Opinion
DOCKET NO. A-3417-13T3
05-14-2015
STATE OF NEW JERSEY IN THE INTEREST OF D.G., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant D.G. (Thomas G. Hand, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Deepa S.Y. Jacobs, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-1813-13. Joseph E. Krakora, Public Defender, attorney for appellant D.G. (Thomas G. Hand, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Deepa S.Y. Jacobs, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
D.G., a juvenile, was adjudicated delinquent for offenses, which if committed by an adult, would constitute aggravated criminal sexual contact, false imprisonment, and harassment. Appellant contends that the determinations of the trial court were against the weight of the evidence. A review of the record and the trial court's thorough and well-reasoned decision establishes that all fact findings were supported by substantial credible evidence and the facts were correctly applied to the law. Consequently, we affirm.
To protect privacy interests and for ease of reading, we will use "appellant" for the juvenile appealing, and initials for some of the other individuals mentioned in this opinion. See R. 1:38-3(a)-(d); R. 5:19-2(b).
The trial testimony establishes the following facts. The offenses occurred on May 22, 2013. At that time, appellant, a male, was thirteen years old. The victim, M.C., was a thirteen-year-old female. Appellant and M.C. were both in eighth grade, attended the same middle school, and had dated briefly a few months before the incident. M.C. testified that on May 22, 2013, she was home alone after school, when appellant and another thirteen-year-old male, G.B., unexpectedly came to her house. According to M.C., appellant and G.B. banged on her door and rang the doorbell repeatedly. Eventually, appellant and G.B. came into M.C.'s home.
M.C. testified that she repeatedly asked appellant and G.B. to leave, but they refused. After a period of time, all three were in the basement watching television. According to M.C., appellant told her "we're not going to leave until you like suck my [penis]" and G.B. added, "Yeah, we're not going to go until you do that." M.C. went on to testify that she became scared and that she told the boys that she would not do what they were asking. M.C. also testified that both appellant and G.B. then came over to where she was sitting on the couch and got into her personal space to the point that she could not get up. According to M.C., both appellant and G.B. started unbuttoning their pants. She went on to testify that appellant forced her to stay on the couch and that appellant touched her breasts over her clothes while G.B. was restraining her hands. Eventually, appellant and G.B. backed off, M.C. ran up to her room, and the boys left.
M.C. did not tell her parents about what happened when they came home on May 22, 2013. She testified that she did tell a friend about the incident later that evening when she was at a band recital.
Several days later on May 28, 2013, school counselors asked M.C. about rumors about certain sexual acts she had allegedly performed on appellant and G.B. M.C. denied performing any act, but she told one of the counselors that the boys had tried to force her to perform fellatio. At the request of the counselor, M.C. then wrote a statement concerning what had happened.
The police were notified and the matter was investigated. As part of that investigation, M.C. was interviewed by the police and she gave another statement.
At trial, neither appellant nor G.B. testified, but they did call J.J., a thirteen-year-old friend, to testify. J.J. testified that he was very good friends with appellant and G.B. and he knew, but was not friends with, M.C. On May 22, 2013, J.J. was with appellant and G.B. when they approached M.C.'s home. According to J.J., appellant rang M.C.'s doorbell and she answered the door. Appellant, G.B. and M.C. then spoke for a few minutes while J.J. sat on the stairs to the porch. J.J. did not pay attention to what they were saying, but he did testify that he heard appellant ask M.C. if they could come in and M.C. said sure. J.J. waited outside for a few minutes and then he decided to walk home. J.J. went on to testify that he never discussed with appellant or G.B. what had occurred inside the home.
On May 29, 2013, appellant and G.B. were charged with delinquency. Appellant was charged with acts, which if committed by an adult, would constitute aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), a third degree crime; terroristic threats, N.J.S.A. 2C:12-3(a), a third degree crime; false imprisonment, N.J.S.A. 2C:13-3, a disorderly persons offense; and criminal trespass, N.J.S.A. 2C:18-3, a fourth degree crime.
A trial was held over two intermittent days in October and November 2013. M.C. and a police detective testified for the State. As already pointed out, appellant and G.B. did not testify. The defense called J.J. to testify. The trial court rendered its verdict on November 7, 2013, and made findings of facts and conclusions of law on the record on that same day. The trial court found appellant delinquent for aggravated criminal sexual contact, harassment (as a lesser included offense of terroristic threats), and false imprisonment. The trial court did not find appellant guilty of criminal trespass. On December 12, 2013, appellant was sentenced to one year of probation and was ordered to register as a sex offender under N.J.S.A. 2C:7-2 ("Megan's Law"), and directed to undergo sexual offender counseling. Appellant was also ordered to have no contact with M.C. and he was directed to pay $105 in assessments.
