Opinion
DOCKET NO. A-3348-11T3
05-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELMO M. RIVADENEIRA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-03-0435. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief). PER CURIAM
A jury convicted defendant Elmo Rivadeneira of first-degree kidnapping, N.J.S.A. 2C:13-1(b), three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), fourth-degree child abuse, N.J.S.A. 9:6-1 and -3, third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), first-degree robbery, N.J.S.A. 2C:15-1, third-degree aggravated assault involving significant bodily injury, N.J.S.A. 2C:12-1(b)(1), and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). After merger, the trial judge sentenced defendant to an aggregate term of fifty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
As noted later in this opinion, the judgment of conviction mistakenly reported this as a second-degree conviction. The jury acquitted defendant of second-degree aggravated assault involving serious bodily injury.
On this appeal, defendant raises the following points of argument for our consideration:
I. THE FAILURE TO CHARGE TERRITORIAL JURISDICTION, WHEN THE LOCATION OF THE SEXUAL ASSAULTS WAS SO OBVIOUSLY UNKNOWN AND SO READILY INFERABLE AS BEYOND NEW JERSEY'S BORDER, DEPRIVED DEFENDANT OF HIS RIGHTS TO HAVE AN ESSENTIAL ELEMENT OF THE OFFENSES DECIDED BY A JURY. (NOT RAISED BELOW).
II. THE FAILURE TO REINSTRUCT THE JURY ON THE STATE'S BURDEN OF PROOF, FOLLOWING A JURY QUESTION THAT REVEALED THE JURY PROBABLY MISTAKENLY BELIEVED DEFENDANT HAD A BURDEN TO ESTABLISH HIS INNOCENCE, DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
III. THE COURT ERRED, TO DEFENDANT'S PREJUDICE, IN REFUSING TO GIVE AN ADVERSE INFERENCE CHARGE REGARDING THE LOST STOCKING, WHICH WAS THE LYNCHPIN IN THE STATE'S CASE AGAINST DEFENDANT.
IV. THE AGGREGATE FIFTY-YEAR SENTENCE WITH EIGHTY-FIVE PERCENT PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
We find no merit in any of those arguments, and we affirm the conviction and the aggregate sentence of fifty years subject to NERA. However, we remand for the limited purpose of reconsidering the sentence imposed for third-degree aggravated assault, and correcting two errors in the judgment of conviction (JOC), although none of those matters affect the aggregate term.
I
In light of the legal issues raised, the pertinent trial evidence can be summarized as follows. The victim, who was sixteen years old, was kidnapped while walking home from a bus stop in North Bergen on the night of May 17, 2005. The assailant grabbed her in a bear hug, and placed one hand near her neck as though he had a knife. He forced the victim into a car, punched her and threatened to kill her. He drove her to a deserted area with tall weeds, once again threatened to kill her, forced her to perform fellatio, and then raped her vaginally. He also took all of her clothing, cell phone, and jewelry. He then drove her to another deserted, weed-choked lot where he raped her anally, again threatening her with death if she did not cooperate. The victim testified that the assailant wore a condom and, after the assaults, he wiped her genital and anal areas with a liquid, which he said would avoid leaving evidence on her body. The assailant also wore blue latex gloves and had a stocking over his head and face. During one of the assaults, he repeatedly rubbed his sweaty face over the victim's face.
According to the victim, as the assailant drove her from one location to another, she smelled cigar smoke and he told her that he was smoking Black and Mild cigars. She could not see his face during the attacks, but she saw his eyes, which she described as large and bulging. She also described his very distinctive voice, which she testified sounded like "Kermit the Frog" because he sounded as though "he was talking through his throat." She described the assailant as thin and short but very strong.
Finally, the assailant drove the victim to a car repair facility in Newark, where he forced her to put on an oversized pair of white overalls and placed her in a white Toyota parked in the facility's lot. After once again threatening to kill her if she looked at him, he drove away. The victim was able to make her way to a local hospital where she was examined and a buccal swab of her DNA was taken. Thereafter, the police drove the victim around Newark until she was able to identify the car repair lot where the assailant had released her, as well as the white Toyota parked there.
