State v. T.R.K.

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.R.K., Defendant-Appellant.

No. A-1650-20

Superior Court of New Jersey, Appellate Division

July 12, 2023

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 June 7, 2023

On appeal from the Superior Court of New Jersey, Law Division Ocean County, Indictment No. 16-06-1323.

Peter T. Blum, Assistant Deputy Public Defender, argued the case on behalf of appellant (Joseph E. Krakora, Public Defender attorney; Peter T. Blum, of counsel and on the briefs).

Shiraz Deen, Assistant Prosecutor, argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Deen, on the brief).

Before Judges DeAlmeida and Mitterhoff.

PER CURIAM

Defendant T.R.K. appeals from the November 19, 2020 judgment of conviction entered by the Law Division after a jury convicted him of two counts arising from his repeated sexual assault of the five-year-old daughter of his girlfriend.^[1] We affirm.

I.

When defendant was nineteen, he sexually assaulted his seven-year-old sister. As a result of a conviction arising from that conduct, defendant served a sentence at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. After his release, defendant was required to register as a sex offender pursuant to Megan's Law.

In 2015, when defendant was forty-four, he failed to comply with Megan's Law registration requirements. At the time defendant was living with his girlfriend, M.B., and her daughter, R.B. In light of defendant's failure to register, Division of Child Protection and Permanency (DCPP) caseworker Daniel Transue was sent to the home to conduct a safety assessment of the child. Transue was given no information with respect to the details of defendant's prior offense. He was accompanied by a police officer whose body camera recorded the events at the home.

At approximately 6:50 p.m., Transue sat at the dining room table with R.B. Her mother left the room, telling the child she would be nearby. Defendant was outside on the porch. The officer's body camera recorded Transue's conversation with R.B. After a brief discussion about R.B.'s age, her pet, and fairy wings she was wearing, Transue asked R.B. if anyone ever hits or hurts her. R.B. stated that the brother of a child with whom she attends school hit her.

Transue then asked R.B., "does mommy and daddy ever hit or hurt each other?" R.B. responded that her mother "don't like tickles." The following exchange ensued (the officer's radio intermittently transmitted communications that rendered some of R.B.'s responses inaudible on the body camera recording). Transue is identified as D.T.:

D.T.: Mommy don't like tickles?

R.B.: Yeah, me yeah I don't like tickles.

D.T.: Who tickles you?

R.B.: Dad.^[2] I don't like tickles. Me I like tickles on the neck.

D.T.: Where is (sic) daddy tickle you at?

R.B.: Sometimes at . . . (inaudible)

D.T.: He tickles you on the neck?

R.B.: Yeah, sometimes.

D.T.: Does, does he tickle you? Where else does he tickle you?

R.B.: Here, right here, right here and I don't like it. And, and, and.

At this point in the interview, the officer's body camera was aimed above R.B.'s head. She cannot be seen on the recording as she says "[h]ere, right here, right here and I don't like it." At an evidentiary hearing, Transue testified that R.B. pointed "down low" as she gave that answer. At trial, Transue testified that R.B. pointed "to her private areas" as she gave that answer. The conversation continued:

D.T.: Where else does he tickle you at?

R.B.: My nose, my eyes . . . (inaudible).

D.T.: He tickles you on your eyes?

R.B.: Yeah, sometimes, my . . .

D.T.: Does he ever tickle you any place else?

R.B.: In the back.

D.T.: In the back? Does he ever tickle you on the front by your privates?

R.B.: Just my, just my nose.

D.T.: Just your nose, does he ever. Does he ever tickle you up here or where you go potty or anything like that?

R.B.: No.

D.T.: No.

R.B.: Just tickles my butt.

D.T.: Who tickles your butt?

R.B.: My dad and sometimes him bounce on him, takes his pants off them from him, butt in my butt then he [inaudible] softly.

D.T.: Wait, what does daddy do?

R.B.: Takes his pants off.

D.T.: He takes his pants off?

R.B.: Yeah and put butt in my butt.

D.T.: He puts his butt in your butt?

R.B.: Mm-hmm.

D.T.: Oh, that's not good.

R.B.: Yeah.

D.T.: Where is mommy when this happens?

R.B.: Mm, well is sometimes home, sometimes home in the, the bubble of the shower.

D.T.: Uh-huh.

R.B.: And one time I didn't wash myself.

D.T.: It's how does daddy put his butt on your butt? Do you have clothes on when daddy does that?

R.B.: (Inaudible) and he takes his pants off for that.

D.T.: Daddy asks you to take your pants off?

