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State ex rel. D.M.

Superior Court of New Jersey, Appellate Division

August 9, 2017

STATE IN THE INTEREST OF D.M., a juvenile.

          Submitted May 16, 2017

         On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-209-15.

          Joseph E. Krakora, Public Defender, attorney for appellant D.M. (Seon Jeong Lee, Designated Counsel, on the briefs).

          Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

          Before Judges Reisner, Koblitz and Sumners.

          OPINION

          KOBLITZ, J.A.D.

         D.M., [1] appeals from a May 29, 2015 adjudication of delinquency for acts which, if committed by an adult, would constitute third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The dispositional order imposed a three-year probationary term, N.J.S.A. 2A:4A-43(b)(3), treatment at an outpatient residential placement program, and full compliance with sex offender requirements pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -11.[2] The trial judge found that the State did not prove the sexual behavior between fourteen-year-old D.M. and his eleven-year-old alleged victim, "Zane, " involved sexual penetration. Coercion was not alleged or found. Based on those findings, using the appropriate principles of statutory construction, an adjudication of delinquency against a child for endangering the welfare of another child less than four years younger based on sexual contact is not sustainable and we therefore reverse.

         D.M. was charged with delinquency for conduct occurring between April 1 and August 20, 2014, which, if engaged in by an adult, would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1).

         After conducting an N.J.R.E. 104(a) hearing, the trial judge admitted into evidence Zane's out-of-court disclosures pursuant to N.J.R.E. 803(c)(27) (permitting hearsay testimony by a child under the age of twelve "relating to sexual misconduct committed with or against that child" if the court finds "there is a probability that the statement is trustworthy"). The following facts were developed at the hearing[3] and subsequent trial.

         Eleven-year-old Zane and his younger brother, Za.Y., who was nine years old, spent time when not in school in the area where their mother, L.Y., operated her hair salon. Zane and Za.Y. played across the street from the salon in the playground behind a school with their friend, R.R., who was fifteen years old at the time and lived a few doors away from the salon. R.R. and D.M. had been friends for several years. R.R. introduced D.M. to Zane at the playground. D.M. is approximately three and one-half years older than Zane. During April 2014, D.M. was fourteen years old.

         L.Y., her adult daughter, N.C., N.C. 's boyfriend, Zane, Za.Y, and E.B., L.Y.'s boyfriend's seven-year-old son were at L.Y.'s house one evening in August 2015. Zane and Za.Y. were in their shared upstairs bedroom with E.B. L.Y. went to "check on the boys." Upon entering the room, she observed Za.Y. sleeping on the top section of the bunkbed, and Zane and E.B. sitting together on the bottom bed in an odd arrangement. Although she initially left, L.Y. shortly returned and observed that Zane's shorts were "twisted." L.Y. angrily asked Zane "what [were] you doing?" Zane initially denied any wrongdoing. L.Y. then asked E.B. what was going on. E.B. told L.Y. that "[Zane] was doing nasty things" including "rubbing his penis on him." L.Y. yelled at Zane, "popped" Zane on the buttocks, and asked him repeatedly where he learned this behavior. Zane answered, "the boy did it to me."

         According to N.C., she came upstairs and her mother, L.Y., sounded "furious." N.C. found her mother in her bedroom crying and yelling at her brother, Zane. N.C. took Zane to the downstairs bathroom, hugged Zane as he was crying, and told him he "shouldn't be in bed with another little boy." N.C. asked him three times, "where did he get that from?" Zane responded, "someone did that to him." Zane then told N.C. that D.M. "made him suck his penis . . . and [D.M.] told [Zane] to put his penis in his anus." Zane said he had not told his family because "he was scared of what everyone would think." L.Y. testified, and N.C. confirmed, that Zane stated he was afraid "daddy's going to kill me" and his brothers and father "would think he was gay."

         Sergeant Walter Johnson of the Union County Prosecutor's Office, Special Victims Unit, testified that he conducted a one-on-one video-recorded interview with Zane sometime mid-morning on the day following this incident.

         On the video recording, [4] Johnson asked Zane "do you know why you're here today?" Zane responded, "Yeah" and, "[c]ause I did something." Zane was initially unresponsive, until Johnson assured Zane that he was "not in any trouble[, ]" after which he asked Zane "what happened?"

         Zane revealed two interactions two weeks apart with D.M. while they were at the playground. Zane said that, at D.M.'s request, Zane "sucked [D.M.'s] thingy." Zane further stated to Johnson that the sexual activity with D.M. occurred at the playground in a stairwell after it "got dark" and their friends and Za.Y. left. According to Zane, both he and D.M. were standing while Zane performed fellatio on D.M. for only "two seconds." Zane also claimed he did not know any other name for the part he referred to as "thingy, " and that D.M. did not touch any other part of Zane's body. Zane said, "[i]t made [him] feel weird."

         Although Zane originally denied that D.M. had touched him during this second incident, he later stated that D.M. "touched [him] on [his] butt" with D.M.'s "thingy." Zane stated that D.M. told him to take off his clothes and he tried to put it in, but Zane told him to stop because "[i]t kind of hurt." At trial, Zane testified that it was during the first incident that D.M. attempted to anally penetrate him.

         Johnson asked Zane if "something like [the D.M. incident] happened with anyone else[, ]" and Zane confirmed that it happened with E.B., his mother's boyfriend's seven-year-old son, after Zane asked E.B. "to suck his thingy[, ]" and E.B. complied. Zane told Johnson that "[l]ast night" was the only time that Zane had ever done that with E.B., and that nothing else occurred between them.

         Zane told Johnson that he told both L.Y. and his father, "everything [he] told [Johnson]."

         Zane's father was in the courtroom as a "support person" during Zane's testimony. In addition to his disclosures regarding the two incidents with D.M. in the playground stairwell, Zane testified at trial about another incident when he and D.M. walked to D.M.'s house. The first time he told anyone about this third incident was one week before trial "because [he] didn't remember it" before then. According to Zane, D.M. asked Zane if he could "[p]ut his thing in [Zane's] mouth again, " for which Zane complied. Zane did not recall when this occurred. When questioned about the incidents in the park, and asked whether D.M. told him or "politely ask[ed]" him to stay, Zane responded: "He asked me." Zane denied D.M. forced him or threatened him, although he said the interaction made him feel uncomfortable and "weird" and he did not like it.

         On cross-examination, Zane admitted that he used the video and messaging chat application, "Oovoo, " to contact D.M. Zane confirmed that one night at 10:29 p.m. he messaged D.M. Although he refused to read the message aloud, he acknowledged he wrote to D.M., "So 69, let me C-U-R cock." D.M. did not respond, although Zane tried to call him again. Zane also testified on cross-examination that he knew what "cock" and "69" meant, and that his older friend R.R. had previously shown him "dirty" pictures on R.R.'s smartphone. Zane also said that when discovered with E.B., his mother "popped" him for the first time in his life.

         Zane stated that the night he was discovered having E.B. perform fellatio on him was not the first time he engaged in that behavior with E.B. Zane admitted to three sexual encounters with the seven-year-old. Zane said he ...


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