STATE OF NEW JERSEY v. J.R

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3270-07T43270-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

J.R.,

Defendant-Appellant.

__________________________________

 

Submitted: December 16, 2009 - Decided:

Before Judges Cuff and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-04-0615.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant J.R. was found guilty of second degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1) (count one); four counts of second degree sexual assault, N.J.S.A. 2C:14-2b (counts two, three, five and seven); three counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts four, eight and nine); and first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count six). The judge sentenced defendant to a term of ten years imprisonment with an 85% No Early Release Act (NERA) period of parole ineligibility on count one. After merging count three with count two, the judge imposed a sentence of ten years imprisonment subject to NERA concurrent to count one. On count four, the judge sentenced defendant to six years imprisonment consecutive to count one. On count five, the judge imposed a ten-year term of imprisonment subject to NERA concurrent to count six. On count six, the judge sentenced defendant to eighteen years imprisonment subject to NERA consecutive to counts one and four. On count seven, the judge imposed a ten-year term of imprisonment subject to NERA concurrent to counts five and six. On counts eight and nine, the judge sentenced defendant to ten years imprisonment on each count concurrent to count six. The aggregate sentence is thirty-four years imprisonment with twenty-eight years of parole ineligibility. The appropriate fines, penalties and assessments were also imposed.

The victims in this case are defendant's daughter and step-daughter. His severely disabled daughter was three years old at the time.

On August 21, 2005, defendant's wife, S.R., walked into their bedroom and found defendant attempting to sexually penetrate their three-year old handicapped and severely retarded daughter. Defendant confessed to his wife and to police. On the day of his arrest, his nine-year old step-daughter informed police that she had been repeatedly sexually abused by defendant. She described instances in which defendant inserted his finger between her labia and instances when he placed his hand inside her underwear and rubbed her "butt." Defendant admitted one instance of touching his step-daughter, but denied the remaining allegations.

On appeal, defendant raises the following arguments:

POINT I: THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY DEMONSTRATE C.T. WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (NOT RAISED BELOW).

POINT II: THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THE STATE ESTABLISHED THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT REGARDING COUNT IV CHARGING ENDANGERING THE WELFARE OF A CHILD (A.R.) AND COUNT VI CHARGING AGGRAVATED SEXUAL ASSAULT (C.T.).

POINT III:THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS II AND III INTO COUNT I AND COUNT VII INTO COUNT VI. (NOT RAISED BELOW).

POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We commence our discussion with Point II.

Defendant argues that the State adduced insufficient evidence to allow the trial judge to find beyond a reasonable doubt that he endangered the welfare of his three-year old daughter, A.R., or committed an act of aggravated sexual assault against his step-daughter, C.T. The former argument is premised on the inability of his daughter's morals to be corrupted because her severe mental retardation rendered her "incapable of understanding the ramifications of what the defendant was doing, and simply 'doesn't know what happened.'" Defendant's latter argument is premised on an absence of proof that he had digitally penetrated his step-daughter. Our review of the record convinces us that neither argument is supported by the facts adduced at trial or the law governing the charges.

The judge found defendant guilty of endangering the welfare of A.R. in violation of N.J.S.A. 2C:24-4a. In relevant part, N.J.S.A. 2C:24-4a states: "Any person having a legal duty for the care of a child . . . who engages in sexual conduct which would impair or debauch the morals of the child . . . is guilty of a crime of the second degree." Defendant does not dispute that he owed a legal duty to care for A.R. or that he engaged in "sexual conduct." Rather, defendant urges this court to reverse the conviction because there was insufficient evidence to demonstrate the sexual conduct actually impaired or debauched the morals of A.R.

In State v. Hackett, 166 N.J. 66 (2001), the Supreme Court addressed whether a child's observation of the defendant's nudity was sufficient to convict him of endangerment of a child under N.J.S.A. 2C:24-4a. There, the Court focused on legislative intent and the language of the statute and held, "[p]roof of actual impairing or debauching of the victims' morals is not required. The legislative language prohibits any sexual conduct that would result in the impairing or debauching of an average child in the community." Id. at 80. In other words, the "question is not whether the victims of the alleged endangering actually had their morals impaired or debauched, but whether the actor's 'sexual conduct' was conduct that likely would impair or debauch the morals of a child in the community." Id. at 83.