R.B.: Mm-hmm.

D.T.: Does a . . . what?

R.B.: (Giggling) He did this.

D.T.: (Inaudible).

R.B.: He did this.^[3]

D.T.: He did that, really?

R.B.: Yeah.

D.T.: Mm, what a, does daddy, do you ever see daddy without his clothes on?

R.B.: What?

D.T.: Do you ever see daddy without his clothes on?

R.B.: Mm, doesn't him saw anymore.

D.T.: Do you ever see him when he doesn't have any pants on or anything like that?

R.B.: Well his clothes, my, him for him don't have any pants on last night, then I close my door and my dad get change that means.

D.T.: Mm-hmm. Let me ask you again you said that daddy tickles your butt, how is (sic) daddy tickle your butt?

R.B.: This.

D.T.: Does he tickle your butt, do you have your clothes on or you have clothes off? You have your clothes off?

R.B.: Mm-hmm.

D.T.: Does daddy ever, what do you call where you go pee-pee, what do you call that?

R.B.: I call that kuka, pee-pee.

D.T.: And has daddy ever? Has daddy ever?

R.B.: Tickle me out of his pee?

D.T.: In your pee-pee.

R.B.: Yeah.

D.T.: Daddy tickles you on your pee-pee?

R.B.: Yeah and he just tickles me where I poo.

Transue's interview of the child lasted approximately eight minutes. Because of R.B.'s disclosures, Transue contacted the county prosecutor's office. At the direction of detective Lindsay Woodfield, Transue transported M.B., and with M.B.'s consent, R.B., to the prosecutor's office to permit Woodfield to interview the child.

During the interview, which began at about 8:45 p.m. and was video recorded, R.B. identified various body parts on anatomical drawings of female and male persons. R.B. described both the female and male genitals as "kuka," the female and male breasts as "boobies" and the female and male buttocks as "butt." R.B.'s first disclosure was in the following exchange with Woodfield, identified as L.W.:

L.W.: Has anybody ever touched you on your kuka or your boobies and you did not like it?

R.B. No one did.

L.W.: No one did.

R.B.: No, when I kiss my mom and hug her, but Daddy just did something and I don't want, no.

L.W.: What did he do?

R.B.: He did, he take my pants off and his pants off and put his butt and his kuka in my butt and kuka. That's not really good.

R.B. told the detective that the incidents happened in her bedroom and her mother's bedroom. She stated that her pants were off at the time and that she could feel defendant's kuka and butt and they were soft. R.B. stated that defendant told her that he "liked her kuka" and asked her to touch her kuka and his kuka. R.B. also said that when defendant changed her for bedtime, he put his kuka in her kuka and that she could feel it "in the body." When asked if anything came out of defendant's kuka, R.B. said she could feel it was "wet" like water and that she thought he got his kuka wet in the shower. She said that her mother never did those things to her and that she never told anyone about the incidents because she believed they were secret.

R.B. also made the following disclosure during the interview:

L.W.: Hey, I have a question. Did Daddy ever touch any part of his body in front of you?

R.B.: No, never. He just touch his kuka and my kuka. He (inaudible) like this, his, him kuka and my kuka stuck together, that means soft, and he rub my kuka and his kuka, then it stops.

L.W.: Okay. So he rubs your kuka and his kuka?

R.B.: Yeah, him, him kuka and my kuka are stuck together, I mean it's soft.

When asked how many times defendant put his kuka on hers, R.B. responded, "ten." The detective asked R.B. to enact what she described defendant doing to her with anatomically correct dolls. R.B. pressed the genitals of the dolls together, asked the detective to help remove the pants and underwear from the dolls, and then continued to press the dolls' genitals together. She also placed the male doll's hands on the genitals of both dolls.

Woodfield also interviewed defendant, who drove himself to the prosecutor's office, that evening. Prior to the interview he waited in an unlocked room and was free to leave. Woodfield began the interview at about 9:26 p.m. by informing defendant that he was not under arrest. After offering him a drink, Woodfield read defendant his Miranda warnings as a precaution.^[4] Defendant executed a Miranda rights waiver form.^[5]

After obtaining defendant's Miranda waiver, Woodfield informed him that R.B. had made allegations that he was "sexually assaulting her" and that she claimed he put his penis on her vagina. Defendant initially denied the claims.

He then attempted to minimize the sexual contact he had with R.B., claiming the child unexpectedly jumped on him while he was masturbating while unclothed and sat on his lap. Woodfield expressed doubt about the veracity of defendant's admissions, suggesting he was telling half-truths.

Ultimately defendant...