On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-04-0370.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Skillman.
Tried by a jury, defendant, D.D., was convicted of two counts of first-and one count of second-degree sexual assault on three boys all under the age of twelve, N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b). He was also convicted of three counts of child endangerment, N.J.S.A. 2C:24-4(a). After appropriate mergers, defendant was sentenced to an aggregate term of forty years, with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, and for the following reasons, we affirm.
This criminal episode spanned several years, from approximately January 2001 to September 2004; occurred at defendant's hometown of Vineland, where he lived with his wife and two daughters, as well as other locales; and involved three boys - J.W., J.F. and B.M. - who were between six and nine years old when they first met defendant, and who were thereafter sexually abused by him until they were about ten or eleven years old. Up to then, the boys frequently played at defendant's house, where the rules were more lenient than at their homes, and on weekends slept overnight in the basement, where much of the sexual abuse took place. They also played at least one season on the soccer team that defendant coached. Defendant and his wife became friendly with their parents who trusted him and had no qualms about letting their children spend time with him. Defendant bought gifts for the boys, and took them to restaurants (J.F., J.W., and B.M.), the mall (J.W. and J.F.), amusement parks (J.W.), and campgrounds (J.W.). At time of trial, J.W. and B.M. were fifteen years old and J.F. was fourteen years old.
According to the State's proofs, J.W., born on February 21, 1994, first met defendant on November 25, 2000, at the marriage of his father (J.W., Sr.), a truck driver away from home for weeks at a time, and his stepmother, Melissa, whom defendant had previously known. J.W.'s biological mother was a drug addict who was in prison "a lot."
J.W. began frequenting defendant's home in January 2001, when his stepmother was occupied with the care of her newborn. Eventually his visits there increased to staying overnight at least two weekends a month until he was eleven years old. The second time he slept over, in 2001, when he was only seven years old, defendant put his hands down J.W.'s pants as they sat in a chair. After that incident, defendant touched J.W. "[p]retty much every time [he] was there." Over time, the touching included oral sex. J.W. also performed these acts on defendant. At some point, the sexual contact progressed to anal penetration. J.W. and defendant also watched pornography on the television and computer.
While most sexual activities occurred in the basement, J.W. recalled an incident inside a tent in defendant's backyard.
J.W. testified that while sharing the tent with B.M., B.M.'s younger brother, D.M., and defendant, he and defendant were "touching and rubbing and sucking" and trying to get B.M. involved. B.M. left the tent a "couple of times," but at some point, defendant and B.M. "messed around." J.W. also said that defendant "messed" with D.M., who was sleeping.
J.W. recalled another incident in the summer of 2003 during a camping trip near Six Flags, where he and defendant were joined by other men, including Robert Pelle and his son. J.W. and defendant had anal sex when they were alone in the tent. The next morning, defendant told J.W. that one of the other men had touched him during the night. On another occasion, J.W. said an assistant coach named Rick touched and photographed him when he was sleeping in the backyard.
B.M., born April 8, 1994, was six or seven years old when he first met defendant after his family moved to the same street and he became friends with one of defendant's daughters. His parents were going through a divorce at the time, and B.M. was "stressed out" and liked to go to defendant's house to watch television and play games. He initially played with defendant's daughters, but after a few months "hung out" more with defendant. B.M. did not stay overnight at defendant's house until about a year later, when J.W. "came into the picture."
B.M. testified that the first sexual contact by defendant took place in the backyard tent, when he was about eight years old. Defendant pulled down his pants and exposed his penis through the hole in his boxer shorts, and told B.M. to perform oral sex on him. B.M. said no, but defendant kept asking. Defendant and J.W. called B.M. a "chicken" and repeatedly said "[w]hat's the matter? Why not? What's the big deal over it?"
B.M. eventually touched defendant's penis, and then left the tent. While this made him uncomfortable, B.M. thought it was a "one-time thing."
B.M. continued to sleep overnight at defendant's house because he liked "hanging out" with J.W. Although defendant did not always touch him, when touching did occur, defendant would be wearing boxers with his penis "sticking out." He would taunt B.M. by saying "just do it real quick once. Come on. What's the big deal." B.M. would finally touch defendant's penis as quickly as possible. Defendant also touched B.M.'s penis over and under his clothes, asked B.M. to expose himself, and took pictures of him on the webcam. B.M. acknowledged touching J.W. "maybe two times," and reported seeing J.W. and defendant laying naked together on the couch. He watched R-rated scary movies with "naked" parts, but denied seeing pornographic movies or pictures on defendant's computer.
