STATE OF NEW JERSEY IN THE INTEREST OF A.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1462-07T4

STATE OF NEW JERSEY

IN THE INTEREST OF A.F.

__________________________

Submitted May 2, 2011 Decided May 16, 2011

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2354-05.

Yvonne Smith Segars, Public Defender, attorney for appellant A.F. (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent State of New Jersey (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant A.F. appeals from a March 2, 2007 adjudication of juvenile delinquency for acts which, if committed by an adult, would constitute aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to three years probation, to include sex offender counseling and registration. We affirm.

I

On this appeal, defendant argues the following point concerning the admissibility of other crimes evidence:

THE ADMISSION OF OTHER-CRIMES EVIDENCE AGAINST DEFENDANT -- INCLUDING HEARSAY EVIDENCE THAT DEFENDANT HAD SEX WITH ANOTHER SIBLING AND EVIDENCE OF A CONSPIRATORIAL RELATIONSHIP WITH OTHER SIBLINGS PROMOTING SEXUAL ACTIVITY -- WAS IMPROPER, THEREBY REQUIRING A NEW TRIAL.

The issue arose in this context. Defendant Angelo F., Jr., was accused of molesting his sister, Paula H.1, who was five years younger than he was. Paula contended that these acts took place from the time she was six years old until she was eleven. Although Paula told her mother, when she was eleven, that defendant had touched her inappropriately, she waited until she was sixteen before reporting that he had actually raped her.

Before the trial, the State gave notice that it intended to introduce evidence of defendant's alleged bad acts with respect to other siblings. When the defense objected, the State amended the juvenile delinquency complaint to charge defendant with endangering the welfare of several of his other siblings or step-siblings, Mark H., Joel F., and David F. The defense then filed a motion to sever the trial of those additional charges from the trial concerning defendant's conduct with respect to Paula.

The charges with respect to the other children involved showing them pornography, sometimes when Paula was present, encouraging them to masturbate, and having sex with other people in the household in front of these children. On the motion to sever, the State argued that these other bad acts were relevant to show that, although defendant and Paula lived in a crowded household, it was still feasible for defendant to commit sexual acts with her without the parents finding out about it. The State also argued that these other incidents helped to explain why Paula took so long to make a complaint. The State further contended that since Paula was present during some of these incidents, and they formed the basis for charges of endangering her welfare as well, she would need to testify about them even if the trials were not severed. The State also asserted that, with respect to the allegations of sexual contact with Paula, the other sexual acts tended to show that defendant's contact with her was for the purpose of sexual gratification. Applying the four-prong test set forth in State v. Cofield, 127 N.J. 328, 338 (1992), the trial judge accepted the State's arguments, in an oral opinion placed on the record on November 3, 2006.

II

This was the trial evidence. Paula testified that when she was six years old, she lived with her parents Sally H. and Angelo F., Sr.2, her two sisters, Sarah F. and Tracy H., her older brothers Angelo F., Jr. (defendant), and Mark H., and her two younger brothers David F. and Joel F. According to Paula, these nine people lived in a three-bedroom house in which the parents had one bedroom and Sarah had the second bedroom to herself. All of the other six children occupied the third bedroom, in which there were two sets of bunk beds. According to Paula, during the week the children were frequently at home without parental supervision, because each parent worked a different shift. When the parents were absent, the older children were supposed to care for the younger children.

Paula described in considerable detail a 1994 incident in which defendant came into the children's bedroom and raped her when she was six years old. She testified that after defendant raped her, she experienced painful urination. It helped somewhat to hold a sponge against her vagina, although she then found blood and semen on the sponge. She testified that, after the first incident, defendant raped her two to three times a week until she was eleven years old.

The assaults took place on weekdays, while her mother was at work and before her father came home. She testified that defendant threatened her that if she told anyone about the assaults, he would tell their father that she had broken things and their father would beat her. However, by the time she was nine she was able to resist and defendant's assaults became less frequent.

She testified that on one occasion while defendant was penetrating her, their brother Joel walked in, and she took the opportunity to get up and leave the room. On another occasion, defendant tried to persuade Paula to have sex with him while their sister Tracy was present. On a third occasion, she saw defendant having sex with Tracy on the living room couch, after Paula refused to have sex with him. Their brother Mark was also in the house during that incident. She described a fourth incident in which defendant raped her in the parent's bedroom while Mark watched.

According to Paula, defendant would also touch her breasts and buttocks while the children were wrestling or playing other games. As a result, she "didn't want to play [with her siblings] because when I would play he would always touch." She testified, "I felt like he took my childhood away because the only time I would ever play with my brothers was when he wasn't around."

Paula also described the role of an adult uncle, who lived with the family when she was a child. When the parents were not at home, the children and the adult uncle would sometimes sit on the living room couch and watch pornographic videos. He showed her brothers how to masturbate, after they watched the videos. This uncle also raped her several times.

