On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Messano, Espinosa and Kennedy.
Defendant appeals from his convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and his sentence. We affirm.
Defendant has two daughters, Ava*fn1 and Dawn. In August 2005, Ava was eight years old and Dawn was five years old.
Ava lived with her mother, Catherine, in a three bedroom apartment in Plainfield. Colleen Holloman and David Dix, who shared a bedroom, lived with them from June to mid-August of 2005. David's brother, Derrick Dix, lived there as well in the third bedroom. Catherine testified that after Ava turned five, defendant saw her approximately every two to three weeks. As of August 2005, Ava had not made any complaints about him and defendant had not requested to spend more time with Ava.
Dawn lived with her mother, Cora, and Cora's son, Kyle, in Linden. According to Catherine, Ava had a "beautiful" relationship with Dawn and Cora and a "good" relationship with defendant. Ava visited with Dawn and Cora, staying the weekend "about every other month or so." On these occasions, defendant brought Ava to Cora's apartment and returned her to her mother's home.
On Saturday, August 6, 2005, Cora returned home with the two girls and her son from a basketball game at approximately 9:30 p.m. She left the girls with defendant while she went to the supermarket with her son. When she returned at approximately 11:00 p.m., both girls had taken baths and were in bed. Defendant took Ava home to her mother on Sunday at around dinnertime.
Catherine testified that Ava "seemed to be okay" when she returned. Defendant called Catherine on Monday evening to see how Ava was doing, which Catherine said was something he did not usually do.
On Tuesday, August 9, Colleen was watching Ava while Catherine was at work as a bus driver. Colleen asked Ava about her weekend with her father. Ava said she did not like visiting her father and then asked, "Colleen, could I tell you something?" Colleen said "what." Ava then said she did not like to go to her father's house because "he put [his] fingers in her privacy." Colleen testified that Ava complained "she was sore down there in her private." Ava asked Colleen not to tell her mother. She told Colleen that when she was with her father, he had put her in the bathtub, and then took her out, dried her off and "started kissing her and putting his fingers in her vagina and asking her how it felt[.]" Colleen testified that Ava was upset and mad as she was telling Colleen this and said she did not like her father.
That night, Colleen told Catherine that defendant was molesting Ava. Catherine asked Ava what had happened. Ava told her that as she and her sister were getting ready to take a bath, defendant called her into the room and told her to sit on his lap facing him. She said that defendant "grabbed her and starting feeling her butt," and put his middle finger inside her and squeezed her breasts. Ava later told Catherine that defendant kissed her. Catherine testified that Ava was frowning, looking uncomfortable, as she described the incident, and afterward, she started crying. She and Colleen hugged and kissed her. Catherine asked Ava why she had not told her about this when she came home. She replied that she was scared; "she thought [Catherine] was going to yell at her and  wasn't going to believe her and  was going to tell her dad." Catherine told Ava she would take care of it.
Neither Catherine nor Colleen contacted the police or took Ava to the hospital that night because they were concerned that if they did, the Division of Youth and Family Services would intervene and take Ava away. Catherine called the Plainfield police on Wednesday and eventually spoke to the Linden police on Thursday. She was referred to the prosecutor's office. Detective Walter Johnson took a videotaped statement from Ava, which was played for the jury. Ava was also examined by Gladibel Medina, M.D. Dr. Medina testified that Ava described where she had been touched, that there were no injuries, and that the lack of injuries was not unusual, whether or not the described abuse occurred.
At trial, Ava recounted the incident involving her father. She testified that she and Dawn prepared to take a bath. Dawn had taken her clothes off and went into the bath. Ava also took her clothes off but before she got into the bath, defendant told her "to stop real quick[.]" He went into the kitchen, took some pills, and then returned to her in Dawn's bedroom. Defendant sat on the bed and told her to come to him and sit on his lap. Then he told her to turn around so she would be facing him. Defendant asked her if she loved him. Ava said she did not reply. Defendant "squeezed [her] butt" with his hand, which made her feel uncomfortable. Then he squeezed her chest with his hand, which she said made her feel "[d]isgusting." Ava testified that defendant then put his middle finger in her "private," which she said felt "[n]asty." Ava said that it hurt a little bit but she did not say anything because she was scared. Ava testified that, after that, defendant kissed her on the lips and put his tongue in her mouth. He asked her again if she loved him and again she did not reply. Ava said she felt disgusting. She got off his lap and took a bath. Ava testified that she did not say anything to defendant because she was "very scared" of him. Defendant told her to keep it a secret or he would "whop" her. Ava said that defendant had never hit her or spanked her before.
Defendant did not testify or present any witnesses. His counsel argued that the allegations were fabricated in retaliation for defendant's complaints about Ava's living conditions and interest in pursuing joint custody.
The jury found defendant guilty on all charges.*fn2 The court sentenced defendant to a twenty-year term with eighty-five percent parole ineligibility on count one; a concurrent term of ten years with eighty-five percent parole ineligibility on count two; and a consecutive term of five years on count three. Defendant was also sentenced to Parole Supervision for Life, as required by N.J.S.A. 2C:43-6.4; required to comply with Megan's Law, N.J.S.A. 2C:7-1 to -11 and N.J.S.A. 2C:47-5; and found to be a sex offender, pursuant to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
Defendant presents the following issues for our consideration:
THE TRIAL JUDGE'S FAILURE TO GIVE THE JURY A DEFINITION OF "INTENTIONAL" WHEN CHARGING SEXUAL ASSAULT DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. MOREOVER, THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW)
DEFINE "INTENTIONAL" WHEN CHARGING SEXUAL ASSAULT DEPRIVED MR. D. OF A FAIR TRIAL AND DUE PROCESS OF LAW
DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT
INSTRUCTIONS CONSTITUTED PLAIN ERROR, REQUIRING REVERSAL POINT II
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT DURING OPENING AND CLOSING STATEMENTS WHEN IT VOUCHED FOR THE VICTIMS CREDIBILITY, DENIGRATED THE DEFENSE AND APPEALED TO THE JURY'S EMOTIONS, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, ¶ 10. (PARTIALLY RAISED BELOW)
IMPERMISSIBLY VOUCHED FOR HER WITNESS' CREDIBILITY
IMPROPERLY DENIGRATED THE CREDIBILITY OF THE DEFENSE
C. IN HER CLOSING ARGUMENT,
THE PROSECUTOR IMPROPERLY APPEALED TO JURORS' EMOTIONS IN DESCRIBING ...