J.F., born March 27, 1995, was eight or nine years old when he first met defendant at the Malaga trailer park, where he lived with his mother, Debbie Williams, her fiance at the time, his brothers D. and N., and his mother's two other sons who stayed with them on weekends. He and N. were riding their bicycles when defendant pulled alongside them in his truck after J.W., who was a passenger, recognized his classmate. J.W. introduced defendant as his uncle. They all went back to J.F.'s trailer, where defendant asked J.F. if wanted to play on his soccer team, and offered to drive him to practices and games because Williams did not drive.
The first time he went to defendant's house, J.F. had an "awesome" time playing video games in the basement with J.W., since he did not own any himself. He continued to visit defendant and, at some point, began staying overnight. One time, when he was sitting on a recliner in his pajamas, defendant asked if he was wearing underwear, and when he said yes, defendant told him that "[u]sually people don't wear them like that." J.F. took off his underwear, and then defendant pulled down J.F.'s pajamas and looked at his penis.
The next time J.F. stayed overnight, he and J.W. watched a pornographic movie with defendant on the basement couch. J.F. asked what was happening, and defendant explained "[t]hat's the dick going into the pussy." Then defendant started performing oral sex on J.F.; later "it got worse" as defendant tried different things such as anal penetration with his fingers. On one occasion, defendant stuck two fingers inside J.F.'s anus until J.F. told him to stop because it hurt. J.F. also sucked defendant's penis, which he said made him want to throw up. He saw defendant perform oral sex on J.W. J.F., however, did not recall touching J.W., although he said it might have happened. Sometimes he looked at pornographic websites on defendant's computer.
The sexual activity took place almost every weekend J.F. stayed overnight. J.F. explained that he continued to spend time at defendant's house because they did "fun things" together, such as playing new video games and going to the mall. He considered defendant a father figure, explaining that "I didn't have mine at the time," and he believed defendant "did what a dad should do with his son, other than the abuse."
In August 2004, the Division of Youth and Family Services (DYFS) removed J.F. and his younger brother from their home, after another brother accidentally set himself on fire "huffing" gas. DYFS placed the boys with Williams' sister, Wendy Rivera, and would not allow them to return home until Williams fixed up the trailer. Defendant and his wife helped clean the trailer, paid for two new windows, and purchased mattresses for the bunk beds the boys used at Rivera's home. Rivera, however, would not let defendant take J.F. on a camping trip. J.F. and his brother returned to their mother's home about two months later.
Discovery of the sexual abuse had its genesis in October 2004 when federal agents contacted Detective Sergeant Jasmin Calderon of the Cumberland County Prosecutor's Office, told her about their child pornography investigation targeting adult males, including defendant, and asked her, trained as she was in interviewing child sexual assault victims, to interview J.W., whom defendant had allegedly sexually assaulted. On October 21, 2004, Calderon interviewed J.W. after obtaining his parent's permission. She also interviewed B.M. on October 25, 2004.
J.W. and B.M. were ten years old at the time of their interviews.*fn1 Both boys told Calderon that defendant was their soccer coach, that they went to his house for parties, to swim in his pool, to play videogames and watch scary movies, and slept overnight in his basement on chairs or couches while defendant stayed on another couch in the back of the room. Both boys denied that defendant ever touched their private parts, and J.W. denied watching movies with naked people, or seeing "bad things" on defendant's computer. They claimed defendant never told them to keep secret anything he had done.*fn2
Calderon doubted the boys' denials based on their body language during the interviews. B.M. was constantly "moving his fingers around," bouncing or tapping his leg, and opening and closing his legs. J.W. became fidgety when asked about the alleged abuse, and seemed aware, without being told, that the interview was taped. She explained that both boys had a "big hurdle to overcome" before admitting abuse, especially given that defendant had provided them with gifts, entertainment, and activities. Calderon, however, took no further action because the federal agency was handling the investigation.*fn3 J.W.'s and B.M.'s parents were evidently satisfied by their sons' denials to Calderon and continued to allow them to see defendant.
Williams, J.F.'s mother, however, became concerned when one day in the fall of 2004, defendant picked up her son to go to McDonald's and upon his return home, she learned he had not gone there. To find out the truth, she told J.F. that defendant had already told her "everything." J.F. then mentioned the sleepovers at defendant's house, but asked his mother not to tell anyone because he did not want to get defendant in trouble. At that point, Williams decided to tape their conversation without his knowledge. She convinced him to "keep going" and tell her what had happened.
Afterwards, Williams went to defendant's house to talk with his wife about stopping the overnight visits, and took the tape with her. She described defendant's wife as distraught. When she confronted defendant, he made an excuse that he was sexually abused as a child. Although Williams obviously was upset, she did not report the abuse. Instead she went to a motel, paid for by defendant, where she used cocaine and stayed high for several days. Rivera described her sister's behavior around this time as "bizarre," and thought she might be having a nervous breakdown. Williams denied asking defendant or his wife for money in exchange for the tape.
Several months later, in June 2005, Rivera brought her nephew J.F. to her home and tricked him into providing details by telling him that his mother already told her. As a result, on June 10, 2005, Rivera and her boyfriend took J.F., who was ten years old at the time, to the Vineland Police Department to report the sexual abuse. They met with Detective Louis Negron, who had investigated numerous child sexual assault cases since 1990. Negron first interviewed Rivera, who told him what J.F. had disclosed. He then spoke to J.F. off the record before conducting a taped interview, but had not asked leading questions during the initial unrecorded session or revealed any facts from his investigation.
Although nervous and embarrassed, J.F. was forthcoming about his relationship with defendant. He said that the first time he slept overnight, defendant admitted to touching J.W.'s private parts, and warned J.F. not to tell anyone or defendant would go to jail. The next night, for the first time defendant touched J.F.'s penis while they were sitting together on a chair in the basement watching a "disgusting" movie with naked people. J.F. saw defendant do the same thing to J.W. The following night, defendant pulled off J.F.'s boxers and engaged in oral sex. After that weekend, defendant continued to inappropriately touch J.F. and J.W., and, one time, encouraged the boys to touch each other, which they did. J.F. also touched defendant's penis.*fn4
Based on this information, Negron went to J.W.'s home on June 16, 2005, but his parents refused to allow Negron to interview their son because he had been interviewed six months earlier and had denied any abuse, and because they were still friends with defendant and his wife. However, J.W., who was eleven years old at the time, did confide in his father about his sexual encounters with defendant after learning that J.F. had made similar disclosures. He stopped seeing defendant and subsequently, on June 27, 2005, told Negron about his relationship with defendant.
Specifically, J.W. confirmed to Negron that defendant engaged in oral sex and anal penetration, sometimes using "strawberry cream" or saliva, and that defendant touched him in a "bad way" almost every time he stayed overnight. He admitted performing oral sex on defendant, but denied touching J.F.
J.W. also told Negron about the camping trip with defendant and other men on Labor Day in 2003. They played a game the first night where the men dared him to French kiss defendant, which he did. Consistent with his trial testimony, he told Negron that the first night of the camping trip he slept with defendant in a tent and that the next morning defendant said that one of the men had rubbed his "private." The next night, defendant put his private "up my butt." After the trip, defendant went to J.W.'s house and asked him not to tell anyone about the camping incident.*fn5 J.W. admitted that he told Calderon nothing had happened because he did not want to get defendant in trouble.
Negron found J.W. very forthcoming, and his statement consistent with the one given by J.F. Both boys also gave similar descriptions of defendant's house. Based on their statements, defendant was arrested on June 28, 2005, and released on bail.
Meanwhile, when the allegations had resurfaced, defendant told B.M.'s father, Chad, that J.F.'s mother was blackmailing him with a tape. At first, Chad believed his friend, but after defendant's arrest, Chad confronted B.M. Although B.M. initially denied anything had happened with defendant, Chad noted that his son's "demeanor wilted like a flower." After telling his son that another boy had confessed, B.M. decided there was nothing to hide and told the truth.
Chad went directly to defendant's house to tell defendant's wife what had happened "because we're friends." When defendant was contacted by phone, Chad relayed what B.M. had told him. Defendant denied everything until Chad mentioned the backyard camping, at which point defendant became silent. Chad told defendant that he loved and trusted him, that defendant had a sickness, and that he needed to get help. Defendant replied that Chad was right, that he had put the boys through enough and needed to do the right thing, but asked Chad to give him until morning to turn himself in to the police. Chad initially agreed, but changed his mind and called the police. At approximately 1:24 a.m. on July 21, 2005, Patrolman Vincent Donoflio interviewed B.M. at his house. At 3:00 a.m., Negron was informed that defendant had been arrested again.
After obtaining permission from B.M.'s parents, Chad and Melissa, Negron interviewed the boy at his home in the presence of his parents. After initial denials, B.M. admitted that defendant had touched him in a bad way. He told Negron about the incident in the backyard tent and other sexual encounters in the basement, explaining that defendant and J.W. would repeatedly call him a "chicken" when he refused to do something, and that he eventually did whatever they asked so they would stop teasing him. B.M. also confirmed that defendant told the boys to touch each other, and that defendant took pictures of him which defendant showed to friends. He said defendant usually wore boxer shorts with "his private part . . . hanging out all the time." According to B.M., defendant had asked him to keep their secret or defendant would be taken away from his children. As with the other boys, B.M. did not tell Calderon the truth eight months earlier because defendant was so nice to him and he felt badly for him.
The next day, July 22, 2005, Negron returned to J.W.'s house to corroborate what he had heard from J.F. and B.M. In this second interview, J.W. denied touching J.F. or B.M. but admitted that defendant had shown pornography to the boys. J.W. also mentioned for the first time that defendant used a vibrator on him, and that defendant performed oral sex on D.M. in the backyard tent.*fn6
At trial in August 2009, J.W. testified that about a month before Calderon took his statement, defendant approached him at home and asked him to keep their relationship a secret. J.W. agreed and denied everything to Calderon because he considered defendant a second father, whom he loved and did not want to go to jail. Contrary to his original feelings, at trial J.W. acknowledged that the sexual incidents with defendant were wrong and that he wished they never happened. Although counseling had helped "[a] little bit," he still did not like to talk about it.
B.M. similarly testified that defendant had asked him to keep their relationship a secret and therefore he had denied everything to Calderon. He told his father what happened only after learning that another boy had made a disclosure. According to his father, B.M. is "pretty stoic and to himself," but has a lot of anger and does not like to talk about his feelings.
Consistent with the testimony of these two boys, J.F. said defendant told him not to tell anyone about what took place between them. J.F. admitted lying to investigators because he cared about defendant; however, at some point, J.F. told his mother about the abuse, but did not know that she had recorded their conversation. He was embarrassed and uncomfortable talking about what happened and had nightmares "all the time."
In this regard, his mother testified that although J.F. had "come a long way," he was still undergoing counseling and dealing with "a lot of issues." He got in trouble at school, had to leave numerous times, and required a private tutor to continue his education. He eventually saw a doctor who prescribed medication.
In addition to the three victims and their relatives, the State produced Robert Pelle, who first met defendant on a website where men attracted to young boys make social contacts with each other online and at "get-togethers." Beginning in early summer 2003, Pelle and defendant started having regular online conversations or "chats" on Yahoo! Messenger, wherein Pelle identified himself as "RobertP182" or "Rob," and defendant was "Wonder_Of_It" or Dave.
After a few months, in August 2003, Pelle met defendant in person on a camping trip with other men from the website as well as with J.W. and Pelle's son. At the campsite, Pelle observed J.W. "masturbating" defendant inside the tent. Thereafter, Pelle and defendant became friends and formed a relationship outside the group. Pelle lived in nearby Belmar, shared common interests with defendant and, at thirty-eight years old, was close in age to defendant. The two men socialized together. Pelle even brought his son over to defendant's house and defendant and J.W. visited Pelle at his home as well as at the mall.*fn7
Pelle and defendant continued their online discussions on Yahoo! Messenger, and sometimes communicated by webcams. The chats included discussions about how to avoid getting caught by authorities. For example, defendant advised Pelle to remove and hide his hard drive, and replace it with another. He also told Pelle to keep his interests and activities private, and to "[j]ust act normal, like a regular family man should act," and in another chat, that he would not bring J.W. to Pelle's house if the "young guys" from the website, who were less discreet, were going to be there. In yet another chat, defendant explained that he liked "horny, friendly, smart boys" and referred to a particular boy, whom Pelle identified as J.F., saying: ...