State v. D.F.W.

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.F.W.,^[1] Defendant-Appellant.

No. A-2238-21

Superior Court of New Jersey, Appellate Division

October 29, 2024

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.

Submitted October 2, 2024

On appeal from the Superior Court of New Jersey, Law Division Camden County, Indictment No. 20-01-0101.

Jennifer Nicole Selletti, Public Defender, attorney for appellant (John P. Flynn, Assistant Deputy Public Defender, of counsel and on the briefs).

Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Maura M. Sullivan, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Mayer and Rose.

PER CURIAM

Defendant D.F.W. appeals from a February 15, 2022 judgment of conviction for sexually assaulting his stepdaughter, J.H and other related offenses. In the alternative, he argues the trial court improperly double-counted elements of the offense in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1). We affirm the convictions and sentence.

We recite the facts from the trial testimony. In the fall of 2017, J.H. was fourteen years old and lived with her mother, C.W., two younger sisters, K.H. and J.W., and defendant. J.H.'s mother worked two different jobs-a day job and an overnight job. Because C.W. worked outside the home, defendant cared for the girls.

On November 28, 2017, while at school, K.H. told some classmates about an "inappropriate" incident between J.H. and defendant when C.W. was not home. One of K.H.'s classmates told a teacher. The teacher reported the statement to the school's administrative staff. The school's administrative staff contacted the Division of Child Protection and Permanency (Division).

The same day, the Division visited J.H.'s home. A Division case worker first spoke with K.H. and then spoke to J.H. The case worker included C.W. in the conversation. J.H. revealed defendant sexually assaulted her.

After speaking with the Division's case worker, J.H., her two younger sisters, and her mother were interviewed at the Camden County Prosecutor's Office (CCPO). At the CCPO, J.H. spoke to a detective about defendant's sexual assaults. J.H.'s trial testimony about defendant's sexual abuse mirrored her statements to the detective. We summarize J.H.'s statements to the CCPO detective.

J.H. stated the first time something occurred between her and defendant was when she was between eleven and twelve years old. According to J.H., the assault occurred on a June afternoon when she and her two sisters were home with defendant and her mother was at work. J.H. said the sisters decided to play doctor and defendant indicated he wanted to play too.

Defendant then told J.H. that because she was the "oldest," she would be the first "patient." Defendant led J.H. to the marital bedroom. J.H.'s sisters remained in their bedroom. When J.H. entered the marital bedroom, defendant instructed J.H. to remove her clothes. Defendant left the room and closed the door. J.H. did as defendant requested but did not remove her undergarments.

When defendant returned to the marital bedroom, he instructed J.H. to take off her underwear and bra. Defendant again left the marital bedroom while J.H. removed those garments. J.H. stated she was afraid that if she did not do as she was told, she would "get whooped."

Shortly thereafter, defendant reentered the marital bedroom, removed his pants, and began touching J.H. According to J.H., defendant grabbed her wrist, told her to place her hand on his penis and move her hand "up and down." J.H. tried to pull her hand away, but defendant held her wrist.

J.H. estimated the incident lasted "three minutes." When it was over, she dressed and left the marital bedroom. According to J.H., a "few hours "after this incident, she told K.H. what had happened because her sister "asked." K.H. was seven years old at the time.

J.H. stated she spoke to K.H. approximately "five" more times about incidents between her and defendant. Each time, J.H. became emotional. However, J.H. never told C.W. about the incidents. J.H. explained she did not disclose the incidents to her mother because C.W. and defendant argued frequently, "were already going through their own stuff," and J.H. "didn't want to make it worse."

The second incident between J.H. and defendant occurred about one month after the first incident. J.H. was twelve years old at the time. On that day, J.H. went into the marital bedroom because she wanted to play video games. The video games were available only on her parents' bedroom television.

