April 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS HENRIQUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No.04-07-1119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Parker and Lyons.
Defendant Carlos Henriquez appeals from a judgment of conviction entered on October 26, 2006 after a jury found him guilty of second degree sexual assault, N.J.S.A. 2C:14-2b; and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to an aggregate term of thirteen years subject to six years parole ineligibility. We affirm. Defendant had a relationship with the victim's mother over a period of several years. The victim, D.A., who is now sixteen years old, was between five and six when defendant moved into the house. He moved out when D.A. was twelve. In November 2003, D.A. began to cry while playing with her cousin, J.R. She confided in J.R. that defendant was "touching her, like bothering her." J.R. wanted to tell her mother or older sister, but D.A. insisted she remain silent. In March 2004, D.A. told her best friend and insisted she not tell anyone.
A week later, on March 24, 2004, D.A. started crying in class and was brought to the school nurse who observed her "hysterical, crying, sobbing, upset, extremely nervous." The child's parents and sister were called to the school and the Division of Youth and Family Services (DYFS) was contacted. D.A. was subsequently questioned by a detective from the Hudson County Prosecutor's Office. She was medically examined and found to have bruising and other abnormal changes in the anal area. Dr. Francis Pelliccia, the doctor who examined the child, stated that the report did not conclusively indicate child abuse "but in the context of everything else . . . could be a result of trauma." The doctor noted, however, that the child was a "consistent historian" and her reporting was consistent with the physical findings."
In this appeal, defendant argues:
THE TRIAL COURT ERRED IN CONCLUDING [J.R.] WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY FROM THE SCHOOL NURSE WHICH IMPERMISSIBLY AND INDIRECTLY CORROBORATED THE VICTIM'S TESTIMONY REGARDING HER ALLEGATIONS AGAINST THE DEFENDANT. (PARTIALLY RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
Defendant argues for the first time on appeal that the trial court should not have allowed D.A.'s cousin, J.R., to testify because she was not competent under N.J.R.E. 601. Defendant maintains that the child was not sufficiently questioned on voir dire as to her understanding of the truth. J.R. was then twelve years old and in the seventh grade. After she was sworn, J.R. was questioned by the prosecutor as to her understanding of the truth.
Q: [J.R.], What you just did when you raised your hand, do you know what you were doing then?
Q: What were you doing?
A: Swearing to tell the truth.
THE COURT: You're going to have to speak up, ma'am. It's much too low.
THE COURT: Kind of yell if you would so we can all hear you.
A: I was swearing to tell the truth and nothing but the truth.
Q: Okay and what does that mean to you? What happens if you don't tell the truth?
A: I don't know.
Q: You don't know? Okay. Is it good or bad to tell the truth?
A: It's good.
Q: Okay and is it good or bad to tell a lie?
Q: And are you going to tell us the truth today?
Q: Do you know someone named [D.A.]?
Q: How do you know her?
A: She's my cousin.
Q: How long have you known her?
A: My whole life.
Q: Okay and what kind of relationship do you guys have?
A: Very close.
Q: Okay. At some point did you have a conversation with [D.A.] about her stepfather?
A: Yes I did.
Q: Do you remember when this conversation took place?
A: About two years ago.
Q: Okay. Do you remember where it took place?
A: In my old house.
Q: Okay. And what were the two of you doing at your house?
A: We were sitting down on my bed and we had just finished playing dolls.
Q: Okay and what room in the house were you in?
A: My room.
Q: Was anyone else in the room with you?
Q: How did the conversation start?
A: She started to cry and then told me that she had to tell me something.
Q: And what did you say when she said she had to tell you something?
A: I told her to tell me.
Q: Okay and then what happened?
A: She started to -- she started to say like a word and then she stopped.
A: She was going to tell me and then she just stayed quiet and then I told her to tell me and she just told me.
Q: Okay and what do you remember as exact as you can get?
A: She told me something but I can't remember and then she told me that her stepfather had raped her.
Q: Okay. Is that the word she used, raped?
Q: Okay. And when she told you that, what did you say?
A: I just stayed quiet and I like -- I just looked at her. I didn't know what to say.
Q: Okay and then what happened?
A: She started crying more and I just -- then we just like stayed quiet for a while and then I don't know what else happened after that.
Q: Okay. Did you know what she meant by the word raped?
A: Kind of but like not so much because I was really little.
Q: Okay. Let me ask the question again and then you can answer it. What did you understand she meant by the word rape?
A: I understood that she said like that, he was touching her or something like that but then I started to understand more what the word meant.
Q: Okay and why was it that you didn't understand at the time so much what the word rape meant?
A: Because I was like really small. I was like about ten, nine.
Q: Okay. After she told you this, you said you were quiet for a while. What happened after that?
A: After that like I went to get her something to dry her eyes and then I told her that she had to tell her sister or someone and she said that she would but then like months started passing and she never did.
Q: Okay. Did you tell anyone what she told you?
J.R. was then cross-examined by defense counsel:
Q: [J.R.]. [J.R.], [the prosecutor] just asked you if you understood what could happen to you if you didn't tell the truth when you testify in a courtroom. You don't know what could happen, is that your answer?
Q: You don't know the consequences?
Q: You said that [D.A.] told you that she -- that her stepfather was raping her. Is that what your testimony is?
Q: Are you sure that she said he raped me?
A: She said first that he was bothering her and then I asked her again and she said that he raped her.
Q: Okay so you -- now you remember her telling you that he was bothering her, right?
Q: And do you remember telling the detective that you're not sure if she said the word rape?
A: I remember.
Q: Okay. Can you tell me who may have said that to you? Did your sister suggest that to you?
Q: And when you told the detective the word rape, do you know where you may have gotten that from?
A: From her, [D.A.].
Q: From [D.A.]. But you're not sure if she used that word.
A: I'm not sure what word she used but -- yeah.
Q: You told the detective that you -- you don't know what the word rape means, right?
A: No I do.
Q: When she -- when [D.A.] maybe, I guess, if [D.A.] said to you, he raped me, and you -- back in when you were interviewed by the detective, you didn't know what the word meant, right?
A: I kind of knew what it meant but I wasn't really sure though.
Q: When you say you kind of knew what it meant, the detective asked you the same question, right? And what did you tell her, do you remember? I'm sorry, what did you tell her?
A: I don't remember.
Q: Do you remember telling her that you didn't know what the definition of the word rape was?
A: I don't remember.
Defense counsel continued to cross-examine J.R. about her recollection of the conversation and what she understood it to mean. The prosecutor then questioned J.R. on re-direct, after which the court asked J.R. the following questions:
THE COURT: Okay. Now if your dad asked you a question and you lied to him, what happens?
THE WITNESS: I would -- if he found out the truth I would probably get in a lot of trouble.
THE COURT: In a lot of trouble, you get punished?
THE WITNESS: Yeah.
THE COURT: What do you think would happen if you lied here? The same thing?
THE WITNESS: Yeah, something like that.
THE COURT: It may not be the same thing your father would do but you can get into trouble. Do you understand that?
THE WITNESS: Um Hmm.
After hearing the child's testimony, the court found that D.A. spontaneously initiated the discussion with J.R. regarding defendant touching her. The court noted that "[t]hey're cousins, they've been lifelong friends up to that point sleeping over each other's homes and playing with each other and they have a closeness or a natural relationship. It's alleged to have occurred during the same time period specified in the indictment covering the alleged acts involved[,] so there's no question that it's proximal to the event." The judge further noted that any inconsistencies with respect to J.R.'s testimony in court and her statement to the prosecutor would be placed before the jury. The court concluded:
I don't have any difficulty with the reliability of her statement in this context. She is a child and she was ten at the time. She's still a child now at the age of twelve. Their responses to questioning are not the cold and logical and concise and complete answers that one would expect from an adult.
As far as her knowledge of the definition of the word rape, it's not surprising to me that at ten years old she may not have known the full and complete definition of the word nor would it be surprising to me that she would feel uncomfortable at that age discussing sexual matters with strangers.
So I'm not at all surprised that she gave answers which indicated that at the time she had an idea of what it meant but wasn't sure what it meant and that she now understands . . . the term a little more fully. That doesn't indicate to me that she's lying. She's just a child, she's a kid. And that's not inconsistent with the manner in which children respond to questions nor is it an indicator that the testimony is unreliable. It may be inconsistent and that may be a fact counsel wants to raise before the jury but it's not sufficient to bar the admissibility of her testimony.
So her testimony will be admitted as fresh complaint testimony.
N.J.R.E. 601 provides that:
[e]very person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.
The competency assessment lies within the discretion of the court. State v. G.C., 188 N.J. 118, 132 (2006). This does not change if the witness in the question happens to be a child. State v. Krivacska, 341 N.J. Super. 1, 33 (App. Div. 2001). A presumption of competence exists for every witness, and "disqualification is warranted only if the trial judge finds that the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury or the proposed witness is incapable of understanding the duty of a witness the tell the truth." G.C., supra, 188 N.J. at 132. Moreover, defendant failed to raise this objection before the trial court, and, accordingly, the plain error standard applies. See R. 2:10-2.
J.R. was a seventh-grader who had an understanding of her duty to tell the truth. In State v. G.C., our Supreme Court determined that a five-year old witness was competent to testify. If the trial court questioned the child witness as to her ability to understand a duty to tell the truth, and the child's testimony established that she did, the witness may be deemed competent. G.C., supra, 188 N.J. at 132. The duty to tell the truth, "necessarily implicates the consequences arising as a result of a failure to comply with the duty." Id. at 133. J.R. testified that the consequences of telling a lie were "bad" and that she would be in a lot of trouble if she did. We are satisfied that J.R. was competent to testify.
Defendant next argues that the school nurse's testimony was in violation of State v. Bankston, 63 N.J. 263 (1968), in that hearsay testimony by a person reporting an offense, generally a police officer, is permissible when the officer explains what happened at the scene. The hearsay testimony, however, cannot extend to repeating the accusations of another party. Here, the school nurse reported her observations of the child, that the child told her what was upsetting her and that she immediately notified the principal and DYFS. The nurse did not repeat any of the child's allegations. In questioning the nurse, the prosecutor was careful not to allow the nurse to answer beyond the Bankston limitations. We find nothing in the record to indicate that the school nurse's testimony was inappropriate or in violation of Bankston.
Finally, we find no merit in defendant's sentencing arguments. He was sentenced to a term of eight years subject to four years parole ineligibility on the second degree sexual assault charge and to a term of five years subject to two years parole ineligibility on the second degree charge of endangering the welfare of a child. Those terms were imposed consecutive to each other.
We have carefully considered the record and we are satisfied that the trial court properly applied the aggravating and mitigating factors and that the guidelines for imposing consecutive sentences were correctly applied as well. State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Moreover, sentence was imposed consistent with the standards articulated in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005).
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