STATE OF NEW JERSEY IN THE INTEREST OF J.W. (FJ-02-0077-16, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1691-16T4
STATE OF NEW JERSEY
IN THE INTEREST OF J.W.,
a juvenile.
Argued May 30, 2018 – Decided June 14, 2018
Before Judges Carroll, Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FJ-02-0077-16.
Miles R. Feinstein argued the cause for
appellant.
Ian C. Kennedy, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Dennis Calo, Acting
Bergen County Prosecutor, attorney; Ian C.
Kennedy, of counsel and on the brief).
PER CURIAM
On July 6, 2015, J.W.,1 a seventeen-year-old juvenile, was
charged in Complaint No. FJ-02-0077-16 with acts of delinquency
that, if committed by an adult, would constitute first-degree
1
We use initials to protect the identity of the juvenile and
minor victim involved in these proceedings. R. 1:38-3(d).
aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree
sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a). On July 8, 2015,
J.W. was charged in Complaint No. FJ-02-0128-16 with an additional
count of second-degree sexual assault, N.J.S.A. 2C:14-2(b).
J.W. was tried before a Family Part judge over seven non-
sequential days between January 19, 2016, and July 25, 2016. The
judge adjudicated J.W. delinquent for endangering the welfare of
a child in Complaint No. FJ-02-0077-16, and sexual assault as
charged in Complaint No. FJ-02-0128-16. J.W. was acquitted of
aggravated sexual assault and the initial sexual assault charge.
The dispositional order imposed a three-year probationary
term with outpatient counselling. The judge ordered J.W. not to
have extended unsupervised contact with children under age twelve,
and to comply with the requirements of Megan's Law, N.J.S.A. 2C:7-
1 to -23. Appropriate fees and penalties were also imposed. J.W.
now appeals, and we affirm.
I.
The juvenile charges arise from J.W.'s service as a volunteer
at an "English as a Second Language" (ESL) program comprised of
elementary and middle school students. The program ran from June
29 to July 10, 2015, and J.W.'s mother, M.W., served as one of the
program's teachers. Notably, M.W. taught two groups of
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kindergarten-age students during the morning and afternoon
sessions with the assistance of J.W., a high school senior.
On July 6, 2015, local police were called to investigate the
alleged sexual assault of P.K., a six-year-old female student
enrolled in M.W.'s morning ESL class. That afternoon, in front
of the school, P.K. reported to her mother, V.K., that one of her
male teachers touched her "popa," which is the Russian word for
vagina. P.K. also stated the male teacher "put her arm under his
pants . . . ." When V.K. asked P.K. to identify the man, P.K.
pointed to J.W. and identified him by name. V.K. then asked P.K.
to confirm it was J.W. who touched her, and when P.K. did so, V.K.
used her cell phone to take a photo of J.W. inside a car he had
entered. Soon thereafter, V.K. called her husband, P.K.'s father,
who alerted the police.
V.K. and P.K. were taken to the Bergen County Prosecutor's
Office, Special Victims Unit, where Detective Wendy Cevallos
conducted a forensic interview of P.K. During the interview, P.K.
promised to answer all questions honestly, stating she was six-
and-a-half years old and had just graduated kindergarten.
Detective Cevallos conducted an exercise where P.K. was shown
photographs and asked to identify various body parts. Cevallos
then asked P.K. "did something happen to you today?" Despite her
initial apprehension, P.K. admitted "[m]y teacher, um, he's
3 A-1691-16T4
touching my pupu (sic)." Cevallos questioned P.K. further about
the inappropriate touching:
Q: And when you said he touched your pupu
what did he use to touch your pupu?
A: His hand.
Q: His hand? Okay. And you said he touched
your pupu, was it over the clothes, under the
clothes[,] or something else?
A: Under the clothes.
Q: Under the clothes? Okay. And when did
he touch your pupu under the clothes?
. . . .
A: Um, like, today.
P.K. further reported J.W. touched the top of her "popo" "a
lot of times," both over and under her clothes, but never
penetrated her with his fingers. She additionally stated J.W.
made her "[t]ouch his popo . . . [u]nder the clothes." Once P.K.
made these disclosures, Cevallos used anatomical dolls to
encourage P.K. to clarify the alleged acts of sexual assault.
The police then proceeded to J.W.'s home to speak with him
about P.K.'s allegations. Upon their arrival they met M.W., who
asked J.W.: "Do you know what this is about?" J.W. responded
"yes" and reportedly had tears running down his face.
