October 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS RIVERA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1330.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Lisa, Sapp-Peterson, and Alvarez.
Found guilty by a jury of 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), defendant Carlos Rivera appeals his conviction and his resulting seven-year sentence. We affirm.
Defendant was convicted of both counts of Passaic County Grand Jury Indictment No. 02-10-1330. The trial court found that defendant committed the offenses prior to the amendment to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, effective on June 29, 2001, which made the sexual assault of a minor a predicate offense. The court, therefore, did not sentence defendant to a NERA term of parole ineligibility or parole supervision. The sentence was imposed subject to Megan's Law, N.J.S.A. 2C:7-1 to -21, and appropriate fines and penalties were assessed. The court also conducted pre-trial hearings on the admissibility of various hearsay statements, which included a videotape of the child and the testimony of the child's mother, both admitted pursuant to N.J.R.E. 803(c)(27).
C.S., born July 9, 1997, attended a pre-school/daycare in Paterson five days a week beginning when he was three and one-half years old. Defendant was hired as a substitute classroom aide at the pre-school in September 2000, was later promoted to a teacher's aide, and then to an assistant teacher.
Eileen Biamonte was the lead teacher for the four-year old students when, in September 2001, C.S. joined the class.
Initially, Biamonte's aide was a "Ms. Roselda," but Biamonte requested that defendant replace her because Biamonte believed that the classroom would benefit from a more experienced individual. Biamonte had previously worked with defendant for seven or eight months.
Since his arrival at the school, teachers at the school circulated rumors about defendant's allegedly inappropriate conduct with the children, such as rubbing students' backs as they fell asleep at naptime. Because of these rumors, Maryann Mirko, the chief executive officer of the corporation that ran the pre-school, advised defendant to protect himself by making sure that any physical contact he had with the children was in the full view of others. According to Mirko, classroom cots were placed so that they would be visible from classroom windows.
In late June 2002, Mildred Worth replaced Biamonte. During Worth's lunch break, the children would nap and defendant was left in charge of the classroom. According to Worth, C.S.'s cot was placed along an outer wall of the classroom in a somewhat isolated location. Although the classroom interior was visible from windows that could be viewed from a hallway and another classroom, C.S.'s cot could not be readily observed.
Worth also testified that defendant and C.S. were inseparable. On one particular day, she noticed that after "water play," defendant rubbed moisturizing lotion on C.S.'s legs. A few days later, she saw defendant wiping between C.S.'s toes with some cotton balls. She did not see defendant engage in this behavior with any other child. Worth also thought that she saw defendant looking down at C.S.'s body at a time when his bathing suit was pulled away. Worth was so concerned by her observations that she contacted Adrianne Fulcher, the director of the pre-school, and Mirko, to complain. She was asked to put the concerns in writing.
Mirko testified that when she attempted to discuss these concerns with Worth, Worth was in the midst of medical problems that caused her to be in and out of the hospital and, therefore, inaccessible. In addition, Mirko claimed to be on the verge of firing Worth because of her extended absences and because she was "an angry person" and "wasn't credible." Worth spent only eight to twelve days in the classroom with defendant before leaving the school.
V.M., C.S.'s grandmother, who frequently took the child to school, disapproved of defendant's showing C.S. "too much attention." She also objected to C.S. being allowed to play with dolls. The grandmother complained to Fulcher that defendant held C.S.'s hand when the class went for walks, that defendant rubbed the child's back before he went to sleep, and that he was not an appropriate male role model for the children. Because the grandmother was not the only person who expressed concerns about defendant's conduct, Fulcher began to observe the classroom more closely.
In June and July 2002, defendant called C.S.'s mother, L.M., on four occasions because C.S. was having tantrums at naptime. After the last of the phone calls, L.M. picked C.S. up early from school and asked her child why he was misbehaving.
C.S. said that he did not want to be in school.
During this same time frame, L.M. witnessed a nine-year-old neighborhood boy being sexually inappropriate with C.S. and reported this to police. C.S. was taken to the county Child Advocacy Center, where he was interviewed about the incident by Francine Raguso, a child interview specialist. C.S. did not mention defendant when he disclosed the details of the sexual assault involving the neighborhood boy.
On August 8, 2002, L.M. drove with C.S. to a take-out restaurant to pick up dinner. During the drive, she received a call from her mother, V.M., saying that she had heard that defendant "was kissing on" the child. L.M. then asked C.S. if he had been kissed by defendant. The child initially shrugged his shoulders. When his mother asked again, he said that defendant kissed him on the cheek, but did not kiss other children. When L.M. asked C.S. if he was being "touched" or "felt," he disclosed that defendant had been touching his penis during class naptime. The child said defendant would tell him to "make the first move," which meant the child should pull out his private part so that defendant could "shake it." When L.M. asked C.S. why he did not previously tell her or anyone about this, he said that defendant told him that secrets are not supposed to be told.
The following day, L.M. took C.S. back to the Child Advocacy Center, where he was again interviewed by Raguso on videotape. C.S. told Raguso that when he would lie on his cot at naptime, defendant would pull down his pants and underpants and shake his private part. When asked what would happen next, C.S. merely answered, "I forgot."
