STATE OF NEW JERSEY IN THE INTEREST OF J.L.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2862-08T4

STATE OF NEW JERSEY IN THE

INTEREST OF J.L.F., a minor.

________________________________________________________________

May 5, 2011

Submitted April 12, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-2093-07.

Yvonne Smith Segars, Public Defender, attorney for appellant J.L.F., a minor (Michael Confusione, Designated Counsel, on the brief).

TheodoreF.L. Housel,Atlantic County Prosecutor, attorney for respondent State of New Jersey (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.L.F. appeals from her December 2, 2008 adjudication of delinquency on charges that, if committed by an adult, would constitute the crimes of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), for which the judge sentenced her to a two-year term of non-custodial probation. As a condition of that probation, J.L.F. was ordered to complete sex offender therapy, avoid all unsupervised contact with males under the age of twelve, and comply with all registration requirements required by Megan's Law, N.J.S.A. 2C:7-2.

On appeal, J.L.F., to whom we shall refer as defendant, raises the following claims:

I. THE EVIDENCE AND FINDINGS WERE INSUFFICIENT TO SUSTAIN THE DELINQUENCY FINDING BELOW, WARRANTING VACATION HERE.

II. ADMITTING THE VIDEOTAPED INTERVIEW OF J.R. BY INVESTIGATOR LINDEN ALONG WITH ADMITTING VARIOUS HEARSAY STATEMENTS ALLEGEDLY MADE BY J.R. TO HIS MOTHER WAS IMPROPER AND DEPRIVED THE JUVENILE OF A FAIR TRIAL.

III. THE JUVENILE'S SENTENCE IS IMPROPER AND EXCESSIVE.

We affirm.

I.

These are the most relevant facts presented at trial. M.R. is the mother of a son, J.R., and a daughter, E.R. M.R. worked in an Atlantic City casino from 3:00 a.m. to approximately 11:30 a.m., and had hired defendant, who was sixteen years old, to babysit for her children on Saturday nights. Typically, M.R. picked defendant up on Saturdays at approximately 9:00 p.m. and all four would later go to sleep, J.R. and defendant in twin beds in J.R.'s bedroom, and M.R. and E.R. in the queen bed in M.R.'s bedroom. At approximately 2:30 a.m., M.R. would typically depart the house to go to work, leaving defendant and the two children sleeping.

On the morning of Sunday, February 11, 2007, when J.R. was nine, and E.R. was six, M.R. returned from work, and before driving defendant home, walked into the kitchen. She noticed that "all the bed stuff from the twin beds was on the floor next to the washing machine, stuffed animals, pillows, comforters, everything." M.R. testified this was unusual because the children never stripped their own beds. When asked why he had stripped the beds, J.R. told his mother that the sheets and other bedding were "dirty." Knowing that her son "had a big issue with dirt and germs," M.R. suspected "something dirty had happened. [She] just didn't know what."

M.R. took defendant home, but did not ask her what had occurred, choosing instead to talk to J.R. first. As soon as M.R. returned home, she questioned J.R., who told her that defendant "peed the bed." According to M.R., she continued to ask her son for further details, but without any success. That same afternoon, Sunday, February 11, 2007, M.R. telephoned defendant to ask her why J.R. had stripped all the beds in his room. Defendant's response was that J.R. had "tried to pull [her] pants down." M.R. told defendant that her answer "d[id]n't make much sense."

When J.R. came home from school the next day, he asked his mother if he could come into her bedroom, where he "proceeded to tell [her] what had happened." According to M.R., J.R. said:

[Defendant] had put the TV in front of the door and had told him to take his pants off and have him lay down on his bed, which he did. And he said she tried make him hard and had spit on her fingers and rub the spit up and down on his pee-pee and then pulled him down, sit him down on the bed and put his pee-pee into her pee-pee. And he said it hurt really bad.

