Opinion
DOCKET NO. A-5750-12T1
11-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE O. COREA, a/k/a ANGEL ORTEGA GARCIA, CARLOS RAMIREZ, ANGEL ALFREDO ORTEGA-GARCIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-11-2370 and 06-06-1376. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In November 2004, a grand jury sitting in Atlantic County returned an indictment charging defendant Jose O. Corea with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one), second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts two and four), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts three and five) (2004 Indictment).
When defendant failed to appear for a status conference in June 2005, a bench warrant was issued for his arrest. In June 2006 another indictment was returned charging defendant with one count of third-degree bail jumping, N.J.S.A. 2C:29-7 (2006 Indictment). Defendant was then tried to a jury, in absentia, on the 2004 Indictment, and found guilty on all five counts.
Defendant remained at large for the next six years, but on October 1, 2012, he was arrested in Florida and returned to New Jersey. In January 2013, defendant entered a guilty plea on the 2006 Indictment to third-degree bail jumping.
On March 22, 2013, defendant was sentenced on the 2004 Indictment. The judge merged count three with count two, and count five with count four. He then found aggravating factors three, six, and nine applied with no mitigating factors, and sentenced defendant to seventeen years on count one, and eight years for each of counts two and four, which were to run consecutively. Defendant was also sentenced to five years on the bail jumping charge, which was to run concurrently with the sentences on the 2004 Indictment. The judge also imposed a total Sex Crime Victim Treatment Fund (SCVTF) penalty of $4,000 for counts one, two, and four.
Defendant appeals only his convictions and sentence on the 2004 Indictment, and raises the following points:
POINT I
DR. FINKEL'S OPINION TESTIMONY REGARDING THE SEXUAL ASSAULT ALLEGATIONS AT ISSUE WAS INADMISSIBLE BECAUSE 1) THE STATE FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS IN THE COURT RULES AND FAILED TO PROVIDE AN ACCURATE PROFFER OF THE TESTIMONY AT TRIAL; 2) THE SUBJECT MATTER WAS NOT OUTSIDE THE KEN OF THE AVERAGE JUROR; 3) THE TESTIMONY CONSTITUTED AN INADMISSIBLE NET OPINION, AND 4) DR. FINKEL EXCEEDED THE PERMISSIBLE BOUNDS OF EXPERT TESTIMONY BY VOUCHING FOR L.B.'S CREDIBILITY. (PARTIALLY RAISED BELOW)
POINT II
THE COURT ERRED IN IMPOSING $4000.00 IN SEX CRIME VICTIM TREATMENT FUND FINES WITHOUT CONSIDERING J.C.'S ABILITY TO PAY THAT ASSESSMENT. (NOT RAISED BELOW)
POINT III
THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING JUDGE WRONGLY FOUND IN AGGRAVATION THAT J.C. HAD REPEATEDLY VAGINALLY PENETRATED L.B., BECAUSE THE JUDGE ERRONEO[U]SLY FOUND IN AGGRAVATION THAT J.C. DID NOT DEMONSTRATE REMORSE, AND BECAUSE THE IMPOSITION OF THREE CONSECUTIVE SENTENCES WAS EXCESSIVE, UNDULY PUNITIVE AND VIOLATED THE SENTENCING GUIDELINES FOR THE STATE OF NEW JERSEY.
We glean the following facts from the record. In May 2004, after seeing a presentation on sexual assaults, M.B. told her second-grade teacher and a school counselor that she had been inappropriately touched by defendant. She later told her mother, O.B., who in turn asked her other two daughters whether they had similar experiences. M.B.'s older sister, L.B., said that she had been inappropriately touched by defendant as well.
A subsequent investigation, including videotaped interviews of M.B. and L.B., revealed that the acts alleged by the children took place between 1999 and 2002, when M.B. was between four and six years old, and L.B. was between seven and nine years old.
At trial, O.B. testified that she and her husband moved to Atlantic City with their five children in 1993. Defendant and his wife were their neighbors, and O.B. worked with defendant's wife. After M.B. was born in 2006, O.B. asked defendant and his wife to be M.B.'s godparents.
