State v. B.D., 081717 NJSUP, A-3999-14T1

Docket Nº:A-3999-14T1
Opinion Judge:PER CURIAM.
Party Name:STATE OF NEW JERSEY, Plaintiff-Respondent, v. B.D., JR., Defendant-Appellant.
Attorney:Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Marianne V. Morroni, Assistant Prosecutor, of counsel and on the brief).
Judge Panel:Before Judges Reisner and Sumners.
Case Date:August 17, 2017
Court:Superior Court of New Jersey
 
FREE EXCERPT

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

B.D., JR., Defendant-Appellant.

No. A-3999-14T1

Superior Court of New Jersey, Appellate Division

August 17, 2017

         NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

          Submitted January 10, 2017

         On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 1405-0334.

          Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

          John T. Lenahan, Salem County Prosecutor, attorney for respondent (Marianne V. Morroni, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Reisner and Sumners.

          PER CURIAM.

         A jury found defendant B.D., Jr.1 guilty of committing first-degree aggravated sexual assault, N.J.S.A 2C:14-2(a), against his daughter, S.D., between 1987 and 1993, while she was under the age of thirteen. Defendant appeals from the judgment of conviction and his fifteen-year prison sentence subject to five years of parole ineligibility. After reviewing the record in light of the applicable law, we affirm both the conviction and the sentence.

         I.

         At a Rule 104 (a) fresh complaint hearing, Be.D., defendant's wife and S.D.'s stepmother, testified that in May 1997, S.D. told her about the years of sexual abuse she suffered from defendant. Be.D. also testified as to the context in which the disclosure occurred. Be.D. recalled cutting short an out-of-town trip after defendant telephoned her to tell her that S.D., sixteen years old at the time, had run away from home. Before finding S.D., Be.D. was able to reach her on the phone. S.D., hysterical and crying, told Be.D. that she ran away from home because defendant failed to heed S.D's warning not to peek at her when she was in the bathroom.

         After Be.D. located S.D., she drove her to school, and during the drive, S.D. revealed details about defendant's sexual abuse over the course of many years. Again, S.D. was very emotional. She told Be.D. that defendant liked her to dress up and wear high heels, and that they engaged in oral sex. She also described a scar on defendant's penis and alleged that he digitally penetrated her anus and vagina. S.D. also showed Be.D. that she had been cutting herself, "because she felt [the abuse] was her fault."

         When Be.D. and S.D. arrived at school, defendant was in the parking lot and tried to get S.D. into his car. Be.D. testified that S.D. refused, and was "hysterical[, ] crying and, you know, screaming, 'Don't let him get me; don't let him get me.'" About a week later, Be.D. separated from defendant by moving out of their home, with S.D. and her younger brother, B.D., joining her.

         The trial judge held that Be.D.'s testimony was admissible as fresh complaint evidence based upon consideration of: the nature, time, and place of the complaint; S.D.'s age at the time of the complaint; the circumstances under which she made the complaint; the complaint was against her father; S.D.'s conduct at the time of her complaint; and the proofs S.D. offered to her stepmother. As for the time it took S.D. to eventually reveal the abuse, the judge reasoned: One, [] the victim remained in the defendant's home; two, the defendant threatened her; and three, [] he continued to abuse her in Tennessee2 throughout this time as she is maturing, until she finally reaches the age of approximately 16 and indicates . . . to her stepmother that she had had enough . . . [T]hose factors are [] often discussed in our case law. And I would suggest that they adequately explain the delay. And what I mean by 'delay' . . . I want to make sure I'm pretty specific - there was no delay at least on the facts that I've gotten. . . . this isn't a situation where the conduct stopped and five years later the victim made an allegation.

         At trial, S.D., then thirty-two years old, testified regarding her parents' separation, and living with her brother, defendant and Be.D. According to S.D., defendant's physical and sexual assault began when she was between the ages of three and five years old. When she was six, defendant was performing oral sex on her, forcing her to perform oral sex on him, making her watch pornographic movies in order to emulate what the women were doing in those movies, and coercing her to get naked so that he could suck on her toes, kiss every part of her body and ejaculate on her. S.D. described, in detail, a scar on defendant's penis that he told her occurred when he was a child. Defendant made her pay particular attention to the scar during oral sex because it was sensitive. S.D. also testified that defendant digitally penetrated her vaginally and anally, and attempted to penetrate her vaginally with his penis on numerous occasions.

         S.D. testified that, at age seven, defendant was abusing her, "several times a week to every day and sometimes more than once a day, " depending on when defendant's job took him away from home. Although S.D. had doctor's appointments while growing up, she did not disclose the abuse, and she did not have any vaginal exams that could have exposed sexual activity.

         When defendant wanted to have sex with S.D., he would wait until Be.D. and her brother were not home, and then lock the door. If S.D.'s brother did not accompany their stepmother when she left the house, defendant would send him outside to do chores. There were also times that defendant would take S.D. to a "house behind the property that he was caretaker of" to abuse her. When defendant could not get Be.D. and her brother out of the house, he would take S.D. on rides in his car and force her to perform oral sex on him in the car. If a car passed by with a driver who could see inside their vehicle, defendant would slap S.D.'s head away so no one could see what they were doing. Additionally, when defendant worked driving an 18-wheeler tractor-trailer, he would sometimes take S.D. with him, then force her to look at pornographic magazines and engage in oral sex.

         If S.D. refused to have sex, defendant would choke her, threaten her and her brother...

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