November 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIE GUAMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1400.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Grall and Messano.
Defendant Jamie Guaman appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2 and 2C:14-2(a)(3); first-degree aggravated sexual assault through the use of force or coercion while aided or abetted by another, N.J.S.A. 2C:14-2(a)(5); first-degree aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2(a)(3); first-degree kidnapping with the purpose to facilitate a sexual assault, N.J.S.A. 2C:13-1(b)(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2. At sentencing, the conspiracy conviction was merged with one of the aggravated sexual assault convictions, and the criminal restraint conviction was merged with the kidnapping conviction. The judge imposed two concurrent, fifteen-year sentences on the aggravated sexual assault convictions, and a consecutive, twenty-year term of imprisonment on the kidnapping conviction. Each sentence included an 85% period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2.
Defendant raises the following arguments on appeal:
THE INTRODUCTION OF INADMISSIBLE EXPERT TESTIMONY DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I, ¶¶ 1, 9, AND 10. (Not Raised Below)
THE IMPOSITION OF CONSECUTIVE SENTENCES ON THE KIDNAPPING AND AGGRAVATED SEXUAL ASSAULT COUNTS WAS NOT JUSTIFIED AND LED TO AN OVERALL SENTENCE THAT WAS MANIFESTLY EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. As to defendant's sentence however, we remand the matter to the trial court for further proceedings consistent with this opinion.
We briefly recount the salient testimony at trial. Shortly after midnight on February 24, 2003, T.S. was walking from Penn Station in Newark to her home on Lafayette Street. She observed a van moving slowly and apparently following her. Growing increasingly concerned for her safety, T.S. attempted to dial 911 on her cell phone. As she did, a man forcefully lifted her into the van, and she was driven to a secluded street.
T.S. realized there was more than one other individual in the van; she attempted to fight off her assailants, but was unable to do so. Because of the lack of lighting, she could not identify her attackers. At least two individuals sexually penetrated her vaginally; one additionally penetrated her anally. A third man attempted to force T.S. to perform oral sex upon him, but, as she resisted, a bright light emanating from outside the van startled her attackers.
T.S. seized this opportunity to escape, exited the van, naked from the waist down, and screamed that she had been raped.
She noticed that the bright light was coming from another vehicle, to which she ran. After entering it, she realized it was a police car.
Several minutes earlier, while on patrol in the area, Newark police officers William Golpe and Gene Vecchione had taken note of the van because it was parked alone on the street in an area where the local businesses were closed for the evening. They approached the front of the van in their vehicle, shining their spotlights on the car's windshield. They observed the defendant sitting behind the steering wheel, but also observed "some kind of motion in the vehicle." As they approached, T.S. exited from the passenger side screaming, "Help, they're raping me." Golpe went to the passenger-side door and saw two men, one "putting on... black sweatpants" with his "penis... exposed." All three men were arrested. Golpe's search of the vehicle led to the retrieval of all of T.S.'s clothing, except her panties. Later, when defendant was searched at headquarters, the panties were found in his pants pocket.
T.S. received medical treatment, and forensic exemplars were taken at the hospital. She testified that her arms were forcibly held down during the attack, and that she suffered "scratches and bruises up and down [her] arms and on [her] hands,... on [her] legs... on [her] back and... all over [her] skull[,]" as well as "a scratch on [her] nose in between [her] eyes...."
Defendant stipulated to the results of forensic testing that revealed him to be "a contributor of spermatozoa found in the vaginal and anal slides" obtained from T.S. It was further stipulated that after defendant initially appeared for his arraignment, he failed to appear for a status conference, and a bench warrant for his arrest was issued. Defendant was arrested seventeen months later in Los Angeles, California, and waived extradition.
Without objection, the State called Alicia Seery-Scala, a registered nurse and trained sexual assault nurse examiner, as an expert witness. She had reviewed the records of the medical and forensic examinations conducted upon T.S. on the night of the crime, as well as some "prior testimony" given by T.S.*fn1 The following exchange took place between the prosecutor and Seery-Scala:
Q: Now, after reviewing the material that you mentioned, have you come to an opinion to a degree of reasonable medical certainty concerning [T.S.'s] injuries?
A: Yes. I have.
Q: And what was that opinion?
A: That the documented injuries are consistent with [T.S.'s] account of the events of that evening.
Seery-Scala went on to opine that the "documented findings" were "consistent with restraint[,]" "[s]omeone forcibly holding [T.S.'s] arms back or down." She further identified the physical bruises and scratches, explaining in detail how they were "consistent with the accounts of that evening." On cross-examination, Seery-Scala acknowledged that T.S.'s injuries could also be "consistent with rough sex."
Defendant testified. In short, he alleged that T.S. had agreed to have sex with him and his cohorts in the back of the van for $100. He further claimed that the sex became "a little rough." Defendant told the jury that T.S. became upset because one of the other men refused to pay her the entire amount as agreed.
Defendant knew the lights shining in the van were coming from a police car, but he believed that nothing serious would happen as a result of the incident. Regarding his reason for fleeing to California, defendant asserted that he was not trying to avoid trial, but rather was trying to save some money to pay a private attorney. The defense rested after defendant's testimony.