The trial court conducted a bench trial and heard testimony
from five witnesses for the State, including another teacher in
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the ESL program, investigating detectives, P.K., and V.K. At the
close of the State's case on July 12, 2016, J.W. moved for a
judgment of acquittal on all charges. Viewing the evidence in the
light most favorable to the State, Judge Gary Wilcox acquitted
J.W. of first-degree aggravated sexual assault because there was
no evidence that "the alleged touching of [P.K.]'s vagina involved
any penetration . . . ." The judge denied the motion with respect
to the remaining charges of sexual assault and child endangerment,
finding the State's proofs sufficient to proceed on those charges.
M.W. then testified on her son's behalf. She stated P.K. was
one of nine students in her morning kindergarten class. She
further indicated J.W. always wore khakis when volunteering at the
ESL program and never wore jeans or dungarees, as P.K. described,
nor was he ever alone with the students. M.W. stated she never
witnessed anything inappropriate between J.W. and any of her
students, and specifically, she never saw J.W. "focus attention"
on or touch P.K. Testimony2 also established M.W.'s classroom was
22
M.W. testified that her desk was set up "maybe six inches" from
the painting table where P.K. claims the alleged incident occurred
on July 6, 2015. M.W. further testified that the chairs in which
the students would sit were "very small" and measured twenty-two
inches from top to bottom. An "adult chair" in the classroom was
twenty-seven and one half inches high. The painting table,
however, was only twenty and one half inches tall.
5 A-1691-16T4
very small and her desk overlooked the tables where the students
would sit.
M.W. also discussed her recollection of July 6, 2015, when
police responded to her home to investigate P.K.'s complaint.
According to M.W., she asked her son if he knew why the police
were there. J.W. responded affirmatively, and indicated "it's
about pot."
J.W. testified on his own behalf. He stated police arrived
at his home on July 6, 2015, and spoke with his mother. M.W. then
asked him "do you know what this is about?" J.W. replied "yes,
mom, this is about pot." J.W. explained that on Saturday, July
4, 2015, he went to the home of his friend, K.G. About ten
individuals were there and they smoked marijuana. The police
later went to K.G.'s house after J.W. had departed. However, J.W.
testified on redirect examination that "no one who was at [K.G.'s
home] told the police anything about [him] and the others smoking
marijuana."
On September 12, 2016, in a detailed oral opinion, Judge
Wilcox found the State proved beyond a reasonable doubt the
endangering charge and the second-degree sexual assault charge
that J.W. touched P.K.'s vagina. With respect to that sexual
assault charge, the judge explained:
6 A-1691-16T4
The [c]ourt had ample opportunity . . .
to view the witness, the alleged victim
[P.K.,] in court. The [c]ourt found her to
be a very credible witness. [T]he [c]ourt is
aware of . . . inconsistencies in her
testimony with regard to . . . the number of
times she alleged these incidents occurred.
There also was a question as to whether or not
the juvenile was wearing jeans or khakis
. . . . [T]he [c]ourt also viewed evidence
and heard evidence from [M.W.] regarding the
desk and chairs . . . in [her] classroom and
whether or not this act could have occurred
given the way the classroom was set up.
. . . .
But the [c]ourt believes that based on
its view of the evidence and the credibility
of the witnesses presented, that the State has
proven beyond a reasonable doubt . . . that
the juvenile intended to touch [P.K.] in the
vaginal area and that the touching was done
intentionally and knowingly. And that the
purpose of the touching was to either degrade
or humiliate the victim or to sexually arouse
or gratify the actor.
The court found J.W. not guilty of the charge that he had
sexually assaulted P.K. by intentionally having P.K. touch his
penis. Judge Wilcox found there was
conflicting testimony regarding what J.W. was
wearing [on the] day [of the alleged
incident]. The victim alleged that he was
wearing jeans [but] [t]here was testimony
. . . that he wore khakis. . . . [The court
is] not finding that the victim was not
truthful in her testimony, but given the way
I heard the testimony, I think there is some
doubt as to whether or not the juvenile
actually had the victim touch his penis.
7 A-1691-16T4
Finally, the court found the State proved J.W. endangered the
welfare of a child because he had a legal duty for the care of
P.K. by virtue of his volunteer role at the school. Relying on
State v. Galloway, 133 N.J. 631 (1993), the court found "that a
person who has an assumed responsibility for the care of a child
may include a . . . volunteer . . . of an institution who is
responsible for the child's welfare."
II.
J.W. raises the following issues on appeal:
POINT I - THE TRIAL COURT ERRED IN PERMITTING
THE FORENSIC INTERVIEW VIDEOTAPE OF P.K. TO
BE ADMITTED INTO EVIDENCE AND ALLOWING P.K.
TO TESTIFY DESPITE THE TAINT OF SAID
INTERVIEW.
POINT II - THE FINDINGS OF GUILT WERE SO WIDE
OF THE MARK AS TO CONSTITUTE A MANIFEST
INJUSTICE, AND THE SUSTAINING OF THE JUVENILE
CHARGES MUST BE REVERSED IN THE INTEREST OF
JUSTICE.
POINT III - THE TRIAL COURT COULD NOT SUSTAIN
THE CHARGES AGAINST J.W. IN LIGHT OF THE FACT
THAT IT HAD A DOUBT WHETHER THE SEXUAL
MISCONDUCT EVER OCCURRED.
POINT IV - SHOULD THIS COURT NOT REVERSE THE
ADJUDICATION OF THE CHARGE OF ENDANGERING THE
WELFARE OF A CHILD, THEN IT NONETHELESS MUST
FIND THAT A THIRD-DEGREE OFFENSE WAS
COMMITTED[,] NOT A SECOND-DEGREE OFFENSE AS
FOUND BY THE TRIAL COURT[,] HAD J.W. BEEN
TRIED AS AN ADULT.
8 A-1691-16T4
Turning to his first point, J.W. contends the court erred in
admitting P.K.'s videotaped forensic interview pursuant to
N.J.R.E. 803(c)(27), which establishes the tender years exception
to the hearsay rule:
A statement by a child under the age of
[twelve] relating to sexual misconduct
committed . . . against that child is
admissible . . . if (a) the proponent of the
statement makes known to the adverse party an
intention to offer the statement and the
particulars of the statement at such time as
to provide the adverse party with a fair
opportunity to prepare to meet it; (b) the
court finds, in a hearing3 conducted pursuant
to Rule 104(a), that on the basis of the time,
content and circumstances of the statement
there is a probability that the statement is
trustworthy; and (c) either (i) the child
testifies at the proceeding, or (ii) the child
is unavailable as a witness and there is
offered admissible evidence corroborating the
act of sexual abuse . . . .
J.W. claims the child's statements were not trustworthy and
Cevallos's questioning was not neutral. We disagree.
3
We have affirmed the admission of an out-of-court statement in
a juvenile proceeding without a separate hearing. See State in
the Interest of S.M., 284 N.J. Super. 611, 620-21 (App. Div. 1995)
("Although N.J.R.E. 803(c)(27)(b) requires the court to 'find, in
a hearing conducted pursuant to Rule 104(a), that on the basis of
the time, content and circumstances of the statement that there
is a probability that the statement is trustworthy,' we do not
conclude that the failure of the court, sitting as the trier of
fact, to conduct a hearing pursuant to Rule 104(a) is so violative
of N.J.R.E. 803(c)(27) as to warrant reversal.").
9 A-1691-16T4
Having reviewed the record, we conclude that all elements of
the rule were met. Counsel for J.W. was aware the State sought
to introduce the videotape of P.K.'s forensic interview and had a
fair opportunity to prepare to meet her statement. Additionally,
Judge Wilcox determined P.K.'s statements were trustworthy as the
entire interview was recorded and P.K. spontaneously revealed J.W.
touched her "popa." P.K. testified at trial, and her testimony
corroborated her earlier statements. The judge expressly found
P.K. was a "very credible" witness.
We reject J.W.'s argument that the interview techniques
utilized by Cevallos were so unduly suggestive and coercive as to
create a "substantial likelihood of irreparably mistaken or false
recollection" under State v. Michaels, 136 N.J. 299, 320 (1994).
Rather, as the State points out, English is not P.K.'s native
language and the fact "[t]hat Detective Cevallos assisted P.K. in
recalling a word for a male penis or female vagina is of no moment.
. . . Detective Cevallos properly established how P.K. referred
to those body parts before there were any disclosures of abuse."
Thereafter, P.K. consistently maintained her allegations of
abuse, namely, that J.W. touched her vagina underneath her
underwear on July 6, 2015. The record does not support a showing
"that the victim's statements were the product of suggestive or
coercive interview techniques," as J.W. contends. Thus the trial
10 A-1691-16T4
judge's admission of the recorded forensic interview pursuant to
N.J.R.E. 803(c)(27) was not an abuse of discretion. See State v.
