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In the Interest of R.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION STATE OF NEW JERSEY


April 4, 2012

IN THE INTEREST OF R.C., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Nos. FJ-20-2409-08 and FJ-20-1727-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2012 -

Before Judges Baxter and Nugent.

R.C. appeals from two separate adjudications of delinquency. The first involves his adjudication on a charge that if committed by an adult would constitute the third-degree crime of animal cruelty, N.J.S.A. 4:22-17(b). The judge found that R.C. deliberately threw a frozen water bottle at a dog's head, causing the dog to suffer seizures and die a week later. The judge found the identification testimony of the dog's owner to be credible, and likewise credited the expert opinion of the State's expert witness, veterinarian Dr. Tony Tavormina, on the dog's cause of death.

The judge also adjudicated R.C. delinquent on a charge that if committed by an adult would constitute the first-degree crime of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). The judge found that R.C. committed an act of anal penetration on his five year-old nephew. In reaching that conclusion, the judge accepted the expert opinion of Dr. Gladibel Medina, who testified as an expert in the field of child sex abuse. Dr. Medina testified that although her examination did not reveal any physical signs of sexual assault on the victim, the absence of such signs was not inconsistent with the victim's allegations. She explained that anal penetration generally does not cause observable injury, and even if such signs of injury are present, the injury generally heals within seventy-two hours, leaving no observable evidence. Dr. Medina opined that because her examination of the victim did not occur until months after the alleged sexual assault, no physical signs of injury would be expected.

On appeal, R.C. raises the following claims:

I. THE ADJUDICATION OF DELINQUENCY FOR THIRD-DEGREE ANIMAL CRUELTY MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT A FINDING THAT THE JUVENILE HAD CAUSED THE DOG'S DEATH.

II. THE MEDICAL EXPERT'S TESTIMONY SUGGESTING THAT P.E.'S ALLEGATIONS OF SEXUAL ABUSE WERE TRUE EXCEEDED THE SCOPE OF PERMISSIBLE EXPERT TESTIMONY AND IMPROPERLY ADDRESSED THE ULTIMATE ISSUE BEFORE THE JURY [sic], THEREBY DEPRIVING THE JUVENILE OF A FAIR TRIAL AND REQUIRING THE REVERSAL OF HIS CONVICTIONS. (Not Raised Below)

We find these claims unpersuasive, and affirm.

I.

In Point I, R.C. maintains that the adjudication of delinquency for animal cruelty must be reversed because the evidence was insufficient to support a finding that he caused the dog's death. First, he contends that while the owner of the dog, Marisol Rodriguez, identified R.C. as being present when the dog was struck, and R.C. admitted to police that he had been present, R.C. testified that his two friends, not he, threw the water bottle at the dog's head. According to R.C., Rodriguez offered no explanation of how she was able to determine which of the three boys had struck the dog from the other side of the fence.

R.C.'s argument ignores the testimony of Rodriguez that she watched as R.C. reached through the slats of the fence and hit her dog with his frozen water bottle. Immediately following the attack, she followed R.C. and took a picture of him. The judge accepted the testimony of Rodriguez as credible. As the judge's findings of fact are supported by substantial and credible evidence in the record, we are obliged to defer to his determination that the identification testimony Rodriguez provided was indeed credible. State v. Locurto, 157 N.J. 463, 470-71 (1999).

In connection with the animal cruelty charge, R.C. further maintains that the judge erred when he found that the dog's death was a result of the blow to its head one week earlier. As the State correctly argues, inferences of guilt may be based on circumstantial evidence, State v. Franklin, 52 N.J. 386, 406 (1968), which need not exclude every other hypothesis. State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 187 (1997). The judge accepted the circumstantial evidence and the opinion testimony of Dr. Tavormina. We have been presented with no meritorious basis upon which to disturb the judge's findings on that subject, as his findings are amply supported by the record. Locurto, supra, 157 N.J. at 470-71. We reject R.C.'s challenge to the adjudication of delinquency on the charge of animal cruelty.

II.

In Point II, R.C. asserts that the opinion testimony provided by Dr. Medina on the aggravated sexual assault charge exceeded "the scope of permissible expert testimony and improperly addressed the ultimate issue before the jury [sic],*fn1 thereby depriving [him] of a fair trial." This argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, Dr. Medina never opined that R.C. was guilty of the offense in question. She merely opined that the absence of signs of physical injury was not inconsistent with a finding of anal penetration months earlier. Her testimony stayed well within the boundaries the Court articulated in State v. Odom, 116 N.J. 65, 79 (1989). We reject R.C.'s challenge to the adjudication of delinquency on the aggravated sexual assault charge.

Affirmed.


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