Near the spot where the victim was released, the police found a black sheer stocking which, upon being tested, proved to have the victim's DNA on the outside and defendant's DNA on the inside. The police also found a blue latex glove on the ground near the location where the victim was initially kidnapped. The State presented testimony that defendant had previously worked as an auto mechanic in the area of Newark where the victim was released, that he typically wore blue latex gloves at work, and that the car repair facility where the victim was released had a business relationship with defendant's employer.
One of defendant's former girlfriends, Ms. Teicher, testified that defendant had a very distinctive raspy voice, and was short, thin, and muscular. She also testified that on multiple occasions during their relationship, defendant would direct her to drive him to vacant lots overgrown with high weeds, where they would have sex in the back of her car. She also testified that defendant smoked Black and Mild cigars.
Another witness, Mr. Cancinos, testified that in 2006, when defendant was in jail awaiting trial in this case, defendant sent Cancinos a letter asking him to "stage" a rape, with the cooperation of a female friend, and leave some of defendant's blood and pubic hair at the scene. Defendant enclosed packets, apparently containing blood and hair, with the letter. Defendant explained to Cancinos that, if Cancinos did as he asked, it would then appear that someone was trying to frame defendant for a second rape, which he could not possibly have committed because he was in jail. Defendant believed that evidence would, in turn, cast doubt on the State's DNA evidence in the upcoming prosecution. According to Cancinos, he refused defendant's request, and burned the letter.
Ms. Dahl, who had been defendant's girlfriend at the time, corroborated Cancinos's testimony. She testified that Cancinos, who was a mutual friend of hers and defendant, told her about defendant's request, and asked her advice. She testified that Cancinos also showed her the letter, which was in defendant's handwriting, and that she read it. She advised Cancinos not to go along with defendant's plan.
The trial judge held a N.J.R.E. 104 hearing before allowing Cancinos and Dahl to testify. He also gave the jury thorough limiting instructions about defendant's pre-trial incarceration and the testimony about defendant's alleged request to Cancinos.
II
For the first time on appeal, defendant argues that there was no territorial jurisdiction to prosecute him in New Jersey. See N.J.S.A. 2C:1-3 (governing territorial jurisdiction in the prosecution of crimes). He bases this argument on his speculation that some of the sexual assaults could have been committed in New York, contending that North Bergen is close to the New York border. He argues that the judge should have sua sponte charged the jury on the territorial jurisdiction issue. We disagree.
[T]erritorial jurisdiction is a non-material element [of an offense], and for good reason never submitted to the jury unless there is some factual dispute concerning whether the crime occurred in this State. State v. Casilla, 362 N.J. Super. 554, 561-62 (App. Div.) ("[A] trial court is required to instruct the jury regarding this element only if there is an issue regarding the relevant facts."), certif. denied, 178 N.J. 251 (2003). It would be pointless to ask the jury to decide whether a murder occurred in the State if no one contests the issue. Typically, there is no dispute regarding the location of the crime. And unlike material elements, territorial jurisdiction does not go to the heart of whether the defendant actually committed the crime.
[State v. Denofa, 187 N.J. 24, 41 (2006).]
In this case there was no evidence that defendant drove the victim to a location outside of New Jersey. Nor did defendant "contest[] the issue" at trial. See ibid. At a pre-trial hearing, the judge asked defense counsel to confirm that "[t]here is no dispute as to jurisdiction in this case." Defense counsel agreed that jurisdiction was not in issue. Hence, the court was not required to charge the jury as to the issue. Id. at 44. Further, applying the standard set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967), the evidence, viewed in the State's favor, could certainly persuade reasonable jurors beyond a reasonable doubt that the crimes occurred in New Jersey. Denofa, supra, 187 N.J. at 44.
Defendant also did not raise the issue in a post-trial motion. See R. 3:10-2; R. 3:18-2; Denofa, supra, 187 N.J. at 44.