Prior to C.S.'s testimony at trial, the court conducted a competency hearing because the child was only seven years old. Defense counsel waived defendant's appearance at the hearing on the record, as defendant had misunderstood the court schedule and went to lunch at the same time the hearing was scheduled.
Mirko, Fulcher, and Biamonte testified as defense witnesses. V.M., the child's grandmother, was also called as a defense witness. During summation, defense counsel argued that C.S. had been manipulated by his grandmother into making claims against defendant because V.M. did not like him. He suggested that V.M. had convinced L.M. to lie, and together mother and grandmother convinced C.S. to make false accusations about defendant. In his closing, defense counsel highlighted the inconsistencies between the statements C.S. made to his mother, the videotaped statement that was shown to the jury, and his testimony on the stand. He contended that Worth's testimony was "contrived" and reminded the jury that she and defendant had only worked together in the classroom for eight days. Defense counsel theorized that the charges were the end result of a conspiracy set in motion by the grandmother in the hostile atmosphere of the school, where defendant was not liked and was talked about because he was a man. Defense counsel vigorously attacked the credibility of Worth, C.S.' grandmother, C.S.' mother, and of the child himself. He argued that the charges were the product of "nothing more than a lot of gossip going on about the male employees in general and biases  some of the people or employees have against them."
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A NEW TRIAL.
DEFENDANT IS ENTITLED TO A REVERSAL SINCE THE TRIAL JUDGE ERRED BY ADMITTING S-2, THE VIDEO, AND THE TESTIMONY OF THE CHILD'S MOTHER UNDER RULE 803(c)(27) (PARTIALLY RAISED BELOW).
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL BECAUSE COUNSEL FAILED TO OBJECT TO THE ADMISSION OF S-2, AN INTERVIEW VIDEO AT THE RULE 803 HEARING, FAILED TO PROPERLY EXAMINE WITNESSES AND FAILED TO OBJECT TO DEFENDANT'S ABSENCE DURING C.S. QUESTIONING.
A. FAILURE TO OBJECT TO THE ADMISSION OF S-2
B. FAILURE TO PROPERLY EXAMINE WITNESSES
C. FAILURE TO OBJECT TO DEFENDANT'S ABSENCE DURING C.S.' QUESTIONING
THE SENTENCE IMPOSED BELOW WAS MANIFESTLY EXCESSIVE.
We first address defendant's contention that the trial court erred by denying the motion for a new trial. "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.
Defendant argues that "the evidence at trial did not support a rational finding by the jury that the essential elements of the crimes were established beyond a reasonable doubt." He claims that because C.S. did not provide details of the event and said only that defendant "touched his private part," C.S.'s testimony did not support the charges.
N.J.S.A. 2C:14-2(b) states that "[a]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than [thirteen] years old and the actor is at least four years older than the victim." Sexual contact is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d).
Given the testimony of C.S., the testimony of L.M. regarding his statement to her, and the videotape, the jury could reasonably find that the statutory elements of the charge of sexual assault were met. While Fulcher, Mirko and Biamonte disputed some of Worth's testimony, the jury was in a position to weigh the credibility of all witnesses, including the victim. There is no manifest injustice simply because the jury did not weigh his witnesses' testimony as defendant would have liked. See R. 3:20-1. The jury had the option of accepting the defense theory that the charges were the end result of baseless rumors about defendant, or of believing the child's statements. If they chose to believe C.S., his testimony clearly was a sufficient basis for conviction.
Defendant also asserts that he is entitled to a reversal because of the trial judge's alleged error in admitting the mother's testimony about C.S.'s disclosures, as well as the child's videotaped interview. As defendant did not object to the admission of the videotape below, that issue must be examined under the plain error standard.
The trial judge admitted the child's statement to his mother and the videotape pursuant to N.J.R.E. 803(c)(27). The rule makes the admissibility of a statement made by a child under the age of twelve about a sexual offense contingent on whether "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy and . . . the child testifies at the proceeding." N.J.R.E. 803(c)(27). The trial judge found that the statements met the rule's threshold requirements, namely, notification to defendant of the State's intent to offer the statements to the jury, disclosure of the statements, and the child's availability as a witness. See id. He redacted the last portions of the videotape as they consisted of Raguso reassuring the child about making the disclosure.
"[T]he trial courts . . . must serve as gatekeepers when repetitive corroborating hearsay evidence is proffered pursuant to New Jersey Rule of Evidence 803(c)(27)." State v. Smith, 158 N.J. 376, 391 (1999). The trustworthiness of a hearsay statement sought to be introduced under N.J.R.E. 803(c)(27) should be judged by the totality of the circumstances. Ibid. Moreover, "'a trial court should be cognizant of its right under N.J.R.E. 403, to exclude evidence if it finds in its discretion, that the prejudicial value of that evidence substantially outweighs its probative value.'" Ibid. (quoting State v. D.G., 157 N.J. 112, 128 (1999)). Nevertheless, "[a]s a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).