Defendant was on the telephone when J.H. entered the marital bedroom. While on the phone, defendant touched J.H. "on the top of [her] boobs." When defendant got off the telephone, he "touched [her] boobs again and then he touched [her] vagina." Defendant told J.H. to close the door and take off her clothes. Once J.H. was naked, defendant "continued to touch [her] vagina" and pulled out his penis. J.H. "put [her] mouth on [his penis]" and "a white substance" discharged from defendant's penis. After, J.H. grabbed her clothes and dressed. She then went into the bathroom to spit in the toilet. After the second incident, J.H. estimated defendant put his penis in her mouth about "forty" times between 2015 and 2017.

J.H. also told the detective that when she was between thirteen and fourteen years old, defendant would assault her at least "three days out of the week" and, as time went on, the assaults were more "frequent" and "more extreme." J.H. also stated that, when she was fourteen, defendant's penis would touch her anus "a few times," with defendant using "Vaseline" or "slippery stuff." At that time, J.H. testified the assaults happened "four days" a week.

Defendant's last sexual assault of J.H. took place on Thanksgiving 2017. J.H. stated she was in the kitchen, cleaning up after dinner, when defendant came up behind her and put his hands "under [her] shirt and on [her] boobs." J.H. walked away, went to her bedroom, dressed in her pajamas, and tried to sleep. Because she was unable to sleep, J.H. went into the living room where defendant sat watching television.

J.H. explained she "wasn't allowed to sit on the couch," so she sat on the floor. To avoid "ruin[ing her] eyes," J.H. sat further away from the television and between defendant's legs. Defendant then touched her, both over and under her clothes. J.H. said her clothes were removed and defendant retrieved a blue towel,^[2] which he placed on the living room floor. Defendant told J.H. to lie on the towel. Defendant then undressed and placed J.H. on "all fours." While she was on all fours, defendant started "running his penis . . . underneath [her] vagina" and "kept feeling [her] boobs." At that point, K.H. entered the living room, complaining she was sick. Defendant yelled at K.H. to return to her bedroom and K.H. complied. Defendant then told J.H. to go into the marital bedroom. J.H. did as she was told but dressed first.

Defendant, still naked, followed J.H. into the marital bedroom, and placed the same blue towel on the floor. However, this time defendant laid on the towel and told J.H. to put her mouth on his penis.

Defendant resumed touching J.H., and she said her clothes came off. J.H. moved to all fours and a "white substance" discharged from defendant's penis. J.H. said some of the substance went "on the blue towel," "on [her] back," and "on the floor." Following this incident, J.H. showered and placed her clothes in the hamper. J.H. placed her underwear near the bottom of the hamper because she did not want her mother "to see it."

J.H.'s interview with the CCPO detective lasted about one hour. The CCPO detective then took statements from C.W. and J.H.'s two sisters.

Following the interviews, the CCPO filed charges against defendant. Defendant turned himself in the same day. The CCPO detective spoke with the defendant, who denied the allegations. The detective also obtained a buccal swab sample from defendant.

After her interview at the CCPO, J.H. went to the local hospital where she was examined by a sexual assault nurse examiner. The nurse could not complete the examination because J.H. became "[in]consolable and began thrashing around" when the nurse attempted to obtain a cervical swab. As part of the examination, the nurse noted J.H. had no physical injuries.

On December 1, 2017, Dr. Martin A. Finkle, who provided expert testimony for the State at defendant's trial, examined J.H. Dr. Finkle was the "founder and medical director of the CARES Institute."^[3] He described the CARES Institute's function as follows:

[The] CARES Institute is a diagnostic and treatment center for children w[h]ere there is concern that they might be experienc[ing] any and all forms of child maltreatment. And we combine the medical and mental health so we have a mental health component, [which] is mostly [sic] strongly focus[ed] on evidence-based research to develop evidence-based treatment for children who are experiencing sexual victimization in all forms of child maltreatment.

And of course [the] primary impact of maltreatment when it is substantiated [is] psychological, so mental health is important. And . . . I am the pediatrician, I do the medical component.

Dr. Finkle explained his process for examining patients. First, he speaks to the child's parents and then to the child. He notes the child's medical history, particularly as described by the child, because "ninety percent of the diagnosis is in what the child has to say."

In describing...