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In re State ex rel. E.A.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 27, 2016
DOCKET NO. A-3594-14T3 (App. Div. Dec. 27, 2016)

Opinion

DOCKET NO. A-3594-14T3

12-27-2016

STATE OF NEW JERSEY IN THE INTEREST OF E.A.C., a juvenile.

Joseph E. Krakora, Public Defender, attorney for appellant E.A.C. (Alison Perrone, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Eric P. Knowles, Assistant Prosecutor, on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Espinosa and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1325-14. Joseph E. Krakora, Public Defender, attorney for appellant E.A.C. (Alison Perrone, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Eric P. Knowles, Assistant Prosecutor, on the brief). PER CURIAM

E.A.C. was adjudicated delinquent for committing an act that would equate with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), upon his nine-year-old male cousin, F.S., when E.A.C. was sixteen years old. In his appeal, he argues the adjudication must be reversed because the evidence, which included inconsistent statements by F.S., was insufficient to establish guilt beyond a reasonable doubt. We affirm.

The charges arose from an incident that occurred at F.S.'s home in November 2013. The inconsistencies are found in the three descriptions of the events given by F.S.: to the investigating detective, to his mother and in his testimony.

F.S. described the incident to the investigating detective as follows. E.A.C. told F.S. to pull down his pants and his underwear. E.A.C. "entered his part in my butt," "at the end he started to put it more in" and "[i]t hurt a little bit." F.S. then got "aggressive" and pushed E.A.C., and E.A.C. said "don't tell nobody or I'm gonna hit you." E.A.C. then "wanted me to put his part into my mouth but I said no I'm tired of this game." E.A.C. rubbed his penis against F.S.'s lips but F.S. stated several times that it never went inside his mouth.

F.S. refers to a penis as a "part." --------

R.S., the victim's mother, testified about the account she received from F.S. in March 2014, when they were in Peru. F.S. started crying and said "he didn't want [E.A.C.] to go near the house because he said that he thinks [E.A.C.] is gay . . . ." R.S. stated F.S. then reported to her that E.A.C. "lowered his pants and that he put his part in my -- my son's thing." F.S. told R.S. that E.A.C. "didn't penetrate it deep inside but he put it -- put his part against his part." She then clarified that F.S. said E.A.C. "had put his part inside but not the whole thing." F.S. told her "when he felt that pain, he pushed [E.A.C.] and that's when he started saying not to say anything. My son also said that [E.A.C.] had had his penis against his mouth, that he also had passed it along his face -- pressed it along his face." When R.S. asked F.S. why he did not say something the moment it happened, F.S. "said that if he had told someone that [E.A.C.] would do something to him, that he shouldn't say anything to anybody. And after that [E.A.C.] didn't go back to my house."

R.S. also testified that F.S.'s behavior changed between November 2013 and March 2014. She explained that F.S. "was quiet, he didn't want to sleep alone. He would come crying to my bedroom and I would ask him what was wrong but I just assumed he was jealous of my other son."

F.S.'s testimony can be summarized as follows: E.A.C. "said that we were going to play a game and he entered his part into my butt." F.S. confirmed it went inside, though "[n]ot too far," and stated it lasted "two or three minutes" and hurt. He testified that "only half" of E.A.C.'s penis went inside. He knew this because he "felt it didn't go all the way in." F.S. said E.A.C. "stopped and then told me to get down on my knees and he took his part out and put it inside my mouth," and touched the tip of his tongue. F.S. pushed E.A.C. and told him to stop. E.A.C. said, "Don't tell nobody, it's just a game or else," which F.S. understood to mean "he was going to hit me or something."

F.S. testified he told his mother because he was "[d]epressed," thought he was "doing something wrong," and "couldn't keep it a secret anymore." He told her while they were in Peru, and, when asked how he felt about returning to the United States and seeing E.A.C., he explained: "I felt scared that he might do something to me . . . [b]ecause he told me don't tell nobody or else." He explained that E.A.C. came to his house "every two weeks" before November 2013 but did not come back after these events occurred.

In making his findings, the trial judge carefully reviewed the inconsistencies in the statements F.S. made to his mother, to the investigating detective and in his testimony. He deemed the most significant inconsistency to concern whether E.A.C.'s penis entered F.S.'s mouth and touched his tongue, as he testified in court, or whether it only touched his lips as he had reported to the detective. The judge also noted other inconsistencies he deemed less significant, such as what video games the two were playing. Nonetheless, he found F.S.'s testimony "as to the anal penetration . . . believable." He noted F.S.'s testimony and statements to his mother and the detective were "sufficiently consistent throughout" to prove beyond a reasonable doubt that E.A.C. committed an act of anal penetration upon F.S. at a time when F.S. was nine years old. The judge observed there was corroboration for this conclusion in the change in F.S.'s demeanor and relationship with E.A.C. after the incident; that "where [E.A.C.] had been a somewhat regular visitor to [F.S.'s] home, [he] stopped going there and the day before his birthday [F.S.] told his mother that he did not want [E.A.C.] at his party."

Our scope of review of a judge's findings in a non-jury trial is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). We determine whether the record contains sufficient, credible evidence to support the judgment, giving special deference to a trial judge's factual findings that are substantially influenced by the judge's opportunity to observe the witnesses directly. State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 616 (App. Div. 2006); Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 84 (App. Div. 1997). In determining whether such credible evidence exists, we pay substantial deference to credibility determinations made by the trial judge. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Barone, 147 N.J. 599, 615 (1997).

In this case, it is evident that, if believed, F.S.'s testimony was sufficient to establish the essential elements of a violation of N.J.S.A. 2C:14-2(a). The trial judge found his testimony was credible, that it was consistent with respect to the salient facts and had corroboration in the actions taken by E.A.C. and F.S. thereafter. We find no reason to disturb the trial judge's conclusion that the offense alleged was proven beyond a reasonable doubt.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

In re State ex rel. E.A.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 27, 2016
DOCKET NO. A-3594-14T3 (App. Div. Dec. 27, 2016)
Case details for

In re State ex rel. E.A.C.

Case Details

Full title:STATE OF NEW JERSEY IN THE INTEREST OF E.A.C., a juvenile.

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 27, 2016

Citations

DOCKET NO. A-3594-14T3 (App. Div. Dec. 27, 2016)