The trial judge said the admission of the statement C.S. made to his mother was "problematic" because it was not spontaneous and "was made in response to prompting and suggestive questioning by the mother." The mother's description of her conversation with C.S. made clear that her questions, although somewhat leading, such as asking the child if he was touched or felt by defendant, did not suggest the answer. After hearing the mother's testimony, the judge ultimately decided that his concerns went to the weight of her testimony and not admissibility. The trial judge's decision to admit L.M.'s testimony, in which she recounted her conversation with her son, is far from a clear abuse of discretion. Rather, we conclude that its admission was a reasonable exercise of discretion.
Once the videotape was redacted, defense counsel did not object to its admission. Accordingly, this aspect of the hearsay arguments raised on appeal will be considered under the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
It is generally accepted that a coercive investigative interview of a child can "shape the child's responses." State v. Michaels, 136 N.J. 299, 309 (1994). Somewhat leading questions by an investigating officer are, however, not necessarily inappropriate because of the lack of relationship between the interviewer and the child. State v. Delgado, 327 N.J. Super. 137, 147-48 (App. Div. 2000).
In this videotape, the child seemed comfortable with the interviewer. For example, when she referred to an item he was wearing on his head as a "headband," he quickly corrected her to indicate that it was a "sweatband." C.S. described the sexual assaults in the same manner as he had to his mother and as he did during trial. Throughout the videotape, C.S. repeatedly insisted that he told his mother the truth.
There was no coercion, duress, or manipulation exercised by the interviewer. Accordingly, we consider the judge's admission of the videotape pursuant to N.J.R.E. 803(c)(27) not to be error at all, much less plain error. It was a reasonable exercise of discretion to find that the videotape met the standards contained in N.J.R.E. 803(c)(27).
We next address defendant's argument that he received ineffective assistance of counsel by virtue of his attorney's failure to object to the admission of the redacted videotape, failure to properly examine witnesses, and failure to object to the competency hearing conducted in his absence. Generally, we do not entertain claims of ineffective assistance of counsel on direct appeal because "such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). All of these issues are best addressed on an application for post-conviction relief. Ibid.; State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). Accordingly, we decline to consider the issues raised at this time with one exception.
When a very young child is called to testify, and it is contended that he is incapable of understanding his duty to tell the truth, N.J.R.E. 104(a) requires a hearing as to his qualifications, in other words, his competency. See State v. T.E., 342 N.J. Super. 14, 24-25 (App. Div.), certif. denied, 170 N.J. 86 (2001). Defendant does not now challenge the judge's determination that seven-year-old C.S. was qualified, only that the proceeding took place in his absence. At trial, defense counsel waived his client's presence in order for the competency hearing to be completed.
"A [party] cannot request the trial court to take a course of action, and upon adoption by the court take his chance on the outcome of the trial, and, if unfavorable, then condemn the very procedure which he urged, claiming it to be error and prejudicial." State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966). Like judicial estoppel, the doctrine of invited error "is designed to prevent [a party] from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). It is applicable where the trial court relies on a party who is able to convince the court into taking a position that the party later urges is error on appeal. Ibid.
In this case, in addition to the court's specific finding that defendant voluntarily absented himself from the proceedings, we find that any error, if error it was, was invited by defense counsel's waiver of his client's presence. Defense counsel's waiver, on which the court relied, cannot now be urged as error on appeal. In any event, defendant has not established how the waiver prejudiced his defense, or indeed had any impact on the jury's verdict.
Defendant's final argument is that the sentence imposed was manifestly excessive. He contends that the court should have awarded unspecified mitigating factors.
Defendant also asserts that the trial judge's aggravating factors were found in the absence of any facts to support them. Here, the judge found that the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), was warranted, and we agree. Defendant was the child's thirty-eight-year-old nursery school teacher, and the victim was four. The vulnerability of C.S. to predation by a teacher, and C.S.'s extreme youth, were indeed a proper basis for the award of that aggravating factor. There was a relationship of trust between defendant and victim and far more than a four-year difference in their ages. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988). It was also appropriate for the trial judge to conclude that there is a risk that defendant will reoffend, N.J.S.A. 2C:44-1(a)(3), because of defendant's denial of responsibility and lack of remorse. State v. Carey, 168 N.J. 413, 427 (2001); State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). As for the weight the judge accorded to the need to deter, N.J.S.A. 2C:44-1(a)(9), because defendant was convicted of two second-degree offenses, the significance of this otherwise general aggravating factor is increased. Carey, supra, 168 N.J. at 426.
Sentencing decisions flow from a qualitative, not quantitative, analysis of statutory aggravating and mitigating factors. Given this qualitative analysis, we find that overall, the record supports the judge's mid-range sentence of seven years. The status of offender and victim, the very young age of this child, defendant's inability or unwillingness to accept responsibility and to express remorse, and the strong need to deter, outweigh the mitigating factors, defendant's lack of a prior criminal history, N.J.S.A. 2C:44-1(b)(7), and that the imprisonment of defendant will entail excessive hardship to him, N.J.S.A. 2C:44-1(b)(11).
Overall, the judge's sentencing findings were "grounded in competent, reasonably credible evidence," reflected the application of "correct legal principles," and yielded a sentence that does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). The sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion.
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