State v. E.E.

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.E., Defendant-Appellant.

No. A-1216-22

Superior Court of New Jersey, Appellate Division

May 8, 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.

Argued April 29, 2024

On appeal from the Superior Court of New Jersey, Law Division Hudson County, Indictment No. 21-03-0277.

Michael James Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael James Confusione, of counsel and on the briefs).

Sarah D. Brigham, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney Sarah D. Brigham, of counsel and on the brief).

Before Judges Mawla, Marczyk, and Chase.

PER CURIAM

Defendant E.E.^[1] appeals from his convictions for: first-degree aggravated sexual assault of his daughter Delilah, N.J.S.A 2C:14-2(a)(1), (count one); second-degree sexual assault of his niece Natalie, N.J.S.A. 2C:14-2(b), (count two); and two counts for each child of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), (counts three, four, five, and six). Defendant also challenges his sentence. We affirm.

Defendant's offenses occurred between 2011 and 2014, beginning when Delilah and Natalie were five years old. Delilah was living with her mother, older half-sister, and defendant at the time. Natalie lived nearby and frequently visited. The girls' mothers are sisters.

Delilah recalled that in 2011, defendant brought her and Natalie into his bedroom during a party at the home, pulled down their undergarments, and touched them. This was not the first time he assaulted both girls; Delilah testified she and Natalie "already knew what was going on." Delilah said defendant took turns penetrating their vaginas with his penis, keeping his hands on the other girl while he did so.

Although there were other people in the house, the bedroom door was only partially open and neither Delilah nor Natalie spoke during the assault. Delilah described the layout of the home in detail. It was a two-bedroom apartment, with one bathroom connected to the kitchen and a living room between the kitchen and bedroom. Delilah's bedroom was a walk-in-closet attached to the parents' bedroom, which was located farthest from the kitchen and towards the back of living room.

Delilah's mother testified guests would normally be in the kitchen during large gatherings because it was "the largest area of the home." Delilah explained the door to the parents' bedroom could "[n]ot necessarily" be seen from the kitchen. Given the way the bedroom was located, one could only see some drawers looking in from the living room. Defendant testified neither the parents' bed nor Delilah's room could be seen from the kitchen.

After the assault, defendant told Delilah and Natalie to clean up, and the girls complied by heading to a bathroom located next to the kitchen. This required them to walk by other adults at the party, but the adults did not notice what the girls were doing.

Natalie recalled a time when defendant sexually assaulted her at a birthday party for Delilah. She and Delilah were playing with toys in Delilah's room when defendant came in and started to rub her back and touch her buttocks, and then left.

Delilah testified about another incident involving defendant and her on the couch watching a baseball game. Defendant used a blanket to cover them, he pulled Delilah on top of him, and "pulled [her] undergarments . . . to the side, and then he started penetrating [her] vaginal area." Delilah stated he penetrated her with "[h]is penis" and it lasted "[f]or like a split minute." When her mother and older sister walked through the front door, defendant stopped moving and they did not realize what was happening because of the blanket.

Delilah's earliest memory of defendant sexually assaulting her was when she was playing with "Play-Doh of some sort" and he asked her if "[she could] do something for him." Delilah went to her parents' bed, and he laid her down on her back. Defendant pushed down her shorts and undergarments and penetrated her vagina with his penis, causing her pain.

Natalie was unsure when defendant first sexually assaulted her, but recalled a time when she was in Delilah's room. Natalie was watching TV in the living room and defendant took her by the hand and walked her into Delilah's room. Defendant then alternated calling each girl into his bedroom. Natalie testified defendant took her to the "left side of the bed[,] . . . picked [her] up and put [her] on the bed," then "took off [her] clothes." Defendant kissed her "on [the] mouth," and "touch[ed her] . . . legs," and "laid her down on her back." He then "put his penis on top of [her] private area," which she clarified was her vagina, but he did not penetrate her or ejaculate. Defendant was also touching her "nipples" and it went on "[f]or like [five] minutes." Afterwards, he dressed Natalie and took her back to Delilah's room and told Delilah to come into his bedroom. Natalie reported she felt physical discomfort during the assault and, when she returned to Delilah's room, Delilah was crying.

