STATE OF NEW JERSEY IN THE INTEREST OF S.M.I.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4222-10T2

STATE OF NEW JERSEY

IN THE INTEREST OF S.M.I.

_______________________________________

April 27, 2012

Submitted March 5, 2012 - Decided

Before Judges A. A. Rodr guez, Ashrafi and

Fasciale.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Atlantic

County, Docket No. FJ-01-209-11.

Joseph E. Krakora, Public Defender, attorney

for appellant S.M.I. (Ruth Bove Carlucci, Assistant Deputy Public Defender, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Richard E. McKelvey, Assistant Prosecutor, on the brief).

PER CURIAM

Juvenile S.M.I. appeals from an adjudication of delinquency on a charge that, if committed by an adult, would constitute second-degree sexual assault, N.J.S.A. 2C:14-2c(1). He argues that the State failed to prove beyond a reasonable doubt that he engaged in sexual intercourse through force or coercion with a thirteen-year-old girl and that the adjudication of guilt was against the weight of the evidence. We have reviewed the record and now affirm.

The juvenile was originally charged with the first-degree offenses of kidnapping, N.J.S.A. 2C:13-1b(1), and aggravated sexual assault, N.J.S.A. 2C:14-2a(3). The State alleged that the juvenile, then sixteen years old, confined the girl against her will in her own house and had sexual intercourse with her without her consent. At a trial conducted on four dates in November and December 2010, the State presented testimony from five witnesses including the girl, and the defense presented testimony from six witnesses including the juvenile. Several of the witnesses were teenage acquaintances and relatives of the girl and the juvenile, but there were no eyewitnesses to the incident. The girl's testimony was crucial to prove the circumstances of the sexual activity.

The juvenile and the girl lived on the same street. The girl testified that she first met him on the date of the alleged sexual assault. However, the juvenile and other witnesses testified that the two were previously acquainted, albeit only for a few days or weeks. The girl testified that in the late afternoon of July 18, 2010, the juvenile came to her door when she was home alone. She did not invite him in, but she did not stop him from stepping into the house, and later from following her upstairs to her bedroom. She testified that she told him he must leave because her father would soon arrive home from work and would be displeased with his presence in the house, but the juvenile did not leave.

In the bedroom, according to the girl, the juvenile pressed her for sexual activity, telling her that she was pretty and similar words of flattery. She told him several times and in different ways that she did not want to engage in sexual activity with him and that she was concerned about her father coming home and finding them. He persisted, not accepting her declinations. At one point, she left the bedroom and went downstairs to use a bathroom but then returned to the bedroom because she did not want to leave the juvenile alone in her house.

According to the girl, the juvenile undressed himself and her and engaged in several forms of sexual activity short of intercourse. She did not resist him physically, but she attempted to communicate her discomfort verbally and through passive failure to cooperate with his conduct. She testified that she told him several times that she was too young and did not want to do the things he was doing or suggesting. The juvenile continued to pursue his aims. He lay on top of her, holding her wrists above her head, and eventually he penetrated her in sexual intercourse, using a condom.

After he left, the girl's father came home and saw a mark on her neck, raising his suspicions. The sexual conduct was revealed more directly by the girl herself to her friends. Immediately after the incident, she communicated with friends in person or by means of text messages such that the incident became known within her circle within a matter of days. The parents also obtained information leading them to suspect that their daughter had been involved sexually with the juvenile and possibly another boy. Eight days after the incident, the girl's father and grandmother took her to the police station, where she gave a statement accusing the juvenile of sexually assaulting her.

The witnesses at trial gave testimony that was potentially relevant to the veracity of the girl's accusation. For example, the girl's mother testified that she confronted the juvenile and he admitted he had engaged in sexual intercourse with her daughter. The girl's father testified that he confronted both the juvenile and the other boy and that the other boy admitted romantic conduct but no sexual impropriety while the juvenile denied his accusations. The several teenage relatives and acquaintances provided testimony about the prior acquaintance of the juvenile and the girl, her relationship with the other boy, and the activities of the teenage group on or near the date of the incident. The other boy testified, and he produced photographs taken of two text messages on his cell phone that the juvenile had sent him after the date of the incident. The text messages demanded that he take responsibility for sexual conduct with the girl but arguably suggested admission of guilt by the juvenile.

The State had no forensic evidence of a sexual assault, apparently because the police only learned about the incident eight days after it occurred, and also because the juvenile had allegedly used a condom, thus making it unlikely that his DNA could be recovered from bedding or clothing.

At the end of the State's case, the judge granted the juvenile's motion to dismiss the first-degree charges of kidnapping and aggravated sexual assault. The judge denied defendant's motion to dismiss a second-degree charge of sexual assault.

