STATE OF NEW JERSEY v. KENNETH LEWIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6173-02T46173-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH LEWIS,

Defendant-Appellant.

__________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Camden County,

Ind. No. 01-09-2723.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert P. Williams,

Designated Counsel, on the brief).

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Jeanne Tordella

Covert, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Kenneth Lewis was tried before a jury and convicted of first-degree aggravated sexual assault upon a child, N.J.S.A. 2C:14-2a, and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to an aggregate term of fifteen years in New Jersey State Prison with seven and one-half years of parole ineligibility. Defendant was also ordered to submit to all of the relevant provisions of Megan's Law, N.J.S.A. 2C:7-1 to 19, and assessed the mandatory fines and penalties.

According to the evidence presented at trial, defendant was forty-seven years old at the time he sexually molested eight-year-old T.P., the granddaughter of defendant's former paramour. Dr. Deborah Lowen, the State's expert witness on child abuse and neglect, gave the following account of her interview with the child:

A. [T.P.] told me about [defendant] baby-sitting her and then she told me that [defendant] had hurt her pee pee - she called it her poo nanny, that was her term for her genital area, that he had hurt her poo nanny with his pee pee. She also told me that he had tried to put his pee pee in her mouth and that she pushed him away.

Q. Now she used different words for vagina and penis?

A. Well, the genital area was poo nanny for her and pee pee for him and butt was the anal area.

Q. And how did you determine that she was referring to her vagina as her poo nanny.

A. I always ask the parent what does your child refer to their genital region as because I hear very strange things and I need to know what terms to expect to hear from a child or if a child throws out a term I need to know what it means. Then when we talked about body parts, I talk about body parts with [T.B.], her nose, ears, hands, stuff like that and she identified it as poo nanny, the area that she pees from is her poo nanny.

The child also indicated that defendant had assaulted her twice in the fashion described by Dr. Lowen, once when she was seven years old, and a second time when she was eight years old. Defendant also warned her not to tell "mommy." The molestation involved both vaginal penetration (rubbing the penis between the vaginal lips or vulva coitus), causing pain, and oral penetration, (inserting the penis inside the child's mouth.) The vaginal trauma caused the child to experience dysuria, a burning sensation upon urination. Dr. Lowen described this symptom as a "common complaint of children who have been touched or injured in a genital area. . . ."

T.P. was ten years old when she testified at the trial. She described an incident that occurred in 2001, when she was eight years old. Defendant, who was babysitting her at the time, came into her bedroom at around five o'clock in the morning, and told her "come on, [T.P.], let's do it." She said "no" and went to her mother's bedroom. Defendant followed her into her mother's bedroom and then tried "to put his private part in [her] private part."

The child's mother testified that T.P. told her about the abuse in February 2001. She immediately confronted defendant who denied the allegations. Defendant was also questioned by investigators from Camden County Prosecutor's Office. Although defendant denied the allegations, he indicated that the child had "come on to him" sexually. He stated that when she sat on his lap, she would "wiggle around," and "hug and touch" him in an "inappropriate manner." The State also presented expert testimony on child sexual abuse accommodation syndrome.

At the end of the State's case, the trial court granted defendant's motion to dismiss count five of the indictment, which charged him with aggravated sexual assault upon T.P. "on a day in January 2001, in the City of Camden." The court denied defendant's motion to dismiss count eight of the indictment, which alleged, in part, that "on a day in January, 2001 in the City of Camden, . . . [defendant] having a legal duty or having assumed responsibility for the care of T.P. [] knowingly engage[d] in sexual conduct which would impair or debauch the morals of the said child . . . ."

Against this factual backdrop, defendant now appeals raising the following arguments.

POINT ONE

THE DEFENSE'S MOTION FOR A NEW TRIAL ON COUNTS ONE AND COUNT EIGHT SHOULD HAVE BEEN GRANTED.

A. THE JUDGE'S RE-CHARGE TO THE JURY ON COUNT ONE BASED ON STATE V. J.A. WAS FATALLY FLAWED.

B. APPELLANT ASKS THIS COURT TO RE-EXAMINE IT'S HOLDING IN STATE V. J.A.

POINT TWO

THE JUDGE ERRED IN NOT DISMISSING COUNT EIGHT AS THERE WAS NO TESTIMONY TO SUPPORT ANY SEXUAL ASSAULT OR CONTACT IN THE MONTH OF JANUARY 2001.

POINT THREE

THE SENTENCE WAS MANIFESTLY EXCESSIVE.

None of the arguments presented have sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments. The evidence of sexual activity presented to the jury was sufficient to establish "penetration," as we defined that term in State v. J.A., 337 N.J. Super. 114, 119 (App. Div.), certif. denied, 169 N.J. 606 (2001). Thus, the trial court's jury charge on sexual penetration, based on J.A., was proper. We decline defendant's invitation to revisit or revise our holding in J.A.

Defendant's challenge to the trial court's refusal to dismiss count eight of the indictment is unavailing. As the Supreme Court has noted, young children who are victims of sexual abuse have a difficult time describing events using adult references like dates and year. In re K.A.W., 104 N.J. 112, 118 (1986). As long as defendant receives adequate notice of the incident to allow proper preparation of a defense, constitutional Due Process concerns are satisfied. State v. C.H., 264 N.J. Super. 112, 125 (App. Div.), certif. denied, 134 N.J. 479 (1993).

Here, the young victim's description of the details of the assault, including the time of day, the location, and her age at the time, provide sufficient details to apprise defendant of the State's culpability timeframe. Defendant was further advised of the time parameters of the crime when he was confronted by the child's mother.

Although we do not view the sentence imposed by the trial court to be excessive, we are compelled to vacate it and to remand it to the trial court to apply the guidelines established by the Supreme Court in State v. Natale, 184, N.J. 497 (2005).

 
Defendant's conviction is affirmed. The matter is remanded for re-sentencing.

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A-6173-02T4

RECORD IMPOUNDED

September 29, 2005