NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-05-0986 and 09-04-0634.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Yannotti and Ashrafi.
Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (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 fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count four). Prior to the trial, the judge granted the State's motion to dismiss count four. Defendant was tried before a jury and found guilty on the remaining counts. Defendant appeals from the amended judgment of conviction entered by the trial court on July 21, 2011. For the reasons that follow, we affirm.
Defendant filed a motion to suppress a videotaped interview with K.S., defendant's daughter, in which she stated that defendant had sexually abused her at various times. K.S. was seven years old when she reported the abuse. Defendant argued that the videotaped interview was not admissible under N.J.R.E. 803(c)(27) because K.S.'s statements were not trustworthy. He also argued that the interview should be suppressed pursuant to State v. Michaels, 136 N.J. 299 (1994), because the detective allegedly used suggestive interviewing techniques. The State moved to admit the videotaped interview into evidence, as well as unrecorded statements that K.S. made to M.H., who is defendant's aunt.
The motion judge conducted a N.J.R.E. 104 hearing on the motions. The judge found that K.S.'s statements to M.H. and the videotaped interview were admissible pursuant to N.J.R.E. 803(c)(27). The judge additionally found that the interview should not be barred pursuant to Michaels. The judge did, however, preclude M.H. from testifying at trial about certain anatomical demonstrations K.S. made when she told M.H. about the alleged sexual abuse.
Defendant additionally filed a motion to suppress the statement he gave to the police, and the State moved to admit evidence regarding defendant's prior convictions for sexual assault pursuant to N.J.R.E. 404(b). The motion judge conducted a N.J.R.E. 104 hearing on these motions. The judge denied defendant's suppression motion. The judge also denied the State's motion to admit evidence regarding defendant's prior sexual assault convictions.
The matter was thereafter tried before a jury. We briefly summarize the evidence presented at trial. In the summer of 2007, when K.S. was seven years old, she moved with her mother J.S. and her three younger sisters into M.H.'s three-bedroom apartment on Avenue C in Bayonne. M.H. and her husband shared one of the bedrooms. Their daughter and grandson shared the second bedroom. J.S. shared the third bedroom with K.S. and her other two daughters.
Defendant resided with his brother but slept at M.H.'s apartment on the weekends. During the week, defendant visited J.S. and the children at M.H.'s apartment. When defendant stayed at M.H.'s apartment on the weekends, he slept with J.S. in her bedroom. At those times, K.S. slept on a pull-out sofa bed in the living room.
M.H. testified that, on January 12, 2009, K.S. and her sisters came home from school. M.H. spoke with them. Initially, they said everything was "good with school, " but then L.S., one of K.S.'s sisters, blurted out that "mommy and daddy were naked in the bedroom in the back room." M.H. told L.S. she would have a talk with her mother. K.S. looked "kind of angry, upset."
M.H. went into the bathroom to have a cigarette, because she had a vent in that room. J.S., K.S. and L.S. followed her. M.H. closed the lid and sat on the toilet. J.S. sat on the tub and the two girls stood by the door. According to M.H., K.S. blurted out, "Daddy touched me." M.H. looked at J.S., and J.S. looked at her.
M.H. asked K.S. what she was talking about. K.S. repeated, "Daddy touched me." M.H. asked her where defendant had touched her. K.S. repeated her statement and said, "I told mommy, mommy was supposed to tell you . . . . You were supposed to call the cops." J.S. looked surprised.
M.H. asked K.S. if she knew the difference between her and her boy cousin, and she responded that her cousin had a penis and she had a "Mary." M.H. then asked K.S. when her father had touched her, and K.S. told her this occurred at the other home where the family resided before J.S. and the children moved to M.H.'s apartment.
M.H. asked K.S. to describe what had happened. K.S. stated that her mother would be asleep in the bedroom, and defendant would come into her room. K.S. said she would close her eyes. She "wanted to make believe she was someplace else." K.S. said defendant would "get on top of her" and "go up and down" between her legs. K.S. also said that, when defendant finished and she opened her eyes, he ran and she saw that he had no clothes on.
M.H. asked K.S. if defendant touched any of her sisters, particularly L.S. K.S. said no. She told M.H. that defendant "would have killed" L.S. because, if he had gotten on top of her, she would not have been able to breathe.
M.H. called the Bayonne police, and police officers transported members of the family to police headquarters. After learning that the matter involved an allegation of a sexual assault, the family members were taken to the Special Victim's Unit at the county prosecutor's office. The State's Division of Child Protection and Permanency also was notified.
