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State of New Jersey v. Omar Pardo


May 7, 2012


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0488.

Per curiam.



Submitted September 13, 2011

Before Judges Simonelli and Hayden.

A grand jury indicted defendant for second-degree forcible sexual assault, N.J.S.A. 2C:14-2c(1) (count one); third-degree criminal restraint, N.J.S.A. 2C:13-2b (count two); and second-degree sexual assault of a victim at least 13 but less than 16 years old, N.J.S.A. 2C:14-2c(4) (count three). Defendant was also charged with the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1a, and offering an alcoholic beverage to an underage person, N.J.S.A. 2C:33-17a.

The trial judge dismissed count two at the close of all testimony. The jury found defendant guilty on count three, and not guilty on count one. The judge found defendant guilty of both disorderly persons offenses. The judge denied the State's motion for an extended-term sentence, and imposed an eight-year term of imprisonment on count three, and a concurrent 180 day term of imprisonment on the disorderly persons convictions. For the reasons that follow, we affirm defendant's conviction and sentence, but remand to the trial court to correct the judgment of conviction to reflect the denial of the State's motion for an extended-term sentence.

We discern the following facts from the evidence presented at trial. Defendant met S.C.*fn1 in March or April of 2007; S.C. was fifteen years old and defendant was twenty-eight at the time. Shortly thereafter, the couple began a sexual relationship that continued until November 2007.

On November 11, 2007, S.C. accompanied defendant to a motel, where they drank alcoholic beverages and began arguing. According to S.C., defendant became angry when she said that she wanted to end their relationship. He then started hitting her, threw her on the floor, and threatened "to smash a bottle in her face." She also testified that she had sexual relations with defendant that night, but not willingly, and that defendant physically assaulted her both before and after they had sexual relations. Around 4:00 a.m., when defendant went into the bathroom threatening to kill himself, she left the motel room and ran three miles to her home.

The following day, S.C. showed her mother the bruises from defendant beating her. At her mother's insistence, they went to the police station to file a complaint against defendant. At first, S.C. only told the interviewing officer that defendant had physically assaulted her, explaining later that she did not say anything about a sexual assault because she was too frightened. However, when speaking with a female officer, S.C. told the officer that defendant had forced her to have sex the prior night. S.C. refused to go to the hospital for an examination to corroborate the sexual assault claim. The police took photos of S.C.'s injuries, which showed bruising and scrapes to her back, chest area, knees, arms, and wrist.

On January 4, 2008, the police, with S.C.'s consent, recorded a series of phone calls made by S.C. to defendant. During the calls, defendant at first admitted to hitting S.C., but later said he didn't "smack or punch the shit out of" her, but only pushed her. He also acknowledged having sexual relations with S.C.

During cross-examination at trial, defense counsel questioned S.C. about the inconsistency of her previous statements concerning both the night in question and her relationship with defendant. S.C. admitted that at the outset she had told the police officer the sexual assault happened before defendant beat her. She also had told the detective she had not been drinking alcohol that night, but later admitted that she had. At first, S.C. told the detective that she began having sexual relations with defendant in the summer of 2007, but later said that she was fifteen years old at the time. Since she turned sixteen on June 12, 2007, she explained that she considered summer to begin in March or April, when it was warm in New Jersey. She recalled that defendant had given her a necklace and flowers for her birthday and they were sexually involved at the time.

Additionally, upon further cross-examination, S.C. conceded that, although she originally claimed she had instigated the breakup, defendant might have broken up with her. The following dialogue between defense counsel and S.C. occurred:

Q: [S]o after that conversation when you told him that you weren't faithful, that's when the argument occurred, right?

A: Yes.

Q: And he wanted to break up with you because of that, didn't he?

A: I guess. . . . He wanted to break up with me.

Q: He tried to leave right, and you didn't want him to leave, did you?

A: Yes, absolutely.

Q: And so you continued to try to get him to stay?

