January 17, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GABRIEL ALVARADO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2012
Before Judges Fuentes, Graves, and Koblitz.
In a three-count indictment, defendant Gabriel Alvarado was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, 2C:14-2(b) (count two); and, third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). Following a jury trial, defendant was found not guilty on count one, but he was convicted of second-degree sexual assault and third-degree endangering the welfare of a child. At sentencing on November 20, 2009, the court merged count three into count two and sentenced defendant to a seven-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7-2, and sentenced defendant to parole supervision for life, N.J.S.A. 2C:43-6.4. We affirm.
On February 1, 2008, Janice*fn1 spoke to defendant on the phone and invited him to attend her son's judo tournament. After the conversation ended, Janice's seven-year-old daughter, Yvette, was "upset" and stated: "No, no, no, I don't want him to come. I don't want to see him. I don't like him." Janice asked Yvette why she did not want to see defendant, and Yvette responded: "I don't like the way he touches me. He touched my butt and he kisses my mouth."
The next day, February 2, 2008, Janice again asked Yvette why she did not want to see defendant. Yvette became "nervous, scared, [and] upset" and indicated defendant put his hand "inside her pants" and covered her mouth so she wouldn't scream. Janice took her daughter to the Elizabeth Police Department and then to the Trinitas Regional Medical Center emergency department. Detective Steven McGuire met with Janice and Yvette at the hospital.
Later that same day, Detective McGuire brought Yvette and Janice to the Child Advocacy Center in Elizabeth, New Jersey. During a videotaped interview, Yvette told Detective McGuire that the abuse occurred when she was six-years old and that it happened multiple times. Detective McGuire used anatomical dolls to establish that Yvette was familiar with the parts of the body. Yvette explained to Detective McGuire how she was abused:
S.M.:*fn2 Ok so he touched you where?
Y.V.: Private part.
S.M.: On your private part? Ok. Did he touch you anywhere else?
Y.V.: Ah huh.
S.M.: Where else?
Y.V.: (Turns the doll over and point[s] to the doll's butt) and here too.
S.M.: And what did you call that?
S.M.: A butt okay. Alright. Now when he touched your private part and when he touched your butt . . . what did he touch you there with?
Y.V.: With his hand.
S.M.: . . . When he did that, did it hurt?
S.M.: It did? Okay. Uh, did you say anything to him when he did that?
Y.V.: No I was scared.
During the interview, Detective McGuire also questioned Yvette on the difference between the truth and a lie. Yvette understood that it was "good" to tell the truth and "bad" to tell a lie because she "would get in trouble" if she told a lie. Furthermore, Yvette told Detective McGuire that everything she told him was the truth.
On February 13, 2008, Janice took Yvette to see Dr. Linda Shaw for a "follow up" examination. Dr. Shaw obtained a "brief medical history" from Yvette and her mother to assess "whether there was any specific diagnoses" and need for treatment. Yvette sat on her mother's lap while Dr. Shaw physically examined Yvette's "anogenital area." Dr. Shaw did not find any physical evidence that Yvette had been sexually abused.
Prior to trial, the court held a N.J.R.E. 104 hearing to determine the admissibility of Yvette's statements to her mother, her statements during the videotaped interview with Detective McGuire, and her statements to Dr. Shaw under the tender years and fresh complaint exceptions to the hearsay rule. The trial court granted the motion in part, admitting the statements made to Detective McGuire and to her mother. The court, however, declined to rule on the admissibility of the statements to Dr. Shaw, because it lacked sufficient knowledge of her proposed testimony.
At trial, Yvette testified that defendant touched her in his bedroom while her mother, older brother, and defendant's girlfriend were in another room, and that the abuse always occurred while they were alone. Yvette further stated that defendant touched her "front part and [her] butt," indicating on anatomical dolls that defendant touched her vagina and anus. She additionally testified that defendant told her to "rub his thumb, but it wasn't his thumb." The prosecutor also played a DVD of Yvette's interview with Detective McGuire for the jury.
The State called Dr. Shaw as an expert witness and as a fact witness. Dr. Shaw is a pediatrician at Saint Peter's University Hospital in New Brunswick, New Jersey, as well as the Medical Director of the Dorothy B. Hersh Child Protection Center. Dr. Shaw testified she examines approximately 200 children per year "for concerns about sexual abuse." Defense counsel stipulated she was qualified to testify as an expert witness in "the field of pediatrics with an expertise in child abuse."
