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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 13, 2012

STATE OF NEW JERSEY IN THE INTEREST OF A.J.F., A JUVENILE.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-1741-09 and FJ-20-1833-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012 - Before Judges Payne and Reisner.

Juvenile, A.J.F., age seventeen, appeals from adjudications of delinquency, finding that he committed acts that, if committed as an adult, would constitute first-degree aggravated sexual assault on a four-year-old girl, A.R.G., N.J.S.A. 2C:14-2a(1), and third-degree endangering the welfare of A.R.G., N.J.S.A. 2C:24-4a. He also appeals his sentence, which consisted of commitment to the Training School for Boys for an indeterminate term not to exceed three years, subject to recall after one year, on the aggravated sexual assault, and a concurrent term of two years on the endangering disposition. Both sentences were to be served concurrently with a three-year commitment for armed robbery - an act of delinquency occurring while the present matter was pending, which is not a subject of this appeal.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED IN RULING A.R.G. COMPETENT TO TESTIFY AT TRIAL BECAUSE THE REQUIREMENTS OF N.J.R.E. 601(b) WERE NOT SATISFIED.

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT EXCESSIVELY DETAILED TESTIMONY FROM A.R.G.'S GRANDMOTHER UNDER THE FRESH COMPLAINT EXCEPTION TO THE HEARSAY RULE (NOT RAISED BELOW).

POINT III

THE COURT ERRED IN FAILING TO MERGE THE ADJUDICATION OF DELINQUENCY FOR ENDANGERING WITH THE ADJUDICATION OF DELINQUENCY FOR AGGRAVATED SEXUAL ASSAULT BECAUSE A.G.F. HAD NO LEGAL DUTY OR RESPONSIBILITY TO CARE FOR A.R.G.

POINT IV

THE COURT MISAPPLIED ITS DISCRETION IN IMPOSING DISPOSITION DUE TO ITS IMPROPER FINDINGS OF AGGRAVATING FACTORS AND ITS FAILURE TO FIND APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).

The State concedes that the endangering disposition should have been merged with that for aggravated sexual assault. Thus, the matter must be remanded for correction of the disposition. Otherwise, we affirm.

I.

The record discloses that, in March 2009, A.R.G. told her maternal grandmother repeatedly, while her grandmother was driving home from church with her in Georgia, that V.J. and A.J.F., a friend who lived with V.J. at the home of A.R.G.'s paternal grandmother, "had done this to me." Although the child did not articulate what "this" was, she demonstrated by "making a humping motion and grabbing herself in the backseat."*fn1

According to the grandmother, once home, A.R.G. continued to speak of what had occurred. The grandmother testified that A.R.G. stated: "V.J. had touched me right here." The grandmother continued: "She said that A.J.F. did, too. Her words were, he did that to me too. Constantly pointing to [herself,] touching [herself]."

The grandmother immediately attempted to contact the child's mother and father to tell them what had occurred. On the following day, the grandmother reached A.R.G.'s parents by telephone and, after she gave the phone to A.R.G., the grandmother heard her tell them that V.J. had touched her on her "thing."

A.R.G.'s mother also testified at trial. In her trial testimony, the mother said that, while on the telephone, A.R.G. had stated that both V.J. and A.J.F. "were humping on her and doing sexual things to her." Upon A.R.G.'s return to New Jersey, she told her mother that A.J.F. "was humping on her, touching her sexually, and that he put his tail in her mouth." The mother confirmed that A.J.F. would have had the opportunity to sexually assault A.R.G., since A.R.G. often spent a week at a time at her paternal grandmother's house, where A.J.F. was also residing.

Upon hearing again what occurred, A.R.G.'s mother went to the office of the Division of Youth and Family Services and then to the police station. She and A.R.G. were taken by the police to the Union County Child Advocacy Center, where both were interviewed and gave statements. The videotaped statement of A.R.G. to Walter Johnson, Jr., a detective with the Union County Prosecutor's Office, was played at the trial. Additionally, A.R.G. testified at trial, confirming her prior statement that A.J.F. "put his tail in [her] mouth." When shown a male anatomical doll, A.R.G. identified the doll's penis as his "tail" and then stated: "I don't . . . like no dolls. That boy is nasty."

In a decision placed on the record following the trial, the court found A.R.G.'s testimony, which it had earlier found to be admissible, was truthful and, in significant measure, consistent with the statements by her that were reported by A.R.G.'s grandmother and mother. The court therefore found that the State had proven beyond a reasonable doubt that A.J.F. had knowingly committed an act of sexual penetration upon A.R.G., who at the time was four years of age.*fn2 The court found additionally that, by placing his penis in A.R.G.'s mouth, A.J.F. knowingly engaged in conduct that would impair or debauch the morals of the child. A.J.F. was therefore adjudicated delinquent on the charge of endangering the welfare of a child. Following sentencing, A.J.F. appealed, raising the arguments that we have previously enumerated.

II.

On appeal, A.J.F. first contends that the court erred in permitting A.R.G. to testify at trial without first determining whether she was competent to do so pursuant to N.J.R.E. 601(b). Defendant then argues that the court compounded its error by finding A.R.G.'s trial testimony admissible despite the fact that A.R.G. did not exhibit the "moral responsibility" or "consciousness of the duty to tell the truth," State in the Interest of R.R., 79 N.J. 97, 113-14 (1979), that N.J.R.E. 601(b) requires.

As A.J.F. points out, at the pre-trial hearing on A.R.G.'s competence to testify, she initially exhibited no understanding of what was truth and a lie, although it was unclear whether the child was not paying attention, she did not understand the terms used in questioning her, or she genuinely lacked an understanding of the concept of truthfulness. However, when the hearing was resumed in chambers, A.R.G. manifested a better understanding, particularly under questioning by the prosecutor, with whom A.R.G. had apparently developed a comfortable relationship. The following is illustrative of A.R.G.'s in-chambers testimony:

[PROSECUTOR]: Okay. If I told you that this coat was blue -

[A.R.G.]: That's right.

[PROSECUTOR]: That's right? Okay. If I told you this coat was red -

[A.R.G.]: That's wrong. . . .

[PROSECUTOR]: Just are you going to lie to me today?

[A.R.G.]: No. . . .

THE COURT: . . . [W]hy is it you're going to tell the truth today.

[A.R.G.]: Because.

THE COURT: Because? [A.R.G.]: Because I like to.

THE COURT: Because you like to tell the truth? Did you know that if you don't tell the truth and I find out, that would be a bad thing?

[A.R.G.]: Yes. . . .

[PROSECUTOR]: Do you know if you tell a lie today, the Judge is going to be very angry with you?

[A.R.G.]: Yeah. Yes. [PROSECUTOR]: Yes what? [A.R.G.]: He might be upset at me. . . .

[PROSECUTOR]: Do you know - do you know you have to tell the truth today?

THE COURT: She's shaking her head yes. [PROSECUTOR]: And is that because the truth is good?

[A.R.G.]: Yes.

In a decision placed on the record on the next trial day, the court, citing State v. G.C., 188 N.J. 118, 131 (2006), recognized that, to be competent to testify, a witness "'should have sufficient capacity to observe, recollect and communicate with respect to the matters about which [s]he is called to testify, and to understand the nature and obligations of an oath.'"*fn3 The court concluded that it had "very little to go on" in determining whether A.R.G. was clearly capable of expressing herself in a manner that was understandable and would need more testimony to answer that question. Additionally, the court concluded that it would need more testimony to determine whether A.R.G. was capable of understanding the duty to tell the truth. As a result, the court ruled that it would permit A.R.G. to testify substantively, and would defer the issue of the admissibility of that testimony until it could further evaluate A.R.G.'s responsiveness and understanding that truthful testimony was required.

At the commencement of A.R.G.'s trial testimony, the following exchange occurred:

THE COURT: . . . Do you know the difference between [the truth and telling a lie]?

[A.R.G.]: Yes.

THE COURT: Yes? And today you understand that you're here to tell the truth, right?

[A.R.G.]: Yes.

THE COURT: And you understand that - that you have to tell the truth, right?

[A.R.G.]: Yes.

THE COURT: And because telling a lie would be bad, right? You have to speak.

[A.R.G.]: Yes.

THE COURT: Okay.

Additionally, the prosecutor questioned A.R.G. as to whether the truth was good or bad, eliciting a response that it was good as well as a statement from A.R.G. that a lie was bad, and if she told one, she would get in trouble. After agreeing to tell the truth, A.R.G. commenced her substantive testimony without further objection from the defense.

At the conclusion of A.R.G.'s testimony, the court ruled it to be admissible pursuant to N.J.R.E. 601(b), holding:

After hearing the testimony of this young lady, I am satisfied that even though the witness is only four years old, she, one, clearly recognizes all the body parts that were on the anatomically correct doll that was used by the State. . . .

She did express herself. She specifically testified that the juvenile had her place her mouth on his penis which she called a tail. That's her testimony. Whether it's credible or not, at this stage I'm making no determination at this time. But I did find the testimony to be understandable.

Secondly, the Prosecutor went through a little bit more voir dire with respect to the ability to recognize the truth versus a lie, and she again indicated that she did.

You'll . . . remember that there was considerably more time spent with her on the 6th of October discussing that. And she was perhaps a little bit more specific today about understanding that it is a bad thing to tell a lie and it is a good thing to tell the truth and that she understands that if she were to tell a lie that there could be some type of consequences. Not a word that she, of course, used but I was satisfied that she recognized as well as a four-year-old can the duty to tell the truth and not to lie.