A: Yes, I wanted him to stay with me. My whole life. Sarcasm, actually. So I don't give a fuck right now. I'm leaving this fucking courtroom. Sorry, God. Forgive me. There's friggin' pictures here! Like he's 28 years old! THE COURT: Ma'am. Ma'am.

THE WITNESS: I'm fifteen.


THE WITNESS: I was fifteen.


THE WITNESS: My father fuckin' passed away and like you guys are fuckin' stupid. Like wake up. I'm so sorry.

This law is so fuckin' stupid. It's so

S.C. then picked up some photos, threw them on the floor and left the courtroom. After she failed to return, the trial judge dismissed the jury for the day.

The following day, when S.C. returned to court, defendant moved for a mistrial, which the court denied. The cross-examination continued, and S.C. stated that the sexual intercourse with defendant at the motel on November 11 was consensual.

At the close of testimony, defendant moved for a judgment of acquittal on the charges of criminal restraint (count two) and forcible sexual assault (count one). The judge granted the motion as to count two and denied it as to count one, holding that a reasonable jury could find S.C. did not freely consent to intercourse.

Following the jury's verdict, on October 8, 2009, the trial judge heard and denied defendant's motion for a new trial. This appeal followed.

On appeal, defendant raises the following contentions.






Defendant contends in Point I that the judge erred in denying his motion for a mistrial after S.C.'s outburst and departure from the courtroom, because her actions prejudiced the jury against him. He submits that S.C.'s outburst cast her as a victim of both defendant and the entire legal system, thus engendering sympathy for her at his expense. Defendant argues that, at a minimum, the judge should have issued a curative instruction and stricken the statement from the record. We disagree.

A motion for a mistrial is a drastic remedy that should be granted only when denying the motion would result in a manifest injustice. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 1622 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010), certif. denied, 200 N.J. 78 (2011). The decision to grant or deny such a motion is within the sound discretion of a trial judge. State v. Labrutto, 114 N.J. 187, 207 (1989); State v. DiRienzo, 53 N.J. 360, 383 (1969). This is because the trial judge is best able to determine, in the context of the entire courtroom proceedings, what effect, if any, a prejudicial remark may have had on the jurors. State v. Winter, 96 N.J. 640, 646-47 (1984); State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010). Thus, the trial judge's ruling on this matter will be overturned on appeal only where the judge abused his or her discretion because he or she failed to properly apply the law. Winter, supra, 96 N.J. at 646-47.

The trial judge determined that S.C.'s outburst served only to impugn her character and credibility, rather than enhance it. He denied the motion, noting, based upon his observation of the jury during S.C.'s outburst, that her actions had prejudiced only the State and did not damage defendant's case at all. Therefore, the judge found that defendant had not shown that a mistrial was necessary to prevent an unjust result. Further, the judge determined that a curative instruction to the jury was not necessary and could have suggested to the jurors that he was excusing S.C.'s actions.

We owe substantial deference to the decision of the trial judge, who "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 647. We defer to the judge's observation that S.C's outburst had no prejudicial effect against defendant and thus, no curative instruction was needed. We note that during her outburst S.C. did not supply any new evidence but merely reiterated her claim that she was fifteen when she had had sex with defendant and restated the fact that her father had recently died. Her statement simply underscored her extreme emotionality and anger at defendant. We are satisfied that to the extent S.C.'s outburst and departure created any prejudice, it was against S.C., not defendant. We disagree with defendant's claim that the comments and conduct of S.C. possessed the capacity to lead the jury to a verdict against defendant it would not otherwise have reached. See Winter, supra, 96 N.J. at 647. Accordingly, we perceive no abuse of discretion in the judge's refusal to declare a mistrial.


Although the jury acquitted him of forcible sexual assault (count one), defendant contends in Point II that the judge erred in denying his motion for a judgment of acquittal on that charge. We are not persuaded by defendant's argument.

