STATE OF NEW JERSEY v. V.M.B

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0621-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

V.M.B.,

Defendant-Appellant.

____________________________________

July 8, 2013

Submitted September 27, 2012 - Decided

Before Judges Sapp-Peterson and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-08-0747.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A grand jury charged defendant V.M.B. in a twenty-two count indictment with the serial sexual abuse of his wife s four granddaughters, a petit jury found him guilty on twenty counts, and a judge sentenced him to an aggregate prison term of seventy-nine years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant contends his convictions should be reversed for two reasons: first, though he confessed to committing the crimes, he did not knowingly waive his Miranda1 rights; second, the trial court directed a guilty verdict on the age element of each offense by including the victims' birth dates on the verdict sheet and in its charge. Finding no merit in defendant s contentions, we affirm.

I.

According to the evidence the State presented at trial, when defendant married Zelda2 in 2000 she had two children and four grandchildren. Her daughter, Elizabeth, had two daughters, Emily and Ellie. Her son and his wife, Madeline, had two daughters, Makayla and Maria. The families lived in the same house.

On April 14, 2008, Madeline took Makayla and Maria to the doctor to get physical examinations for school. Makayla was eleven years old. Maria was eight. After the visit, while Madeline was discussing some health concerns with Makayla, Madeline cautioned Makayla, "don't let anybody touch you." From Makayla's reaction, Madeline suspected "something had happened or was happening" because Makayla suddenly became quiet and averted her gaze. Madeline asked Makayla if defendant had touched her. Makayla replied, "if I tell you[,] you are going to be mad. It's a secret between [Emily, Ellie] and I." After Madeline assured Makayla for "about a half hour" that she would not be mad, Makayla disclosed that defendant first groped her when she was in kindergarten. Makayla later disclosed that defendant once tried to make her watch a video of him and Emily having sex, but she ran away.

Later that day, Madeline questioned her other daughter, Maria, as well as her nieces, Emily and Ellie. She learned that defendant had first abused Maria when she was in second grade. She also learned that defendant was still abusing her nieces, who were then ages fourteen and eleven. Ellie said defendant liked to bite and showed Madeline a bite mark defendant had made on her breast.

Madeline notified the police, who took the children to the Union County Child Advocacy Center where they were interviewed by Janet Lopez, a detective assigned to the Child Abuse Unit in the Union County Prosecutor's Office. Detective Lopez took a typewritten statement from Emily and videotaped interviews with Ellie, Makayla, and Maria. In their statements, the children described how defendant had sexually molested them, by holding them down, by groping them, by committing acts of penetration, allegations they also recounted for the jury. After interviewing the victims, Detective Lopez obtained a warrant for defendant's arrest.

The police arrested defendant the next day, April 15, 2008, and transported him to the municipal police department where Detective Lopez and Sofia Santos, another detective employed by the Union County Prosecutor's Office,questioned him after advising him of his Mirandarights. After initially denying the accusations, defendant confessed to committing sexual acts with all of the girls. He began abusing two of the children when they were eight years old, and two when they were ten. Defendant also admitted that he recorded himself and Emily having sex on two occasions. The police obtained a warrant and seized two DVDs from defendant's bedroom. Emily identified herself and defendant as the two people in the DVDs having sex.

At the time of defendant's trial, Emily was fifteen years old, Ellie was twelve, Makayla was twelve, and Maria was nine. In addition to testifying about how defendant abused them, each testified to her age, birth date, and her approximate age when the crimes occurred. Their mothers also testified to their ages and dates of birth, and the State introduced defendant's confession, in which he admitted to abusing the children before their thirteenth birthdays.

