October 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-2042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Parker and LeWinn.
Defendant R.P. appeals from a judgment of conviction entered on May 25, 2007 after a jury found him guilty of four counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and four counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. After the second degree counts were merged into the first degree counts, defendant was sentenced to four consecutive terms of eighteen years for an aggregate term of seventy-two years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The facts relevant to this appeal are as follows. On the night of July 7, 2005, defendant's wife, G.G., awoke and heard sounds coming from their fourteen-year-old daughter's bedroom. G.G. found defendant having sexual intercourse with the girl on her bedroom floor. The girl was blindfolded and believed that "spirits" had come to her through the night as defendant had told her they would during their morning runs.
After interrupting defendant's conduct with the girl, G.G. took the girl into her bedroom, locked the door and called the police and a family member. Defendant threatened suicide and fled.
The police arrived and interviewed the girl, who was transported to the hospital for a sexual assault examination. Numerous injuries to the girl's genitals were noted and a DNA test confirmed that semen in the child's vagina and cervix was defendant's.
During interviews with investigators, the girl stated that defendant had sexually penetrated her on at least four occasions and possibly as many as twenty times beginning in June 2005. The girl stated that she had been grounded for the summer because she was communicating with a boy and defendant told her that if she did as the "spirits" told her, her punishment would be taken away. All of the sexual assaults occurred while the girl was blindfolded and lying on the floor.
Defendant was located and arrested shortly thereafter. During an interview with investigators on July 8, 2005, he was advised of his Miranda*fn1 rights and reported to the investigators that he had been working with his daughter "spiritually" for a period of time. He reported that he was afraid the girl would have sex with an eighteen-year-old boy she had met on the internet, so he allowed the "spirit" to use his body to communicate with the girl. He acknowledged that the first assault occurred in June 2005. He indicated that a second "spiritual" episode occurred a few days later and that the third and fourth incidents occurred because he believed the "spirits" were good for the girl and would make her more "mature" for a beauty pageant she was entering.
During her interviews with the police, the girl expressed concern that her father would be in trouble and that her family would be sent back to Chile. Nevertheless, she gave graphic accounts of the assaults.
Prior to trial, defendant was evaluated for competency to stand trial. Christine Joseph, Ph.D., performed the evaluation and determined that defendant was competent to assist in his defense and stand trial. During the evaluation, defendant stated that he was a "medium" who works with "spirits" and was acting on his own beliefs as to what was appropriate for his daughter. The trial court found him competent.
Defendant testified at trial about his interaction with the "spirits." He denied sexual contact with his daughter, stating, "[i]t's impossible for a spirit to have sex with a human being." He claimed "that she had had sex with the spirit while using my body." He acknowledged that he "realized" that his body was having sex with his daughter "[a]fter the third time."
In this appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR ACQUITTAL OF THE THREE OTHER SEXUAL ASSAULTS CHARGED UNDER COUNTS 1 THROUGH 3 AND THE RELATED ENDANGERMENT CRIMES CHARGED UNDER COUNTS 5 THROUGH 7 BECAUSE THE STATE INTRODUCED INSUFFICIENT EVIDENCE TO PROVE THESE CRIMES BEYOND A REASONABLE DOUBT
THE TRIAL COURT ERRED IN FAILING TO REASSESS DEFENDANT'S COMPETENCY AFTER HIS COMMENTS DURING TRIAL AND HIS DIRECT TESTIMONY; CONTINUING TRIAL AFTER THIS POINT VIOLATED DEFENDANT'S FEDERAL AND STATE DUE PROCESS RIGHTS (PLAIN ERROR)
THE TRIAL COURT ERRED IN FAILING TO CHARGE INSANITY AND MENTAL DEFECT (PLAIN ERROR)
THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S EXTRA-JUDICIAL STATEMENTS TO POLICE OFFICERS WITHOUT FIRST HOLDING A HEARING, OUTSIDE THE JURY'S PRESENCE, TO DETERMINE WHETHER DEFENDANT'S STATEMENTS WERE VOLUNTARY (PLAIN ERROR)
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE
In his first point, defendant maintains that the trial court erred in failing to grant his motion for acquittal on three of the four first degree aggravated sexual assault counts because the State provided no specific dates on which those three offenses occurred. We find no merit to this argument. R. 2:11-3(e)(2).