Moreover, even if one or more of the sexual assaults occurred in New York, this State would still have jurisdiction to prosecute defendant for his course of criminal conduct. "The State has the power to prosecute crimes that occurred within its borders but may not bring charges for offenses committed entirely in another state or country. If the commission of an offense spans jurisdictional boundaries, more than one jurisdiction may prosecute the crime." State v. Sumulikoski, 221 N.J. 93, 101 (2015). For example, if a defendant while within this State takes a substantial step toward the commission of a crime, that will suffice to confer territorial jurisdiction for the prosecution of the crime. See id. at 105 (citing State v. Sanders, 230 N.J. Super. 233, 237 (App. Div. 1989). In this case, there is no dispute that the victim was kidnapped in New Jersey, the kidnapping was committed for the purpose of sexually assaulting the victim, and kidnapping was an element of defendant's three aggravated sexual assault offenses. See N.J.S.A. 2C:14-2(a)(3). Consequently, defendant could be prosecuted in New Jersey for committing the sexual assaults and related offenses, even if those crimes were completed in New York.
III
Next, we consider defendant's argument that the trial court erred in responding to a question the jury posed during its deliberations. To put the issue in context, the judge's final charge told the jury multiple times that defendant was presumed innocent, the State had "the burden of proving each element of the charges beyond a reasonable doubt," and "that burden never shifts to a defendant." The judge also charged the jury multiple times that, "[i]t is not the obligation or the duty of a defendant in a criminal case to prove that he's innocent or offer any proof relating to his innocence."
After giving the jurors this charge, the judge sent them to begin deliberating at 1:40 p.m. At 2:50 p.m., the jury sent out a question: "Where was Elmo on the night of the crime?" The judge provided the following instruction in response to the question:
As I indicated to you in my general instructions, I cannot provide to you -- I can't testify to you, nor can I supplement the evidence that's before you. You're
required to judge this case based on the evidence that's been introduced during the course of the trial. So, my short answer to you, I can't answer your question. So with[] that I'd ask you please retire and resume your deliberations.
After the judge delivered this charge, defense counsel raised a concern that the jury might have "shifted the burden" to defendant to establish an alibi. He stated:
It appears from the transcript that the jury had left the courtroom before counsel raised this issue.
[The] [o]nly thing I am asking myself now is this, have they shifted the burden to my client of providing an alibi or whereabouts? Should they receive an instruction again as to his [r]ight not to testify or burden not shifting to him? That's my only concern.The judge responded that the concern was speculative and no further instruction was necessary:
I understand your concern, sir, having been a trial lawyer before I got up here, we tend to speculate on everything, what this means. We never really know what any of these things mean.The jury reached a verdict about an hour later.
We are not in the room. I don't see how that concern is legitimate. They asked a question about where he was. That's all it is. That's all we can assume. I told them they have an obligation to judge the case based on the evidence that's been introduced. We can't answer any additional factual questions. . . . So, I don't think any further instruction is necessary.
The transcript does not indicate the time the verdict was returned, but it notes the jury was discharged at 3:50 p.m. The record indicates that before returning its verdict, the jury asked a second question, about a typographical error in a stipulation, and a third question, about the difference between serious bodily injury and significant bodily injury in the context of aggravated assault. The judge appropriately responded to those questions, and the jury convicted defendant of the lesser-degree offense of aggravated assault with significant bodily injury.
Defendant contends that the jury's question demonstrated that it was confused as to the burden of proof, and that the court committed prejudicial error in declining to re-charge the jury that defendant had no burden to produce evidence. "In this context, our task is to determine whether the trial court erred in its response and, if so, whether that 'error undermines our confidence that the deliberative process produced a just result and the conviction must be reversed.'" State v. Lykes, 192 N.J. 519, 537 (2007) (quoting State v. Parsons, 270 N.J. Super. 213, 224-25 (App. Div. 1994)). In the context of this case, we find no error in the judge's handling of the issue. Only an hour earlier, the judge had thoroughly, repeatedly, and correctly charged the jury on that point. We presume that the jury followed the judge's instructions. See State v. Miller, 205 N.J. 109, 126 (2011) (citing State v. Nelson, 173 N.J. 417, 447 (2002)).