We find no abuse of discretion in the court's ruling, concluding that A.R.G.'s testimony satisfied the conditions of admissibility that the court properly recognized. G.C., supra, 188 N.J. at 132 (affirming abuse of discretion standard). In reaching that conclusion, we acknowledge that the issue of the competency of a witness to testify is usually determined as a threshold matter. R.R., supra, 79 N.J. at 113; N.J.R.E. 104(a). Nonetheless, in this non-jury setting, we find that A.J.F. suffered no prejudice through the court's deferral of that determination to permit the introduction of additional testimony in aid of its decision.

III.

A.J.F. next argues that the court erred by permitting the State to elicit excessively detailed testimony from A.R.G.'s grandmother under the fresh complaint exception to the hearsay rule. We reject that argument, noting that the testimony was properly admitted pursuant to the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), rendering irrelevant the question whether the testimony also constituted fresh complaint evidence. State v. R.B. 183 N.J. 308, 318 (2005).

IV.

The State having conceded that merger of the adjudication of delinquency for endangering the welfare of a child into that for sexual assault was required, we turn to A.J.F.'s final argument, claiming that the court, in rendering its disposition, improperly found aggravating factors and failed to find applicable mitigating factors. See N.J.S.A. 2A:4A-44a(1) and (2) (enumerating aggravating and mitigating factors). In particular, A.J.F. claims that the court engaged in double counting by finding aggravating factors (a) (the nature and circumstances of the offense) and (b) (there was grave and serious harm inflicted on a victim known to be particularly vulnerable as the result of extreme youth), because both were based on the victim's age, which was an element of defendant's offenses.*fn4 However, we held in State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988), a case that also involved sexual abuse of a four-year-old:

While the conviction itself required that defendant have "sexual contact with a victim who is less than 13 years old," the statutory element would have been present had the victim been a 12-year-old with some sophistication. In this case, however, the victim was defendant's four-year-old niece. The extreme youth of the victim was a proper aggravating factor to have been considered by the court. [Ibid.]

A.J.F. also challenges invocation of aggravating factor (k) (impact of the offense on the community). However, we find that factor to be justified by the concern for recidivism among sex offenders expressed by the Legislature in its passage of Megan's Law. See N.J.S.A. 2C:7-1; Doe v. Poritz, 142 N.J. 1, 14-18 (1995).

We note, as did A.J.F., that the court provided no basis for finding aggravating factors (c) (the character and attitude of the juvenile indicates he is likely to commit another delinquent or criminal act), (g) (the need for deterrence), (j) (the impact of the offense on the victim), and (k) (the threat to the safety of the public posed by the juvenile). However, the record provides a basis for aggravating factor (c), because it reflects that, on the day of sentencing, A.J.F. pled guilty to an act that, if committed by an adult, would have constituted first-degree robbery, N.J.S.A. 2C:15-1, and that the offense was committed while A.J.F. was released from custody on the sexual assault charges. In light of A.J.F.'s history of delinquent conduct, the need for deterrence is evident, and thus support for aggravating factor (g) exists. That A.J.F.'s conduct had an impact upon A.R.G. is demonstrated by references in the record to her need for weekly counseling, thereby justifying citation to aggravating factor (j), and aggravating factor (l), the threat to the safety of the public posed by A.J.F., is justified for the reasons underlying aggravating factor (k). While recognizing that it would have been a better practice for the court to have articulated the foregoing in support of its disposition, we nonetheless thus find clear evidential support for each aggravating factor found by the court to exist.

As far as mitigating factors are concerned, A.J.F. claims that the court erred in not finding factors (c) (that he did not contemplate that his conduct would cause or threaten serious harm), (k) (that A.J.F. was particularly likely to respond well to non-custodial treatment), and (j) (that A.J.F. was unlikely to commit another delinquent or criminal act). We reject A.J.F.'s arguments in this regard. Certainly, it can be inferred that a seventeen-year-old is of an age to understand that his decision to engage in an act of fellatio with a four-year-old victim is likely to cause her harm. And, as the record reflects, as the result of the terms of A.J.F.'s plea on the robbery complaint, non-custodial treatment was not a viable option. As previously stated, the commission of that robbery while A.J.F. was released from custody provides evidence of the likelihood that A.J.F. will commit another delinquent or criminal act.

In summary, we find no basis to disturb the adjudications of delinquency rendered in this matter, or the dispositions imposed, other than to order merger of the adjudication for endangering the welfare of a minor into that for aggravated sexual assault.

The adjudication is affirmed; the matter is remanded for correction of the disposition.


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