STATE OF NEW JERSEY IN THE INTEREST OF T.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN

THE INTEREST OF T.R.

________________________

March 19, 2014

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FJ-21-272-12.

Cutolo Mandel, L.L.C., attorneys for appellant (Jeffrey S. Mandel, on the brief).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant T.R. appeals from a December 11, 2012 order adjudicating him a delinquent for acts which, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The primary question on appeal relates to the competency of the five-year-old victim to testify at trial. We affirm.

Defendant was fourteen years old when the State charged him with committing these offenses against his cousin. The victim's mother asked defendant to babysit, and when the mother returned home ten minutes later, the mother opened the victim's bedroom door and observed defendant with his pants down and his penis erect. The victim was hiding in the closet, naked from her waist down. The mother asked what had happened and defendant denied any wrongdoing. The victim, however, told the mother that defendant touched her "coochie" with his "coochie." The mother then took the victim to the hospital for a physical examination. The next day, a detective obtained a statement from the victim at headquarters, and the victim indicated she used the word "coochie" to describe a girl's vagina and boy's penis.

The judge concluded that the victim's statements to the mother and the detective were trustworthy and not coerced, and that the victim understood the requirement to tell the truth. As a result, the judge accepted the trial testimony from the victim, as well as from the victim's mother, the detective, and defendant.

On appeal, defendant raises the following points:

POINT I

IN ADDITION TO [THE VICTIM] NOT BEING COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601, [THE VICTIM] FAILED TO TAKE AN OATH TO TELL THE TRUTH, OR ITS FUNCTIONAL EQUIVALENT, AS REQUIRED BY N.J.R.E. 603.

POINT II

THE COURT BELOW ERRED IN CONSIDERING [THE VICTIM'S] STATEMENTS TO [THE MOTHER] AND THE VIDEOTAPED INTERVIEW OF [THE VICTIM] BECAUSE OF ITS COERCIVE NATURE AND BECAUSE [THE VICTIM'S] RESPONSES DEMONSTRATE A FAILURE TO COMPREHEND CERTAIN QUESTIONS AND INABILITY TO CONVEY THOUGHTS IN RESPONSE TO OTHER QUESTIONS.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following remarks.

It is well-settled that "to be competent to testify, a witness should have sufficient capacity to observe, recollect and communicate with respect to the matters about which [s]he is called to testify, and to understand the nature and obligations of an oath." State v. G.C., 188 N.J. 118, 131 (2006) (citations and internal quotation marks omitted). An oath is a reminder to the witness that there is a special obligation to tell the truth. Ibid. The Court has subscribed to the view that

[a]ny ceremony which obtains from an infant a commitment to comply with this [special] obligation [to speak the truth in court] on pain of future punishment of any kind constitutes an acceptable common law, and hence a valid [N.J.R.E. 603] oath. It is not necessary that an infant mouth the traditional litany nor comprehend its legal significance. Trial judges are therefore invested with a certain amount of discretion to tailor the traditional litany to fit the circumstances of a particular case.

[Ibid. (alterations in original) (citation omitted).]

The Court has stated that disqualification is appropriate "only if the trial judge finds that the proposed witness is incapable of expressing . . . herself concerning the matter so as to be understood by the judge and jury or the proposed witness is incapable of understanding the duty of a witness to tell the truth." Id. at 132 (citation omitted). The child's comprehension of the duty to tell the truth "necessarily implicates the consequences arising as a result of a failure to comply with the duty." Id. at 133.

We reject defendant's contention in Point I that (1) the victim was incompetent to testify pursuant to N.J.R.E. 601, which states in part that "[e]very person is competent to be a witness unless . . . the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury . . ."; and (2) the victim's testimony should be barred because she failed to take an oath pursuant to N.J.R.E. 603, which states that "[b]efore testifying a witness shall be required to take an oath or make an affirmation or declaration to tell the truth under the penalty provided by law." Here, the judge correctly applied the well-settled standards for admitting testimony from infants in sex-related offenses.

The judge conducted a pretrial hearing in accordance with N.J.R.E. 104(a) and ruled that the victim's statements to her mother on the day of the incident, and to the detective, were admissible under N.J.R.E. 803(c)(27). That rule of evidence, sometimes called "the tender years exception" to the hearsay rule, State v. D.G., 157 N.J. 112, 115 (1999), provides in relevant part that

[a] statement by a child under the age of [twelve] relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if . . . (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.

[N.J.R.E. 803(c)(27).]

The judge properly concluded that the victim understood the difference between the truth and a lie, and that her statement was otherwise trustworthy under N.J.R.E. 803(c)(27). We have no reason to disturb the judge's findings.

Finally, defendant contends in Point II that the judge erred by admitting into evidence the victim's statements to her mother and the detective because the statements were the product of coercion, an inability to express herself, and an overall failure to comprehend. Regarding the victim's statements to the mother, the judge indicated that:

The mother did not ask any leading questions upon finding the [victim and defendant in the bedroom]. She repeatedly stated, what's happening? She repeated that more than once. What's happening? What is going on? [The victim] responded that [defendant] touched my coochie with his coochie. . . .

The mother was consistent in her testimony. She stated that she did not go into detail with [the victim or defendant], that she instead called . . . [defendant's] grandmother.

. . . .

[The victim's] statement to the mother[,] at that time[, as] referring to the body parts of both the male and female as coochie[,] are age appropriate. [The victim] certainly didn't have any above[-]age knowledge, which would indicate that possib[ly] an older person, specifically the mother, was influencing [the victim] in any way.

. . . I find that the mother's questions to [the victim] were open ended. They were not leading questions. . . . I do find that it is likely that [the victim's] statements made to [the mother] are trustworthy.

Regarding the victim's statements to the detective, the judge indicated that:

The child was practically on the detective's lap throughout the outset of the interview . . . . [The victim] was eager [to answer questions]. The second the actual questions turned to what happened[, the victim] could not get further away. If the wall was not there, she would have kept on going back. There was a drastic change in her demeanor and mannerism, and I believe that is a significant factor in the credibility of [the victim's] testimony during the interview.

. . . .

The interview was certainly conducted in an appropriate manner. It was conducted at the Warren County Prosecutor's Office. There were no leading questions. The detective was able to build a rapport with [the victim] and, as noted at the outset of the [c]ourt's finding[s], [the victim] did have a rapport with the detective, as was visible from her mannerisms in speaking with [the detective] at first and in doing the drawings and in sitting so closely to him.

The question with regard to the actual sexual assault, has anyone touched you in any of those places, again, not leading at all. The [victim] responded that [defendant] did. She was consistent with regard to showing with the dolls what had occurred. Also, . . . the [victim] was very clear. There was no hesitancy in the [victim] explaining what is the difference between the truth or a lie. [The victim] said, . . . she knew that the room in which the interview was being conducted . . . was the truth room.

When the detective showed her the drawings of the dog and the two girls telling a story as to whether one was a dog or a fish, [the victim] was very clear in her understanding of what the difference is between the truth or a lie. So there is . . . no evidence . . . as to whether or not somebody was leading the child and, therefore, the videotaped statement[1] or interview of the [victim] shall also come in[to evidence].

We have no reason to disturb the judge's findings and conclude that he scrupulously followed the dictates of D.G. and the well-settled standards for admitting into evidence the victim's statements in this case.

1 We too have watched the videotaped statement of the victim.