STATE OF NEW JERSEY v. ROBERTO ROCERO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5517-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERTO ROCERO,

Defendant-Appellant.

_________________________________

March 23, 2012

Submitted March 5, 2012 - Decided

Before Judges Parrillo and Grall.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment

No. 08-11-1901.

Joseph E. Krakora, Public Defender, attorney for appellant (Cynthia H. Hardaway, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Roberto Rocero was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree child endangerment, N.J.S.A. 2C:24-4 A. 1 On the former, defendant was sentenced to a seven-year term with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on the latter, to a concurrent flat seven-year term. Defendant appeals, and we affirm.

The indictment charged defendant with sexually assaulting T.M., for a two-year period from June 2000, when the child was nine years old, to June 2002, when she was eleven years old. According to the State's proofs, T.M. lived with her mother A.M., her father and brother in an apartment in New Brunswick. Sometime in the late 1990's, A.M.'s sister Jane and defendant, with whom she was romantically involved, came to live with her sisters' family in the New Brunswick apartment. During this time, A.M. occasionally entrusted her children to Jane's and defendant's care. About two years later, Jane and defendant moved out of the apartment and into a house they purchased in New Brunswick.

From around 2000 to 2001, when A.M. and her husband needed child care because of their work schedules, A.M. would bring T.M. and her younger brother to Jane's and defendant's home. This arrangement amounted to two days a week. Because of their four-year age difference, T.M. would often watch television shows in her aunt's bedroom upstairs, while her brother watched television in the living room.

According to T.M., on about five separate occasions, defendant came into the bedroom when T.M. was alone and locked the door. Then, "he would take off [her] pants or [her] underwear at times, and he would . . . feel [her], under [her] shirt, or caress [her], inappropriately like." Defendant would kiss her chest, and on one occasion, he also performed oral sex on her. On at least one other occasion, defendant "placed [her] hand over his penis," wanting her "to masturbate him." However, she "didn't know what that was. So, he kind of stroked [her] hand on top of his penis." In yet another incident, T.M. thought defendant tried to penetrate her from behind because she could feel the pressure of his penis between her bottom. These incidents usually lasted about ten to twenty minutes, during which T.M. "drifted away," not understanding what defendant was doing to her.

Around this same time, A.M. noticed her daughter's personality starting to change, becoming less talkative and more aggressive, prone to crying when being chastised. At the time, T.M. did not disclose defendant's abuse to anyone, nor really understand what was happening to her. In fact, it was not until about two years later, after attending a class in school about sex, that she realized what defendant did to her was wrong and confided in her best friend, C.C., whom she had known since she was about five years old, that someone had "touched her." According to C.C., T.M. appeared "sad and depressed," and because she herself did not truly understand, C.C. did not question T.M. any further.

On a later occasion, when T.M. was about twelve years old, she and C.C. were watching a soap opera on television depicting an event similar to what defendant had done to her. T.M. suddenly became very emotional and started crying, pointing to the television, saying "That's what happened to me . . . why me." C.C. did not press T.M. for details because she wanted T.M. to forget her problems.

T.M. however lived with this burden for sometime thereafter, keeping the abuse from her family lest no one believe her or question why she did not tell them sooner. She did not tell her Aunt Jane because Jane had a child and did not want her cousin to grow up without a father. But coping with the abuse by herself had its consequences. As her mother observed, T.M. developed "a lot of anger issues." At one point, she even contemplated suicide.

Finally, in July 2008, when she was preparing to go to college, T.M. told her mother what defendant had done to her. A.M. was "shocked" because she had always trusted defendant. She reported the abuse to the Division of Youth and Family Services (DYFS), who in turn notified the police. After separately interviewing T.M. and her mother, the police confronted defendant, who agreed to accompany them to headquarters, where upon his request, he was provided someone who spoke Tagalog, his native language. Defendant was then advised of his Miranda rights and signed a waiver form. In the two-and-one-half-hour recorded interview that followed, defendant initially denied sexually abusing T.M. Then, about one hour later, he "acknowledged that [T.M.] may have accidentally touched his penis." By the end of the interview, defendant "admitted to having performed oral sex on her, and having touched his penis."