After hearing her son's account of what defendant had done, M.R. contacted J.R.'s school guidance counselor, who immediately recommended that M.R. contact the Division of Youth and Family Services (DYFS). DYFS arranged for J.R. to be evaluated by a physician specializing in the investigation of child abuse, Dr. Weiner. DYFS also arranged for J.R. to be interviewed by Michelle Linden, an investigator from the Cape May County Prosecutor's Office who specializes in child abuse investigations.

On cross-examination, M.R. acknowledged that defendant's stepfather had approached her at work at some time before the events in question, to say that J.R. had been putting on his mother's thong underwear and "see-through" robe "and dancing around the house." M.R. dismissed this as typical behavior for a child. M.R. was also asked whether defendant had ever complained to her prior to February 2007 that J.R. had tried to "touch her private areas," to which M.R. answered "no." M.R. did acknowledge, however, that her daughter E.R. once reported that "J.R. had smacked [defendant's] butt," after which M.R. told her son not to do that again. Finally, M.R. agreed that defendant's stepfather had mentioned to her near Christmas 2006 that defendant was thinking of quitting. According to M.R., after discussing the issue with defendant, defendant agreed to remain.

The State also called Investigator Linden as a witness. She described her interview of J.R., which was captured in its entirety on a videotape. Linden explained that as soon as J.R. entered the interview room, he immediately blurted out what had happened, without being questioned.

The State also called J.R. to describe the events that occurred on February 10 and February 11, 2007, when he was nine years old. According to J.R., while his mother and sister were asleep in the adjacent bedroom, he was lying down on his bed watching television when defendant got some hand cream from the bathroom, put it on her hands, and told him to pull down his pants. After he did so, defendant "started masturbating on [him]," which he described as "put[ting] the hand cream on [his] penis and . . . rubbing it." He did not awaken his mother to tell her what happened.

The next morning, while M.R. was still at work, and defendant was talking to her boyfriend on the telephone, J.R. went into his room and started playing with his gerbil. At that point, defendant came into his bedroom and told him to pull down his pants. She also told him to lie down on the bed. As soon as he did so, "she stuck [his] penis in her vagina." J.R. explained that when he complained to defendant that what she was doing was hurting him, "she put drool on [his] penis" and then continued. According to J.R., defendant was "sitting on [his] legs" while this was occurring. He then showered, and went outside to ride his scooter. After he came back home, he "pulled the sheets and everything off the two beds" because he "was disgusted" by what had happened.

The defense called as a witness David F. Bogacki, a board certified forensic psychologist, who interviewed J.R. at defendant's request to determine whether or not J.R. was capable of testifying as a witness at trial. At trial, Dr. Bogacki testified as a fact witness, rather than as an expert, and described what J.R. had told him. According to Dr. Bogacki, J.R. told him that he had sexual intercourse with defendant, not once but twice, on both the night of February 10 and the morning of February 11, 2007. Dr. Bogacki also testified that J.R. did not mention anything to him about hand cream or defendant putting drool on his penis or masturbating his penis with her hand. Dr. Bogacki also stated that J.R. confessed to him that he had lied when he accused defendant of initiating their sexual activity. According to Dr. Bogacki, J.R. said "'I lied about it because I had asked her to do it with me but never told anybody.'"

Defendant testified, and she asserted that a month or two before the night in question, J.R. had asked her questions about what sex feels like and she told him "I don't know, ask your mom." She also insisted that J.R. told her about an occasion when one of his cousins exposed her vagina. Defendant explained that she had not told J.R.'s mother about these discussions because she "liked that he could come to [her] and trust [her] with . . . a secret that big."

Defendant also testified that she frequently spoke with her boyfriend Matt while she was babysitting for J.R. and E.R. and that J.R. "wasn't very happy with that." She maintained that on two occasions, J.R. took her cellphone away from her to talk to Matt, and during one of those conversations, told Matt "'I'm gonna marry your girlfriend. I'm going to have sex with your girlfriend.'"