Here, the State produced testimony at trial from S.R. who described the scene she encountered after returning home from an errand on August 21, 2005. Namely, S.R. saw defendant on the couple's bed, with his shorts unzipped and penis exposed, pulling A.R. towards him. A.R., who was just shy of three years old, had her diaper removed and her legs spread apart. Furthermore, the trial judge had the benefit of defendant's several statements and the testimony of Sergeants Mironenko and Alvarez, and Officer Marte, all of whom spoke with defendant on the afternoon of the incident. A.R.'s physical and mental impairments do not bear on the trial court's determination as to whether defendant violated N.J.S.A. 2C:24-4a. Furthermore, there was sufficient credible evidence in the record for the trial court to find defendant's sexual conduct was the type "that likely would impair or debauch the morals of a child in the community." Id. at 83.

Next, defendant urges reversal of the first degree aggravated sexual assault of his step-daughter because "[t]here was no credible testimony in the trial record to support the conclusion that the equivalent of penile penetration as represented by digital penetration was committed by the defendant against C.T." The State, on the other hand, views defendant's argument as merely a disagreement with the trial court's determination that C.T.'s testimony and out-of-court statements were credible.

To establish guilt of aggravated sexual assault under N.J.S.A. 2C:14-2, the State must prove beyond a reasonable doubt that defendant committed an act of sexual penetration with someone less than thirteen years old. There is no dispute that C.T. was under thirteen years of age at the time of the alleged incidents. The issue is whether defendant digitally penetrated C.T. or whether his actions were "merely" sexual contact with her.

In pertinent part, N.J.S.A. 2C:14-1c defines "sexual penetration" as "vaginal intercourse . . . between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction." Further, "[t]he depth of insertion shall not be relevant as to the question of commission of the crime." N.J.S.A. 2C:14-1c. By contrast, "sexual contact" is defined, in part, as "intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1d.

A review of relevant case law explicates what constitutes "sexual penetration" as opposed to "sexual contact." This court has determined that the degree of penetration is irrelevant. State v. Cabrera, 387 N.J. Super. 81, 103-04 (App. Div. 2006) (noting that the charge of aggravated sexual assault does not hinge on the depth of insertion into the vagina, but rather simply focuses on the act of penetration itself). However, penetration is a "necessary element" for a conviction of aggravated sexual assault. State v. Gallagher, 286 N.J. Super. 1, 15 (App. Div. 1995) (holding that aggravated sexual assault by anal intercourse can only be established by a showing that there was penetration into the anus and not just insertion of the penis between the victim's left and right buttocks), certif. denied, 146 N.J. 569 (1996).

Regarding penetration of the vagina, this court has held "that penile penetration of the space between the labia majora or outer lips of the vulva constitutes 'vaginal intercourse'" under N.J.S.A. 2C:14-2a(1). State v. J.A., 337 N.J. Super. 114, 115 (App. Div.), certif. denied, 169 N.J. 606 (2001). In J.A., we reviewed the legislative history of the aggravated sexual assault statute noting that the statute was based on Model Penal Code 207.4. Id. at 119-21. We found the Commentary "instructive" and highlighted the following passage: "'the slightest penetration of the outer part of the female genitalia is sufficient; it need not be shown that the male organ reached the vagina . . . [for] the essence of the offense is the outrage to the person and feelings of the female.'" Id. at 120 (quoting Model Penal Code 207.4 comments (Tentative Draft No. 4, 1953)). Based on this Commentary, we determined that the Legislature intended a broader definition of "vaginal intercourse" such that "penile penetration of the outer area of the vaginal opening constitutes sexual penetration." Id. at 120-21.

In doing so, this court affirmed the trial court's instructions to the jury which outlined the definition of "sexual penetration." Id. at 119. Specifically, this court found the following jury charge proper:

Any amount of insertion, however slight, constitutes penetration. The depth of the insertion is not relevant. This means that if you find from all of the evidence presented beyond a reasonable doubt that there was penile penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law.

