On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-03-0576.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2012 --
Before Judges Yannotti, Harris and Hoffman.
Defendant T.J.D. was tried before a jury and found guilty of various offenses, including sexual assault upon his two minor children, endangering the welfare of the children and assault upon a law enforcement officer. He appeals from the judgment of conviction entered by the trial court on May 3, 2010. We affirm.
On March 30, 2007, a Burlington County grand jury returned an indictment charging defendant with first-degree aggravated sexual assault of J.D., N.J.S.A. 2C:14-2(a)(1) (count one); second-degree attempted aggravated assault of J.D., N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:5-1 (count two); second-degree sexual assault of J.D., N.J.S.A. 2C:14-2(b) (count three); second-degree sexual assault of J.D., N.J.S.A. 2C:14-2(b) (count four); second-degree endangering the welfare of J.D., N.J.S.A. 2C:24-4(a) (count five); second-degree sexual assault of T.D., N.J.S.A. 2C:14-2(b) (count six); second-degree sexual assault of T.D., N.J.S.A. 2C:14-2(b) (count seven); second-degree endangering the welfare of T.D., N.J.S.A. 2C:24-4(a) (count eight); third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count nine); and resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count ten).
In May 2009, the trial court conducted a hearing on the State's motion to admit J.D.'s and T.D.'s videotaped statements at trial pursuant to N.J.R.E. 803(c)(27), the "tender years" exception to the hearsay rule. The trial court conducted an N.J.R.E. 104 hearing on the motion. The court determined that J.D.'s statement should be admitted but T.D.'s statement should not.
J.D. testified at trial. She was then nine years old. Using a doll to illustrate her testimony, J.D. demonstrated for the jury that defendant touched her on her "bottom" and vagina. She explained that defendant would touch her vagina with his hands. When asked if it ever hurt when he did this, J.D. said that "[i]t depends how far he went."
J.D. stated defendant touched her "in the vagina part" with his "boy private parts" two or three times. She described defendant's "boy private part" as "sticking out" when he tried to touch her with it. J.D. said defendant would touch her when her mother was not around. She also said that defendant touched her private parts with his hands more than five times. She explained that this occurred mostly in the family home. Defendant directed J.D. "not to tell" anyone about what he had done to her.
J.D. further testified that she saw defendant touch her brother, T.D. According to J.D., defendant would do "[t]he same thing he did with [her]." J.D. explained that defendant would touch T.D.'s front private part and his bottom with his hands. Defendant also made T.D. touch his male private parts, but she never saw defendant touch T.D.'s bottom with his private part.
She said T.D.'s pants would be down if defendant was trying to touch T.D.'s front private part, and defendant's clothes would be off if defendant was trying to get T.D. to touch his private parts.
On cross-examination, J.D. stated that defendant did not put his private part in her vagina but he touched her vagina with it. She explained that defendant would touch the outside of her vagina with his fingers. She said that defendant touched her under her clothes three or four times.
The videotaped statement that J.D. gave to Detective Jonathan Micken (Detective Micken) of the Burlngton County Prosecutor's Office was then played for the jury. J.D. was six years old when she gave the statement. J.D. stated that she saw defendant put his hand down T.D.'s pants. J.D indicated that defendant touched her private areas more than once, and this happened while her clothes were on.
J.D. also stated that defendant touched her under her clothes. J.D. told the detective that defendant asked her to touch his private part. He did so while his pants were up. She said that defendant's private part felt hard. Defendant also asked T.D. to touch his private part.
Thereafter, defendant's counsel questioned J.D. about the differences between her trial testimony and the statement she gave to Detective Micken:
[Defense counsel]: Okay. So when you said today that he touched you underneath your clothes with his hands, that wasn't true. [J.D.]: No. [Defense counsel]: Okay. Thank you. And similarly, when you say that he on three or four occasions tried to put his male private parts against your private parts, that wasn't true either, was it? [J.D.]: It was true. [Defense counsel]: But you expressly denied that three years ago. So were you telling a lie then or are you telling a lie now? [J.D.]: I was telling a lie then. [Defense counsel]: Okay. So what you're saying is [that] in that video sometimes you were telling the truth and sometimes you were telling a lie? [J.D.]: No, I wasn't telling the truth or a lie . . . in the video I was actually scared.
J.D. was asked to clarify whether defendant touched her under her clothes. She answered that he had. On re-direct, J.D. stated that when she gave Detective Mickens her original statement, she was "scared of [her] father."
T.D. also testified at trial. He was then eight years old. T.D. stated that "bad things" used to happen with defendant. He explained that T.D. would "put stuff in [his] behind." He was asked if defendant ever touched his front private parts, and T.D. said, "I think." T.D. also said that he felt "mad" and "sad" because of "the things that daddy did to us."
Officer Steven Meyers (Officer Meyers) of the Beverly City Police Department testified that he assisted Detective Micken serve an arrest warrant upon defendant at his residence. The officers intended to take defendant into custody so that he could be questioned about the alleged criminal sexual conduct. Defendant answered the door. Detective Micken told defendant he was being arrested, but defendant said he would not go with the officers. A scuffle ensued. During the altercation, Detective Micken fell and hit his nose on a couch.
Detective Micken testified that he is assigned to the child abuse unit of the Burlington County Prosecutor's Office, and his job duties include interviewing children regarding allegations of sexual assault. Micken said he had received training through "Finding Words," which is a "forensic training course geared towards interviewing children." He stated that in the "Finding Words" course, participants "polish [their] skills and do actual interviews."
Detective Micken further testified that he interviewed J.D. at the Child Advocacy Center in the Prosecutor's Office. He was told very little about the case before the interview. After he interviewed J.D., Detective Micken told J.D.'s mother what J.D. said and, thereafter, charges were brought against defendant. Detective Micken also testified about service of the arrest warrant on defendant and the injury he sustained when doing so.
After the State rested, defendant moved for a directed verdict on count one, which charged aggravated sexual assault of J.D. The court denied the motion. Defendant did not testify, nor did he call any witnesses on his behalf. The jury found defendant guilty on all counts in the indictment.
On May 3, 2010, the court sentenced defendant to an aggregate forty-nine years of incarceration, with a period of parole ineligibility of about thirty-three years. This appeal followed.
Defendant raises the following issues for our consideration:
DETECTIVE MICKEN'S OPINION TESTIMONY REGARDING J.D.'S ALLEGATIONS OF SEXUAL ABUSE WAS INADMISSIBLE AS IT IMPROPERLY BOLSTERED THE CREDIBILITY OF THE COMPLAINING WITNESS, AND DENIED DEFENDANT BOTH DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (Partially Raised Below).
J.D.'S VIDEOTAPED STATEMENT WAS UNRELIABLE AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
THE TRIAL COURT'S FAILURE TO REDACT OTHER CRIMES EVIDENCE FROM THE VIDEOTAPE DENIED DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. Amends. V, VI AND XIV; N.J. CONST. Art. I, ¶¶ 1, 9, and 10 (Not Raised Below).
1. ALLEGED ANAL PENETRATION.
2. ALLEGED DIGITAL AND ATTEMPTED PENILE ...