On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-08-1412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Before Judges Parrillo, Yannotti and Espinosa.
Defendant appeals from his convictions for sexual offenses committed against his girlfriend's thirteen year old daughter. For the reasons that follow, we affirm.
The Bergen County Grand Jury returned an indictment charging defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (count one); second-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree child abuse, N.J.S.A. 9:6-3 (count four).
The victim, M.R., was born March 1, 1993. In March 2006, her mother, C.B., was in a dating relationship with defendant. At times, both C.B. and her two daughters slept at defendant's house. Defendant sometimes cared for her daughters until she came home from work. M.R. testified that when defendant stayed with the girls until C.B. came home from work, he would "always be in her room" and she wanted her "space" and "privacy." This began to make her feel uncomfortable.
On March 19, 2006, M.R. had an argument with her mother over whether or not she had to go to a party with defendant's family. The next day, defendant spoke to M.R. about the argument. M.R. stated that he "started like, trying to comfort [her][,]" and started touching her. She testified that defendant touched her on her arms, legs, and thighs, and kissed her on the lips. Defendant then brought M.R., his daughter, and M.R.'s sister to his house.
M.R. planned on sleeping on a sofa bed in defendant's daughter's room. However, defendant said to her, "Oh, you sure you don't want to sleep in my bed?" M.R. said she would sleep on the sofa bed but defendant said, "Oh, no, go sleep in my bed." M.R. testified that she thought defendant would sleep elsewhere if she slept in his bed. Instead, after M.R. had been in bed watching television for a while, defendant came in the room and got in bed with her.
M.R. was lying on her side on the edge of the bed. Defendant began touching her on her "butt" over her clothes, proceeded to lift up her shirt and then her bra to expose her breasts and did "the same thing with [her] panties." Defendant got out of bed, went to his closet, began pulling things out and, M.R. suspected, got a condom. Defendant came back to bed, took off his clothes and rolled M.R. on her back. He pulled down her sweatpants and underwear to the middle of her thighs. M.R. testified that defendant penetrated her vagina with his penis, that it hurt and "felt disgusting." She stated he "put it in once, then he took it out, . . . [t]hen he got out of bed and he left again." M.R. pulled up her pants and rolled over. After being out of the room for a while, defendant returned, got back into the bed, and went to sleep.
The next morning, as M.R. got dressed for school, she noticed a little blood on her panties. Defendant acted as if nothing had happened so she did the same. Later in the day, she told one of her friends in gym class what happened and they both started crying. Her friend told her to tell her mom, that she had to tell somebody else. M.R. did not tell her mother because she "knew it was going to hurt her."
There was some inconsistency as to which adult M.R. confided in first. M.R. testified that she first told her maternal aunt, A.D. (A.D.), and told her maternal uncle, W.D., a few days later. However, C.B. testified that M.R. first "insisted" she wanted to speak to her uncle.
After a N.J.R.E. 104(b) hearing to determine the admissibility of his testimony, W.D. testified that M.R. frequently confided in him. That day, they spoke for approximately one to one and one-half hours. When he started talking to her, he could tell something was wrong. M.R. told him that defendant had asked her to sleep in the bedroom with him, that her pants came off and that he put his penis inside her. W.D. stated she was upset and crying the whole time. He consoled her and, at her request, did not immediately notify the police or anyone else. Instead, he called M.R.'s big brother, asked him to look out for defendant, and later called his sister, A.D., and told her she needed to talk to M.R., that something may have happened to her.
After her aunt asked her what was going on with her and defendant, M.R. told her what happened. They went to her grandmother's house and met with M.R.'s mother. She then told her mother what happened. Her mother was "shocked" and "heart broken." Her aunt took M.R. to the police station, where she spoke ...