[Ibid.]

Here, the trial judge found defendant performed an act of digital penetration against C.T. The trial judge explained that "based on the testimony, [defendant's] fingers were near the vagina opening of this young girl who was less than 13 years of age." The judge further found this satisfied the statute, "which indicates that the fingers do not have to be in the hole area, but within the area that I believe was broached, or shall I say violated by this defendant at that time."

Nevertheless, defendant attempts to minimize the trial court's credibility findings of C.T. by suggesting Sergeant Mironenko led C.T. to produce certain desired responses during their two interviews. In particular, defendant criticizes C.T.'s testimony regarding the touching of her "cheek" area, and characterizes the testimony as "conflicting, ambiguous and contradictory in nature." We disagree.

C.T. related multiple instances of touching by defendant at various residences in which they lived, and thus it is possible that her recollection of these events would produce differing accounts. Nevertheless, the conviction of defendant of first degree aggravated sexual assault is based on sufficient credible evidence in the record. The record specifically reflects two instances in which C.T. discussed touching that satisfies the "sexual penetration" definition in J.A., supra, 337 N.J. Super. at 121. According to Sergeant Mironenko, who the trial court deemed credible, C.T. first described an incident when defendant put his finger inside "the cheeks" (the word C.T. used to describe the "folds of skin that cover [the] hole" of the vagina) on August 21, 2005 at the police station. Further, C.T. relayed this same information to Sergeant Mironenko the next day at the Audrey Hepburn Children's House.

Defendant also argues that the trial judge failed to adequately investigate C.T.'s competence to testify at trial. Defendant raises this argument for the first time on appeal. We, therefore, will not disturb the conviction unless we are satisfied that any error caused a manifest denial of justice. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).

N.J.R.E. 601 provides:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

In other words, every person is presumed competent to testify. State v. Scherzer, 301 N.J. Super. 363, 463 (App. Div.), certif. denied, 151 N.J. 466 (1997). Thus, disqualification of a witness is the exception to the general presumption of witness competency. Ibid.

Whether a person is competent to testify as a witness lies within the sound discretion of the trial judge. State v. G.C., 188 N.J. 118, 132 (2006); State v. R.W., 104 N.J. 14, 19 (1986). This standard does not change merely because the witness is youthful. G.C., supra, 188 N.J. at 132; R.W., supra, 104 N.J. at 20; State v. Walker, 325 N.J. Super. 35, 40 (App. Div. 1999), certif. denied, 163 N.J. 74 (2000). Rather, it is well-established that "children, as a class, are not to be viewed as inherently suspect witnesses." State v. Michaels, 136 N.J. 299, 308 (1994).

When examining whether a child is competent to testify under N.J.R.E. 601, the court should first "explore the child's conceptual awareness of truth and falsehood." State v. Zamorsky, 159 N.J. Super. 273, 280 (App. Div. 1978), modified, 170 N.J. Super. 198 (App. Div. 1979), certif. denied, 82 N.J. 287 (1980). Once the court establishes that the child understands these terms, the next inquiry turns on whether the child understands his or her duty to tell the truth, not whether the child will tell the truth. Ibid. The child's awareness of the duty to tell the truth is often labeled the child's "moral responsibility." See ibid.; State in the Interest of R.R., 79 N.J. 97, 113 (1979); Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 601 (2009). This requirement is satisfied "[s]o long as the child understands (a) the difference between right and wrong; (b) that to tell the truth is 'right'; and (c) that he will be punished in some way should he lie to the court." R.R., supra, 79 N.J. at 114; Walker, supra, 325 N.J. Super. at 40.