Morton, 155 N.J. 383, 453 (1998) ("Traditional rules of appellate
review require substantial deference to a trial court's
evidentiary rulings.").
J.W.'s second and third points warrant little discussion.
Essentially, J.W. contends the State did not prove the charges
against him beyond a reasonable doubt, and that the trial court's
findings to the contrary were so wide of the mark as to constitute
a manifest injustice.
Our standard of review in juvenile delinquency bench trials
"is narrow and is limited to evaluation of whether the trial
judge's findings are supported by substantial, credible evidence
in the record as a whole." State in the Interest of J.P.F., 368
N.J. Super. 24, 31 (App. Div. 2004) (citing State v. Locurto, 157
N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161 (1964)).
In order to find a violation, the court must conclude that the
State proved each element of the offense charged beyond a
reasonable doubt. State ex rel. J.G., 151 N.J. 565, 593-94 (1997).
We do not engage in an independent assessment of the evidence as
if "[we] were the court of first instance." Johnson, 42 N.J. at
161. Rather, we give special deference to the trial judge's
findings, particularly those that are substantially influenced by
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the judge's opportunity to observe the witnesses directly. Id.
at 162. However, we need not defer to the trial judge's
interpretation of the law. State v. Brown, 118 N.J. 595, 604
(1990).
Mindful of these standards, we reject J.W.'s argument that
the evidence was insufficient to support the adjudications of
delinquency beyond a reasonable doubt. P.K. provided detailed
testimony regarding J.W.'s inappropriate touching and remained
consistent about that core allegation despite a "very vigorous
cross examination." P.K.'s testimony was corroborated by the
videotape of her forensic interview as well as the in-court
testimony and forensic interview of her mother, V.K. The court
also found J.W.'s denial of the sexual contact was not credible.
In light of those findings, Judge Wilcox concluded J.W.
committed sexual assault in violation of N.J.S.A. 2C:14-2(b) when
he touched P.K.'s vagina underneath her underwear. Additionally,
when the sexual contact occurred, J.W. was acting in a supervisory
role as a volunteer at the school and had "assumed responsibility"
for P.K. Consequently, sufficient credible evidence in the record
supports the court's finding that J.W. endangered the welfare of
a child in violation of N.J.S.A. 2C:24-4(a).
Equally unconvincing is J.W.'s alternative argument in Point
IV that he should be adjudicated delinquent of third-degree, rather
12 A-1691-16T4
than second-degree, endangering the welfare of a child in the
event we otherwise find the proofs sufficient to sustain that
charge. He contends he "was merely an unpaid volunteer," and, as
such, "[h]e did not have a continuing or regular supervisory or
caretaker relationship with P.K." so as to elevate his conduct to
what would constitute a second-degree offense if committed by an
adult.
N.J.S.A. 2C:24-4(a)(1) provides that "[a]ny person having a
legal duty for the care of a child or who has assumed
responsibility for the care of a child who engages in sexual
conduct which would impair or debauch the morals of the child is
guilty of a crime of the second degree." Our Supreme Court has
recognized this statute applies "to a person who has 'assumed the
care of a child' or is 'living with the child' or has a 'general
right to exercise continuing control and authority over' the
child." State v. Sumulikoski, 221 N.J. 93, 107 (2015) (quoting
Galloway, 133 N.J. at 659). Notably, "what propels th[is] offense
of endangering . . . to a second-degree offense" is "the profound
harm that can be inflicted on a child by one who holds a position
of trust . . . ." Id. at 108 (citing Galloway, 133 N.J. at 661).
Here, J.W. was properly adjudicated delinquent of second-
degree child engagement because he was one of P.K.'s guardians
while she attended the ESL program. "The term 'guardian' is
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defined as '[an] employee or volunteer, whether compensated or
uncompensated, of an institution who is responsible for the child's
welfare . . . .'" G.S. v. Dep't of Human Servs., 157 N.J. 161,
171 (1999) (alteration in original) (quoting N.J.S.A. 9:6-
8.21(a)). Additional support for this conclusion is found in the
model jury charge, which instructs that a "person who has assumed
responsibility for the care of a child may include a teacher,
employee, volunteer, whether compensated or uncompensated, of an
institution who is responsible for the child's welfare." Model
Jury Charges (Criminal), "Endangering the Welfare of a Child
(N.J.S.A. 2C:24-4(a)(1))" n.4 (rev. Apr. 7, 2014).
Affirmed.
14 A-1691-16T4