STATE OF NEW JERSEY v. OSCAR SALINAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6560-04T46560-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSCAR SALINAS,

Defendant-Appellant.

______________________________

 

Submitted September 24, 2007 Decided

Before Judges Parrillo, Graves, and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth County,

Indictment Nos. 02-09-1760 and 04-01-0256.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Timothy P. Reilly, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Mary E. McAnally, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Oscar Salinas was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and third-degree child endangering, N.J.S.A. 2C:24-4(a). The court merged the child endangering count with the aggravated sexual assault count, imposing for that crime fifteen years imprisonment subject to an eighty-five percent parole disqualifier. Appropriate fees and penalties were also imposed as was Community Supervision for Life pursuant to N.J.S.A. 2C:43-6.4 and Megan's Law, N.J.S.A. 2C:7-1 to -19. This appeal followed.

Defendant asserts a host of errors in the manner in which the trial was conducted and the sentence imposed:

POINT I

DEFENDANT OSCAR SALINAS'[S] CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT COMMITTED ERRORS BEFORE THE JURY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONSTITUTION, AMEND. XIV, N.J. CONST. OF 1 947 ART. 1, 9, 10)

A. THE TRIAL COURT'S CHARGE ON THE DEFINITION OF AGGRAVATED SEXUAL ASSAULT (SPECIFICALLY AS TO THE DEFINITION OF CUNNILINGUS) WAS INCORRECT AND HAD THE CLEAR CAPACITY TO MISLEAD THE JURY TO AN UNJUST RESULT.

B. THE TRIAL COURT ERRED IN PERMITTING NUMEROUS DUPLICITOUS OUT-OF-COURT STATEMENTS WHICH UNDULY PREJUDICED DEFENDANT AND SHOULD HAVE BEEN EXCLUDED BY THE COURT PURSUANT TO N.J.R.E. 403 RESULTING IN DENIAL OF DEFENDANT'S RIGHT TO A FAIR TRIAL.

C. THE STATEMENTS [THE CHILD] MADE TO HER MOTHER, FATHER, DETECTIVE WARD AND INVESTIGATOR ZUPPA SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE BEFORE THE JURY SINCE THEY WERE NOT "TRUSTWORTHY."

D. DURING THE TRIAL THE TRIAL JUDGE PERMITTED IMPROPER EVIDENCE BEFORE THE JURY INCLUDING HEARSAY EVIDENCE AND EVIDENCE WHOSE PREJUDICIAL VALUE SUBSTANTIALLY OUTWEIGHED ITS PROBATIVE VALUE PURSUANT TO N.J.R.E. 403.

POINT II

DEFENDANT, OSCAR SALINAS'S CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10)

POINT III

DEFENDANT OSCAR SALINAS'S CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO CONDUCT A HEARING ON THE COMPETENCY OF THE JUVENILE WITNESS, THEREBY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10) (NOT RAISED BELOW)

POINT IV

THE WITHIN SENTENCE MUST BE VACATED AND THE MATTER MUST BE REMANDED FOR RESENTENCING SINCE THE SENTENCE IMPOSED IS EXCESSIVE AND ILLEGAL.

For the reasons that follow, we affirm.

The conviction results from a single incident during which defendant is alleged to have performed cunnilingus upon a seven-year-old child.

Shortly after entering fifth grade in 2003, the child was taken to a pediatrician. While there, she disclosed to her father that defendant had licked her "private part." She remembered that the incident occurred in the summer of 2002. The family immediately went to the police where the child spoke briefly to a detective, outside the presence of her parents, and reported that defendant had kissed her "private." She then met with a county prosecutor's detective who conducted a videotaped interview later shown to the jury.

Meanwhile, defendant, who is bilingual, was arrested and taken in for questioning. His Miranda rights were explained in Spanish. He signed a Spanish-language Miranda card and agreed to speak to officers in the absence of an attorney. There were occasions when defendant responded in English, but in the main, a bilingual officer interpreted. The interview lasted approximately two hours. Defendant was not cuffed, was permitted to take his blood pressure medicine, offered the use of a bathroom and allowed intermittent breaks. He was also offered food and drink. Defendant initially denied the allegations, but when told that the detectives were going to contact a judge to set bail, defendant admitted that he "did it." He said that he kissed the victim on the "ingle" and gestured toward his groin. The bilingual officer later testified at trial that "ingle" was a Spanish medical term for the groin area. Defendant claimed to have been college educated in El Salvador, where he studied laboratory medicine. He said he knew what the term "ingle" meant and knew the police did not. Toward the end of the interview, defendant was videotaped making handwritten changes to his statement and signing it. Defendant also made a statement on videotape.

Defendant now objects to the Model Jury Charge definition of cunnilingus given by the court below, "oral contact with the female sex organ" not requiring penetration. Model Jury Charge (Criminal), "Aggravated Sexual Assault" (2005). No objection to the instruction was made at the charge conference. Defendant contends, pursuant to State v. Fraction, 206 N.J. Super. 532 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986), that the case added stimulation of the sexual organ as an element of the offense. It is also argued that without giving Fraction this reading, innocent contact between a person's mouth and the female sexual organ becomes criminalized. It is difficult, if not impossible, to imagine an unintentional contact of that nature. In actuality, Fraction stands for the proposition that penetration need not be proven to establish the offense of cunnilingus, not that stimulation is necessary. Id. at 535-36. Fraction did not manufacture a statutory element, rather it clarified the statutory intent by eliminating penetration. Ibid. Therefore, the court's instruction was correct.