For example, in R.W., supra, 104 N.J. at 18-27, the Supreme Court found the trial court properly concluded that a three-and-one-half-year old sexual abuse victim was competent to testify based upon a voir dire hearing in which the victim "equated truthfulness with telling what was 'real' and lying with telling that which was 'pretend' . . . [and] indicated that she knew she would get into trouble if she did not tell the truth." Likewise, in G.C., supra, 188 N.J. at 133, the Court held that the trial judge's voir dire examination of a five-year old sexual abuse victim's competency to testify did not abuse the judge's discretion. There, the questions were tailored to the child's understanding of the duty to tell the truth, which "necessarily implicates the consequences arising as a result of a failure to comply with that duty." Ibid.

Applying these principles, we are not able to identify any error. First, C.T. demonstrated her knowledge of the obligation to tell the truth when she responded affirmatively when asked: "Do you know what you're here for, to tell the truth, right?" Second, C.T. confirmed that she was able to tell the difference between the truth and a lie. Further, in response to the assistant prosecutor's questions, C.T. also showed she was aware that lying is a "bad thing" which results in getting in trouble.

Defendant, however, suggests that the trial court did not sufficiently establish whether C.T. knew the difference between a truth and a lie or the ramifications for telling a lie. In particular, defendant cites State v. Krivacska, 341 N.J. Super. 1, 32 (App. Div.), certif. denied, 170 N.J. 206 (2001), where the trial court subjected the thirteen-year old child witness to a series of hypothetical factual situations to make a competency determination. Yet, there, the child witness was a special needs student with a low IQ. Id. at 11-12. Here, however, there is no indication that additional clarification was necessary to demonstrate C.T.'s competency to testify as a witness pursuant to N.J.R.E. 601. In fact, not only did defense counsel fail to object to C.T.'s competency to testify at trial, defense counsel also complimented C.T. during cross-examination, stating: "Well, I have to tell you that your language usage is excellent and you speak . . . your grammar is perfect. It's better than half the people that work in this courthouse and especially for a child who has come from another country. You speak perfect beautiful English."

Defendant also contends C.T. was never "asked to explain her concept of punishment." As such, defendant claims the trial court did not comport with the principles of Zamorsky, supra, 159 N.J. Super. at 280, and the duty to discern whether C.T. understood the obligation to tell the truth. Zamorksy, however, recognizes that there is no clear formula for trial courts to follow in establishing the child's awareness of "moral responsibility." Ibid. Instead, "[i]f the trial judge is satisfied from his interrogation that the child is sensitive to his or her obligation to tell the truth, [this court] will not disturb his conclusion unless it is plainly unsupported by the evidence." Ibid.

In short, we are satisfied that the trial judge posed appropriate questions to C.T. Furthermore, his determination to allow her to testify was based upon sufficient evidence.

Finally, we address defendant's sentence. Defendant is serving an aggregate term of thirty-four years in prison, twenty-eight of which must be served before he can be considered for parole. Defendant argues that counts two and three (second degree sexual assault) should have merged with count one (second degree aggravated sexual assault). Defendant also argues that count seven (second degree sexual assault) should have merged with count six (first degree aggravated sexual assault). The State concedes the error. We agree that counts two and three should merge with count one; we do not agree that count seven should merge with count six. Count seven concerns C.T. She testified, and the trial judge found, that defendant committed several acts against C.T., one of which was a first degree offense (count six), the other a second degree offense (count seven). These are separate offenses occurring at different times. They do not merge. State v. Fraction, 206 N.J. Super. 532, 536-40 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986). We, therefore, remand for entry of a corrected judgment of conviction to reflect the mergers of counts two and three with count one.

Defendant also argues that his sentence is manifestly excessive. He contends that the trial judge abused his considerable sentencing discretion by selecting maximum or "virtually" maximum terms and by imposing consecutive rather than concurrent terms.

This court's review of a sentencing decision is governed by the abuse of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006). Specifically, this court follows a three-part test to determine whether a defendant's sentence should be upheld. State v. Roth, 95 N.J. 334, 364 (1984). First, this court must determine "whether the correct sentencing guidelines . . . have been followed" in accordance with legislative policies. Id. at 364, 365. Second, this court looks to "whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines." Id. at 365-66. This requires a review of the aggravating and mitigating factors upon which the sentence was based. Id. at 364. Finally, this court determines "whether in applying [the sentencing] guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." Id. at 366. In other words, this court asks whether "the application of the guidelines to the facts . . . makes the sentence clearly unreasonable so as to shock the judicial conscience." Id. at 364-65.