Following defendant's arrest, a Union County Grand Jury returned a twenty-two count indictment and charged him: for his offenses against Emily, with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and -2a(2)(a) (counts one and four), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b and -2c(4) (counts two, five and six), two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts three and seven), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count eight); for his offenses against Maria, with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count nine), second-degree sexual assault, N.J.S.A. 2C:14-b (count ten), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count eleven); for his offenses against Makayla, with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count twelve), second-degree sexual assault, N.J.S.A. 2C:14-2b (count thirteen), third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count fourteen), second-degree attempted sexual assault, N.J.S.A. 2C:5-1a(3) and 2C:14-2b (count fifteen), and third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1a(3) and 2C:24-4a (count fifteen); and for his offenses against Ellie, with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count seventeen), three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts eighteen, twenty, and twenty-one), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts nineteen and twenty-two).

The parties filed numerous pre-trial motions, one of which was defendant's motion to suppress his confession, which the trial court denied. At trial, the State dismissed counts six and twenty-one of the indictment after presenting its case. The jury convicted defendant on the remaining twenty counts.

The court subsequently sentenced defendant on counts one, nine, twelve, and seventeen to four consecutive eighteen-year prison terms, subject to NERA; on count four, to a concurrent fifteen-year prison term; and on count eight, to a consecutive seven-year prison term. The court merged the remaining counts, imposed appropriate assessments and fines, and ordered defendant to serve parole supervision for life upon his release from prison. This appeal followed.

II.

Defendant presents the following arguments:

POINT I

THE POLICE SUBVERTED THE SUBSTANCE AND PURPOSE OF THE MIRANDA WARNINGS WHEN THEY TOLD DEFNDANT NOT ONLY THAT HIS STATMENTS COULD BE USED AGAINST HIM BUT ALSO COULD BE USED IN HIS "FAVOR."

POINT II

ON EACH AND EVERY COUNT OF THE INDICTMENT, THE TRIAL JUDGE DIRECTED A VERDICT ON THE ELEMENT REGARDING THE AGE OF THE VICTIM. (Not Raised Below).

Defendant first contends that the detectives who interviewed him misinformed him about his Miranda rights and thereby "subverted the meaning and purpose of those rights[.]" We disagree.

According to Detective Lopez's testimony at the suppression hearing, she and Detective Santos interviewed defendant in Spanish. He did not understand English. Defendant not only understood Spanish, but he explicitly informed the detectives that he knew how to read Spanish. Detective Santos read defendant his Miranda rights in Spanish and also gave defendant a Miranda rights form, which defendant read and initialed. The final part of the form consisted of a "waiver of rights," which defendant read. He asked about the word "pressure" or "coercion," and Detective Lopez explained what they meant. When defendant said he could not afford an attorney but could call some friends, Detective Lopez said he could do that, but that if he could not afford an attorney one would be assigned to him. Defendant said he understood, and signed the waiver.

Defendant's contention about the Miranda warnings is based on the following exchange that occurred while Detective Santos was explaining his Miranda rights:

[Detective Santos:] Okay, cualquier cosa que usted diga puede ser y sera usado en contra suya en el tribunal. (Okay, anything you say can and will be used against you in a court of law.)

[Detective Lopez:] O ante de la corte. (Or before the court.)

[Detective Santos:] That doesn't right do we have ours? Tiene el derecho . . ., usted entiende ese derecho? (You have the right

. . . do you understand that right?)

[Defendant:] (Nodding yes).

[Detective Santos:] Cualquier cosa que usted diga puede ser y sera usado en contra suya antes de en tribunal. Cualquier cosa que usted diga a nosotros aqui puede ser usado contra usted en la corte. Usted entiende ese derecho? (Anything you say can and will be used against you in a court of law. Anything you say to us here may be used against you in court.)

[Defendant:] O a favor tambien. (Or also in favor.)

[Detective Santos:] Huh?

[Detective Lopez:] O a favor si. (Or in favor, yes.) Or in favor, yes.

[Defendant:] Eso. (Right.)

[Detective Santos:] Entiende ese derecho? (Do you understand that right?)

[Defendant:] Si, si. (Yes, yes.)

