STATE OF NEW JERSEY IN THE INTEREST OF B.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6731-04T56731-04T5

STATE OF NEW JERSEY

IN THE INTEREST OF B.K.

________________________

 

Submitted June 6, 2006 - Decided July 17, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Camden County, FJ-04-4425-04.

Timothy Ferguson, attorney for appellant.

James P. Lynch, Special Deputy Attorney

General, Acting Camden County Prosecutor,

attorney for respondent (Linda A. Shashoua,

Special Deputy Attorney General, Acting

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

B.K., a thirteen-year old juvenile at the time of the relevant events, was charged with an act of delinquency which, if committed by an adult, would have constituted sexual assault, N.J.S.A. 2C:14-2c(1). After trial, the judge found that B.K. had committed the act and placed him on probation for three years. The juvenile appeals, and we affirm.

Given the credibility findings of the trial judge, we need not provide an extensive recitation of the evidence presented. It is sufficient to say that the juvenile held a birthday party at his home to which the victim, then fourteen years old, was invited. The judge found that the juvenile provided alcohol to his guests including the victim, who became intoxicated. While intoxicated the juvenile sexually penetrated the victim.

He asserted that the act was consensual and produced evidence that the victim was not greatly intoxicated. The victim alleged that she was quite intoxicated and that, immediately prior to the sexual conduct, things had become "blurry." She denied consent. The judge resolved this factual dispute against the juvenile. In his oral decision of July 13, 2005, he said that "I don't believe half of what [the juvenile] had to say. [He was] one of the worst witnesses I've seen in a long, long time." On the other hand, the judge accepted the testimony of the victim finding that her testimony was "not the most perfectly clear, but it seems to be very honest, very, very honest." He supplemented his oral decision by a writing dated October 14, 2005. He reiterated his oral findings, saying that "the evidence presented . . . that B.K. poured the alcoholic drinks for [the victim] and her level of inebriation, justified the court's conclusion that [the victim] was intoxicated to such a degree that she was manifestly unable to use reasonable judgment in her determination to consent to sexual intercourse with B.K." He concluded that, even if the juvenile believed the victim was capable of consent, given the level of intoxication found, that belief "is not reasonable."

Those findings are based upon substantial credible evidence in the record and are binding upon us. See State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). The juvenile's argument that the findings are unsupported in the record is without any merit. Nor may any legitimate argument be made that the judge's inference concerning the inability of the victim to consent is inappropriate.

The juvenile nevertheless argues that the evidence will not support a finding that the juvenile engaged in an act violative of N.J.S.A. 2C:14-2c(1). That statute criminalizes "an act of sexual penetration" when "[t]he actor uses force, but the victim does not sustain severe personal injury[.]" The judge recognized that "the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim." State In Interest of M.T.S, 129 N.J. 422, 448 (1992). The requirement of "force" will be satisfied by the act itself in the absence of consent. Id. at 444. Indeed, the act of penetration, in the absence of "what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration" is sufficient to find a violation of N.J.S.A. 2C:14-2c(1). Id. at 448-49. The judge's findings respecting the level of the victim's intoxication, her consequent failure to provide consent, and the unreasonableness of any contrary belief are well-grounded and amply support the conviction.

The judge's written decision contains a statement that the juvenile was "charged with aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(7)" when in fact he had been charged with committing an act of sexual assault criminalized by N.J.S.A. 2C:14-2c(1). The juvenile claims that the judge convicted him of an act with which he was not charged.

Our review of the record, including the judge's oral and written decisions, convinces us that the judge correctly decided whether a violation of N.J.S.A. 2C:14-2c(1) had occurred and simply inadvertently referenced the wrong statute. The judge's citation to M.T.S., which does not involve N.J.S.A. 2C:14-2a(7), supports this conclusion, as does the analysis he undertook.

Defendant also complains that his cross-examination of the State's witnesses was unduly limited. The control of cross-examination is vested in the sound discretion of the court and will not be overturned absent a clear misuse of that discretion. See State v. Nelson, 173 N.J. 417, 470 (2001) ("In general, a trial court is afforded 'considerable latitude regarding the admission of evidence' and is to be reversed only if the court abused its discretion.") (quoting State v. Feaster, 156 N.J. 1, 82 (1997)). Our review of the record leads us to conclude that the judge's rulings with respect to the disputed evidence were correct and certainly not an abuse of the judge's discretion. Defendant's arguments to the contrary are without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

5

A-6731-04T5

RECORD IMPOUNDED

July 17, 2006