Defendant explained that she wanted to stop babysitting for J.R. and E.R. in the winter of 2006-07 because she was no longer comfortable working there. She told M.R. she wanted to quit, but M.R. asked her to stay until she could find a replacement. Defendant agreed to do so. Defendant maintained that J.R. would try to touch her buttocks and breasts nearly every weekend, and M.R. had witnessed him doing this. Defendant said that although she and his mother had asked J.R. to stop, he did not obey. Defendant denied J.R.'s allegations that she was obsessed with sex1 and said that she had never initiated a conversation with J.R. about sex, or talked to him about any of her sexual experiences.

Defendant denied taking off J.R.'s pants, and said that neither she nor he took any hand cream from the bathroom on the night of February 10, 2007. She also denied touching J.R.'s penis that night or having intercourse with him the next morning. She also denied touching him in a sexual way, or showing him her naked body.

She asserted that on the morning of February 11, 2007, when she awoke, the television had been placed in front of the bedroom door. She remembered J.R. removing the sheets from the bed, but she did not think it was unusual because she had seen him do the same thing on prior occasions.

The trial judge found that a "forced event" occurred when defendant "masturbated" J.R., a nine-year-old boy, on the night of February 10, 2007, while his mother was home. He said that in his experience "there have been several sexual assault cases that have come before me wherein the defendant . . . admitted to sexual assault of a younger child while an adult caretaker was present, awake in another room of the residence." He further noted that "while it may appear to be improbable, this Court's experience is that it is not unusual, and it does not make the victim's story or version of what occurred incredible." The judge found that sometime the following morning, "[defendant] engaged in an act of sexual intercourse with [J.R.]." The judge noted his findings were "essentially a question of credibility," because J.R. claimed the incidents of sexual assault occurred, and defendant insisted that they did not.

The judge noted the inconsistency in testimony concerning who put the television in front of the bedroom door on the morning of February 11, 2007. He noted that J.R. told Investigator Linden that defendant closed the door and put the television in front of the door prior to the sexual assault, but that Dr. Bogacki said J.R. told him it was he who put the television in front of the door.

The judge also noted the inconsistencies concerning who obtained the hand cream from the bathroom. The judge observed that J.R. told Linden that it was defendant who got the hand cream, but told Dr. Weiner that he had done so, and testified at trial that it was defendant.

The trial judge also described the inconsistency between J.R. telling Linden that defendant "put drool on her fingers and put it on his penis and on her vagina," but telling Dr. Weiner that defendant "used her fingers to wet his fingers and placed saliva on his penis and her vagina," and later testifying at trial that defendant drooled from her mouth onto his penis without using her hand or her fingers.

The judge attributed these inconsistencies to the passage of time, noting that "[s]ome versions of what happened were told to interviewers or to [sic], or at trial over a year to 16 months after the incident . . . is alleged to have occurred." He also reconciled the inconsistencies by noting that J.R. was interviewed or questioned several times about what happened, and on each of these occasions, was only nine or ten years old.

The judge did not make any explicit findings concerning defendant's credibility.2 The judge found that J.R.'s testimony was credible "with respect to the occurrence of the essential acts, of the sexual penetration of [J.R.] into the defendant on February 11th of 2007 and the masturbation of [J.R.] by the defendant during the evening of February 10th of 2007." The judge adjudicated defendant delinquent on the charge of aggravated sexual assault by an act of sexual penetration with a victim under the age of thirteen, defining penetration as including "penetration of the defendant in this instance by the victim at the instruction or direction of the defendant . . . because the defendant in this case is a female and the victim was a male." The judge also adjudicated defendant delinquent on the charge of endangering the welfare of a child because she engaged in sexual conduct with J.R. while he was under her care, thereby impairing or debauching J.R.'s morals.