In his testimony, the juvenile denied outright that he had engaged in any sexual conduct with the girl and, in fact, denied that he had been to her house.

At the end of all testimony, the judge found the juvenile guilty of the second-degree charge. The judge evaluated the testimony in detail, focusing most prominently on the opposing versions of the girl and the juvenile. While finding that the girl was not truthful in all respects as to the relationships she had with the group of teenagers and her conduct near the time of the incident, the judge found that her testimony about the incident itself was credible. The judge understood the elements of sexual assault, and he explained why the testimony was sufficient to prove beyond a reasonable doubt that the juvenile forced and coerced the girl into having sexual intercourse and other sexual conduct.

At a disposition hearing, the judge imposed a term of three years at the Training School for Boys but suspended the term on condition that the juvenile successfully complete two years of probation and complete the Capital Academy Program.

The sexual assault statute provides in relevant part:

An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury.

[N.J.S.A. 2C:14-2c.]

To sustain a charge of second-degree sexual assault under this statute, the State must prove the following essential elements:

1. That [the juvenile] committed an act of sexual penetration with another person.

2. That [the juvenile] acted knowingly.

3. That [the juvenile] used physical force or coercion.

4. That the victim did not sustain severe personal injury.

[Model Jury Charge (Criminal), "Sexual Assault (Force/Coercion)" (2005).]

The juvenile argues the State did not prove beyond a reasonable doubt that he engaged in sexual activity through force or coercion. He contends that the evidence was insufficient to refute his reasonable belief that the girl had consented to the sexual activity. He also contends that the judge s decision on the element of force and coercion was against the weight of the evidence.

"The weight of the evidence argument only applies to jury trials." State in the Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995) (citing Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989); R. 3:20-1; R. 5:1-1). In a non-jury trial, "[t]he standard is whether there is sufficient credible evidence in the record to support the judge's determination." Id. at 120 21.

We exercise a limited scope of review from a trial judge s findings of fact and the conclusions that flow from those findings. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). We must give due regard to the trial judge's credibility determinations based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Appellate courts accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13; State in the Interest of X.B., 402 N.J. Super. 23, 29 (App. Div.), certif. denied, 196 N.J. 601 (2008).

The judge explained, and both sides agree, that the controlling case as to sufficient evidence of physical force or coercion is State in the Interest of M.T.S., 129 N.J. 422 (1992). In M.T.S., the Supreme Court equated "physical force" in the sexual offense statutes with an act of sexual contact or penetration and the absence of affirmative and freely-given consent by the alleged victim. Id. at 444; see State v. Lee, 417 N.J. Super. 219, 223-24 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). The Court held that the State was not required to prove physical force "extrinsic to the sexual act." M.T.S., supra, 129 N.J. at 444. The State satisfies its burden if it proves that the other person did not affirmatively consent to the sexual conduct. Ibid.

The juvenile emphasizes that the State bears the burden of proving force or coercion beyond a reasonable doubt. He quotes the following passage from M.T.S. as particularly relevant to this case and in support of his contention that the State did not meet its burden of proof with the evidence it presented:

In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant's act of penetration was undertaken in circumstances that led the defendant reasonably to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.

[Id. at 447-48.1]

Here, the juvenile argues that the mixed messages communicated by the girl led him to believe reasonably that she was a willing sexual partner. His reasonable belief arose from her allowing him into her house and bedroom, kissing him, returning to the bedroom after she left to use the bathroom, and staying when she had multiple opportunities to leave or to order him out of her house. The juvenile argues that the girl never attempted to stop his conduct, which together with the ambivalence of her communications and conduct caused him to believe that her only concern was her father coming home and not the sexual activity itself.

We discern no error in the Family Part judge s rejection of the juvenile's factual argument. The evidence permitted the judge to find that the girl said "no" a number of times, but the juvenile would not cease his efforts. The judge concluded that the juvenile's persistence amounted to coercion in the circumstances of this case, and that the State proved that the girl did not voluntarily consent. As the trial judge said: "the bottom line . . . is that no means no."

Additionally, the evidence permitted a finding of extrinsic physical force in that the juvenile, significantly bigger than the girl, lay on top of her and held her wrists, thus causing her to believe, according to her testimony as credited by the judge, that she was under his control and had no recourse.

We conclude the evidence was sufficient for a finding beyond a reasonable doubt that the sexual penetration occurred through the use of force and coercion as those terms were defined in M.T.S.

1 The juvenile has not argued that M.T.S. unconstitutionally imposed a burden on the defense beyond that which is established by the New Jersey Code of Criminal Justice when it required proof from the defense that consent to a sexual act be affirmatively given as opposed to the victim's acquiescence being offered by the defense as evidence of consent under N.J.S.A. 2C:2-10.