Delilah testified defendant would sexually assault her "every few weeks." Delilah testified the pain from the penetration hurt "medium" or "minimal" at times. She explained there were "[a] number of feelings happening." She also recalled, on the way home from the park once, defendant exposed his penis, showed Delilah and Natalie how to rub it, and then had both girls touch it.

Natalie remembered an incident at the park as well, but the details she provided differed. She testified the girls were riding bikes under defendant's supervision and defendant called Natalie over and told her he planned on "tak[ing her] clothes off and . . . kiss[ing her]." Natalie recalled it being "just [them]" when defendant made the statement. She responded by making a "weird face" and returned to riding her bicycle.

Natalie also recalled an incident when she was on the living-room couch with defendant and he unbuttoned and unzipped her pants, and then pulled down his pants to his thighs, exposing his erect penis. At the time, only Delilah's mother and Delilah were home, and they were in the bedroom. Natalie testified defendant "put [her] hand over" his penis. Defendant then "started pushing [her] head" but she "put it back up." When asked how hard he pushed the back of her head, Natalie said: "[H]ard enough for me to try to . . . go down. But then . . . I got back up." Natalie testified he then pulled her pants back up and the incident ended. Not long afterwards, Natalie's mother returned, but Natalie did not say anything to her.

In or around 2016, the Division of Child Protection and Permanency (Division) initiated an investigation because Delilah took sleeping pills in an apparent suicide attempt. That investigation did not involve any allegations against defendant and resolved without reference to any sexual abuse of Delilah. The Division ultimately referred Delilah to therapy.

Around 2016 or 2017, Delilah's parents separated, and she no longer lived with defendant. Afterwards, Delilah would rarely see or communicate with defendant. She testified she did not see him at all in the first year, then "once [she] got into third grade, [she] started seeing him . . . on a weekly basis." She recalled seeing him sometime in 2020 but could not remember when. "He would call [her] sometimes or . . . try to text [her], but [she] wouldn't really respond."

Natalie testified she did not report the abuse because she did not know "what [defendant] would do if he found out." She explained the abuse would occur "almost every time [she] saw [defendant]. . . . [E]very time [she] went to [Delilah's] house."

Delilah testified she did not discuss the assaults with Natalie or anyone else. On October 16, 2020, Delilah's half-sister found a ripped up note in Delilah's room that stated Delilah "wanted to commit suicide" and had been having suicidal thoughts since the fifth grade. The note did not mention defendant's sexual abuse. Delilah's sister asked her what was wrong and wanted to get her help.

Delilah told her sister and mother about the sexual abuse but did not tell them everything or provide details. She testified she did not tell anyone before that date partly because she "was in denial." When her mother asked if it was "just touching," Delilah said yes, but she later divulged to her mother, the Division, and the police, that defendant had also penetrated her. A Division caseworker interviewed Delilah on October 21, 2020. She was then interviewed by a Hudson County Prosecutor's Office detective on October 23, 2020.

By October 2020, Natalie and her mother moved to Pennsylvania. On October 27, 2020, they drove to Hudson County to give a statement to police. When Natalie's mother asked her about the abuse during the police interview, she said defendant did not penetrate her.

Defendant testified at trial and denied touching either of the children in a sexual manner. He claimed he was never alone with them at the park and was never alone with Natalie in his home. He denied being home alone with Delilah as well and denied watching baseball alone with her. However, on cross-examination he conceded there had been times when was alone with her, but it was not the norm.

Delilah's mother testified she did not have a babysitter and she would try to coordinate her work schedule with defendant so that one of them was available to care for Delilah "[m]ost of the time." Natalie's mother testified it was not unusual for her to leave...