G.B. was also adjudicated delinquent, but G.B. has not appealed.
On appeal, appellant makes one contention:
THE JUVENILE'S ADJUDICATION OF DELINQUENCY WAS AGAINST THE WEIGHT OF THE EVIDENCE
The weight of the evidence standard is not the appropriate standard to use in a non-jury case. State ex rel. R.V., 280 N.J. Super. 118, 121 (App. Div. 1995) (citing Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989)); see also R. 3:20-1; R. 5:1-1 (stating that juvenile delinquency actions are generally governed by the rules in Part III). Instead, the appropriate "standard [in a non-jury case] is whether there is sufficient credible evidence in the record to support the judge's determination." R.V., supra, 280 N.J. Super. at 120-21 (citing State ex rel. J.R., 165 N.J. Super. 346, 350 (App. Div. 1979)). That standard of review is "narrow." State ex rel. J.P.F., 368 N.J. Super. 24, 31 (App. Div.), certif. denied, 180 N.J. 453 (2004); R.V., supra, 280 N.J. Super. at 121; see also State v. Locurto, 157 N.J. 463, 470-71 (1999) (citation omitted); State v. Barone, 147 N.J. 599, 615-16 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The appellate court "defer[s] to those findings, which are substantially influenced by the [trial] judge's feel of the case." J.P.F., supra, 368 N.J. Super. at 31 (citing Locurto, supra, 157 N.J. at 471); see also State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000).
The trial court made specific findings of facts and credibility. The court then applied those facts to the elements of each offense in rendering the verdict.
The trial court first addressed the issue of criminal trespass and found appellant not guilty. In making that ruling, the trial court did not fully credit or discredit the testimony of M.C. or J.J. concerning how appellant came to enter M.C.'s home. Instead, the trial court found that the truth was "somewhere in the middle" of M.C.'s and J.J.'s testimony. That is, M.C. did not welcome appellant in, but appellant did not force his way into the home. Thus, the trial court found that there was reasonable doubt concerning whether appellant forced his way in and did not find appellant guilty of criminal trespass.
The trial court found M.C.'s testimony to be credible concerning forced restraint and sexual contact. Specifically, the trial judge relied on and found credible M.C.'s testimony concerning appellant and G.B. holding her down, the use of force, and that appellant touched M.C.'s breasts while she was restrained. Consequently, the trial court found appellant guilty of aggravated criminal sexual contact and false imprisonment.
Finally, with regard to the terroristic threat charge, the trial court again found M.C.'s testimony credible as to what appellant stated to her. Specifically, the trial court credited M.C.'s testimony that appellant told her that he was not leaving until she sucked his penis. The judge did not find, however, that that statement by appellant was made with the purpose to terrorize M.C. Instead, the judge found that the statement was harassment.
Our review satisfies us that each of the trial court's findings were based on substantial credible evidence. We are also satisfied that the judge then applied his fact findings to the elements of each of the offenses for which appellant was found to be delinquent.
Appellant argues that the trial court's findings were "nonsensical" because the trial court believed part of M.C.'s testimony, but that testimony was inconsistent with her written statements and testimony by J.J. Appellant also questions M.C.'s credibility and overall reliability by contending that there were inconsistencies in her testimony. None of these arguments are supported by a review of all the trial testimony. The trial court found most, but not all, of M.C.'s testimony credible. A fact finder is not required to accept or reject all of a witness' testimony. Instead, a fact finder can find some of the testimony credible and other parts of the testimony not credible. See State v. Banko, 182 N.J. 44, 57 (2004) ("jury did not have to believe all of the victim's testimony"); State v. Brown, 118 N.J. 595, 618 (1990) (citing State v. Ernst, 32 N.J. 567, 583 (1960)); Model Jury Charge (Criminal), "Credibility of Witnesses" (2014). Moreover, the inconsistencies in M.C.'s testimony that appellant points to are not sufficient to find that the trial court's determination were "fully insupportable as to result in a denial of justice." See Rova Farms Resort, Inc. v. Investor's Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Importantly, the trial court found M.C.'s testimony concerning the elements of aggravated criminal sexual contact, false imprisonment and harassment credible and there is ample evidence to support those findings.
Appellant also contends that the trial court's finding of harassment was erroneous because the court failed to detail what threats appellant made to M.C. The trial judge, however, clearly identified the threat appellant made. Specifically, it was a threat that appellant would force M.C. to perform fellatio on him. The trial court then found that that threat was offensive and caused annoyance. Those findings are well-supported by the record and meet the elements of harassment. See N.J.S.A. 2C:33-4.
In conclusion, having reviewed all of the arguments made by appellant, and having reviewed the trial testimony and the findings made by the trial judge, we find no basis for reversal and we, therefore, affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION