On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-11-4478.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Wefing, Yannotti and LeWinn.
Camden County Indictment No. 04-11-4478 charged defendant, Dagoberto Gutierrez, with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); one count of second-degree criminal attempt, N.J.S.A. 2C:5-1, 2C:14-2(a)(1); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Tried to a jury, defendant was convicted of the lesser included offense of second-degree sexual assault, first-degree aggravated sexual assault and second-degree endangering the welfare of a child. On January 29, 2007, defendant was sentenced to a term of six years on the second-degree sexual assault charge; a consecutive term of sixteen years on the first-degree aggravated sexual assault charge; and a concurrent term of eight years on the endangering charge. His aggregate sentence of twenty-two years was subject to an eighty-five percent period of parole ineligibility as prescribed by the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2.
The charges spanned the period from May 2003 to September 2004, during which time defendant was living with his girlfriend, F.R., and her then-eight-year-old daughter, M.R., who was the victim of the offenses charged.
F.R. and defendant had lived together for approximately eight years, and had two children together, A.R. and J.G. F.R. testified that, in September 2004, M.R. approached her and said "she had something very important to tell" her. M.R. then "started crying and became nervous," but eventually disclosed to F.R. that defendant had touched her. M.R. told her mother that defendant "had touched her vagina, that he put his penis on the front, that he had rubbed the front, and he had also put it in the back." M.R. further disclosed that defendant "would try to get her to put her mouth on his penis and that he would make her, and he would pull her by the hair."
On September 3, 2004, F.R. contacted the Camden City Police Department, and was referred to Janene Bahr, an investigator in the Child Abuse Unit of the Camden County Prosecutor's Office. Bahr interviewed M.R., her mother, and her brother, A.R., on September 7, 2004. During that interview, which was videotaped, M.R. detailed an extensive history of sexual abuse inflicted upon her by defendant, and used anatomically correct dolls to demonstrate the abuse she described.
M.R. told Bahr that the first person she told about this abuse was her mother just a few days prior to the interview. M.R. stated that she had not told her mother anything earlier because she was "scared that [defendant] was [going to] do something to [her] mom [be]cause those days he wasn't working... and... he said... if you put me in jail... before I go to jail I'm gonna kill your... mom." M.R. stated that defendant warned her against telling her mother after each incident of sexual abuse.
A.R. was also interviewed by Bahr, and testified at trial. A.R. stated that he saw defendant "pulling" M.R. into bed one morning in 2004. A.R. testified that on another occasion, he observed defendant "grabbing" M.R. and pulling her to him in the kitchen; defendant was wearing boxer shorts at that time. A.R. testified that he observed defendant touch M.R.'s "butt" with his hands on an occasion when M.R. was sleeping on the couch; A.R. then saw defendant try "to put his thing into... [M.R.'s] butt." A.R. confirmed that he saw defendant's penis on that occasion.
Based upon her interviews with M.R., A.R. and F.R., Investigator Bahr, along with Senior Investigator Chuck Bentham, arrested defendant at his residence. Defendant was taken to the Camden County Prosecutor's office, where he was interviewed by Bahr and Bentham.
At a pre-trial Miranda*fn1 hearing, Bahr and Bentham described their interview with defendant. Initially, they conversed with defendant in English and defendant appeared to speak and understand English clearly. Bahr explained to defendant that she and Bentham wanted to discuss M.R.'s allegations with him. Bahr provided defendant with an English-language Camden County Prosecutor's Statement of Rights Form. Bahr began to read the rights card out loud to defendant, who indicated that he understood both his right to remain silent and that anything he said could be used against him in court. Defendant wrote the word "yes" next to each of those rights on the form.
However, when Bahr read the third right -- the right to consult with an attorney and have one present before making any statements -- defendant stated that he was "having a hard time reading the English," and Bahr offered to bring in a Spanish translator for him.
Investigator Miguel Rubert testified at the Miranda hearing that Bahr brought him into the interview room. Rubert presented defendant with a Spanish-language rights form and read the rights to him in Spanish. Defendant circled "yes" for each statement of rights and initialed each answer. Defendant, Bahr, Betham and Rubert all signed the Spanish-language form.
After defendant signed the Spanish-language rights form, Bahr re-read to him the English-language rights form, during which Rubert was present to translate. Once again, defendant indicated that he understood and signed the card. Following the waiver of his rights, defendant stated that he no longer required Investigator Rubert's translation services because he had no problem speaking English, but that he only had difficulty reading. Rubert thereupon exited the interview room, leaving Bahr and Bethem to interview defendant.
During that interview, Bahr disclosed to defendant the substance of M.R.'s allegations. Defendant became "upset," and "denied having had any type of sexual contact" with M.R. After Bahr disclosed additional information from M.R.'s interview, however, defendant eventually admitted that he had had sexual contact with M.R. Bahr obtained defendant's permission to tape the interview.
Defendant told Bahr that M.R. had approached him "a few times" and started "playing" with his penis. Defendant further stated that M.R. would often lie next to him, give him massages and try "[to] put it inside [of her]...."
Defendant described an incident during which M.R. gave him a massage in his bed and then "jumped on top" of his penis and tried to "play around with it." Defendant claimed that he told M.R. to stop, but "she just ke[pt] on doing it."
Defendant stated that, on approximately three separate occasions, his penis went into M.R.'s vagina "about an inch...." Defendant claimed that he warned M.R. that she would "put [him] in trouble... with [the] police and mommy...." Defendant stated, "she was... still [a] little girl, you know, still a baby... [and]... she... d[id]n't realize probably..., and I probably made... [a] mistake too...." When Bahr asked him to clarify what he meant by a "mistake," defendant stated, "[y]ou know, let her do things like that... I was weak probably."
During one incident, defendant acknowledged that he touched the outside of M.R.'s vagina with his finger, which he stated was at her request. Defendant claimed that he was trying to show M.R. what she should not let anyone do to her because "that's no good, that's not right."
Defendant described another incident that took place in his bedroom in the presence of A.R. and J.G. He stated that, while he was lying on his bed, M.R. "came to [him] and [asked],... you want a massage?" Defendant "brought the cream down" and "because [he] was so tired... [M.R.] came and gave [him] a little massage." Defendant continued that M.R. then "came down and then she start[ed] playing with [him],... like touching [his]... penis and [his] balls and all that stuff... with [her] hand...." Defendant stated that he tried to make M.R. stop, but she would "go on... playing around...." Defendant stated that M.R. took his erect penis and put it "[p]robably in her butt," and although he told her repeatedly to stop, "she was keeping going," and "was laughing."
In all, defendant stated that he put his penis in or on M.R.'s buttocks "no more than five" times. He added that every time one of these incidents occurred with M.R., F.R. was at work. He also stated that every time he engaged in sexual activity with M.R., A.R. and J.G. were present in the room. ...