O.B.'s reference to defendant's "wife" is inconsistent with defendant's assertion that he has never been married. The record offers no clarification on this issue, but this fact is inconsequential.
O.B. testified that defendant would sometimes watch M.B. and L.B. at defendant's home or at the park. After defendant's daughter was born in 2000 until sometime in 2001, defendant would pick up M.B. and L.B. to spend time with his child. In 2002, M.B. and L.B. began telling their mother that they did not want to go with defendant anymore "because he was a bad man and they wanted him to leave the house. They didn't want to see him again."
L.B., who at the time of trial was thirteen years old, testified that she and M.B. would go to defendant's house to play and that he would touch her "private parts," putting his hand inside her clothes. She also testified to one particular incident when she was lying on defendant's bed, while M.B. was asleep in the same room, and defendant removed her pants as well as his own and "[p]ut his thing inside my private parts." Afterward, L.B. and M.B. locked themselves in the bathroom until it was time to leave. L.B. testified that it hurt when defendant was inside her and when she urinated, and that she saw blood on her pants following the incident.
L.B. also described another incident in defendant's kitchen when he grabbed L.B.'s "private parts," touched her chest, and "put his thing inside [her] privates." M.B. walked into the kitchen while this was happening.
M.B., who at the time of the trial was nine and one-half years old, testified that defendant had pulled her pants down and touched her vagina with his hand and his tongue. She specifically described an incident when she found defendant with L.B. in defendant's kitchen, saying that L.B.'s pants were down and defendant was looking at L.B.'s vagina.
Aside from saying that defendant was a "bad man," L.B. never told her mother what happened. She did tell her older sister, E.B. M.B. did not tell her mother because she did not think her mother would believe her. She also told her older sister, E.B., and her teacher at school after seeing the presentation on sexual assault. E.B., who was sixteen years old at the time of trial, testified that she told both of her sisters to tell their mother.
On June 28, 2004, M.B. and L.B. were taken to the Child Abuse Research Education & Service (CARES) Institute. M.B. and L.B. were physically examined by Dr. Stephen Boos, who wrote a report but was not called to testify at trial. Dr. Martin Finkel, the director of the CARES Institute, testified as an expert witness, instead.
At trial, Dr. Finkel did not testify to the examinations of either child at the CARES Institute. Rather, Dr. Finkel testified generally to why child victims of sexual assault would claim that penetration took place, yet no injury would be present in the short or long term. Defendant stipulated to Dr. Finkel's expertise and did not cross examine him. Defendant presented no witnesses at trial, and did not cross examine either M.B. or L.B.
Defendant now claims that Dr. Finkel's opinion was inadmissible because the State failed to comply with the notice and proffer requirements of Rule 3:13-3(b)(1)(I); the subject matter of his testimony was not beyond the ken of the average juror; his testimony constituted an inadmissible net opinion; and he exceeded the permissible bounds of expert testimony by vouching for L.B.'s credibility.
We review a trial judge's evidentiary rulings under an abuse of discretion standard. State v. Burns, 192 N.J. 312, 332 (2007). Trial judges have broad discretion in making evidentiary rulings. State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). The trial court's evidentiary decision must be a clear error of judgment to be overturned. State v. Loftin, 146 N.J. 295, 357 (1996). Even where a trial court's evidentiary ruling is erroneous, reversal of a conviction is not warranted unless the ruling has the capacity to cast reasonable doubt on the verdict. State v. Macon, 57 N.J. 325, 336 (1971).
Rule 3:13-3(b)(1)(I) provides that the State must provide a defendant with the:
names and addresses of each person whom the prosecutor expects to call to trial as an
expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial[.]
This rule allows, but does not require, a court to bar an expert's testimony if discovery is withheld. State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 2011). In exercising its discretion, the trial court "may consider (1) whether the party who failed to disclose intended to mislead; and (2) whether the aggrieved party was surprised and would be prejudiced by the admission of expert testimony." Ibid.; see also Pressler & Verniero, Current N.J. Court Rules, comment 3.2.9 on R. 3:13-3 (2015) ("The State's failure to comply with the requirement . . . will not preclude the testimony if defendant is not thereby prejudiced."). "'Prejudice' in this context refers not to the impact of the testimony itself, but the aggrieved party's inability to contest the testimony because of late notice." Heisler, supra, 422 N.J. Super. at 415.
