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State of New Jersey

April 27, 2012

STATE OF NEW JERSEY IN THE INTEREST OF S.M.I.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-209-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2012

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

Juvenile S.M.I. appeals from an adjudication of delinquency on a charge that, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2c(1). He argues that the State failed to prove beyond a reasonable doubt that he engaged in sexual intercourse through force or coercion with a thirteen-year-old girl and that the adjudication of guilt was against the weight of the evidence. We have reviewed the record and now affirm.

The juvenile was originally charged with the first-degree offenses of kidnapping, N.J.S.A. 2C:13-1b(1), and aggravated sexual assault, N.J.S.A. 2C:14-2a(3). The State alleged that the juvenile, then sixteen years old, confined the girl against her will in her own house and had sexual intercourse with her without her consent. At a trial conducted on four dates in November and December 2010, the State presented testimony from five witnesses including the girl, and the defense presented testimony from six witnesses including the juvenile. Several of the witnesses were teenage acquaintances and relatives of the girl and the juvenile, but there were no eyewitnesses to the incident. The girl's testimony was crucial to prove the circumstances of the sexual activity.

The juvenile and the girl lived on the same street. The girl testified that she first met him on the date of the alleged sexual assault. However, the juvenile and other witnesses testified that the two were previously acquainted, albeit only for a few days or weeks. The girl testified that in the late afternoon of July 18, 2010, the juvenile came to her door when she was home alone. She did not invite him in, but she did not stop him from stepping into the house, and later from following her upstairs to her bedroom. She testified that she told him he must leave because her father would soon arrive home from work and would be displeased with his presence in the house, but the juvenile did not leave.

In the bedroom, according to the girl, the juvenile pressed her for sexual activity, telling her that she was pretty and similar words of flattery. She told him several times and in different ways that she did not want to engage in sexual activity with him and that she was concerned about her father coming home and finding them. He persisted, not accepting her declinations. At one point, she left the bedroom and went downstairs to use a bathroom but then returned to the bedroom because she did not want to leave the juvenile alone in her house.

According to the girl, the juvenile undressed himself and her and engaged in several forms of sexual activity short of intercourse. She did not resist him physically, but she attempted to communicate her discomfort verbally and through passive failure to cooperate with his conduct. She testified that she told him several times that she was too young and did not want to do the things he was doing or suggesting. The juvenile continued to pursue his aims. He lay on top of her, holding her wrists above her head, and eventually he penetrated her in sexual intercourse, using a condom.

After he left, the girl's father came home and saw a mark on her neck, raising his suspicions. The sexual conduct was revealed more directly by the girl herself to her friends. Immediately after the incident, she communicated with friends in person or by means of text messages such that the incident became known within her circle within a matter of days. The parents also obtained information leading them to suspect that their daughter had been involved sexually with the juvenile and possibly another boy. Eight days after the incident, the girl's father and grandmother took her to the police station, where she gave a statement accusing the juvenile of sexually assaulting her.

The witnesses at trial gave testimony that was potentially relevant to the veracity of the girl's accusation. For example, the girl's mother testified that she confronted the juvenile and he admitted he had engaged in sexual intercourse with her daughter. The girl's father testified that he confronted both the juvenile and the other boy and that the other boy admitted romantic conduct but no sexual impropriety while the juvenile denied his accusations. The several teenage relatives and acquaintances provided testimony about the prior acquaintance of the juvenile and the girl, her relationship with the other boy, and the activities of the teenage group on or near the date of the incident. The other boy testified, and he produced photographs taken of two text messages on his cell phone that the juvenile had sent him after the date of the incident. The text messages demanded that he take responsibility for sexual conduct with the girl but arguably suggested admission of guilt by the juvenile.

The State had no forensic evidence of a sexual assault, apparently because the police only learned about the incident eight days after it occurred, and also because the juvenile had allegedly used a condom, thus making it unlikely that his DNA could be recovered from bedding or clothing.

At the end of the State's case, the judge granted the juvenile's motion to dismiss the first-degree charges of kidnapping and aggravated sexual assault. The judge denied defendant's motion to ...


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