, school counselor Kerry DeSimone spoke to both girls. After assuring Meg that representatives of the New Jersey Division of Youth and Family Services (DYFS) were not at the school building, DeSimone engaged in a conversation with her for about ten minutes. When the subject of her grandfather was broached, Meg "became very closed up, her body language went from sitting in the chair to folding up her hands across her and just seeming to tighten up." Meg was willing to share information concerning things she saw with respect to Eve, but not regarding herself. Thereafter, DeSimone traveled to Eve's school, where she spoke to Eve for about twenty minutes. Eve relayed information similar to that given by her sister.
Since Eve's allegations involved a fellow student, May, DeSimone also spoke with her. She met with May for about ten minutes in the presence of Eve who was asked to remain silent during the conversation. When DeSimone raised the subject of defendant, May "became very tense also, quiet, her responses became very quiet, and when [DeSimone] had asked her about [defendant's] van, she immediately started crying."
After DeSimone finished speaking with the three girls, she phoned their parents and the police. Police officers soon arrived, and they met with Norton and DeSimone in a conference room to learn what the children had said, while the girls remained elsewhere. When the girls' mothers arrived, they met with the police officers, Norton, and DeSimone.*fn2
Two days later, Detective Robert Hageman interviewed the girls at the Child Advocacy Center in the Burlington County Prosecutor's Office. At defendant's trial, without objection, jurors watched edited versions of the videographed interviews and received copies of redacted transcripts in order to follow along.
Meg told Detective Hageman that she understood why she was talking to him. In her own words, she was being interviewed because her grandpa "used to rape little kids." She learned that information from family members, but she did not know what it meant.
Both Eve and Meg described a number of incidents of sexual abuse by defendant at his home in Woodbridge, in his van, and at their home in Cinnaminson, although their accounts differed. For example, Meg denied that defendant had ever touched her, while Eve claimed she had observed defendant touching Meg underneath her clothing, and one time she observed defendant force Meg to touch his genitals. Detective Hageman asked Meg about the latter incident, and she explained that one time she had touched defendant's penis by accident, because Eve pushed her into him. According to Meg, defendant was undressed at the time and his penis was erect. Defendant told Meg "that felt good," but she expressed disgust.
Another point of disagreement came with respect to whether defendant showed the girls pornographic images. Meg denied that defendant ever showed her photos or videos of persons not wearing clothes. However, Eve claimed that defendant had shown her computer images of young girls without clothes, and that he showed her and her sister videotapes he kept hidden at his house of people having sex. Eve further claimed that during one viewing of a movie, defendant had his hands "in [her] sister" and another time Eve saw defendant's genitalia.
The girls' statements were consistent insofar as defendant's conduct toward Eve. Both Meg and Eve told Detective Hageman that defendant had touched Eve's private parts. Meg said she witnessed defendant touching Eve in his van, and defendant threatened to hurt the girls if they told anyone. Eve told Detective Hageman that, both at his house and at her house, defendant had touched her vagina with his hand, which her sister once observed. She further claimed that once defendant made her and her sister watch him shower, and his penis was erect at the time. Meg denied observing defendant take a shower, claiming that only Eve was present.
Finally, all three girls described disparate incidents that occurred in defendant's van while it was parked outside the granddaughters' home in Cinnaminson. As described at trial, the vehicle was a large, red conversion van, with a bed in the back, carpeting, and curtained windows.
Eve told Detective Hageman that the three girls were in defendant's van about twenty times. In the van, defendant forced the girls to disrobe, and he touched their private parts.
May stated that on ten or twenty occasions, defendant forced her into his van, made her take off her clothes, and stared at her. Defendant attempted to touch her chest and vagina with his hand, but she would not let him. She tried to escape, but said defendant prevented her from leaving by "pull[ing] [her] leg and he would hit, slap [me] in the face." May also said defendant cursed at her, and "said he would come to my house and choke me, he would kill everybody in my family, and he would kill everybody on our street" if she told anyone what had happened. She claimed defendant did the same things to Eve and Meg, who also were "trying to find a spot to escape," except that he actually touched Meg's chest and vagina.
Meg's statement denied that anything had ever happened to her in the van, or that she had witnessed defendant doing anything bad to Eve or May in the van. On the other hand, she described an incident in which she observed Eve and May "acting really strange" after she had returned to the van from getting a drink, and she described incidents in which she observed Eve and May in the van with no clothes on. She stated that defendant had told the girls to remove their clothes and to not tell anyone about it. Meg also stated obliquely that her cousin Karen*fn3 had the "same problem" with defendant as did May.
In a subsequent search of defendant's home, on March 20, 2006, the police seized computers and computer-related devices and media, on which were found images of adults and children, both clothed and unclothed. Nine of those images were admitted into evidence at trial.
On March 21, 2006, defendant voluntarily appeared at the Burlington County Prosecutor's Office, where he was interviewed by detectives. An edited videographed statement was played for the jury during trial.
In his statement, defendant referenced his status as a sex offender, and his attraction to children. He also mentioned that he had served fifteen years in prison for incestuous conduct and three years, consecutive, for impairing the morals of a minor; he was released in 1996.
Defendant admitted possessing a collection of images of children. He kept the pictures, in his words, for the purpose of "if I felt that I needed to do something without bothering a kid, a live kid and I haven't used them in years. That's what about the pictures."
With respect to his granddaughters, defendant maintained that for about five or six years, starting when Eve was about three or four years old, the girls began acting out sexually in his presence. He acknowledged Eve as "the kind of sexual leader."
According to defendant, the girls asked him questions about sex. For example, Meg asked him "what does sex look like?" and his answer was "it's not important what it looks like, it's important how it feels between two people." They also made "knock, knock" sex jokes, and asked to see pictures on his computer of "girly stuff," naked girls and people having sex, which he "wasn't gonna go for."
Defendant told the detectives that the girls made sexual remarks to him. For example, Eve said she wanted to be a stripper, and she once asked to "suck [his] dick," which "hurt [his] feelings." His response to her was, "as nice as it might feel there's no way that it's gonna happen." He recounted another incident where Eve asked, "would you touch my pussy," to which "[he] said no."
He said his granddaughters would barge in on him while he was in the bathroom, pulling the shower curtain aside so they could see him unclothed, and one time they attempted to watch him urinate against a wall at a park. On multiple occasions, Eve also attempted to touch his penis, but according to defendant, "I always pushed, I always push[ed] her away."
Defendant stated that the girls would put on "shows" for him, occasionally with their friend May. They would sing and dance, and then it would become sexual. Defendant claimed that the granddaughters -- mostly Eve -- would take their clothes off, spread their legs, and touch themselves and each other's private parts. Claiming initially that "[t]hese are things that they wanted to do to make [him] happy because they love [him]," defendant later claimed that the girls' performances may have been done "out of hostility." In either event, defendant admitted, as "a human being," he enjoyed the performances "to a certain extent." Nevertheless, he claimed that all he was "guilty of . . . [was] watching and enjoying" their shows.
With respect to his van, defendant explained that he allowed his granddaughters and May to use it as a "clubhouse." The girls also would "[w]restle" in the van, and simulate sexual activity. Sometimes he was present and observed their antics, and sometimes he was not.
Defendant denied that he ever initiated an inappropriate touching of the girls: "It didn't happen with me. If anybody got touched, they were touching each other. I didn't have anything to do with it." He claimed the girls wanted him to touch them, but he "wouldn't do it." However, he admitted that Eve "tricked" him into putting his hand on her vagina, and he pulled his hand away as soon as he realized what had happened. He contended, "if my finger went in her body, she put it [t]here, that's what I'm trying to say."
Defendant claimed his granddaughters fabricated their extreme allegations against him because their father and aunt did not like him, and because of bad influences in the children's lives. He believed somebody had "bothered them," causing them to retaliate against their grandfather.
In support of defendant's theory, at trial, defense counsel elicited testimony showing that Eve and Meg had a troubled family life, including prior involvements with DYFS, and prior living arrangements where they were exposed to sexual talk, sexual programming on television, and sexual acts, including Eve witnessing her mother's paramour's teenage son having sexual relations with a girl, and Eve and Meg being sexually abused by their cousin Karen. Eve also admitted that her aunt had said "[b]ad things" about defendant, and that her father asked her whether defendant had touched her vagina, as did another cousin.
At trial, the three girls repeated their allegations of sexual abuse, albeit presenting somewhat different versions of events from each other, and from the versions they had presented in their videographed statements to Detective Hageman.
Eve, almost twelve years-old at the time of trial, claimed that defendant had touched her vagina between fifty and eighty times, in his van parked outside her house, and in the living room of his house. He had touched her only on the top of her clothes, not underneath; she denied that his fingers ever penetrated her vagina. She further stated that more than once, defendant had touched her chest, sometimes on top of her clothes, and sometimes underneath. This happened at defendant's house and in his van.
Eve also claimed that in the van, defendant touched Meg and May on their vaginas, on top of their clothes. She testified that defendant forced her and her sister to put on shows for him in the van, dancing around without their clothes on and "shaking [her] butt and stuff." May was sometimes present as well.
Eve claimed that when she sat on defendant's lap, she would feel his penis moving on her buttocks. She once observed defendant force Meg to touch his penis in the living room of his house. However, she had never touched defendant, and he never asked her to touch him. She denied that defendant had ever shown her pornography or sexual images on his computer. However, he told her he had "pornography videos."
On cross-examination, Eve admitted that she cursed in front of defendant, and that she purposely urinated in defendant's bed while he was in it. However, she stated that defendant cursed "really loud and mean" in front of her, and she urinated in his bed because she was angry at him.
Meg, ten years-old at the time of trial, testified that at her grandfather's request, she and her sister would put on shows and dance for him, including lifting up their shirts and taking off some of their clothes. He told them not to tell their parents about the shows, threatening them in a mean way, "[l]ike he would do something."
Defense counsel confronted Meg with her statement to Detective Hageman, in which she had denied that anything happened in the van. She explained that she had lied to the detective because she felt pressured and was nervous speaking with a police officer. Nevertheless, she then proceeded to testify that she never took her clothes off in the van.
Meg did not recall defendant trying to touch her private parts, but she remembered him touching her arms, legs, and stomach, both over her clothes and under. She testified that defendant once forced her hand to touch his "private part," under his clothes. When she was reminded on cross-examination that she had told Detective Hageman she touched defendant's private part by accident, she explained that it was both an accident and on purpose.
Finally, twelve-year-old (at the time of trial) May testified that defendant pushed her into his van and told her to take her clothes off, and she complied. Eve was present, and Meg was sometimes present too, and they would take their clothes off as well. When the girls were undressed, defendant would look at them; one time May saw defendant touch Meg, but she could not recall the details.
According to May, defendant would lock the doors to the van and not let her leave until it was time for her to go home. He also threatened to kill her and her family if she ever told what happened. May did not remember how often this happened, but it was at least three times. She recalled telling Detective Hageman that it had happened ten or twenty times, but conceded that she was exaggerating.
As a result of the investigation, defendant was indicted by a Burlington County grand jury in a twenty-one count indictment. Before trial, the Law Division dismissed counts nine (first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1)) and seventeen (second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b)), and defendant pled guilty to count twenty-one (fourth-degree endangering the welfare of a child by possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b)). The remaining counts were submitted to the jury, which convicted defendant of the following crimes:
Count one: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1).
Counts two, ten, and eleven: second-degree sexual assault, ...