The State concedes that its pretrial disclosures suggested that Dr. Finkel was going to testify as to Child Sexual Abuse Accommodation Syndrome. At trial, the State first reviewed Dr. Finkel's credentials, then offered him as an expert in the area of the examination of child sexual abuse victims. Defendant stipulated to Dr. Finkel's expertise. The State proffered that Dr. Finkel, as the director of the CARES Institute where M.B. and L.B. were examined, would testify that children who were victims of sexual abuse occasionally did not present with evidence of physical trauma. The trial judge limited Dr. Finkel's testimony, and did not permit him to testify about the examinations of M.B. or L.B. because he did not actually conduct those examinations. Rather, the court permitted the State to inquire about the procedures employed at Dr. Finkel's facility. The judge required the State to formulate "hypothetical facts and assumptions," and then question Dr. Finkel on those hypotheticals. The judge allowed defense counsel to challenge any of those hypothetical facts on cross-examination, and took a brief recess for both parties to prepare for such testimony.
Even if Rule 3:13-3(b)(1)(I) is not fully complied with, an expert should be permitted to testify if there is an absence of any design to mislead; an absence of the element of surprise; and an absence of prejudice. State v. LaBrutto, 114 N.J. 187, 205 (1989). Here, the trial judge properly allowed Dr. Finkel to testify, and placed appropriate limitations on his testimony. Dr. Finkel's testimony never exceeded the State's proffered hypotheticals and was not designed to mislead the jury. Further, despite the judge's instructions that defendant could cross examine Dr. Finkel, defendant chose not to.
Defendant did not present expert testimony to contradict Dr. Finkel, and did not demonstrate that he was surprised or prejudiced by Dr. Finkel's testimony. In light of these facts, we are satisfied that the late notice of the nature of Dr. Finkel's testimony was not prejudicial and, at most, constituted harmless error. See LaBrutto, supra, 114 N.J. at 206.
We reject defendant's argument that his objection at trial that Dr. Finkel "is going on beyond the realm of the question that was put before him" indicated surprise as to the nature of Dr. Finkel's testimony. --------
Defendant next argues that the subject of Dr. Finkel's testimony was not beyond the ken of the average juror, and therefore his opinion testimony should have been excluded because it would not have assisted the trier of fact to understand the evidence or determine a fact in issue.
Expert testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. Expert testimony should be admitted in the discretion of the trial judge, if it concerns a subject-matter that is beyond the ken of the average juror, is sufficiently reliable, and the witness has sufficient expertise to offer the intended testimony. State v. Hackett, 166 N.J. 66, 82-83 (2001).
Defendant stipulated to Dr. Finkel's expertise in the field of "examination of child sexual abuse victims." Dr. Finkel's expertise in this field was well documented: he has examined over 8,000 child sexual abuse victims and has been called to testify as an expert in the area of physical trauma, or lack thereof, at least five or six times a year.
Dr. Finkel's testimony as to why a child would not necessarily show outward signs of physical trauma (days or years after alleged sexual abuse), despite alleging that she was penetrated, was an appropriate subject-matter for expert testimony. Dr. Finkel testified to the difference between a child's perception of penetration and a doctor's corroboration of that perception through physical examination. This testimony included the use of an anatomical model to explain the difference between penetration of the labia and the vagina. Dr. Finkel opined on the State's hypothetical of how physical examination of a child might not reveal physical trauma, despite a child's disclosure that she had been penetrated two years prior. Dr. Finkel concluded:
commonly kids experience genital to genital contact perceived as penetrating into the vagina, but penetration limited to the structures between the labia, and under most
circumstances, those children do not experience genital trauma because the individual who engages a child in that, has a desire . . . not to harm the child because they want to repeat the activities . . . .
We are satisfied that the average juror might not necessarily understand the subtleties of the two types of penetration, or how such penetration might not cause physical trauma in a prepubescent child. Under N.J.R.E. 702, this testimony assisted the jury in determining a fact at issue.