Pursuant to Rule 3:18-1 a court shall enter a judgment of acquittal of one or more charges "if the evidence is insufficient to warrant a conviction." On a motion for judgment of acquittal, we consider whether the evidence, viewed in its entirety, and giving the State the benefit of all favorable inferences that can reasonably be drawn from the testimony it presents, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. State v. D.A., 191 N.J. 158, 163 (2007); State v. Reyes, 50 N.J. 454, 458-59 (1967). A judgment of acquittal also must be granted when the State has failed to show an element of the crime. See State v. Smalls, 310 N.J. Super. 285, 292 (App. Div. 1998).

On a motion for a judgment of acquittal, "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)), certif. denied, 67 N.J. 72 (1975). In reviewing a trial judge's decision to grant or deny such a motion, the question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Josephs, 174 N.J. 44, 81 (2002) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)).

Defendant argues that the sexual assault charge should not have been submitted to the jury as the trial judge repeatedly stated that he considered S.C.'s testimony not to be credible. Defendant further contends that by submitting a charge for which no credible testimony had been given, the judge mistakenly provided the jury with an opportunity to compromise by choosing to convict on the less serious offense. Defendant maintains that if the jurors had been presented with only the latter charge, they might have acquitted him.

We see no error in the judge's denial of defendant's motion for a judgment of acquittal. Under N.J.S.A. 2C:14-2c(1), sexual assault involves the use of "physical force or coercion." In general, "sexual assault is proven when the State offers evidence of sexual penetration in circumstances where a reasonable person would not believe that the victim has given 'affirmative and freely-given permission . . . to the specific act of sexual penetration.'" State v. Jones, 308 N.J. Super. 174, 186-87 (App. Div. 1998) (quoting In re M.T.S., 129 N.J. 422, 444 (1992)). Although the trial judge questioned S.C.'s credibility, he also found that a reasonable jury could convict defendant on the sexual assault charges. For example, the judge commented:

So she's all over the place. I don't find her credible . . . I could never find guilty beyond a reasonable doubt. But could a reasonable jury[?] But . . . what [case law] teaches us [is] . . . . Judge, don't substitute your judgment . . . your evaluation of credibility for that of the jury.

And a jury could find . . . that under all the facts and circumstances, because of the physical punishment, the beating, the throwing on the floor, the roughness before, the roughness after the sex act . . . she really didn't want to have sex that night. Additionally, defendant argues that because S.C. stated during cross-examination that the sexual intercourse was consensual on November 11, 2007 an element of the crime was negated, which entitled him to a judgment of acquittal. However, S.C. stated on direct examination that she was not willing to have sexual relations with defendant and she told him to stop. It is the province of the jury to evaluate witness credibility and resolve inconsistencies in their testimony. State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 188 (1997); State v. Hammond, 338 N.J. Super. 330 (App. Div.), certif. denied, 169 N.J. 609 (2001). A jury is free to accept some portion of a witness' testimony and reject other portions. State v. Muhammad, 182 N.J. 551, 577 (2005) ("jury is not bound to believe the testimony of any witness, in whole or in part"). We are satisfied based upon a review of the record that a reasonable jury could have decided that S.C. did not provide "affirmative and freely-given" consent to that particular act of sexual penetration.


Defendant argues in Point III that the judge improperly denied his motion for a new trial pursuant to R. 3:20-1. He argues that he is entitled to a new trial "in the interest of justice" because of the lack of credibility of S.C., the State's chief witness, and the prejudice caused by her outburst and departure from the courtroom. Finding no manifest denial of justice, we disagree.

Rule 3:20-1 governs new trials, and provides that:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witness, it clearly and convincingly appears that there was a manifest denial of justice under the law.

In considering a motion for a new trial, the trial judge's "objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) certif. denied, 151 N.J. 470 (1997). We should not overturn a jury verdict merely because we may have found differently if faced with the same evidence. State v. Afanador, 134 N.J. 162, 178 (1993).