According to Paula, when she was eleven, she told her mother that defendant "used to touch me, that he used to feel up my breasts and my butt. . . . I didn't tell her anything else." Her mother became angry at defendant and, as a result, defendant moved out of the house and the assaults stopped. In May 2005, when she was sixteen, Paula was sitting with her mother, who asked her if she was depressed about what happened with defendant when she was eleven. At that point, Paula finally disclosed that defendant had raped her. She testified that she "was tired of keeping it a secret. . . . It was destroying my life." However, she also testified that she still loved defendant as her brother and did not avoid him.

Mark H., who was nineteen at the time he testified, corroborated Paula's testimony that defendant had sex with her. According to Mark, when he was "six or seven" he saw defendant having sex with Paula in their father's bedroom. He testified that defendant was on top of Paula and they were both naked. Mark also testified that he saw defendant having sex with Paula on other occasions and that it happened "[a] lot." Mark further testified that defendant and his sisters Sarah and Tracy encouraged him to have sex with Paula, but he refused.

Joel F., who was sixteen at the time of the trial, also testified. He confirmed that, at times, the uncle babysat for the children. He recalled that the younger children watched pornographic tapes with their uncle on occasions when their parents were not home. He also testified that he saw the uncle masturbating in front of the children. At trial, he first denied seeing defendant masturbating in front of the other children. The prosecutor then confronted him with his prior statement in which he stated that defendant had masturbated in front of him. After being confronted with his prior statement, Joel gave conflicting statements about whether he saw the defendant masturbate.

Another brother, David F., who was fifteen at the time of trial, testified that when he was a child of about six years old, he watched pornographic videos at home on frequent occasions. He was confronted with his prior statement to police in which he told them that defendant was present on those occasions, along with the uncle, Paula, and several of the other children. In the statement, he told police that defendant and the uncle brought the pornographic tapes into the house, and that he had seen defendant and Tracy having sex in the house. However, in his testimony, he denied seeing anyone having sex with Paula, and he insisted that other than watching the pornography, much of what was in his statement was hearsay based on things Paula had told him.

In her testimony, Paula's mother, Sally H., confirmed that in "about 2000" Paula told her that defendant was inappropriately touching her. Sally "did a lot of yelling" and related to defendant's father what Paula had told her. Sally also confirmed that she worked the 3:00 p.m. to 11:00 p.m. shift while Angelo, Sr. worked from 6:00 a.m. to about 4:30 p.m. At times, defendant or the uncle were left to watch the younger children. Sally also testified that on May 15, 2005, Paula told her that defendant and the uncle had sexually molested her. Sally denied asking Paula if she was depressed; she testified that Paula spontaneously told her that she had been molested. Asked on cross-examination if she made any attempt to determine if Paula's allegations were true before she called the police, Sally testified that she asked her son Mark "was it true and he said yes."

Defendant, who was then age twenty-three, testified on his own behalf. He denied sexually molesting Paula in any way. He testified that he might have accidentally touched her breasts when they were wrestling or playing, but that he would not have done so on purpose. He denied ever seeing the uncle having sex with Paula and denied seeing "any type of sexual behavior in [the] house." He also denied ever watching pornographic movies with his siblings, and testified that his parents did not allow him to babysit for his siblings until he was eighteen.

Asked about Paula's reputation for truthfulness, he at first was reluctant to give an opinion. However, he testified that when she was younger "she used to lie about a lot of things." According to defendant, that morning Paula came up to him in the courthouse lobby, gave him a hug, and told him she was "sorry."

Defendant's father, Angelo F., Sr., testified that after Paula first accused defendant of inappropriately touching her, he sent defendant to live with another relative. He testified that he did not believe the allegations, and viewed the situation as another example of Sally H. preferring her own children over his children. According to Angelo F., Sr., defendant was never left in charge of his siblings. The oldest child, Sarah, would be asked to babysit. He denied seeing, or hearing about, any inappropriate sexual activity in the household. He testified that even after she made the complaint against defendant in 2005, Paula continued to interact normally with him and even moved in with him and defendant in 2006. He testified that Paula was not a truthful person.

On cross-examination, Angelo, Sr. admitted that when defendant was about twelve and Tracy was about eleven, he learned that they had been "touching each other." He responded by beating defendant with a belt. In his statement to the police, Angelo, Sr. said that when he heard about Paula's allegations, he sent defendant to live elsewhere because he was "angry." He did not mention any alleged concern about the way Sally was treating defendant. Both Angelo, Sr. and Sally confirmed that the Division of Youth and Family Services had been involved with their family for years, including during the time frame in which the relevant events were allegedly occurring.

