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State v. Olivio

Decided: May 1, 1991.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FREDDIE ALLAN RIOS OLIVIO, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 237 N.J. Super. 428 (1989).

For modification and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.

Handler

[123 NJ Page 552] In this case, defendant, Freddie Olivio, was convicted of a sexual assault on a mentally-defective person. Defendant admits having had intercourse with the victim, but denies that she is, in fact, mentally defective under the criminal statute. The Court is thus required to determine when a person who engages in such sexual conduct is mentally defective under the criminal code. The difficulty in making that determination inheres in its implications for both mentally-defective persons who are vulnerable and need the special protections of our laws from the sexual intrusions of others and persons whose mental deficiencies need not be an impediment to the enjoyment of a reasonably normal life, including consensual sexual relations.

The sexual encounter between defendant and the victim, M.R., gave rise to charges for kidnapping, N.J.S.A. 2C:13-1(b)(1), aggravated sexual assault, N.J.S.A. 2C:14-2a(4), sexual assault with physical force, N.J.S.A. 2C:14-2c(1), and sexual assault on a mentally-defective person, N.J.S.A. 2C:14-2c(2). The jury found defendant not guilty on the first three charges and guilty on the fourth. The court sentenced defendant to a five-year term of imprisonment and imposed a $30 VCCB penalty. The Appellate Division reversed defendant's conviction. State v. Olivio, 237 N.J. Super. 428, 568 A.2d 111 (1989). The court held that the State had not proved that the victim was mentally defective, and that there was no evidence that defendant knew or should have known that the victim was mentally defective. This Court granted the State's petition for certification. 122 N.J. 123, 584 A.2d 201 (1990).

We now hold that a person is mentally defective within the meaning of N.J.S.A. 2C:14-2c(2) if, at the time of the sexual activity, he or she is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in such conduct with another. Further, we find that there was sufficient evidence adduced in the trial of this case to satisfy this test, as well as the statutory requirement ascribing to the defendant knowledge of the mental condition of the victim. Accordingly, we modify the judgment of the Appellate Division and remand the matter for a new trial.

I.

That the victim, M.R., and defendant engaged in sexual intercourse on February 12, 1985, is not disputed. M.R. was sixteen years old at the time of the episode. M.R. testified that defendant drove her to a hotel, threateningly displayed a knife, and then had sexual intercourse several times with her. The jury, however, acquitted defendant of kidnapping, aggravated sexual assault, and sexual assault by force, implying that it

found that the sexual activity was voluntary. Defendant presented a different version of the episode. He testified that he met M.R. in the entrance of his building, where she had come looking for a friend of hers, that M.R. asked for a ride, and that they had voluntary sexual intercourse in the car. After the sexual encounter, they drove to a bar, where defendant went in to buy beer and cigarettes while M.R. waited in the car. A police officer approached the car, having been alerted to the description of a missing sixteen-year-old female, and asked her if she was "okay." She replied that she was waiting for a friend. When defendant arrived, the officer took them both to headquarters. The following day, M.R. told her aunt that a man had put her in a car and raped her. The aunt told M.R.'s mother and suggested they contact the police. Defendant was arrested, and gave the police conflicting statements, first denying and later admitting that he had had sex with M.R.

Considerable testimony and evidence was presented at trial with respect to M.R.'s mental capacity. She was classified as "educable mentally retarded" and was enrolled in a special education class at Passaic High School. According to her mother, M.R. "forgets everything" and can perform only basic household chores such as sweeping and washing dishes. Her aunt described her as "slow." The slowness and simplicity of M.R.'s testimony also demonstrate that M.R.'s intellectual capacity is conspicuously limited.

Both sides presented expert testimony. Ms. Charlotte Leitner, a clinical psychologist and a witness for the prosecution, examined M.R. in September 1986. She concluded that M.R.'s full scale I.Q., based on the Wechsler Adult Intelligence Scale, is 65. The range under 69 is considered "mentally defective," according to the Wechsler Scale and the Diagnostic Statistical Manual. On that basis, M.R. ranks approximately in the bottom two percent of the American adult population. According to Ms. Leitner, "[s]he seemed very naive and socially inept. She didn't seem to do very much without supervision; seemed

rather passive; never worked; never baby sat." Ms. Leitner observed that M.R. was more responsive during the interview when she discussed her favorite television programs, a series of Spanish-language love stories. When asked whether in her opinion M.R. was unable to understand the nature of her conduct, Ms. Leitner responded, "I believe she's mentally defective and unable to understand the ripple effects or the consequences of her behavior."

Richard Garcia, a school psychologist, testified for the State. He examined M.R. for the Passaic Public Schools in February 1984, when she was fifteen years old. Mr. Garcia concluded that her I.Q. was approximately 40 to 50, using the Wechsler Intelligence Scale for Children Revised, and that she was "educable mentally retarded." He reported his observations of her: "Very dependent youngster; shy; withdrawn. She wanted her mother there; child-like; young 15 year old." According to Mr. Garcia, M.R. functioned socially at about the level of a seven- or eight-year-old.

Dr. Rene Rocha, a clinical psychologist, testified for the defense. He examined M.R. in February 1986. Using the Escala de Inteligencia Wechsler para Adultos, a Spanish-language intelligence test standardized to the population of Puerto Rico, where M.R. grew up, Dr. Rocha concluded that her full scale I.Q. was 86. That placed her in the Dull Normal Range of intelligence, at about the fourteenth percentile among those of her age and cultural background. He noted that one of her strengths was "the ability to adequately perceive and understand the requirements of social situations." Regarding the disparity between the results of his tests and the results of the other psychologists' tests, Dr. Rocha suggested that the highest score is the most reliable.

II.

The Code of Criminal Justice, N.J.S.A. 2C:14-2c(2), criminalizes the sexual penetration of a person who is "mentally defective." Such an act is deemed to be a sexual assault:

An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under . . . the following circumstances:

(2) The victim is one whom [sic] the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated. [ Ibid. ]

The Criminal Code defines "mentally defective" as follows:

"Mentally defective" means that condition in which a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. [ N.J.S.A. 2C:14-1h.]

The critical issue is determining the meaning of the statutory concept of "mentally defective." The statutory language is hardly self-defining. We must therefore construe the statute in light of its underlying purpose and intent. State v. Madden, 61 N.J. 377, 389, 294 A.2d 609 (1972). The legislative history and the evolution of the statutory provision to its present form provide important telltales of the Legislature's objectives. They demonstrate the Legislature's abiding concern that the scope of mental defectiveness be narrow enough not to impinge on consensual sexual activity involving only mildly-retarded persons.

The statute originally defined "mentally defective" as a condition that rendered one incapable of "appraising" the nature of his or her conduct. L. 1978, c. 95. See 3 Wharton's Criminal Law § 289 (14th ed. 1980) ("§ 289. -- Incapacity to consent. . . . A female is also incapable of consenting to sexual intercourse when she is 'mentally defective', i.e., when she is suffering from a 'mental disease or defect' which renders her 'incapable of appraising' the nature of her conduct. . . ."). There was concern, however, that mental capacity defined in terms of the ability to "appraise" conduct could be ...


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