Dr. Shaw acknowledged she did not find any physical evidence that Yvette had been sexually abused. Nevertheless, in response to the prosecutor's questions, Dr. Shaw testified that her "negative findings" were "very compatible" with the information Yvette provided to her:
Q. Dr. Shaw, in the hundreds of examinations you do a year do you ever find any injuries?
A. Yes, on occasion.
Q. How often is on occasion?
A. I would guesstimate that in less than five percent of the children that I examine I find any abnormality and even more rare than that do I find a specific abnormality that I can say relates to the allegation of sexual abuse that the child's made . . . .
Q. And is it common or uncommon for you to find injury when someone reports that they were touched in the vaginal or anal area?
A. It's uncommon to find anything when a child reports being touched in that area.
Q. Okay. What about if a child reported being digitally penetrated in either the anal or vaginal area, would you expect to find injury then?
A. No. When children describe touching there in general, whether they are talking about sort of in or on or between, it would be unusual to find any specific findings of injury.
On cross-examination, Dr. Shaw confirmed there was no physical evidence that Yvette had been sexually abused:
Q. Dr. Shaw, would it be fair to say there were no abrasions or lacerations of the labia area of the child that you examined?
A. Yes, that's correct.
Q. Would it be fair to say that there . . . was no damage of the anal area of the child that you examined?
A. That's correct.
Q. Would it be fair to say that it was possible that if a finger was put into a hymen, that the hymen could break?
A. That's correct.
Q. You saw nothing in your examination of [Yvette] that indicated to you a positive [finding of] physical abuse. Is that correct?
A. That's correct. I didn't see an infection or any damage.
Defendant and his girlfriend, Maria Moreno, both testified that defendant never inappropriately touched Yvette. Moreno stated she was always present when Yvette visited their apartment, and she never saw defendant abuse Yvette. Defendant testified he frequently touched and kissed Yvette, but never in a sexual way. He also stated he played hide-and-seek with Yvette and her brother when they visited his apartment with their mother.
In summation, defense counsel stressed that Dr. Shaw's examination did not corroborate Yvette's allegations:
[Dr. Shaw] saw no evidence of any abrasions or lacerations anywhere . . . in the girl's labia . . or in her anus. She saw nothing to indicate there was any physical abuse. In fact, the first sentence out of her mouth is my findings were negative. In other words, she didn't find anything to show there was any physical abuse.
In response, the prosecutor acknowledged Dr. Shaw's "negative conclusions," but stated that Dr. Shaw found what she expected to find, "which is nothing."
On appeal, defendant presents the following arguments:
DR. SHAW'S TESTIMONY REGARDING [YVETTE'S] HEARSAY ALLEGATIONS OF SEXUAL ABUSE WAS INADMISSIBLE. DR. SHAW'S TESTIMONY THAT THE FINDINGS OF HER PHYSICAL EXAM WERE CONSISTENT WITH [YVETTE'S] CLAIMS OF SEXUAL ABUSE IMPROPERLY BOLSTERED [YVETTE'S]
CREDIBILITY, AND DENIED MR. ALVARADO A FAIR TRIAL.
BECAUSE THE TRIAL COURT ERRED IN ITS FINDINGS ON AGGRAVATING FACTORS DEFENDANT'S SENTENCE SHOULD BE REDUCED OR THE MATTER REMANDED FOR RESENTENCING.
Based on our review of the record and the applicable law, we do not find these arguments persuasive.
Defendant first claims that Dr. Shaw's testimony regarding the statements by Yvette was not admissible under N.J.R.E. 803(c)(4), because Yvette "was not seeking medical treatment when she underwent Dr. Shaw's forensic examination." For statements to be admissible under N.J.R.E. 803(c)(4), they must have been "made in good faith for purposes of medical diagnosis or treatment." Accordingly, hearsay obtained during an evidence-gathering medical consultation conducted purely in preparation for litigation is inadmissible. State in the Interest of C.A., 201 N.J. Super. 28, 33 (App. Div. 1985).
Here, Dr. Shaw testified Yvette was referred to her "as a follow up from the Trinitas emergency department." Additionally, Dr. Shaw obtained Yvette's medical history and conducted the physical examination to determine "whether there [were] any specific diagnoses." Thus, we are satisfied Yvette's statements to Dr. Shaw were for the "purposes of medical diagnosis or treatment." N.J.R.E. 803(c)(4).
Defendant also argues that Dr. Shaw's testimony regarding Yvette's statements was inadmissible because the State failed to prove Yvette was aware that Dr. Shaw would rely on her statements for treatment. See C.A., supra, 201 N.J. Super. at 33-34 (noting that statements by patients to doctors consulted for treatment are normally reliable and admissible because the patient believes the doctor will provide proper treatment "if the doctor is told the truth concerning the ailment").