Further, the question did not indicate a misunderstanding of the burden of proof, but simply indicated that the jury was asking for information that was not in evidence. The judge properly instructed the jury to decide the case based solely on the evidence presented during the trial. Moreover, in this context, if the judge had given the instruction counsel requested, it could have unnecessarily highlighted the fact that defendant did not produce evidence of his whereabouts at the time the crimes were committed.
IV
We likewise find no merit in defendant's contention that the trial judge should have given the jury an adverse inference charge because the State accidentally misplaced the stocking on which defendant's and the victim's DNA was found. See R. 3:13-3(f); State v. Dabas, 215 N.J. 114, 140 (2013); Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001). We review the trial judge's ruling for abuse of discretion, Dabas, supra, 215 N.J. at 132, and we find none. We affirm substantially for the reasons stated by the judge during the trial on October 4, 2011, and in denying defendant's new trial motion on February 3, 2012. We add these comments.
In considering whether to charge the jury as to an adverse inference, the judge considered the analogous factors relevant to whether destruction of evidence violates a defendant's due process rights:
(1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced. To be material, the "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."
[State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998) (alteration in original).]
At trial, the defense conceded that the State inadvertently lost the stocking or misplaced it in the prosecutor's evidence retention system. The evidence was not intentionally withheld or destroyed. Nor did the stocking itself have any obvious exculpatory value. The essential evidence pertaining to the stocking was retained. The stocking was photographed at the crime scene, and the photos were introduced in evidence at the trial. Based on his examination of the photographs, the judge found it was a normal adult size women's stocking, and there was no reason to believe that the flexible, stretchy material would not fit over defendant's head.
It appears from the record that the stocking was one leg cut from a pair of women's panty hose. --------
Moreover, the stocking was sent to a laboratory for testing where it was swabbed for DNA evidence. The test results were available, and the DNA technician testified and was available for cross-examination. Portions of the swabs were retained and remained available for additional testing, in the event defendant chose to have them tested. He did not.
Finally, even without an adverse inference charge, defense counsel used the State's loss of the evidence to defendant's benefit in summation, arguing to the jury that the State's investigation was sloppy and unreliable. Beyond a reasonable doubt, an adverse inference charge would have made no difference to the result in this case.
V
Lastly, we turn to defendant's challenge to the sentence. For the reasons he cogently explained on the record, the trial judge imposed a thirty-year NERA sentence for kidnapping, and a consecutive twenty-year NERA term for the aggravated sexual assault in which defendant anally raped the victim after telling her to "choose" how he would rape her as a condition of her release. The judge imposed concurrent terms for the other aggravated sexual assault convictions and the remaining non-merged convictions.
Our review of the sentence is limited and deferential. State v. Bolvito, 217 N.J. 221, 228 (2014). The judge thoroughly explained how he determined and weighed the mitigating and aggravating factors, and his reasons for imposing consecutive terms. See State v. Case, 220 N.J. 49, 65 (2014); State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Contrary to defendant's argument, we find nothing conscience-shocking or excessive in the fifty-year NERA sentence, which was entirely appropriate for the multiple brutal and sadistic crimes defendant committed. We affirm the imposition of the fifty-year NERA term.
However, as previously noted, we remand for the limited purpose of correcting the JOC in other respects. In particular, the JOC mistakenly reflects that in count eleven, defendant was convicted of second-degree aggravated assault with serious bodily injury, N.J.S.A. 2C:12-1(b)(1), when he was actually convicted of third-degree aggravated assault with significant bodily injury, N.J.S.A. 2C:12-1(b)(7). Additionally, defendant was sentenced to a concurrent ten-year term on count eleven, although a legal sentence for this third-degree conviction could not exceed five years.
Further, in one section of the sentencing transcript, the judge indicated that count eleven would merge with the kidnapping and aggravated sexual assault counts, but he later imposed a separate sentence on count eleven. Accordingly, we remand to the trial court to clarify whether count eleven is merged into other counts and, if so, to correct the JOC accordingly. If count eleven is not merged, defendant must be resentenced on that count, to impose a concurrent sentence that is lawful for a third-degree conviction.
Affirmed in part, remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION