On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0300.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
Defendant Francisco J. Faria appeals from the judgment convicting him of first degree aggravated sexual assault, sexual assault, and endangering the welfare of a nine-year-old child*fn1 ; and from his sentence to a fifteen-year aggregate prison term. Defendant argues that the trial court committed reversible error by admitting into evidence his confession to investigators, the content of a recorded telephone conversation between him and the victim's mother, and the victim's out-of-court statement to his grandmother; and by omitting to instruct the jury on both the voluntariness of his confession and a lesser-included offense.
We conclude that no error committed by the trial court was clearly capable of either producing an unjust result or leading the jury to reach a verdict it otherwise would not have reached. Accordingly, we affirm.
In November 2007, nine-year-old Jonathan lived in Edison with his mother, Patricia, and his siblings. Defendant was related to Patricia and had been staying at her Edison home. On November 20, 2007, Jonathan's grandmother, Grace, noticed that Jonathan was uncharacteristically angry, purposely breaking things, and "picking on everyone." When Grace confronted Jonathan about his behavior, he started crying and eventually told her that defendant had hurt him. Jonathan explained that defendant had entered his room one night, gone behind him, and started "poking him," "pushing on him," and "touching him." Grace asked Jonathan to illustrate what happened to him on one of her granddaughter's dolls, which he did. Because Jonathan was upset, Grace took him to her home where they stayed until Thanksgiving.
When Grace and Jonathan returned to Patricia's home on Thanksgiving, Grace slapped defendant and asked how he could do something like what he did to Jonathan. Defendant asked her what she was talking about, left without his belongings, and did not return. Later that day Grace told Patricia what Jonathan had said about defendant. Patricia reported the incident to Jonathan's school counselor, who notified law enforcement authorities.
Middlesex County Prosecutor's Investigator Melissa Terpanick was assigned to the case on November 29, 2007. After receiving the assignment, Terpanick met with Jonathan and his mother, and interviewed Jonathan who described two incidents of abuse by defendant. According to Jonathan, the first incident occurred when defendant came into Jonathan's bedroom at night, pulled down Jonathan's pajama bottoms and underwear, anally penetrated him, and touched his genitals. Thereafter, on a date Jonathan could not recall, the second incident took place. During the second incident, Jonathan and defendant remained fully clothed while defendant pressed his genitals against Jonathan's buttocks.
On December 3, 2007, Investigator Terpanick conducted a telephonic intercept of a call between Patricia and defendant. Terpanick had scripted questions for Patricia to ask defendant. The questions were not necessarily truthful, but were designed to elicit specific responses. Patricia's questioning of defendant included references to defendant having been sexually assaulted as a child; to Jonathan's confusion about his sexual orientation as a consequence of the sexual assault; and to Patricia's need to believe her son so that she could get him the help that he needed.
Although defendant initially denied abusing Jonathan, later in the conversation he said that he sought forgiveness from God for hurting Jonathan, that Patricia should hate him, and that Patricia could believe Jonathan's versions of the two incidents. When Patricia specifically asked defendant if he was saying that it did not happen, defendant responded, "I didn't say it didn't." Patricia asked defendant why he did it and defendant replied, "I don't know," and, "I don't even remember."
Investigator Terpanick arrested defendant on December 5, 2007, and interrogated him after informing him of his Miranda*fn2 rights and having him sign a Miranda card. Defendant initially denied any wrongdoing, but eventually admitted to abusing Jonathan twice: the first time by anal penetration and touching Jonathan's genitals, and the second time by rubbing his genitals against Jonathan's buttocks when they were both clothed. According to defendant, both incidents occurred within a week of Thanksgiving.
On February 14, 2008, a Middlesex County grand jury charged defendant with first degree aggravated sexual assault for committing an act of sexual penetration upon a child less than thirteen years old, N.J.S.A. 2C:14-2a (count one); two counts of second degree sexual assault upon a child less than thirteen years old by committing an act of sexual contact with the child, by one at least four years older than the child, N.J.S.A. 2C:14-2b (counts two and four); second degree attempted aggravated sexual assault upon a child less than thirteen years old, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:14-2a (count three); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count five).
Following hearings on defendant's motion to suppress his confession to police, and the State's motion to introduce at trial Jonathan's statements to his grandmother and to Investigator Terpanick, the court denied defendant's motion and granted the State's motion. Defendant's jury trial took place over six days in March 2009. The State presented the testimony of Jonathan, his mother and grandmother, Investigator Terpanick, and a medical expert. The State also played the recordings of defendant's telephone conversation with Patricia and his confession to Terpanick.
At trial, Jonathan testified that defendant had assaulted him not twice, but three times, though he could not remember the first assault. He described the incident in which defendant anally penetrated him and touched his genitals. He also described the final incident, testifying that defendant had anally penetrated him during that assault as well.
Dr. Gladibel Medina, an expert in pediatrics and child sexual abuse examinations, testified that she had examined Jonathan on December 6, 2007. After speaking to Jonathan about the abuse incidents, Dr. Medina performed a physical examination that revealed no residual symptoms indicative of physical trauma. The doctor testified that eighty-five percent of children abused in a similar manner have no obvious signs of physical injuries when examined, and provided a physiological explanation for the absence of such findings.