I.

On appeal, defendant contends for the first time that C.C.'s testimony that T.M. pointed to a television show depicting a scene of a man raping a girl exceeded the permissible scope of fresh complaint testimony and was prejudicial to him. We disagree and find no error, much less plain error, in its admission.

In order to qualify as fresh complaint evidence, "the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." State v. Hill, 121 N.J. 150, 163 (1990). This evidence serves a narrow purpose. It is admissible to prove the victim complained at a particular time, State v. W.B., 205 N.J. 588, 616-17 (2011), to allow the State to negate the inference that the victim was not sexually assaulted because of her silence. Hill, supra, 121 N.J. at 157. It is not admissible, however, "'to corroborate the victim's allegations concerning the crime.'" W.B., supra, 205 N.J. at 616-17 (quoting State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006)). Accordingly, only the fact of the complaint, not the details, is admissible. In other words, a fresh complaint witness may testify regarding "the general nature of the [victim's] complaint" without providing "unnecessary details of what happened[.]" Id. at 617.

Here, the trial judge held a pre-trial hearing to determine whether the conditions of admissibility have been satisfied. As a result, the judge found that T.M. was confiding in a close friend to whom she gave only "minimal information" of a "very general nature," without any coercive questioning. This determination is committed to the court's sound discretion, State v. L.P., 352 N.J. Super. 369, 380 (App. Div.), certif. denied, 174 N.J. 546 (2002), and we perceive no abuse thereof in the judge's decision to admit the fresh complaint evidence.

Here, C.C. testified concerning two occasions during which T.M. confided in her about being abused. At neither time did defense counsel object. In neither instance did C.C. provide any details of the sexual assaults upon T.M. While defendant now complains that on the later occasion, C.C. was allowed to relay to the jury what she observed on the television screen, the fact remains her description was confined to matters within her personal knowledge, N.J.R.E. 602, (i.e., what she saw on the television and T.M.'s reaction to it), and simply explained the circumstances giving rise to T.M.'s second complaint. C.C.'s account related only the "general nature" of T.M.'s "fresh complaint" and provided no details of that sexual assault.

In any event, at the conclusion of C.C.'s testimony, the judge gave the jury a limiting instruction on the purposes for which the testimony could properly be considered. Specifically, the jury was instructed that "a fresh complaint is not evidence that the sexual offense actually occurred, or that [T.M.] is credible." We presume, of course, that the jury followed the court's limiting instruction, State v. Winder, 200 N.J. 231, 256 (2009), and therefore did not use C.C.'s testimony as evidence that [T.M.] was in fact sexually assaulted. For all these reasons, then, we perceive no abuse of discretion, much less plain error, in the admission of C.C.'s fresh complaint testimony.

II.

Defendant also challenges his mid-range sentence as excessive. We disagree.

The court found as aggravating factors the gravity and seriousness of harm inflicted on the victim, N.J.S.A. 2C:44-1a(2); the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); that a lesser sentence would depreciate the seriousness of defendant's offense because he took advantage of a position of trust, N.J.S.A. 2C:44-1a(4); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). In mitigation, the court cited the lack of a criminal record, N.J.S.A. 2C:44-1b(7), and the fact that defendant would respond well to probationary treatment, N.J.S.A. 2C:44-1b(10), although as to the latter, there was a presumption of incarceration. On balance, the court found the aggravating factors outweighed the mitigating ones to support a seven-year NERA sentence.

Although defendant complains that the court double-counted aggravating factor number four, it is clear that this factor was only considered in the context of the sexual assault, which did not include as an element of the crime a position of trust, and not the child endangerment offense. Lastly, the court properly considered defendant's lack of a criminal record in mitigation but the weight of the aggravating factors against this lone circumstance well supported imposition of the mid-range sentence. We therefore find no warrant for interference with the sentence imposed.

Affirmed.

1 The jury was unable to reach a unanimous verdict on the first-degree aggravated sexual assault charge, N.J.S.A. 2C:14-2a.