At trial, the victim testified. The jury was also shown her videotaped interview conducted by the County Prosecutor's detective. Defendant objects that the admission of the testimony of her parents and the investigating detectives, which recount her allegations, was prejudicially cumulative. All the statements were admitted under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27). The trial judge conducted a N.J.R.E. 104 hearing pre-trial to determine, as called for by the rule, if "on the basis of the time, content and circumstances there [was] a probability the statement [was] trustworthy." N.J.R.E. 803(c)(27)(b). He made detailed findings, determining that there was no suggestiveness in the child's interviews with detectives or conversations with her parents.

To exclude relevant evidence, a party must establish that "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403; see also State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). Given the brevity of the child's statements, as described by her parents and the detectives, and the lack of suggestiveness in the conversations that resulted in the statements, no undue prejudice resulted to defendant. The trial court properly exercised its broad discretion in deciding to admit the evidence as sufficiently trustworthy. State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002). Substantial deference is required on appellate review of a trial court's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). There is no reason to disturb them in this case.

The circumstances of defendant's interview, including the fact that he was not cuffed, was permitted to take his medication, and was allowed to take breaks and consume food and drink, established a voluntary, knowing, and intelligent waiver of defendant's Miranda rights, beyond a reasonable doubt. State v. Knight, 183 N.J. 449, 462 (2005). Whether the State's burden is met is a determination made by the trial court based on the quality of evidence presented. State v. Sheika, 337 N.J. Super. 228, 240 (App. Div.), certif. denied, 169 N.J. 609 (2001). The quality of the evidence makes clear that the motion judge properly found the State had met its burden of proof beyond a reasonable doubt.

Defendant also argues that the officers used trickery and deception when they asked if he would prefer to be treated for an illness rather than go to prison. He claims the officers led him to believe that if he confessed, he would go free. In determining whether a custodial statement was made voluntarily, "[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." State v. Galloway, 133 N.J. 631, 654 (1993). Within limits, "use of a psychologically-oriented technique . . . is not inherently coercive." Galloway, supra, 133 N.J. at 654; see also State v. Manning, 165 N.J. Super. 19, 30-31 (App. Div. 1978), certif. denied, 81 N.J. 358 (1979). The suggestion here was not even trickery so much as a ploy designed to encourage defendant to confess. Manning, supra, 165 N.J. Super. at 31. Accordingly, his statements were properly admitted as they were not the product of trickery or deceit.

Defendant now contends a competency hearing should have been conducted before the child testified. This argument was not raised below. At the time of trial, she was ten-and-a-half. Witnesses are presumed to be competent to testify. N.J.R.E. 601; State v. R.W., 104 N.J. 14, 20 (1986). A young witness should only be disqualified if he or she is incapable of communicating "so as to be understood by the judge and jury" or is unable to understand "the duty of a witness to tell the truth." R.W., supra, 104 N.J. at 20. The victim expressed no difficulty in being seated, in taking the oath, or in understanding or answering questions. The record is devoid of any concern expressed by the court or by counsel as to her competency. In order to prevail on this point, defendant must establish the existence of plain error "clearly capable of producing an unjust result." R. 2:10-2. No error exists at all.

Lastly, defendant contends that the trial court abused its discretion in weighing aggravating and mitigating factors when it imposed a sentence on the first-degree aggravated sexual assault of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentencing judge found aggravating factor three, the risk defendant "will commit another offense." N.J.S.A. 2C:44-1(a)(3). Defendant was simultaneously sentenced on a violation of probation for an unrelated aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). At sentencing, he persisted in his claim of innocence as to this victim despite overwhelming proof, including his confession. As defendant did not acknowledge culpability for a sexual offense despite his confession and earlier conviction of another sexual offense, he is at risk to commit another offense. See State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). The court also found factor nine, the need to deter "defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The need to deter defendant as well as the general public is enhanced by the nature and degree of the offense. See State v. Carey, 168 N.J. 413, 426 (2001). The court did find a mitigating factor, that the imprisonment of defendant would entail excessive hardship to him and his dependents, N.J.S.A. 2C:44-1(b)(11). This finding was based on defendant's health issues as well as his seventeen-year-old son. In weighing the single mitigating factor against the aggravating factors the court concluded that the presumptive sentence, subject to NERA, was appropriate. This conclusion was based on competent and credible evidence, within the correct sentencing guidelines, and does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984). Accordingly, as the sentence was the result of a reasonable exercise of discretion it will not be disturbed. State v. Jarbath, 114 N.J. 394, 401.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed 2d

694 (1966).

The decision predated State v. Natale (Natale II), 184 N.J. 458, 465-66 (2005), and therefore the judge in sentencing properly used the term "presumptive."

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11

A-6560-04T4

RECORD IMPOUNDED

November 21, 2007