On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-02-0233.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges Ashrafi and Nugent.
On February 7, 2007, a Mercer County grand jury charged defendant Heath Davis with two counts of second degree sexual assault, N.J.S.A. 2C:14-2b (counts one and two); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(count three). On May 14, 2008, a jury acquitted defendant of sexual assault (count one), and convicted him of sexual assault (count two) and endangering the welfare of a child (count three). On October 20, 2008, after merging count three into count two, the trial court sentenced defendant to a six-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed mandatory fines and penalties. The court also ordered defendant to comply with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19, including parole supervision for life, N.J.S.A. 2C:43-6.4.
On appeal, defendant argues:
THE TRIAL COURT'S REFERENCE TO DEFENDANT BY MULTIPLE NAMES IN THE PRESENCE OF A JURY ALLOWED THEM TO DRAW A NEGATIVE INFERENCE DEFENDANT USES AN ALIAS AND IT THEREFORE DENIED HIM A FAIR TRIAL. (Not Raised Below)
THE ADMISSION OF PREJUDICIAL HEARSAY IMPERMISSIBLY BOLSTERED THE VICTIM'S CREDIBILITY AND ULTIMATELY DENIED DEFENDANT A RIGHT TO A FAIR TRAIL. (Not Raised Below)
THE VICTIM'S OUT OF COURT HEARSAY STATEMENTS WERE IMPROPERLY ADMITTED INTO EVIDENCE AS A FRESH COMPLAINT HEARSAY EXCEPTION.
DEFENDANT'S SENTENCE IS EXCESSIVE AND IS AGAINST THE WEIGHT OF THE APPLICABLE MITIGATING FACTORS, THEREFORE HIS SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RE-SENTENCING. (Not Raised Below)
The trial testimony established the following facts. On July 23, 2006, while attending a church service in Trenton, seven-year-old Steven*fn1 left his mother and other relatives to go to the bathroom in the church basement. Defendant followed Steven into the bathroom, called him by name, asked if he wanted to do anything, and pushed him onto the floor. Defendant pulled his own pants down, forced himself on top of Steven whose pants were unbuckled from using the bathroom, started moving his penis up and down between Steven's legs, and squeezed Steven's penis with his hand. Defendant turned Steven over, put his penis between the cheeks of Steven's buttocks, and repeatedly slapped Steven's buttocks.
Meanwhile, Steven's mother, Ann, began searching for Steven by calling his name and walking to the church basement. Defendant hid in a bathroom stall. Ann entered the bathroom and observed Steven pull up his pants and underwear as he rose from the floor. Steven told his mother that defendant was in the bathroom, but did not tell her what happened. When they returned home, Steven told his mother that defendant "hump[ed]" him in the church bathroom. Later that day, Ann consulted with her pastor, and the next day she took Steven to his pediatrician and then reported the incident to the police. She and Steven went to the police station where Detective Luke Sherill took a written statement from Ann and interviewed Steven outside of the presence of his mother.
Defendant testified on his own behalf at trial, maintaining his innocence. He testified that he entered the bathroom before Steven entered and nothing occurred while Steven was in the bathroom. Defendant claimed that Steven and Ann testified falsely.
Defendant first contends that he was denied a fair trial when the trial court referred to him by his alias. He argues that the trial court created an impermissible inference that he was involved in crime and using multiple last names to evade detection or apprehension. He maintains the reference to his alias possessed a ...