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State of New Jersey v. A.B.M

September 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
A.B.M., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-04-0706.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2012

Before Judges Yannotti and Harris.

Defendant Arturo M.*fn1 appeals from his conviction by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), based upon evidence that he engaged in sexual acts with his niece, Milania, when she was five and six years old. After merger, Arturo was sentenced to eight years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn2 We affirm.

I.

Sometime in July 2005, Arturo moved into the Jersey City residence of his brother Adam, sister-in-law Rena, and several of their children. Arturo and Rena did not have a good relationship. In November 2005, Arturo was asked to leave the premises after a violent argument with Rena. Several months later, Arturo was invited to return after one of his nieces left home to be married, and the family needed help paying the rent.

In January 2007, Arturo was again asked to move out after Milania's babysitter reported to Adam and Rena that Arturo had sexual contact with Milania. Neither Adam nor Rena contacted the police to report the allegations.

On October 26, 2007, the Division of Youth and Family Services*fn3 (the Division) received an anonymous telephone call regarding Milania's sexual abuse allegations. At approximately 10:00 p.m. on that date, two Division investigators went to the family's home and questioned Adam, Rena, and Milania regarding the accusations. As a result of their investigation, the Division investigators removed Milania from her home, taking her to a hospital to be evaluated by a doctor and then placing her with a resource family.

On the same day, Detective Willie Caicedo of the Hudson County Prosecutor's Office Special Victims Unit (SVU) received a referral from the Division regarding Milania. Detective Caicedo interviewed the parents, who disclosed that Rena learned from Milania's babysitter that Arturo had sexually abused Milania and made the girl watch "bad movies."

On November 2, 2007, Arturo agreed to meet with Detective Caicedo at the SVU. The detective, who is fluent in reading, writing, and speaking Spanish, provided Arturo with Miranda*fn4 warnings in Spanish, and Arturo agreed to speak with him. The recorded statement lasted approximately two hours and was conducted in Spanish.*fn5

In the videotaped statement Arturo recounted that his brother had confronted him about Milania's accusations but he denied the girl's story. Detective Caicedo thereupon challenged Arturo's credibility and accused him of having sexually assaulted Milania. Arturo initially denied Detective Caicedo's accusations, but he then stated that Milania had walked into his room while he was watching pornography on a day when he had consumed more than twelve beers, and he touched her on top of her clothes on her legs, buttocks, and vagina.

Detective Caicedo told Arturo that Milania stated that there had been ten instances of abuse. Arturo admitted having touched Milania three to four times in total. He said that on one occasion, in the kitchen, he touched Milania's vagina under her clothes from the back of her pants. Arturo repeatedly denied Detective Caicedo's allegations that he digitally penetrated Milania and showed her his penis. After the statement concluded, Arturo was arrested.

On November 8, 2007, SVU Detective Maria Dargan interviewed Milania. The videotape of the interview was entered into evidence and played for the jury at trial. During the interview, Milania initially denied being sexually touched by anyone. Detective Dargan asked Milania whether it was "a good thing or a bad thing to tell the truth" and "that maybe there's other stuff that you want to tell me and you're just not." Milania responded that she had just lied because she was scared, and that in fact she had been sexually abused by her uncle Arturo.

Milania stated that she had been assaulted three times but could not remember the first two. She described the third incident as follows: Arturo called Milania to come into his room, and when she said no, he pulled her into the room by her wrist. Arturo had Milania watch "nasty things, naked people" and touched Milania's vagina with his finger. Milania stated that Arturo caused bleeding and pain. Afterwards, Milania tried to tell her older sister, who was home at the time in another room, but was told to go away because she had a headache. Milania demonstrated what Arturo did to her using an anatomically correct doll.

Milania also described an incident during which Arturo exhibited his penis to her in his room. Milania said that she saw Arturo stroking himself in her presence, and she claimed that red blood came out of his penis. At first, Milania stated that this incident occurred on a different day from the incident she had earlier described, but she later stated that it occurred on the same day.

On November 20, 2007, Milania met with Dr. Nina Agarwal, a pediatrician at Hackensack University Medical Center. Dr. Agarwal testified at trial as an expert in pediatric medicine. Milania told Dr. Agarwal that Arturo digitally penetrated her vagina on multiple occasions, beginning when she was five years old and concluding around her sixth birthday. Milania stated that the abuse resulted in pain and bleeding and that something yellow would come out of Arturo's penis and fall onto the floor. She told Dr. Agarwal that after one incident, she had vaginal bleeding for a number of days and that she cleaned the blood with paper towels. Milania stated that she showed the blood to her mother.

Dr. Agarwal met with Milania a second time, on December 13, 2007, when the physician physically examined Milania's "anogenital genital areas." Dr. Agarwal concluded that the results of the examination were "unremarkable," with no physical findings. Dr. Agarwal testified that such a result was not uncommon as, according to literature on child abuse, more than ninety-five percent of examinations have normal results, even when there is full penetration of the vagina.

At trial, Milania (then eight years old) described what she identified as the third incident of Arturo's abuse. She stated that the incident occurred on her sixth birthday but that Arturo was not at her house on her sixth birthday. Nevertheless, she testified that Arturo pulled her by the wrist into his room, made her watch "movies about [a] lady and men having sex," and touched her under her clothes, inside her vagina, with his hand. Milania described the touching as a "rub." Milania stated that afterwards she had bleeding for two days, although she acknowledged that in other accounts she had claimed that the bleeding had lasted for ten days. Milania denied having told her mother about the bleeding or showing her the blood; rather, Milania testified that she cleaned the blood with paper towels and hid her soiled clothing and towels in a garbage can outside the home. Milania also denied that she had shown her mother that she was bleeding. Milania denied having told Detective Dargan that she saw blood come from Arturo's penis. She denied having told anyone that she saw Arturo make "yellow pee-pee" on the floor.

Arturo testified at trial, stating that he did not sexually abuse Milania and did not force her to watch pornography. He said he confessed to having sexually assaulted Milania because he felt pressured to do so. He explained that during the interrogation, he was tired and weak, and he felt weaker as the interview progressed. He had diabetes and did not have anything to eat or drink, which affected his physical state during the interrogation. According to Arturo, prior to the interview, Detective Caicedo told him that Milania would be undergoing medical testing and that the results would exonerate Arturo ("[h]e told me that I was going ...


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