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State ex rel. A.W.

Superior Court of New Jersey, Appellate Division

September 3, 2013



Submitted July 23, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-0536-11.

Joseph E. Krakora, Public Defender, attorney for appellant A.W. (Kisha M. Hebbon, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

Before Judges Espinosa and Hoffman.


Appellant A.W. appeals from the Family Part's adjudication of juvenile delinquency for engaging in conduct which, if committed by an adult, would have constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). The court imposed a four-year suspended term at the Training School for Boys, and a three-year term of probation, conditioned upon a psychiatric evaluation and counseling, plus applicable fees and penalties.

A.W. raises the following issue for our consideration:

We have considered this arguments in light of the record and applicable legal standards. For the reasons that follow, we affirm.


The following evidence was presented during the bench trial in the Family Part. On July 21, 2010, Detective Jamie Clements of the Evesham Township Police Department responded to the Burlington County Prosecutor's Office Child Advocacy Center for the purpose of interviewing children regarding a claim of sexual abuse. Upon arrival, she interviewed Vivian, who was then nine years old, as well as her sister, Cora, who was then six years old.[1] During the videotaped interview, Vivian said that her adoptive brother, A.W., had her engage in sexual activity, which, as described, would constitute sexual intercourse, cunnilingus and fellatio. This occurred in Vivian's bedroom on the second floor of the home where the family resided. She said it started when she was six years old and went on until she was nine years old.

During the time period of the alleged sexual assaults, Vivian resided in a home with A.W., her adoptive mother, S.W., along with four other adopted siblings. V.J., a retired school teacher administrator, also resided in the household. Although not related biologically, V.J. viewed S.W. as her daughter, and S.W.'s children, including A.W., as her grandchildren.

The alleged sexual abuse was uncovered after the adopted children, including Vivian, were removed from S.W.'s home by the Division of Youth and Family Services [Division][2] following allegations of child abuse against S.W. by one of the other adopted children. Vivian made the disclosure to the Division caseworker for the family, who in turn contacted law enforcement.

On October 1, 2010, the Burlington County Prosecutor's Office filed a three-count juvenile delinquency complaint against A.W. alleging that "between May 22, 2007 and April 15, 2010, " A.W. committed aggravated sexual assault, N.J.S.A. 2C:14-2a(1), upon Vivian, who was less than thirteen years old "by making [her] perform fellatio upon him" (count one), "by performing cunnilingus upon [her]" (count two), and "by having vaginal intercourse with [her]" (count three).

The trial judge conducted a review required by N.J.R.E. 104(a) to determine the admissibility of the taped interview of Vivian under N.J.R.E. 803(c)(27). At the conclusion of the hearing, the trial court found that "the statement of the child was not the subject of manipulation by adults nor was the interview technique . . . in any way suggestive or coercive." The judge therefore ruled that "the video tape will be admissible at time of trial, its admission conditioned upon the testimony of the alleged victim in this case."

At trial, the State presented the testimony of two detectives, the Division caseworker, Vivian, and Cora. At the time of trial, Vivian was nine years old and Cora was seven years old. Vivian's trial testimony was substantially consistent with her taped statement. Cora testified that she observed A.W. and Vivian, with their clothes off, "kissing each other's privates[, ]" while lying on Vivian's bed in the upstairs bedroom. She said the door to the bedroom was closed, and she was able to see this by looking under the bottom of the door.[3]She initially stated that she observed this one time, but then indicated she had been confused, and that she really saw it four or five times. When the inappropriate contact between A.W. and Vivian occurred, Cora said her mother and grandmother were shopping for groceries.

The defense presented the testimony of V.J. who testified that the children were rarely, if ever, home alone, thus suggesting an impossibility defense if her testimony were found credible. A.W. did not testify.

The judge announced his decision in the case on March 11, 2011, and made extensive credibility findings. The judge noted that many of the facts in the case were not in dispute, including the age of the victim and the fact that A.W. and the victim resided together during the time period in question. The judge acknowledged that Vivian, was "unable or unwilling" to provide the specific dates or exact number of times that she was victimized by A.W., but that he had rejected A.W.'s motion to dismiss based upon the precepts of In re K.A.W., 104 N.J. 112 (1986). In finding that this was not material to the State's ability to prove A.W. delinquent, the judge, stated:

In assessing the credibility of the alleged victim the Court is mindful of the Supreme Court's words in K.A.W., ["]We need no battery of experts to convince us that a child of ages five to seven years cannot recall precise dates or even approximate times the way a normal adult can. Children of that age do not think in terms of date or time spans.["] This Court likewise does not need expert testimony to conclude the world of young children does not include day timers or organizers or calendars. Their world is one of seemingly endless time perhaps interrupted with events, holidays, birthdays, a favored teacher in school, and even a traumatic event such as the death of a parent, grandparent, or sibling. But as referenced by the Court in the K.A.W. hearing[, ] a child might be able to relate a singular occurrence to a singular memorable event, but a course of conduct as alleged here makes such specific event recall extremely difficult.

The judge went on to note that, pursuant to State v. D.G., 157 N.J. 112 (1999), he was obligated to consider the spontaneity of the child's disclosure, the use of terminology, the nature of the interrogation, including whether an inculpatory statement was ever made and the statement's potential for being subject to manipulation.

The judge specifically found V.J.'s testimony incredible, stating "her credibility is seriously damaged by the incredibility of her testimony and her obvious motive to testify favorably for her grandson." He noted that due to circumstances unrelated to the offenses before him, the girls had been removed from S.W., perhaps permanently, and "from the perspective of [V.J.], she cannot help her granddaughter but she can still actively help her grandson, [A.W.]." The judge rejected V.J.'s claim that she watched "every moment of every child every second of the day" as "simply impossible." He went on to opine that "the absolute nature of her testimony of eternal vigilance flies in the face of human experience, making her testimony incredible, simply not worthy of belief."