Defendant first argues that admission of Seery-Scala's testimony amounted to plain error because the opinions she rendered were "not beyond the ken of any jurors." As a result, he contends the testimony bolstered the victim's credibility, violating N.J.R.E. 702 which, he contends, "prohibits expert witnesses from testifying about other witnesses' credibility." We find the argument unpersuasive and without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only the following brief comments.
N.J.R.E. 702 permits "a witness qualified... by knowledge, skill, experience, training, or education" to testify as an expert "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...." "The Rule has three requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." State v. Jenewicz, 193 N.J. 440, 454 (2008) (citing State v. Kelly, 97 N.J. 178, 208 (1984)).
Defining the relevant inquiry regarding the first standard for admissibility--the only one defendant challenges--our Court has said:
The admissibility of expert testimony turns not on "whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter, but [on] whether the witnesses offered as experts have peculiar knowledge or experience not common to the world which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue."
[State v. Odom, 116 N.J. 65, 70 (1989) (citing State v. Zola, 112 N.J. 384, 414 (1988) (quoting Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141-42 (1950))).]
The Court's most recent decisions reflect that "the standard for admissibility has evolved to a more liberal one." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2008).
A complete review of Seery-Scala's testimony reveals that she provided extensive detail regarding the nature of T.S.'s injuries and how they were most likely produced. For example, she explained how scratches on the inside of the victim's inner thighs were consistent with "a woman... fighting to protect her vaginal area...." She explained how bruises near T.S.'s vagina were the result of "blunt force trauma," likely to occur when "an erect penis... is attempting to find th[e] vaginal opening and is hitting in the area of the vagina, but not actually finding the vaginal opening because he's [sic] unable to gain his partner's assistan[ce]...." In short, we cannot conclude that this testimony would not assist the jury in "determin[ing] a fact in issue[,]" i.e., whether defendant's sexual penetration of T.S. was achieved through "physical force or coercion," N.J.S.A. 2C:14-2(a)(5), or through consensual "rough" sex.
Moreover, even if the testimony was improperly admitted, defendant did not object. Thus, we must examine whether the evidence was "clearly capable of producing an unjust result," the standard we apply to review allegations of plain error. R. 2:10-2. In light of the overwhelming evidence of defendant's guilt, we are firmly convinced that Seery-Scala's testimony did not create an injustice. We therefore affirm defendant's conviction.
Regarding his sentence, defendant contends: 1) that the trial judge failed to give any reasons for imposing consecutive sentences; and 2) that consecutive sentences should not have been imposed under the facts of the case. In particular, defendant argues that "[t]he sexual assault and kidnapping can not fairly be regarded as 'predominantly independent of each other[,]'" quoting State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
The State concedes that "the trial judge did not give an exhaustive explanation [of] the reasons for consecutive sentences...." It counters, nonetheless, that consecutive sentences were justified for reasons that "were readily apparent from the record."
The trial judge found as aggravating factors "the nature and circumstances of the offense," and the need to deter defendant and others from further violations of the law. N.J.S.A. 2C:44-1(a)(1) and (9). He also found as a mitigating factor defendant's lack of any criminal history. N.J.S.A. 2C:44-1(b)(7). The judge failed to state any reasons whatsoever, for his decision to impose consecutive sentences.
In deciding whether to impose concurrent or consecutive sentences, the judge is required to "articulate the reasons for [his] decisions with specific reference to the Yarbough factors." State v. Abdullah, 184 N.J. 497, 515 (2005)(citing State v. Miller, 108 N.J. 112, 122 (1987)). The lack of such an analysis inhibits our ability to review the consecutive aspect of defendant's sentence. See State v. Cassady, 198 N.J. 165, 182 (2009) (observing that the consecutive sentence imposed was justified since "the sentencing court faithfully paired the Yarbough factors with the facts as found by the jury...."). Thus, we are compelled to remand the matter for re-sentencing so that the judge may fully explain his reasons for imposing consecutive sentences in this case.
For the sake of completeness, we address defendant's second point, i.e., that consecutive sentences can not be justified under the facts of this case. In this regard, defendant does not contend that either of the sexual assaults is a lesser-included offense of the kidnapping charge, requiring merger as a matter of law. N.J.S.A. 2C:1-8(d). Rather, he asserts that since the kidnapping was "committed solely to facilitate the commission of" the very sexual assaults of which he was also convicted, "the crimes and their objectives were [not] predominantly independent of each other...." Yarbough, supra, 100 N.J. at 644.
However, defendant identifies only one of the Yarbough factors that the court must consider in deciding whether a consecutive sentence is warranted. In State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000), we rejected the argument that consecutive sentences could not be imposed because of the "unity of specific purpose" between the kidnapping the defendant committed, and the aggravated assaults that were its object. We specifically noted that although "the offenses were not predominately independent of each other and were committed close in time and place," "those are not the only factors to be considered." Ibid.
So too in this case, the judge on remand must analyze all of the relevant Yarbough factors in light of the factual findings announced by the jury through its verdict. We hasten to add that we express no particular opinion regarding the consecutive feature of the sentences initially imposed, but rather, we commit to the trial judge's sound discretion consideration of what the appropriate sentence should be.
Defendant's conviction is affirmed. We remand the matter to the trial judge for re-sentencing in accordance with our opinion. We do not retain jurisdiction.