Detective-Sergeant Chonda Rosario interviewed K.S. After she developed a rapport with K.S., Rosario showed K.S. anatomical representations of a male and a female and asked K.S. what the pictures showed. K.S. responded that they were "Marys" and penises and pointed to each. She said girls have "Marys, " which are vaginas.
Rosario asked K.S. if there were places on her body that no one is supposed to touch. K.S. said her "butt" and her "Mary." She stated that her father had touched her "butt" and her "Mary." K.S. said defendant first touched her when she was seven years old.
K.S. told Rosario that defendant would touch her at night on the weekends when she was sleeping; the touching happened at the "old house" where the family lived; and defendant would touch her "everywhere" when she was asleep. She said defendant "attacked" her when she was on the top bunk. K.S. explained that their "old house" had two bedrooms. K.S. and L.S. slept in one of the bedrooms and shared a bunk bed. L.S. slept on the bottom bunk and K.S. slept on the top bunk. Defendant and J.S. slept in the other bedroom.
K.S. said that, one day, she found defendant's black hair in her bed. She knew it belonged to defendant because he was the only one in the family with dark black hair. K.S. also knew defendant had sexually assaulted her because she saw him on top of her, and she saw him run when he got off of her. She felt defendant's penis inside her "Mary" and he was going up and down.
K.S. said she was awakened by the "emotion." When she saw defendant's face, she knew it was not a dream. She also knew it was not defendant's friend. She said defendant had "jumped" upon her. She also stated that defendant began to do this to her when she was seven years old, and he continued doing so until she was eight.
K.S. explained that sometimes defendant would touch her "butt" with his penis and put his penis in her. She said that when she was sleeping, defendant would turn her around, sit on her and put his penis on her. Defendant also used his tongue on her "Mary." K.S. said that, at these times, she was clothed and defendant had no clothes on. At other times, defendant held her head and put his penis in her mouth.
K.S. additionally explained that defendant was wearing underwear during most of the incidents she described. She said, however, that defendant was "butt naked" during the last incident, which was in the living room at M.H.'s apartment. She stated that defendant removed her clothes and performed the same up and down "emotions" but faster, but she awoke and screamed and defendant ran away quickly. K.S. said her scream woke "everybody" up. K.S. drew pictures illustrating what defendant had done to her.
At the end of the interview, Rosario asked K.S. if the acts she described were something that she had seen her parents doing. K.S. said they were not. She stated that she had described what defendant had done to her, and it was the truth.
After Rosario took K.S.'s statement, K.S. was examined at the emergency room of a local medical center. No physical injuries were discovered. K.S. was also examined at the Audrey Hepburn Children's House (AHCH) at Hackensack University Medical Center; however, biological substances were not recovered due to the delay in reporting the abuse.
Dr. Nina Agrawal, a child abuse pediatrician at AHCH, testified that, in order to collect bodily fluids from a sexual assault, the forensic evidence must be collected within seventy-two hours of the assault. After ninety-six hours, it is unlikely that bodily fluids or forensic evidence can be recovered from a child. Dr. Agrawal also opined that it is rare to see injury in children who have been sexually abused and report penetration. She said physical findings are unlikely in reports of oral sex, unless there has been ejaculation, which would disappear soon thereafter.
Detective Mark Groninger testified that he took a videotaped statement from defendant. Groninger informed defendant of his Miranda rights. Defendant waived his Miranda rights in writing and agreed to give a statement. Groninger then questioned defendant about K.S.'s allegations.
Defendant admitted that he had been on top of K.S. He acknowledged that he was naked at the time, and that his penis touched K.S.'s thigh. Defendant said this incident occurred two years before the interview. He stated that K.S. woke up as he was getting off of her, and he ran out of the room.
K.S. testified. She was eleven years old at the time of the trial. She said that there were places on her body that no one is supposed to touch, specifically her chest, her "Mary" and her "butt." K.S. said defendant had touched her "butt" and "Mary" while they were living in their "old house." She explained that, after she moved to M.H.'s house with her mother and sisters, she would sleep in the living room on weekends because her father stayed over.
K.S. could not recall if defendant touched her "Mary" inside or outside. She could not recall how her father touched her "butt." She did not remember what her father had been wearing when he touched her. She did not recall telling M.H. anything about her father. She stated that it hurt when defendant touched her "Mary."
In addition, Dr. Lynn Taska testified for the State as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Taska discussed the five characteristics of CSAAS: secrecy, helplessness, entrapment and accommodation, delay ...