In this case, there was no specific finding by the court that Yvette was aware her statements to Dr. Shaw were relevant to her diagnosis and treatment. Nevertheless, it is clear from Yvette's videotaped statement on February 2, 2008, eleven days prior to her physical examination, that she understood "the difference between telling the truth and telling a lie." At that time, Yvette stated it is "good" to tell the truth; it is "bad" to tell a lie; and she "would get in trouble" if she told a lie. Thus, it is reasonable to infer that Yvette's statements to Dr. Shaw were reliable. Moreover, Dr. Shaw did not testify that Yvette identified the defendant as the individual who abused her, and the court properly instructed the jury on the role of expert testimony.
Defendant additionally argues that Dr. Shaw's testimony "improperly bolstered" Yvette's credibility. Specifically, defendant claims "Dr. Shaw's testimony that the findings of her physical examination were consistent with [Yvette's] allegations amounted to an inadmissible declaration, from a medical expert, that [Yvette] was a credible witness." We do not agree.
It is well-established that an expert may not vouch for the credibility of a witness. State v. Jamerson, 153 N.J. 318, 341 (1998); and State v. J.Q., 130 N.J. 554, 573 (1993). Particularly, experts may not "offer opinions as to the issue of a child-witness's credibility," because this is a matter of fact for the jury to determine. State v. Michaels, 136 N.J. 299, 323 (1994). Although Dr. Shaw testified her negative findings were "very compatible" with Yvette's claims, she also conceded she found no evidence of sexual abuse. In addition, defense counsel argued to the jury that Dr. Shaw's negative findings equally supported defendant's position that no abuse occurred. Given these circumstances, we are satisfied that Dr. Shaw's testimony did not improperly bolster Yvette's credibility. See State v. Pillar, 359 N.J. Super. 249, 290 (App. Div.) (stating in dicta that a doctor's testimony about negative physical findings being "consistent with the abuse testified to by [the victim] was and remains acceptable"), certif. denied, 177 N.J. 572 (2003); see also United States v. Charley, 189 F.3d 1251, 1264 (10th Cir. 1999) (The court did not abuse its discretion by allowing a doctor to summarize medical evidence and to express an opinion that the evidence was consistent or inconsistent with a victim's allegations of sexual abuse.); Turner v. Commonwealth, 914 S.W.2d 343, 344, 346 (Ky. 1996) (distinguishing a physician's admissible testimony concerning negative physical findings of a child from inadmissible opinion testimony that a defendant was guilty); Commonwealth v. Federico, 683 N.E.2d 1035, 1040 (Mass. 1996) ("In the absence of evidence of physical injury, a medical expert may be able to assist the jury by informing them that the lack of such evidence does not necessarily lead to the medical conclusion that the child was not abused."); Commonwealth v. Minerd, 753 A.2d 225, 231 (Pa. 2000) (a doctor's testimony "was relevant to explain to the jurors the absence of physical trauma" because "[w]ithout such an explanation, jurors may improperly draw a negative inference . . . based upon a layperson's untutored assumptions").
Even if we were to assume that defendant is correct and Dr. Shaw's testimony was inadmissible, we would not disturb the jury verdict. Under Rule 2:10-2, we regard any error as harmless "unless it is of such a nature as to have been clearly capable of producing an unjust result." "The ultimate question is whether there was a real possibility of injustice, 'one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Melvin, 65 N.J. 1, 18-19 (1974) (quoting State v. Macon, 57 N.J. 325, 335-36 (1971)). In this case, even if Dr. Shaw's testimony was improperly admitted, the error was not "clearly capable of producing an unjust result." R. 2:10-2.
As both the prosecutor and defense counsel stated in their summations, the outcome of the trial depended upon the jury's credibility assessments. During its deliberations, the jury requested a replay of the videotaped interview between Yvette and Detective McGuire in its entirety along with Yvette's entire trial testimony. In addition, the jury heard portions of the videotaped interview on two separate occasions. Thus, the jury carefully weighed the credibility of the witnesses, and the record does not support defendant's claim that Dr. Shaw improperly bolstered the victim's credibility.
Defendant also claims his seven-year sentence is excessive. This argument has no merit. The findings by the trial court regarding the aggravating and mitigating factors were based on competent and credible evidence in the record; the court correctly applied the sentencing guidelines; and defendant's sentence does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). Affirmed.