The judge found the victim's version of events to be credible; namely, that Vivian was sometimes in the position of arriving home with no adults present, making her a "target of opportunity, " that would permit A.W. to rush her up to her bedroom. The judge also found credible Cora's testimony regarding oral-genital contact she observed between Vivian and A.W., in light of her being between five and seven years of age when she would have made the observations, and having no basis for fabricating a story about such sexual conduct. He also noted that the disclosure was spontaneous and the record was devoid of any evidence that she was led by any adults to inculpate A.W. Significantly, he noted that there was no suggestion, nor was any evidence adduced on cross-examination, that would suggest Vivian and Cora conspired to inculpate A.W. for conduct that never occurred. He also found her testimony that S.W. and V.J. would leave the house together credible. In sum, the judge called Cora's demeanor "one of innocence, free of artifice, recounting her observations . . . without bias or motive, describing what she saw with her eyes but may not have totally processed in her sexually immature mind." He also found the consistencies between Cora's testimony and Vivian's testimony to be cross-corroborative.

The judge explicitly found Vivian credible, despite her initial reluctance to implicate her brother in wrongdoing. In so finding, he noted that "she had remained consistent with regard to her testimony about her sexual activity with her brother[, ]" and that "[t]his thread of consistency runs through the case from her initial disclosure to her [Division] case worker, her interview with Detective Clements on July 21, 2010 . . . and her recent trial testimony." He noted the absence of any evidence of bias or coercion to testify against A.W., pointing out that "the bias and motive flows in the opposite direction, as [Vivian's] claim has torn her from the only home she has ever known and her testimony will ensure she never returns."


N.J.S.A. 2C:14-2a(1) provides, "[a]n actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person . . . less than [thirteen] years old." N.J.S.A. 2C:14-1c defines "sexual penetration" as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction." Significantly, that section further provides, "[t]he depth of penetration shall not be relevant as to the question of the commission of the crime[.]" N.J.S.A. 2C:14-1c.

Statements of "a child under the age of [twelve] relating to sexual misconduct with or against that child" may be admitted at trial under specified circumstances. N.J.R.E. 803(c)(27). "[T]he proponent of the hearsay statement [must] provide[] sufficient notice of the intent to offer the statement at trial . . . ." State v. Burr, 392 N.J.Super. 538, 565 (App. Div. 2007), aff'd as modified, 195 N.J. 119 (2008). The court must conduct a hearing pursuant to N.J.R.E. 104(a) to determine whether "there is a probability that the statement is trustworthy[.]" N.J.R.E. 803(c)(27); see D.G., supra, 157 N.J. at 127-28 (discussing the importance of a pretrial hearing on notice); Burr, supra, 392 N.J.Super. at 569-70 (discussing trustworthiness).

In the context of a bench trial, the factual findings of the trial judge, his assessments of credibility, and the judge's discretionary decisions are entitled to great deference. State v. Locurto, 157 N.J. 463, 474 (1999); Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J.Super. 531, 541 (App. Div. 1994). When reviewing the result of a bench trial,

[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence. We are not in a good position to judge credibility and ordinarily should not make new credibility findings. However, our review of the sufficiency of the facts to satisfy an applicable legal standard is a question of law.
[Mountain Hill, L.L.C. v. Twp. Of Middletown, 399 N.J.Super. 486, 498 (App. Div. 2008) (internal quotation marks and citations omitted).]

A.W. argues that the judge's findings of guilt were not supported by sufficient credible evidence in the record; however, A.W.'s argument is premised entirely on the fact that the judge's findings were based on the testimony of two small children whose testimony the judge found credible. The young age of Vivian and her sister does not render their testimony incredible. The trial judge received the testimony of Vivian and her sister without objection to their competency to testify.

The judge found Vivian's testimony, that A.W. would seize the opportunity when an adult was not at home to rush her upstairs, more credible than had she testified that he came into her room at night with adults present in the home. In considering how a child of Vivian's relative youth and naiveté knew that vaginal intercourse with juvenile felt "not so good, " the judge opined, "[t]he answer is painfully obvious. The description could only have come from actual experience, not a fabricated story." Having found Vivian and Cora credible, the judge found that the State had proven A.W. guilty of engaging in vaginal intercourse, cunnilingus, and fellatio, with Vivian, on various dates during the relevant period, beyond a reasonable doubt.

A.W. presents no evidence of trial error; rather he broadly states that the record "clearly reveals that [Vivian] was not a credible witness." He claims her testimony "was extremely vague and had to be elicited from the prosecutor[;]" however, despite her reluctance to testify at the expense of her family, Vivian clearly testified that A.W. inserted his penis into her vagina, put his mouth on her vagina, and that she put her mouth on his penis. A.W. also erroneously claims that Vivian never made statements regarding physical pain; as the judge noted, Vivian described vaginal intercourse with A.W. as feeling "not so good."

A.W. concludes by arguing that the credibility of both Vivian and Cora is questionable because they have "experienced an enormous amount of trauma and instability in their young lives." Significantly, as noted by the trial judge, it is this very instability that would have provided both Vivian and Cora with a motive to exculpate, not inculpate A.W., as they both testified they loved him and wished to be reunited with him as part of an intact family. Given the State's proofs, including the credible testimony of Vivian, Cora and the remainder of the State's witnesses, there is ample evidence in the record to support the judge's findings of guilt beyond a reasonable doubt.


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