The oldest sister, Sarah, denied that she was left in charge of the children, and contended that there was almost "always an adult" in the house to watch the children. She denied seeing any pornography or inappropriate sexual conduct in the house. According to Sarah, Paula and Mark were both "known to lie."

In an oral opinion placed on the record on January 26, 2007, the trial judge placed great weight on the testimony of Paula's siblings Mark, Joel and David, who in different ways corroborated her testimony. In particular, Mark was an eyewitness to defendant's rape of the victim. The judge found these witnesses especially credible because they were reluctant and obviously uncomfortable with testifying. As the judge put it:

[V]ery often reluctant witnesses are the best witnesses because what's revealed in their statements and in their testimony comes unwillingly almost, and . . . for that reason it seems all the more true. And it does seem true to me.

The judge found no evidence that Paula had a motive to lie about these incidents. He did not find the defense witnesses credible. He was particularly unimpressed with their insistence that adults were always home, and that absolutely nothing improper ever occurred. He concluded that Paula did not report the molestation earlier because defendant intimidated her and she was afraid of Angelo, Sr., who disciplined the children by beating them with a belt. Based on his assessment of witness credibility, the judge found that defendant committed sexual penetration of the victim and thus was guilty of aggravated sexual assault. He found defendant guilty of third degree endangering the welfare of Paula and Mark with respect to the incidents in which defendant raped his sister in front of Mark and encouraged them to have sex with each other.

However, the judge was not firmly convinced that defendant's touching Paula during the wrestling matches was sexual in nature, and he therefore acquitted defendant of sexual assault by sexual contact. The judge also acquitted defendant of second degree child endangering, because he was not firmly convinced that defendant had actually been left in charge of his siblings when they were watching pornography. And he acquitted defendant of third-degree endangering the welfare of a child with respect to the pornography and masturbation because, due to defendant's age at the time, defendant may not have understood that viewing pornography or masturbation in front of his siblings "would impair or debauch the morals" of the other children.

Recognizing that the offenses occurred when defendant was a child and might in some respects have stemmed from the dysfunctional environment in which he was then living, and that defendant was now twenty-three and had otherwise lived a law abiding and productive life, the judge found that incarcerating defendant would serve no purpose. Instead, he sentenced defendant to three years probation, to include sex offender counseling.

III

Defendant claims that, although this was a bench trial, it was prejudicial error to admit other crimes evidence concerning his sexual activities with Tracy, his attempts to coerce Mark into having sex with Paula, and his threats to get Mark into trouble if he told anyone about the sexual activity. N.J.R.E. 404(b). We reject these arguments, substantially for the reasons stated by the trial judge in denying the severance motion. We add these comments.

We review the trial judge's decision to admit evidence under N.J.R.E. 404(b) for abuse of discretion. See State v. Marrero, 148 N.J. 469, 483-84 (1997). Based on our review of this record, we find no abuse of the judge's discretion in admitting this evidence. The attempt to coerce Mark into having sex with Paula was direct evidence of the endangerment charge and was therefore admissible. Additionally, in this case, the issue of feasibility was genuinely in dispute. Cf. State v. G.V., 162 N.J. 252, 265 (2000). The other evidence of the pervasive inappropriate sexual activity taking place in the house, including defendant having sex with another of his sisters in front of Paula - and the lack of responsible adult supervision - was very important to explain how defendants' assaults on Paula could have been feasible in such a crowded household.

Moreover, the other inappropriate sexual conduct going on in the house, and defendant's threats, were relevant to help explain why Paula did not report defendant's conduct to her parents earlier. The evidence was also relevant to show that defendant's touching of Paula while they were wrestling was done for a sexual purpose, although the judge ultimately acquitted him of that charge. See State v. Cusick, 219 N.J. Super. 452, 465 (App. Div.), certif. denied, 109 N.J. 54 (1987).

Moreover, based on his cogent oral opinion setting forth his verdict, we are convinced the judge made proper use of the evidence and did not consider it as proof of defendant's propensity to commit sexual offenses contrary to N.J.R.E. 404(b). In fact, the judge only convicted defendant of those offenses as to which there was direct corroboration from eyewitnesses whom the judge found credible based on their demeanor.3

Affirmed.

1 We refer to defendant, his siblings, and other family members using fictitious names. We use initials for last names, since some of the children had different fathers. The children referred to each other as sister and brother.

2 According to the testimony of the children's mother, Sally H., she and Angelo F., Sr. were not actually married at the time the relevant events were occurring. He was the biological father of the children whose last name began with F.; the other children were Sally's children by another man. However, throughout the trial, Paula and the other children referred to Angelo F., Sr. as their father.

3Although it does not affect our decision on the merits of this appeal, some of the evidence of defendant's home environment, including the horrendous behavior of the adult uncle, showed mitigating circumstances which influenced the judge to sentence defendant to probation instead of incarceration.