At the time of disposition, the State asked the judge to sentence defendant to a four-year term of imprisonment at the Training School for Girls. Defendant requested a sentence limited to rehabilitation and counseling. After discussing the serious nature of the offenses of which defendant had been adjudicated delinquent, and after noting that defendant herself had just given birth to a infant, and was now the parent of a young child, the judge sentenced her to the Training School for Girls for a period of three years, but suspended the imposition of that disposition by placing her on probation for a period of two years. As a condition of that probation, defendant was required to successfully complete outpatient therapy and was prohibited from any unsupervised contact with males under the age of twelve, except for her son. The judge also required defendant to register under Megan's Law.

II.

In Point I, defendant argues that the evidence produced at trial, and the findings made by the judge, were insufficient to sustain the adjudication of delinquency, and therefore the adjudication should be vacated. Defendant's argument in Point I is divided into four specific claims, which we shall address separately. First, defendant contends that the judge failed to "explain the elements and the specific facts" that satisfied each element of each crime charged. We disagree.

The record demonstrates that the judge thoroughly discussed the proofs concerning the events of February 10 and February 11, 2007. The judge's findings of fact were more than sufficient to establish that defendant was delinquent for having rubbed J.R.'s penis with hand cream on the night of February 10, 2007 and for having inserted J.R.'s penis into her vagina the next morning, thereby satisfying the elements of first-degree aggravated sexual assault. The judge explained that such conduct also constituted the offense of second-degree endangering the welfare of a child because defendant had assumed responsibility for caring for J.R. and such conduct unquestionably impaired or debauched his morals, in violation of N.J.S.A. 2C:24-4(a). We thus reject defendant's argument that the judge's findings of fact and conclusions of law were insufficient.

Defendant next argues in Point I that the judge did not address the mens rea element of the offenses of aggravated sexual assault or endangering the welfare of a child. In particular, defendant maintains that the judge made no findings on whether defendant acted knowingly, which is an element of both offenses. See N.J.S.A. 2C:14-2(a) and N.J.S.A. 2C:24-4(a). While it is true that the judge did not expressly make any findings on this subject, we discern a conclusion that defendant acted knowingly from the judge's statements that defendant deliberately used hand cream and deliberately drooled on J.R.'s penis because she was experiencing difficulty in accomplishing her desired objective. We therefore reject defendant's contention that the adjudications of delinquency must be reversed because the judge did not address the mens rea element.

Third, defendant contends, in connection with the endangering the welfare of a child charge, that there was no evidence that she knew her conduct would have such an effect. As we held in State v. Bryant, ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 25), the State need not prove that a defendant was aware that his or her conduct would impair the morals of a child. The State need only prove that the defendant knowingly engaged in such conduct. Ibid.

The last argument defendant advances in Point I is that the court's finding of delinquency was not supported by sufficient and credible proofs in the State's case both because there was a lack of physical proof, and because the State's case was "littered with inconsistencies." The former argument, that there was an absence of physical proof of sexual molestation, lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, many such acts can be committed without leaving physical evidence. As to defendant's contention that the inconsistencies in J.R.'s account made his testimony unreliable, we agree with the State's argument that the judge's comprehensive and thorough oral statement of reasons addressed these inconsistencies and found them to be of no moment.

We have been presented with no meritorious reason to reject the judge's conclusion that because J.R. gave his account to so many people -- his mother, Dr. Weiner, Investigator Linden and Dr. Bogacki, and also testified at trial -- it was not surprising that there were minor inconsistencies in his account. We agree with the judge's observation that J.R. was only nine years of age when the events in question occurred, and was only ten years old when he testified at trial, and that the minor discrepancies were therefore not unexpected and had no bearing on the child's overall credibility.

Moreover, a trial judge, unlike an appellate court, has the opportunity to see and hear the witnesses and evaluate their credibility. For that reason, so long as there is substantial and credible evidence in the record to support the findings of fact made by the judge, we are obliged to defer to those findings. State v. Locurto, 157 N.J. 463, 472 (1999). We have been presented with no meritorious basis to reject the judge's comprehensive and well-reasoned findings of fact. We therefore reject defendant's argument that the judge's findings of fact were not based upon sufficient and credible evidence in the record. In sum, we reject all of the claims defendant advances in Point I.

III.

We turn to Point II, in which defendant argues that the trial judge committed reversible error by admitting into evidence the videotaped interview of J.R. conducted by Investigator Linden. Defendant maintains that the videotape should not have been admitted because it did not satisfy the reliability requirements of the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), and because it "unfairly emphasized and buttressed the child's allegations." Defendant also maintains that even if the videotaped statement was admissible, she did not have a "realistic opportunity to cross-examine the child about allegations that, [according] to him, he'd made some time ago," and "[t]he real opportunity to cross-examine the child was when he gave the interview to Detective Linden."

As a second argument, defendant claims that the trial judge improperly failed to conduct a N.J.R.E. 104(a) hearing before allowing J.R.'s mother to testify regarding statements that he allegedly made to her.

"'[A] trial court's determination on the admissibility of evidence in general . . . is entitled to great deference and ordinarily should not be disturbed unless it is "wide of the mark."'" State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008) (quoting State v. Fortin, 189 N.J. 579, 597 (2007)). N.J.R.E. 803(c)(27) permits the admission in evidence of an out-of-court statement made by a child under the age of twelve pertaining to sexual misconduct committed with or against the child provided that: the State notifies the defendant in advance of its intention to rely on the hearsay statement; the court finds at a hearing that "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy"; and the child either testifies at the trial or, if the child is unavailable as a witness, the State offers admissible evidence corroborating the act of sexual abuse.

In determining whether a statement proffered under N.J.R.E. 803(c)(27) is sufficiently trustworthy to be introduced into evidence, a trial judge should consider "the totality of the circumstances" that surround the making of the statement. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). The factors to be considered by a judge when conducting a "trustworthiness" analysis under this Rule are the spontaneity of the statement - whether it was made without prompting or suggestive questioning, whether the account provided by the delcarant is consistently repeated, the mental state of the declarant and the use of terminology unexpected of a child of a similar age and a lack of motive to fabricate. State v. P.S., 202 N.J. 232, 249 (2010).

Because the State provided the defense with advance notice of its intention to introduce the statement at trial, and provided defense counsel with the videotape and a transcript, and because J.R. testified at trial, the first and third requirements of N.J.R.E. 803(c)(27) are satisfied. Thus, only the "trustworthiness" element is in dispute.

On that subject, in finding J.R.'s statements on the videotape to be trustworthy, the judge reasoned that the questioning by Investigator Linden was not unduly suggestive. Indeed, according to the judge, J.R. "spontaneous[ly]" volunteered the information that defendant had sexually abused him before Investigator Linden was able to ask him any questions. Immediately after walking into the interview room, J.R. said "let me say something," and began telling her that his babysitter was "coo-coo" and "liked to have sex" and "she had it with me." Before J.R. blurted out that information, Investigator Linden had not yet asked him a single question.

The judge also relied upon the fact that the account given by J.R. on the videotape was consistent with what he had already told the DYFS investigator. Finally, the judge concluded that there was nothing about the "mental state" of J.R. to call into question the reliability of his account, and there was no terminology used by J.R. that would "be unexpected" from a child of that age. Based upon the latter finding, the judge concluded there was no evidence that J.R. had been coached. Thus, after considering the totality of the circumstances, especially the fact that the videotape interview was conducted only two days after the alleged incident had occurred, the judge found the statement to be trustworthy and admitted it in evidence.

