STATE OF NEW JERSEY IN THE INTEREST OF E.B.

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NOT FOR PUBLICATION WITHOUT THE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 E.B.

________________________________________________________________

May 21, 2014

Argued October 29, 2013 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-787-11.

Scott E. Becker argued the cause for appellant E.B.

John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief).

PER CURIAM

E.B. (Eddie)1 appeals from juvenile adjudications finding him guilty of offenses which, if committed by an adult, would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). He argues that the trial court erred in admitting a videotaped statement of the alleged victim into evidence pursuant to the tender years exception, N.J.R.E. 803(c)(27), and that the evidence was insufficient to prove his guilt beyond a reasonable doubt. We affirm.

I

Eddie's mother, T.M. (Tess), and Q.M. (Qiana) were best friends. On September 19, 2010, Tess dropped off her fourteen-year-old son, Eddie, and another friend of hers, Candida Morton, at Qiana's home. Eddie played video games with Qiana's four-year-old son, K.T. (Kyle), and then the two of them continued to play outside.

There came a time when Qiana did not hear them playing. She called out to her son twice and received no response. Shortly thereafter, Kyle came running up to the house. Qiana asked him where he had been. Kyle answered he was back behind the shed. Qiana testified that she was angry and said, "What was you doing behind the shed? You know we don't use that shed. The electricity is wrong and what was you doing back there . . . ." Kyle said that he was playing hide and seek. Qiana told him, "You all stay from back, back from behind the shed."

Later, after Tess picked up Eddie, Qiana again asked Kyle what he was doing behind the shed. She stated that "he started to act funny" as she continued to ask him what he was doing. Kyle said that Eddie "pulled [his] pants" and that he did not want Qiana to get mad. Qiana started crying and assured him she would not get mad, that he should "just tell [her] what happened." Kyle repeated that Eddie pulled his pants down. Qiana asked what happened next. Kyle told her that Eddie touched him all over and, after demonstrating, told Qiana, "[H]e put it in my butt." Kyle told Qiana that he was turned up against the fence and Eddie was shaking.

Qiana called Tess and told her to return to the house with Eddie. When Kyle was unwilling to repeat his statements to Tess, Qiana told her what Kyle had said earlier. Tess started screaming and crying and yelling at Eddie. Qiana asked Eddie what happened and described their conversation:

He said, "Nothing, nothing happened, but you all ain't going to believe me anyway." I said, "He's not saying all this for nothing. [Eddie], what happened?" He said, "When we were out there we were playing hide and seek. He said let me show you something. We went behind the shed and he mooned me." And I say, "He doesn't even know what mooning is." And his mom said the same thing.

Kyle was in his room, crying and unwilling to tell Tess what happened.

The next morning, Qiana asked Kyle again what had happened. She testified, "Like he told me the same exact thing that happened, but this time he told me that [Eddie] put his pee pee in his mouth. He held the back [of] his head, told him to count to ten, and to do it like a lollipop." She called Tess, and the two of them cried on the phone. Qiana subsequently went to the police department to report what had occurred.

Detective John P. Kelly of the Galloway Township Police Department conducted a videotaped interview of Kyle. In his findings, the trial judge described the interview as follows:

[Kyle] was alone with Detective Kelly. There was no one around to influence what he was saying or telling him what to say. The questioning by Detective Kelly was not questions that were directing him to any answer. The way that he was questioned left it open for him to, to provide his own answer.

Kelly asked Kyle the names of the persons he lived with, the words he used to identify certain body parts, and about "touches" he liked or disliked. Throughout the interview, Kyle was engaged, volunteering general information, and eager to participate in drawing on the board. For some time, he deflected questions as to whether there was any part of his body that someone should not touch and whether anyone had touched him in a way he did not like. Kelly then asked him if he remembered that when they came into the interview room, he asked Kyle about telling the truth. Kelly asked Kyle what he had said about telling the truth. Kyle then stated that Eddie had put his "pee pee" in his mouth, held him by the back of the head and told him to "count to ten and do it like a lollipop." He also said that Eddie had put it in his "butt."

Kyle also testified at trial. Although there were inconsistencies in his testimony, he did repeat the statements he made regarding Eddie's conduct. In addition, when asked about what he saw, Kyle described Eddie's penis, stating it was larger than his, was black, and had hair around it.

Candida Morton testified on behalf of Eddie. She stated she saw Eddie as he came from behind the shed and that he appeared to be texting on his cell phone.

Tess testified that she had loaned Qiana $1600 and that $800 of that amount remained unpaid. She also stated that when she returned to Qiana's house, she observed Qiana and Kyle's father pressuring Kyle to tell what happened, threatening him that he would get his "ass beat" if he did not tell her what happened. Tess said that Kyle was being questioned by the three adults present but that Kyle did not disclose any facts.

Eddie testified that on the day in question, he played video games with Kyle and then went outside with him, where they played soccer and ran around, eventually playing hide and seek. He stated that, in one of the games, he hid behind the shed and was texting a girlfriend while waiting to be found. Eddie testified that, after finding him, Kyle asked if he wanted to see something and then pulled his pants down, "mooning" him. Eddie told Kyle to pull his pants up. When Kyle's mother called him, Kyle ran to her with his pants halfway down. He denied putting his penis into Kyle's mouth or anywhere near his butt or taking his pants down.

The trial judge found Kyle to be credible. He noted that, when testifying, Kyle was "typical of a four-year-old about some things such as time frames and that kind of thing he was kind of all over the place." But, as to the "salient" issues, the judge found Kyle to be "very straightforward." The judge also found it "typical[] of a young person his age" that "he testified about salient events in a rather matter-of-fact way because he recalled them as things that had occurred to him." The judge also found it typical of Kyle's age that he focused on the fact that Eddie "lied" in telling Kyle he should tell his mother they had been playing hide and seek. The judge also found Qiana to be credible, despite the attack on her credibility based upon an unpaid debt to Tess, noting it was undisputed that Qiana and Tess were best friends and that Qiana had no motive to fabricate the allegation. The judge described the testimony of Morton and Tess as "essentially circumstantial." Having found Kyle's testimony to be credible, the judge discounted Eddie's testimony, which was "diametrically opposed" to that of Kyle. The judge therefore concluded that the State had proven the charges against Eddie beyond a reasonable doubt. The judge imposed and suspended a sentence of three years at a juvenile facility, placing Eddie on probation for two years with the requirements that he complete outpatient therapy, have no contact with Kyle, and no unsupervised contact with any children under the age of thirteen.

II

Eddie first argues that the trial judge erred in admitting the videotaped interview of Kyle under the tender years exception to the hearsay rule. Pursuant to N.J.R.E. 803(c)(27), Kyle's statement was admissible in this judicial proceeding if, after appropriate notice,

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 . . . the child testifies at the proceeding . . . .

In determining whether a child's statement meets the standard of trustworthiness, the judge should consider "the totality of the circumstances." State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). Factors relevant to this consideration include "spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate." State v. P.S., 202 N.J. 232, 249 (2010) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)); see also State v. Michaels, 136 N.J. 299, 309 (1994) (noting the capacity of certain factors to undermine the reliability of a child's statement, e.g., "lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements.")

After viewing the videotape, the trial judge observed that Kyle had been spontaneous and childlike in his responses; that Detective Kelly had not asked leading questions; that Kyle had volunteered the information about Eddie's conduct behind the shed "of his own accord" and in an answer that was not responsive to the question that had been asked. The judge saw no factors present that undermined the reliability of Kyle's statement to Detective Kelly.2

Eddie argues that Kyle's statement is suspect because he was placed under pressure for almost three days before giving the recorded statement to the police and that at least some of his statements were initiated by Qiana. It was freely admitted by Qiana that she questioned Kyle repeatedly about what happened and that she told Kyle that Eddie would go to jail, a fact he referenced in his interview. However, there is no evidence that she implanted in Kyle's mind the notion that sexual abuse had occurred or suggested any details of the abuse to him.

Our review of a trial judge's finding that a child's statement meets the trustworthiness requirement of N.J.R.E. 803(c)(27) is subject to an abuse of discretion standard. State v. Nyhammer, 197 N.J. 383, 411, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). We will not disturb that determination "unless, after considering the record and giving the deference owed to the court's credibility findings, it is apparent that the finding is 'clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" P.S., supra, 202 N.J. at 250-51 (alteration in original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We discern no abuse of discretion here.

III

Eddie also argues that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. This argument lacks sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2).

As the trial judge stated, the factfinding here depended largely upon an evaluation of the witnesses' credibility. Most notably, the versions of events presented by Kyle and Eddie were "diametrically opposed." The judge gave specific reasons for his conclusion that Kyle was credible and for discounting Eddie's version of events. While Eddie argues that Kyle's testimony should not be accepted as credible, he does not dispute that, if believed, Kyle's testimony supported a finding of guilt on both charges.

Affirmed.

1 We use fictitious names to protect the identity of the minors.

2 Although it would have been preferable for the trial judge to make specific findings as to whether the standard set forth in N.J.R.E. 803(c)(27), his comments are sufficient for us to understand the conclusions he drew regarding relevant factors and the trustworthiness of Kyle's videotaped statement.