We also reject defendant's contention that Dr. Finkel's testimony amounted to a net opinion. The net opinion rule is a corollary of N.J.R.E. 703, "which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Townsend v. Pierre, 221 N.J. 36, 53-54 (2015) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). The rule requires that the expert "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).
Dr. Finkel's testimony was based on his extensive experience in examining child victims of sexual abuse as well as his medical expertise regarding why physical trauma would not necessarily be present in a child who claims sexual penetration. It is immaterial that Dr. Finkel's opinion was in the form of a hypothetical. Our Rules of Evidence permit an expert to testify to his conclusions based on hypothetical questions. See N.J.R.E. 705 ("Questions calling for the opinion of an expert witness need not be hypothetical in form unless in the judge's discretion it is so required."). We are satisfied that Dr. Finkel's opinion testimony based on proffered hypotheticals was permissible as it required him to draw upon his expertise in examining child victims of sexual abuse.
Defendant next argues that Dr. Finkel improperly vouched for L.B.'s credibility. Expert testimony opining on a defendant's guilt is wholly improper as guilt or innocence is the exclusive province of the jury. State v. Odom, 116 N.J. 65, 77 (1989). However, expert testimony is permissible, where "[t]he expert merely [makes] generalized statements regarding behavior often found in sexually abused children and did not render an opinion regarding [a victim's] credibility or truthfulness." State v. Abronski, 281 N.J. Super. 390, 403 (App. Div. 1995).
Here, Dr. Finkel expressed his opinion that a child could have been penetrated, despite a lack of evidence showing physical trauma. While this testimony may have provided support for L.B.'s testimony, Dr. Finkel neither commented on L.B.'s allegations nor impermissibly vouched for her credibility. We find no abuse of the trial judge's broad discretion in admitting Dr. Finkel's testimony.
For the first time on appeal, defendant claims the judge abused his discretion in imposing a $4,000 fine pursuant to the SCVTF, N.J.S.A. 2:C14-10, by not expressly considering his ability to pay. Because defendant did not raise this issue below, we employ the plain error standard and disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.
The SCVTF, N.J.S.A. 52:4B-43.2, was established by the Legislature in 2005 to "defray the cost of counseling and treatment services for the victims of certain sex offenses and their families." State v. Bolvito, 217 N.J. 221, 223 (2014). The Legislature enacted N.J.S.A. 2C:14-10 to fund these services. In relevant part, the statute provides:
a person convicted of a sex offense . . . shall be assessed a penalty for each such offense not to exceed:
(1) $2,000, when the conviction is a crime of the first degree;
(2) $1,000, when the conviction is a crime of the second degree;
[N.J.S.A. 2C:14-10 (emphasis added).]
In Bolvito, the Court interpreted "shall" in the statute to "mandate[] that a sentencing court impose an SCVTF penalty on a defendant convicted of an offense listed . . . [and therefore] the sentencing court lacks the discretion to dispense with the SCVTF penalty." Bolvito, supra, 217 N.J. at 231. The Court noted that, although a sentencing court must impose the penalty, it "has substantial discretion with respect to the amount of the SCVTF penalty" and "may impose a penalty in any amount, from a nominal amount up to the statutory maximum based on the defendant's offense." Id. at 231-32. In determining the amount of the penalty, the Court held that sentencing courts should consider the nature of the offense and a defendant's ability to pay. Id. at 233-34. The Court also suggested that sentencing courts "should provide a statement of reasons when it sets a defendant's SCVTF penalty within the statutory parameters." Id. at 235.
Defendant was sentenced on March 22, 2013, a year before Bolvito was decided on March 31, 2014. The State argues that Bolvito should not be applied retroactively. Whether a court decision applies prospectively or retroactively involves a two-step analysis. State v. Bellamy, 178 N.J. 127, 141 (2003). First, we must "consider whether a given decision creates a new rule of law, a new obligation on the State, or was not dictated by precedent existing at the time of the initial proceedings." Ibid. If a decision does not announce a new rule, then a retroactivity analysis is not pertinent. Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 1:36-3 (2015) (citing State v. Chirokovskcic, 37 3 N.J. Super. 125, 131 (App. Div. 2004)). New rules tend to "'disrupt a practice long accepted and widely relied upon,' and therefore have the potential to create confusion and disruption if applied retroactively." Chirokovskcic, supra, 373 N.J. Super. at 130 (quoting State v. Lark, 117 N.J. 331, 338 (1989)). To be considered a new rule for retroactivity purposes, "there must be a 'sudden and generally unanticipated repudiation of a long-standing practice.'" Ibid.