Having considered defendant's contentions in light of the record and applicable law, and in light of the deference due to a trial judge's evidentiary determinations, we have no occasion to reverse the judge's decision to admit the videotape of the interview pursuant to the tender years exception, N.J.R.E. 803(c)(27). We reject defendant's contention that the child's statements were coached and unreliable. Moreover, because the videotape was admitted in evidence before J.R. testified, the defense had a full opportunity to cross-examine him concerning the statements he made on the properly-admitted videotape. As we noted in State v. Burr, 392 N.J. Super. 538, 567-68 (App. Div. 2007), aff d in part, modified in part, 195 N.J. 119 (2008), the Confrontation Clause does not preclude admission of a child's taped statement under N.J.R.E. 803(c)(27) so long as the child appears at trial and is available for cross-examination, which was the case here. We therefore reject defendant's argument that the videotape was improperly admitted in evidence.

We turn to defendant's contention that the admission in evidence of M.R.'s hearsay account of what her son told her denied defendant a fair trial. The State argues, and we agree, that J.R.'s statement to his mother was not an instance of impermissible "testimonial hearsay," as the child's statement to his mother was not made to law enforcement, nor was it made during the course of an investigation. State v. Buda, 389 N.J. Super. 241, 256 n.11 (App. Div. 2006), aff'd in part, rev'd in part, 195 N.J. 278 (2008). Nonetheless, M.R.'s account of her son's statements to her was unquestionably hearsay, and therefore was not admissible unless an exception to the hearsay rule existed.

Before analyzing whether any such exception exists, we pause to note that because defendant did not object at trial to M.R.'s recounting of her son's statements, the judge had no opportunity to explain which hearsay exception would have applied. Therefore, in the absence of an objection from defendant, we apply the plain error standard and will reverse on this ground only if the error, if any, was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). We are satisfied that M.R.'s testimony describing her son's account of what defendant had done to him the day before, although arguably not completely spontaneous, was admissible as fresh complaint evidence. See State v. W.B., ___ N.J. ___, ___ (2011) (slip op. at 33-34). As fresh complaint evidence, it was not substantive evidence of defendant's guilt, but was admissible to negate any inference that if J.R. had not complained, defendant might not be guilty. In any event, we deem M.R.'s testimony describing her son's statement to be harmless, in light of J.R.'s video statement and his trial testimony. We therefore reject defendant's contention that M.R.'s hearsay testimony denied her a fair trial. In sum, we reject all of the arguments defendant advances in Point II.

IV.

We turn to Point III, in which defendant argues

that her sentence was excessive because the judge did not analyze the dispositional factors specified in N.J.S.A. 2A:4A-43 before imposing disposition. This argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, although the judge did not expressly refer to N.J.S.A. 2A:4A-43 or its subsections, his analysis was clearly grounded in the requirements of N.J.S.A. 2A:4A-43(a) because the judge considered the nature and circumstances of the offense, the degree of injury to the victim, defendant's age, whether the disposition would provide the defendant with needed therapy or services, the impact of the offense on the victim and community, the threat to the safety of the public posed by the juvenile, and whether the disposition treats "the unique . . . psychological and social characteristics and needs of the child." Moreover, as is evident, the two-year period of probation imposed by the judge at the time of disposition in December 2008 has now expired. Therefore, even if the sentence had been excessive, which it was not, the sentence has already been served. We therefore reject defendant's claims that the sentence imposed was excessive.

1 This was a reference to Linden's testimony that J.R. told her defendant "liked to have sex."

2 Because the audiotape of the judge's original findings of fact and conclusions of law could not be transcribed, we entered an order of temporary remand requiring the reconstruction of the record. Our description of the judge's findings is therefore based upon that reconstruction. During the April 30, 2010 hearing to reconstruct the record, defense counsel commented that the judge had not made any explicit findings about defendant's credibility when he originally made findings of fact at the conclusion of the trial. The judge responded by stating that he had no recollection about whether he had "addressed that specifically," and did not intend to "change the record in any way." Instead, the judge simply commented that he believed his "determination with regard to credibility was implicit in [his] [earlier] finding that because [J.R.'s] testimony is that it occurred and essentially [defendant's] was that it did not, [he] felt that the question of credibility was implicit in [his] determination."