Defendant's daughter's testimony was sufficient to support each of the four counts and allow the jury to decide defendant's guilt or innocence on those charges. The absence of specific dates in an indictment is inconsequential as long as the time frame is sufficient to put defendant on notice of the charges. State v. Bowens, 219 N.J. Super. 290, 294 (App. Div. 1987). Young victims are given some leeway in specifying dates of alleged sexual assaults because the date is not an element of the offense. In the Interest of K.A.W., 104 N.J. 112, 120 (1996).
In his second point, defendant argues for the first time on appeal that he should have been re-evaluated for competency after the trial began. He contends that his testimony regarding his interaction with the "spirits" raised serious questions about his competency.
N.J.S.A. 2C:4-4b provides:
b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:
(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and
(2) That his elementary mental processes are such that he comprehends:
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense. Competency to stand trial is based on a determination of whether the defendant understands his position and can consult intelligently with his attorney in preparing a defense. Aponte v. State, 30 N.J. 441, 450 (1959). "An insane defendant may very well be capable of standing trial." State v. Spivey, 65 N.J. 21, 39 (1974) (citing State v. Noel, 102 N.J.L. 659, 671-71 (E. & A. 1926) ("[t]he fact that a person has been adjudicated a lunatic does not mean that he is exempt from prosecution for the commission of a crime."). "Even where disruptive, erratic behavior is predicted, courts will not substitute such predictions for their considered judgment as to defendant's competency to stand trial." Id. at 42. While a defendant "may engage in bizarre behavior to appear psychotic," he may still be competent to stand trial if he meets the competency standard. Ibid.
We have carefully reviewed the record and find that in several pre-trial proceedings, defendant demonstrated that he understood he was in a court of law, he understood the offenses with which he was charged, he understood and questioned pre-trial procedures, he made a knowing and voluntary decision to reject the plea offer and stand trial.
During defendant's testimony, his answers to questions were responsive, he frequently asked for the opportunity to explain his answers further, and he told a consistent story about the "spirits." He understood his right to testify when questioned by the court and made his own decision to testify. In short, there was no error, let alone plain error here. R. 2:10-2.
In his third point, defendant argues for the first time on appeal that the trial court erred in failing to charge the jury on insanity and mental defect. This point lacks merit because defendant -- who has the burden of proving insanity -- presented no evidence of insanity, no psychiatric reports and no testimony respecting his sanity or mental defect. State v. Savage, 120 N.J. 594, 612-22 (1990). While defendant's behavior may appear bizarre, he presented no evidence of a mental defect, disease or disorder as required for an insanity defense. State v. Reyes, 140 N.J. 344, 364-65 (1995). He made no request for an insanity charge at trial and gave no notice of an insanity defense. N.J.S.A. 2C:4-3. "In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense." N.J.S.A. 2C:4-2. Defendant did not carry his burden to prove insanity or mental defect at trial. Savage, supra, 120 N.J. at 612-22. He did not do so and the trial court committed no error in failing to include an insanity charge sua sponte. R. 2:10-2.
Defendant next argues for the first time on appeal that his statements to the police should not have been placed in evidence without a hearing demonstrating their voluntariness. Again, defendant raised no objection to the admissibility of his taped statement and there is no evidence that his statements were in fact coerced. State v. Harvey, 151 N.J. 117, 195 (1997). We find no error in the trial court's failing to conduct a hearing on the voluntariness of defendant's pre-trial statements to police when there was no evidence of coercion and defendant raised no question as to the voluntariness at trial. R. 2:10-2.
With respect to his sentencing arguments, defendant maintains that the four consecutive terms are manifestly excessive. We disagree. Each of the offenses was separate and distinct and the consecutive sentences are consistent with State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 89 L.Ed. 2d 308 (1986). We have considered defendant's arguments and we are satisfied that the sentence is not manifestly excessive, unduly punitive or an abuse of discretion. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).