The trial judge must explain the reasons that support his findings regarding the applicable aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 608 (2010). A remand may be required when the trial judge omits this analysis, unless the reviewing court "can readily deduce" inclusion or omission of any factors. Id. at 608-09.

Here, the judge cited no aggravating factors or mitigating factors as he imposed sentence. The judgment of conviction cites aggravating factors one, two, four and nine, N.J.S.A. 2C:44-1a(1), (2), (4), and (9), and mitigating factor seven, N.J.S.A. 2C:44-1b(7). That is, the judge found the nature and circumstances of the offense, the gravity and seriousness of the harm inflicted on the victim, the use of a position of trust or confidence to commit the offense, and the need for deterrence as aggravating factors. The judge found the absence of any prior criminal history was a mitigating factor. The judge, however, did not identify which factors pertain to which counts. More importantly, the judge did not perform a qualitative analysis of each factor and how that analysis informed his sentence.

Based on the simple citation in the judgment of conviction to certain aggravating and mitigating factors, we can only surmise or deduce that the judge intended each factor to apply to all counts. Such a deduction, however, is problematical because the application of aggravating factor four to counts four, eight and nine (endangering the welfare of a child) raises the spectre of double counting. State v. Kromphold, 162 N.J. 345, 353 (2000). The essence of the endangering offense is the special relationship of defendant to the child victim. Although the endangering offense is a separate offense, the Legislature elevated this offense to a second degree offense due to the relationship between the victim and the defendant. Use of the relationship as an aggravating factor is, therefore, generally prohibited. State v. Yarbough, 100 N.J. 627, 633 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Hodge, 207 N.J. Super. 363, 367 (App. Div.), certif. denied, 105 N.J. 578 (1986). Moreover, we have previously held that aggravating factor four applied only "with a violation of public trust under Chapters 27 and 30 or a breach of a position of trust or confidence," and certainly did not apply to convictions of burglary, sexual contact and terroristic threats. State v. Mosch, 214 N.J. Super. 457, 463 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987).

Similar concerns about double-counting are presented by the application of aggravating factor one, the nature and circumstances of the offense, to counts one and six. These are first degree offenses due to the nature of the offense and the age of the victims.

Defendant also argues that the imposition of consecutive terms created a manifestly excessive term, particularly given his age at the time of sentence. Defendant also highlights the absence of any explanation for the consecutive terms.

In reviewing the application of consecutive, as opposed to concurrent, sentences, this court examines the following factors:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous.

[Yarbough, supra, 100 N.J. at 644.]

These Yarbough factors are to be applied qualitatively, and not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Therefore, "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28.

We can readily deduce the reason for fashioning the sentence on count six as consecutive to count one. Count six is the most serious offense committed by defendant against his nine-year old step-daughter, C.T. She is a separate victim and the sexual assault occurred at a different time than the sexual assault on her younger sister. Bieniek, supra, 200 N.J. at 608-09.

As to count four, the judge cited defendant's relationship to A.R., his three-year old daughter. However, the endangering conviction is directly related to the attempted aggravated sexual assault conviction of count one and the endangering offense was elevated to a second degree offense carrying a presumptive prison term between five and ten years solely because of the relationship between defendant and his victim. The relationship between the victim and defendant is also not a recognized Yarbough factor. The judge also did not seem to account for defendant's age. He was sixty-four years old when sentenced.

We, therefore, remand for a qualitative analysis of the aggravating and mitigating factors and an explanation of which factors apply to which offenses. We also remand for reconsideration of the consecutive term imposed on count four.

 
In summary, we affirm the guilty verdict rendered by the judge. We remand for the required identifying and qualitative analysis of the aggravating and mitigating factors for each count and reconsideration of the consecutive term on count four. The judgment of conviction must also be corrected to reflect the merger of counts two and three with count one.

N.J.S.A. 2C:43-7.2.

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A-3270-07T4

RECORD IMPOUNDED

April 19, 2010