On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
Defendant, Pedro Valerio, was convicted by a jury of four counts of first-degree aggravated sexual assault upon a helpless or incapacitated victim, N.J.S.A. 2C:14-2(a)(7) (counts one, two, four, and five), and three counts of third-degree aggravated criminal sexual contact with a helpless or incapacitated victim, N.J.S.A. 2C:14-3(a) (counts six through eight). Defendant appeals and we affirm, but remand for sentencing.
The trial judge imposed fourteen years imprisonment on each count of first-degree aggravated sexual assault, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Count eight was merged with count five. Defendant was sentenced to four years on counts six and seven and all sentences were run concurrently.
M.L.*fn1 , who was thirty-two at the time of the offense, came to live with her sister, Y.F., in 2001. Because of M.L.'s mental deficits, Y.F. attempted to enroll her in adult daycare programs. According to defendant's expert, M.L. was removed from the first program for "hyper-sexualized" behavior. She inappropriately hugged and kissed the director, and dressed in a provocative fashion. M.L. left a second program in January 2003, because she did not like it, and she agreed to stay home and keep house for Y.F. subject to certain conditions. M.L. was not permitted to open the door for anyone unless Y.F. was home, was not permitted to leave the house by herself, and was not to give information to anyone over the telephone. M.L. spent much of her time in her bedroom, which was decorated with children's toys, such as a Teletubby doll. She had cartoon characters on her bed linens. She watched videos and cartoons such as, "Tom and Jerry," "Dora the Explorer," "Batman and Robin," "Mickey Mouse," and "Spiderman" in addition to CSI and Spanish language soap operas.
Y.F. met defendant socially, and gave him her home phone number. On May 19, 2003, he called Y.F.'s home while she was at work, and spoke with M.L. According to M.L.'s trial testimony, M.L. told defendant that she was Y.F.'s sister. He asked her if she was pretty, and asked for the address to the apartment, which she gave to him, although she could not give him directions. Defendant asked M.L. to let him in after arriving at the apartment door, even though she told him she was not allowed. Once in the apartment, defendant grabbed M.L. by the shoulders, hugged her, and kissed her on the mouth, which she did not like. At first, defendant told M.L. to sit on the couch, and then asked her where her bedroom was located. M.L. went to the bathroom, and when she came out, defendant was in her bedroom. He had drawn the curtains on the windows. He took his penis out of his pants and told M.L. to "put [it] in [her] mouth." Although she did not want to do it, M.L. stated that defendant made her. He removed her clothing and proceeded to have sexual intercourse with her, and kissed and fondled her body. M.L. told defendant that he was hurting her, but he responded by saying, "no, it's not going to hurt you." When defendant was finished, M.L. dressed. While defendant was out of the room, Y.F. called to check on M.L., who did not tell her what had occurred. Defendant asked M.L. who had called upon his return, and M.L. told him it had been her sister. He then asked for Y.F.'s number at work, which M.L. gave him, and he called Y.F. while he was still in the apartment. After talking to Y.F., he asked M.L. to make him some coffee, which she did. He then left, saying that he would return the following day because he was off from work. He also told M.L. that he loved her, and told her not to tell anyone what had happened, including Y.F. After leaving, he called M.L. several times, and she told him not to bother her.
Y.F. testified that later that day, she received a call at work from defendant, who asked Y.F. if there was anything wrong with her sister. She responded that her sister had a "mental problem." During the conversation, they agreed that they would talk again after 5:30 p.m. when Y.F. would be home.
Upon returning home, Y.F. found M.L. in her bedroom, crying and shaking. M.L. told Y.F. that defendant had been at the apartment and described the events of the afternoon, at which point Y.F. called the police. M.L. was taken to the emergency room, where she was examined.
The following day, defendant called the apartment. He seemed surprised that Y.F. was home, and asked if he could come over. Y.F. agreed and called police, who were at the apartment waiting for him when he arrived.
At the Prosecutor's Office, defendant waived his Miranda rights and gave a statement. Although he admitted having sex with M.L., he denied any knowledge of any mental impairment.
At trial, the State's expert, Dr. Richard Coco, a forensic psychologist, testified that M.L.'s Wechsler I.Q. test score was 88, just below normal, based on the Spanish standardization of the test. Coco further testified that the Spanish language version of the test gives inflated scores to Puerto Ricans*fn2 as opposed to persons from other Spanish-speaking countries. Coco said that M.L.'s verbal I.Q., based on abstract reasoning ability, was 79, a "relatively low score," that indicated "borderline intellectual functioning." According to Coco, M.L. did much better with the non-verbal portions of the test, and scored in the average range in those sections.
Coco said M.L. scored in the bottom one-tenth percentile in the Vineland Adaptive Behavioral Scales test administered to Y.F., meaning that 99.9% of the population had higher scores than M.L. The Vineland test is given to caregivers of mentally-challenged patients in order to determine the basic functioning level of the patient.
Coco opined, based on his testing, interviews, and reviews of M.L.'s records, that she would not be able to understand the subtleties of a person asking her questions such as where her bedroom was, or that it was a reference to sexual activities. He estimated her mental age to be between six and twelve years, and diagnosed her as suffering from mild mental retardation.
Coco testified that M.L. would be able to give her consent if "she was going to be engaging in . . . sexual activity [with] . . . her peer cognitively and socially," and if "manipulation and duress would not be part of [the] formula." He further opined that even if she invited a man home who did not frighten her, she "would not be able to consent in an informed manner" to any sexual activity. Coco also said "that a person of normal and reasonable intelligence and understanding would know that [M.L. is] a person of some deficit and would have to treat her in that way," based upon observations such as her body posture, eye contact, and problems articulating ideas.
Defendant also produced an expert, Dr. Ernesto Perdomo. Perdomo testified that he administered non-verbal intelligence tests to M.L., reviewed her adult daycare records, medical records, and conducted an interview. He placed her functioning in the borderline range, in the bottom fourth or fifth percent of the population, and said that her cognitive abilities were "a little better" than those of a mentally retarded person. He found her drawings to be similar to those produced by an eight-year-old.
Nonetheless, it was his view that M.L.'s impediments stemmed from a psychiatric disorder that had responded well to medication in the past, and not from any intellectual impairment. Perdomo also discussed a prior diagnosis M.L. had received in September 2002, of chronic, undifferentiated schizophrenia. It was his view that M.L. not only understood the nature of sexual activity, but would be able to consent to it.
On appeal, defendant raises the following points:
BECAUSE THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE ALLEGED VICTIM'S MENTAL DEFECT RENDERED HER INCAPABLE OF CONSENTING TO THE SEXUAL ACTIVITY IN WHICH SHE AND THE DEFENDANT ENGAGED, THE JUDGE SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON ALL COUNTS. U.S. CONST. ...