Applying these standards, we are satisfied that no manifest denial of justice occurred. The crux of defendant's argument is that because the judge found S.C. was not credible, the judge should not have submitted the case to the jury. This argument ignores the bedrock principle in our criminal justice system, as discussed previously, that the jury, not the judge, evaluates the credibility of witnesses and the weight and worth of the evidence. See State v. Ingenito, 87 N.J. 204, 211 (1981). Here, the jury properly considered evidence that, if credited, established beyond a reasonable doubt that defendant sexually assaulted S.C. in violation of N.J.S.A. 2C:14-2c(4). Nothing in the record suggests that the jury failed to perform its fact-finding function. Consequently, we discern no reason to overturn defendant's conviction and remand for a new trial.


Defendant argues in Point IV that the trial judge erred by excluding testimony about a statement that S.C. made several weeks after the November 11 motel incident, when she confronted defendant on the street and began yelling at him and striking him. When the prosecutor made a hearsay objection to a witness testifying about S.C.'s statement, defense counsel contended that the statement was an excited utterance. The trial judge disagreed, ruling that the confrontation did not relate to the November 11 incident, and the street altercation was not sufficiently close in time to the November 11 event to constitute an excited utterance.

Under N.J.R.E 803(c)(2), the excited utterance exception, hearsay may be admitted at trial if it constitutes "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." See State v. Branch, 182 N.J. 338, 366-367 (2005). The element of continuing stress or excitement is essential: "'the crucial element is the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness. Thus, in this fact-sensitive analysis, a court must determine whether the facts and circumstances reasonably warrant the inference that declarant was still under the stress of excitement caused by the event.'" State v. Buda, 195 N.J. 278, 293 (2008) (quoting State v. Cotto, 182 N.J. 316, 327-28, (2005)).

We are satisfied that the trial judge did not err in excluding testimony about S.C.'s statement. First, as the trial judge pointed out, there was no evidence that the statement S.C. made during the confrontation related to a startling event. Second, there was no evidence that S.C.'s statement was made under the stress caused by a startling event that would prevent fabrication and insure the trustworthiness of the statement. Thus, because two essential elements of the excited utterance exception were not present, the judge's decision did not constitute an abuse of discretion. N.J.R.E. 803(c)(2).


Defendant argues in Point V that the eight-year sentence was excessive, because a correct analysis of the aggravating and mitigating factors would have resulted in a shorter prison term. We disagree.

In determining the appropriate sentence to be imposed on a person convicted of a crime, the sentencing judge must consider the specifically enumerated aggravating and mitigating factors identified at N.J.S.A. 2C:44-1. The judge must balance these factors and explain how the sentence was determined so the reviewing court will have an adequate record on appeal. State v. Abdullah, 184 N.J. 497, 506-507 (2005). The reviewing court must affirm the sentence if the judge identifies and balances the factors, provided that their existence is supported by the record. State v. Carey, 168 N.J. 413, 426-27 (2001) (quoting State v. O'Donnell 117 N.J. 210, 216 (1989)). If the sentencing guidelines are followed, the sentence should only be modified if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

Here, the judge found three aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court found one mitigating factor: N.J.S.A. 2C:44-1b(2), defendant did not contemplate that his conduct would cause serious harm. Defendant argues that the judge should also have found mitigating factor eight, that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8).

At sentencing, the judge reviewed the facts supporting defendant's conviction and noted his past criminal record. The judge then engaged in a balancing of the aggravating and mitigating factors. We find that the record amply supports the aggravating factors the judge found and does not support mitigating factor eight as argued by defendant. Under the circumstances of this case, defendant's sentence of eight years follows the sentencing guidelines, is reasonable, and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Defendant has brought to our attention an error in the October 8, 2009 judgment of conviction (JOC). Although the record shows that the trial judge denied the State's motion for an extended term, the JOC indicates that the judge granted the motion. The JOC must be amended to reflect that the judge denied the State's motion for an extended term.

Defendant's conviction and sentence are affirmed, and the matter is remanded for correction of the JOC.

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