On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Espinosa.
The opinion of the court was delivered by MESSANO, P.J.A.D.
We granted the State of New Jersey's motion for leave to appeal from the Law Division's order dismissing with prejudice counts four and six of Essex County Indictment No. 07-02-0430 against defendant Kiwanie Salter. For the reasons that follow, we affirm in part, reverse in part and remand the matter for further proceedings.
The procedural history of this matter requires some explication.
In his testimony before the grand jury, T.B., who was twelve-years old when the events allegedly occurred, stated that during the morning of September 3, 2006, defendant placed T.B.'s hand and mouth on defendant's penis while both were in the pantry of T.B.'s home. T.B. testified that later in the afternoon of September 3, defendant anally penetrated him and had T.B. place his hand on defendant's penis for a second time. T.B. testified that on the following day, September 4, defendant placed his mouth on T.B.'s penis and anally penetrated him.
Based upon this testimony, on February 7, 2007, the grand jury returned a seven-count indictment against defendant. Each count alleged that the criminal conduct took place "on or about the 2nd day . . . and the 5th day of September 2006." In identical language, counts one and two charged defendant with first-degree aggravated sexual assault of T.B. by anal penetration. N.J.S.A. 2C:14-2(a)(1). Counts three and four charged defendant in identical language with first-degree aggravated sexual assault of T.B. by oral penetration. N.J.S.A. 2C:14-2(a)(1). Defendant was charged in identical language in counts five and six with two counts of third-degree aggravated criminal sexual contact of T.B. N.J.S.A. 2C:14-3(a).*fn1 And, count seven charged defendant with third-degree endangering the welfare of T.B. N.J.S.A. 2C:24-4(a).
At trial, T.B. testified that during September 2006, he lived with his mother and four sisters.*fn2 In the morning of September 3, his sister woke him up and told him that defendant was in the house. According to T.B., his mother and defendant had been involved in a romantic relationship and on occasion defendant slept in the pantry. When T.B. walked into the pantry, defendant got up from his bed and grabbed the boy's arm. Defendant proceeded to place T.B.'s hand on his penis and also placed his penis in T.B.'s mouth. T.B. also testified that later in the afternoon on September 3, defendant came downstairs and started to touch T.B.'s penis and buttocks. Defendant placed his penis in T.B.'s mouth and then anally penetrated T.B. while the two of them were on a staircase of the home.
That evening, after everyone had gone to bed, defendant motioned for T.B. to come back to the pantry. Defendant again placed his penis in T.B.'s mouth and anally penetrated T.B. When defendant subsequently left, T.B. wrote a note to his mother explaining what had happened. His mother called the police.
There were no other witnesses to the alleged sexual crimes. It suffices to say that T.B. was subject to vigorous cross-examination that highlighted inconsistencies between his grand jury and trial testimony.
During the jury charge, the judge did not identify any specific conduct as the bases for the charges contained in counts one through six. With respect to the two aggravated sexual assault by oral penetration counts, she told the jury:
Counts [three] and [four] of the indictment charge the defendant with aggravated sexual assault between on or about the second day of September 2006, and the fifth day of September 2006, in the City of Newark, and County of Essex, and within the jurisdiction of this Court did knowingly commit an aggravated assault by oral penetration, mouth to penis, upon T.B. . . . age 12.
The instructions as to counts five and six were similarly provided:
Now, Count [five] and Count [six] o[f] the indictment as amended, charge the defendant with criminal sexual contact between on or about the second day of September 2006, and the fifth day of September 2006, in the City of Newark, and County of Essex, and within the jurisdiction [of] this court, did commit an act of criminal sexual contact upon T.B.
Following the charge, the prosecutor requested a sidebar to discuss the verdict sheet.
PROSECUTOR: Judge, anal penetration happened in the second and third. So, she has the first event, and that's not --DEFENSE COUNSEL: Except it's -- charges reflect the language in the indictment and that's what they do.
PROSECUTOR: No, that's just the order.
THE COURT: How about the first time. Now, it's -- I think we're saying first event the first time. Morning, afternoon and night. It was just being that the first time and second time.
DEFENSE COUNSEL: There was conflicting testimony as whether or not it happened. The last event was on Sunday night or Monday night. So, I don't think it's fair for us or appropriate for us to insert what dates we think things --PROSECUTOR: Even separating it out. First event, second event is just confusing because they can speculate, well, did that happen the first time? Did that happen [the] second time?
THE COURT: Should be in more general terms of whether he committed this act one -- two acts. I don't think it should be a time period. I think general time period between September second and September fifth is adequate. Whether this happened two times and this happened two times. That's why the indictment was laid out the way it was, not because of first event or second event. Changing from what we discussed in chambers. DEFENSE COUNSEL: Now, I'm realizing that testimony reflected in the first event was fondling and second event was the anal and oral penetration.
PROSECUTOR: I don't just take it out or ...