Defendant presented the testimony of character witnesses and testified himself. He denied that he had abused Jonathan. To explain his conduct on the day of his confrontation with Grace, Jonathan's grandmother, defendant disclosed the difficulties he was having in his personal life, and told the jury why he did not spend Thanksgiving with his mother.
I was going through a lot at the time because I was dealing with arguments at home. Me and my family weren't getting along. I was going through arguments with my fiancee [sic]. He's my ex now. But at the time we were going through many arguments and him cheating on me and a bunch of things that were just bringing me down. And it was creating lots of conflicts within my home with my parents. And it was just very difficult for me. It was the holidays, and I wanted to be with my Mom.
We just weren't getting along. I wanted to be with my mother, but . . . my stepfather and I were having a minor argument, and it was all involving my ex. I at the time put him over my family, which was probably the stupidest thing I've ever done in my life.
Defendant insisted that he had no idea where Grace's accusations had come from.
During cross-examination, the prosecutor confronted defendant with his statement to Terpanick. Specifically, the prosecutor questioned defendant about telling Terpanick that he had penetrated Jonathan, but the penetration "wasn't far at all." Defendant responded that he was simply trying to appease the investigators. He explained that he was "a submissive gay[, which] . . . means I don't penetrate. I don't get off on penetrating. . . . It doesn't really sexually gratify me. And I don't do it to sexually gratify myself." Defendant also explained that he confessed to the police because he was scared and wanted to go home, and that the admissions he made to Jonathan's mother during the recorded telephone conversation were untrue.
On March 12, 2009, the jury convicted defendant on all counts. On June 22, 2009, at defendant's sentencing, the trial court merged count two into count one and count four into count three. The court sentenced defendant on count one, first degree aggravated sexual assault, to a fifteen-year prison term with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision upon release under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; to a concurrent prison term of eight years with a NERA parole ineligibility period of eighty-five percent on count three, second degree attempted sexual assault; and to a concurrent four-year term on count five, third degree endangering the welfare of a child. The court ordered that the sentences be served at the Adult Diagnostic and Treatment Center. Finally, the court ordered that defendant be subject to parole supervision for life under Megan's Law, N.J.S.A. 2C:43-6.4, and imposed appropriate fines and penalties.
Defendant raises the following issues in this appeal:
THE COURT ERRED IN ALLOWING THE STATE TO PLAY TO THE JURY A TELEPHONIC INTERCEPT CONTAINING INADMISSIBLE AND PREJUDICIAL STATEMENTS THAT WERE SO OFFENSIVE THAT THE JUDGE'S GUTTURAL REACTION UPON FIRST LEARNING OF THE CONTENTS WAS "MY GOODNESS, YOU CAN'T INTRODUCE THIS STUFF"
POINT II THE COURT ERRED IN ALLOWING DEFENDANT'S STATEMENT TO THE POLICE TO BE INTRODUCED BECAUSE HE REQUESTED THAT THE INTERROGATION BE TERMINATED AND BECAUSE THE STATEMENT CONTAINED IRRELEVANT, PREJUDICIAL INFORMATION ABOUT DEFENDANT'S CHILDHOOD; THE COURT ALSO ERRED IN ITS USE OF DEFENDANT'S CONFESSION DURING DELIBERATIONS (PARTIALLY RAISED BELOW)
POINT III THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY FAILING TO GIVE A HAMPTON CHARGE (NOT RAISED BELOW)
POINT IV THE COURT SHOULD HAVE PLACED BEFORE THE JURY THE LESSER INCLUDED OFFENSE OF ATTEMPTED AGGRAVATED SEXUAL ASSAULT ON THE FIRST ALLEGATION NOTWITHSTANDING DEFENSE COUNSEL'S DISINCLINATION FOR SUCH A CHARGE (NOT RAISED BELOW)
POINT V THE COURT BELOW ERRED IN ADMITTING [JONATHAN'S] STATEMENTS UNDER THE TENDER YEARS' EXCEPTION TO THE HEARSAY RULE
POINT VI THE COURT IMPOSED AN EXCESSIVE SENTENCE BASED ON WEIGHING AGGRAVATING FACTOR FOUR, WHICH SHOULD NOT HAVE BEEN CONSIDERED BECAUSE THE LEGISLATURE ALREADY FACTORED DEFENDANT'S POSITION OF TRUST IN MAKING IT A FIRST DEGREE OFFENSE (NOT RAISED BELOW)*fn3
POINT VII DEFENDANT ARGUED BELOW THAT HE DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS
In Point I, defendant contends the court erred by admitting into evidence the unredacted content of his recorded telephone conversation with Patricia. Defendant does not assert that the recording should have been excluded in its entirety; rather, he argues that portions should have been excluded under N.J.R.E. 403 because the probative value of those portions was substantially outweighed by the risk of undue prejudice.
We review the trial court's evidentiary rulings admitting evidence for an abuse of discretion. State v. Harris, 209 N.J. 431, 439 (2012). "Considerable latitude is afforded a trial court in determining whether to admit evidence[.]" State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). A trial court's discretionary decision to admit or exclude relevant evidence is reversible only if "the trial court palpably abused its discretion, that is, ...