Normally, where the Supreme Court announces a new rule, it will engage in a retroactivity analysis. See State v. Natale, 184 N.J. 458, 492-96 (2005); see also State v. Cummings, 184 N.J. 84, 89 (2005). The Bolvito Court gave no indication that it was announcing a new rule in its holding. Bolvito, supra, 217 N.J. at 235. We are satisfied that Bolvito did not represent new law for retroactivity purposes.
Finally, defendant challenges the judge's finding of aggravating factors three, six, and nine with no mitigating factors, and claims his sentence is excessive.
In reviewing a sentencing determination, we employ a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence unless the sentencing guidelines were violated; the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or the application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience. Ibid. When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); State v. Jarbath, 114 N.J. 394, 401 (1989).
Defendant claims that the judge erred when he determined that L.B. had been vaginally penetrated. L.B. testified that defendant penetrated her vaginally on several occasions. This testimony, standing alone, supports the judge's finding. However, defendant now claims that Dr. Finkel testified that L.B. was not vaginally penetrated. This mischaracterizes Dr. Finkel's testimony. It is clear from the record that Dr. Finkel was speaking generally and in hypothetical terms about child victims of sexual assault and never discussed the diagnoses or examinations of M.B. or L.B.
Aggravating factors three and nine contemplate the issue of deterrence. Aggravating factor three allows a sentencing judge to consider whether there is a "risk that defendant will commit another offense[.]" N.J.S.A. 2C:44-1(a)(3). Factor nine allows for consideration of the "need for deterring the defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(9).
The judge found a need for both specific and general deterrence, and applied factors three and nine. Defendant claims that the judge based this decision on defendant's lack of remorse, which would have required him to admit guilt in violation of his Fifth Amendment right against self-incrimination.
While the judge did find that defendant exhibited a "remarkable lack of remorse and culpable insouciance for his wrongdoing," he also found that "the need to deter the defendant and others from violating the law is palpable in this case," because "defendant and others similarly inclined need to know that the law protects the weakest members of [our] society from those who would harm them." The judge noted the need for specific deterrence because "[a]s a trusted, and one might say . . . revered friend of the family, this defendant regularly subjected his victims to ongoing molestation." The judge found that, "[i]n cases where the criminal behavior is serious, harmful and calculated, as the defendant's behavior was here, only a very lengthy commitment to prison will serve as an adequate deterrent."
Defendant's lack of remorse was not the sole justification for the judge's application of these aggravating factors and we find no violation of his Fifth Amendment rights. See State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985) ("[T]he trial judge's brief allusion to defendant's failure to candidly admit his guilt does not require a reversal."), certif. denied, 102 N.J. 393 (1986).
Finally, defendant challenges his consecutive sentences. After merger, defendant was sentenced on counts one and two with respect to victim L.B., and count four with respect to victim M.B. Defendant now argues that the judge should have given concurrent sentences on counts one and two because the court failed to consider whether the acts associated with the second-degree sexual assault conviction (count two) were separate and distinct in time from the acts associated with the first-degree aggravated sexual assault conviction (count one).
The judge recognized the two separate acts committed against L.B., touching and penetration, as "distinct criminal acts, even if they are similar." The judge also noted that these acts took place at different times over a two-year period and that "[t]he evidence also showed . . . defendant had sexual contact with L.B.'s body that did not include penetration . . . [and that] L.B. suffered separate and distinct indignities to her person on numerous occasions consisting of various forms of sexual contact."
We are satisfied that the judge correctly concluded that counts one, two, and four were not a single period of aberrant behavior, but rather multiple and varied sexual assaults on multiple victims. The record amply supports this finding.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION