Opinion
DOCKET NO. A-3432-13T2
08-17-2015
STATE OF NEW JERSEY IN THE INTEREST OF F.A.R., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant F.A.R. (William Welaj, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Lihotz. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-477-13. Joseph E. Krakora, Public Defender, attorney for appellant F.A.R. (William Welaj, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent State of New Jersey (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Juveniles F.A.R. and a co-defendant, J.V., were charged with conduct, which if engaged in by an adult would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and second-degree sexual assault, N.J.S.A. 2C:14-2(b). The two were adjudicated delinquent for the sexual touching and acquitted on the more serious charge.
F.A.R. appeals from the Family Part disposition and an order denying his request for a new trial. On appeal, F.A.R. argues the verdicts were "internally inconsistent" and the evidence was insufficient to prove the adjudication of delinquency beyond a reasonable doubt. We reject these contentions and affirm substantially for the reasons discussed by Judge Joseph L. Marczyk in his ten-page written opinion.
The following facts were elicited during the bench trial, presided over by Judge Marczyk, and are not in dispute. The State presented testimonial evidence from the victim, who at the time of trial, was seventeen years old, and the investigating detective. Neither juvenile presented evidence.
The charges resulted from incidents which began in 2001, when the victim was five. She and her sister played a game with J.V., who was nine or ten. While the victim and J.V. were alone in the bathroom he "made [her] give him oral sex." Upon leaving the bathroom, J.V. nudged the victim as a "sign not to say anything," but she gestured to her sister "with her hand, fingertips, touching her thumb, so that there would be a space between her fingers and . . . making a motion up and down . . . [t]owards her head."
In 2004, the victim saw J.V. at her mother's house and stated he would randomly "touch[] [her] in [her] vaginal area" outside her clothing and "put her hand on his penis," outside his clothing.
In 2006, F.A.R. moved into the home and shared a bedroom with J.V. The victim testified F.A.R. began touching her in "pretty much the same [way] as [J.V.], but oral sex was involved." Although she could not remember with specificity when this illicit sexual conduct started, she testified the touching continued until approximately the fall of 2008.
The victim also described an incident, which occurred sometime after March 2008, when she was twelve and F.A.R. was either sixteen or seventeen. While in a bedroom, the victim stated F.A.R. forcibly held her down, "took off her pants," and attempted to "put his penis in her." However, before F.A.R. was able to get "even half" inside of her, he was interrupted by the return of his stepmother. On further examination and under cross-examination, the victim vacillated on the degree of penetration, and even conceded penetration "didn't happen."
The victim disclosed the assaults to the local police department in June 2011. During the ensuing investigation, the victim provided a taped interview, conducted by the investigating detective. In this first interview, the victim described only assaults perpetrated by J.V. In a subsequent interview conducted a few weeks later, she first revealed the above-described events involving F.A.R.
F.A.R. and J.V. were charged as juveniles with conduct amounting to aggravated sexual assault (count one) and sexual assault (count two). F.A.R. waived his Miranda rights and provided a custodial statement to police denying all allegations.
The State conceded its case was based on the victim's testimony and there was no physical evidence, corroborating interviews with family members, or other witness statements. At the close of the State's case, F.A.R. moved for a judgment of acquittal, which was denied.
On July 25, 2013, F.A.R. and J.V. were adjudicated as delinquent for the sexual touching. Weighing various factors to ascertain credibility, the judge found the victim's testimony regarding the 2004 and 2006 events "very credible," despite her inarticulate recitation and recollection of events. Regarding the remaining allegations, however, the judge concluded the State's evidence was insufficient to prove the claimed sexual acts occurred beyond a reasonable doubt because of the victim's inconsistent testimony describing each event. The judge noted the gesture used by the victim when discussing the 2001 act by J.V. was "unusual" for a five-year-old. He also rejected her testimony regarding the 2008 act of penetration, citing her conflicting statements about what took place.
F.A.R. and J.V. moved for a new trial, arguing the verdicts were "internally inconsistent." In his written opinion denying the motion, the judge reasoned "[s]imply because the court did not believe that there was sufficient evidence as to the aggravated sexual assault charges . . . does not mean that the defendants therefore had to be acquitted of [all] sexual assault claims . . . ." Reviewing the evidence, which the judge found sufficient, he concluded the adjudications did not reflect "a miscarriage of justice" under the law.
The judge ordered F.A.R. serve a non-custodial eighteen-month probationary term along with applicable penalties and assessments. This appeal ensued.
It is well-established the State must prove beyond a reasonable doubt a juvenile committed each element of the offense before he or she may be adjudicated as delinquent. See State ex rel. J.G., 151 N.J. 565, 593-94 (1997). Our examination of a verdict in a non-jury case is limited, requiring only an inquiry as to whether the State satisfied its burden to present "sufficient credible evidence in the record to support the judge's determination." State ex rel R.V., 280 N.J. Super. 118, 120-21 (App. Div. 1995).
The State's evidence rested on the testimony of the victim. In our review of judgment entered following a non-jury trial we defer to the judge's factual findings, especially "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Our obligation to give deference to those findings of the trial judge results because even the best and most accurate transcript "is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried." State v. Locurto, 157 N.J. 463, 472 (1999) (citation and internal quotation marks omitted).
The trial judge's findings, on the other hand, are significantly influenced by "'the opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, a trial judge's factual findings and legal conclusions based on those findings are binding on appeal unless we are convinced they are so manifestly unsupported by or inconsistent with the competent, relevant, and reasonably credible evidence as to offend the interests of justice. See id. at 471; see also State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.), certif. denied, 180 N.J. 453 (2004).
Following our review, we reject F.A.R.'s argument suggesting the trial judge's findings were "illogical," because he found some, but not all of the victim's allegations credible. We determine the adjudication of delinquency was adequately supported by evidence in the record and, therefore, will not be disturbed.
To sustain an adjudication for conduct amounting to a violation of N.J.S.A. 2C:14-2(b), the State must prove: (1) the victim was "less than thirteen years old, (2) [the] defendant-actor . . . [was] at least four years older than the victim, and (3) a sexual contact with a victim under the critical age" occurred. State v. Zeidell, 154 N.J. 417, 428 (1998). Intentional sexual touching encompassed by the statute includes the perpetrator touching himself, touching the victim, or the victim touching the perpetrator. Ibid. To qualify as an intentional touching, the conduct must be for the purpose of "either degrading or humiliating the victim, or sexually arousing or sexually gratifying the defendant-actor." Ibid.
In his bench decision, Judge Marczyk articulated the bases for crediting the victim's testimony regarding F.A.R.'s conduct. Weighing the victim's interest in the outcome, the content of her statements and the accuracy of her recollection, her explanation for delaying disclosure, and his observations of her demeanor on direct and cross examination, the judge was "firmly convinced" the sexual touching spanned a number of years prior to the victim's thirteenth birthday. The judge found F.A.R., who is more than four years older than the victim, touched her "in the vaginal area over her clothes for the purpose of arousing or sexually gratifying himself." Although the judge dismissed the victim's statements regarding the 2001 allegations against J.V., the nonspecific alleged oral sexual contact, or the 2008 alleged act of partial penetration, because the factual assertions were unclear or inconsistent, and, therefore, insufficient to sustain an adjudication, these separate findings do not require a rejection of all testimonial evidence.
As a factfinder, the judge may choose to believe all, some, or none of a witness's testimony. See State v. Wesler, 137 N.J.L. 311, 314 (1948) (holding the factfinder is "not bound to believe testimony of any witness in whole or in part, but [rather] may reject what in their conscientious judgment ought to be rejected and accept that which they believe credible."), aff'd, 1 N.J. 58 (1948). We conclude Judge Marczyk's factual findings, including his credibility assessments of the witness, are supported by the record. Deferring to these findings, we conclude the evidence is sufficient to sustain the adjudication of delinquency beyond a reasonable doubt. See State ex. rel. L.E.W., 239 N.J. Super. 65, 76 (App. Div. 1990), certif. denied, 122 N.J. 144 (1990).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).