The trial court rejected defendant's argument that he was misinformed about his rights. In its oral decision following the hearing on defendant's suppression motion, the court denied the motion, concluding:

When you look at the totality of this reading of the Miranda form, which, number one, he was able to read himself, he was able to answer in writing himself, yes. He was asked to initial, yes. He read the waiver and signed the waiver. He also had the questions then explained to him, read once through, and then explained multiple questions so that he understood.

There is no doubt in the totality of everything that is here that he knowingly, voluntarily entered into this agreement to talk. There was no pressure, either direct or imposed. There was no physical discomfort that would affect his ability to focus and understand. His answers were clear. His answers were on point as you look through this entire transcript.

For that reason, the statement that the defendant gave will be permitted to be given to the jury.

In reviewing a trial court's denial of a defendant's motion to suppress a statement, we defer to the factual findings of the trial court when they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409 (2009); see also, State v. W.B., 205 N.J. 588, 603 n.4 (2011) ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions.") (citing State v. Elders, 192 N.J. 224, 242-44 (2007)).

Indisputably, every person has a privilege against self-incrimination. U.S. Const. Amend. V; N.J.R.E. 503. "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." W.B., supra, 205 N.J. at 605. When the State intends to introduce a defendant's confession at trial, it "must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne," State v. Knight, 183 N.J. 449, 462 (2005), "and, if custodial, that the defendant was advised of his rights and knowingly, voluntarily and intelligently waived them." W.B., supra, 205 N.J. at 602, n.3.

Defendant has cited no authority for the proposition that a defendant does not knowingly waive his Miranda rights if he is informed that his statements can be used for or against him. Although the issue seldom arises, our Supreme Court has addressed it. The Court has explained that "[i]t is misleading to tell a person in custody, as part of the Miranda warnings, that anything he says can be used for him in a court of law." State v. Melvin, 65 N.J. 1, 13 (1974) (emphasis in original). Nevertheless, giving precedence to substance over form, the Court held in Melvin:

The language used to convey the warnings to the defendant here did adequately inform him of the substance of his constitutional rights. While we take this occasion emphatically to voice our disapprobation of the deviations herein from the words of the Miranda opinion, we cannot say that under the circumstances of this case constitutional error was committed.

[Id. at 14.]

Here, the detectives informed defendant that if he made a statement it could be used against him in court. Defendant, not the detectives, first raised the issue of whether the statement could be used in his favor. Although Detective Lopez should not have responded, "[r]ight," when defendant asked, "or also in favor," the detectives clearly informed defendant that the statement could be used against him.

After defendant made his comment, the detectives finished reading his rights and had him read the waiver section of the form. Detective Santos told defendant, before questioning him, that "[y]ou have to know your [r]ights and if you understand the [r]ights, I need you to write, yes, that you understand each one of the [r]ights, here." Detective Santos further explained that defendant had to initial the rights, sign the waiver, "and then we can speak if you want." Defendant initialed each right, including the statement that "[a]nything you say can and will be used against you in a court of law." More significantly, nothing in the record suggests that he confessed to repeatedly molesting children because somehow he thought his confession to such horrific crimes could be used for him in a court of law.

In support of his argument that the detectives "undermine[d] the efficacy of Miranda warnings," defendant cites cases that have no factual similarity to his case. For example, he cites State v. Pillar, 359 N.J. Super. 249, 265-66 (App. Div. 2003), certif. denied, 177 N.J. 572 (2003), where the police agreed to a defendant's request to speak "off-the-record," thereby possibly misleading him into believing that his statements would not be recorded and used against him. Id. at 268. That did not happen here. The detectives never said or implied they would not use defendant's statement against him. To the contrary, they informed him that if he made a statement it "can and will be used against you in a court of law." The trial court did not err when it concluded that the totality of circumstances surrounding defendant's confession demonstrated that the confession was knowing, intelligent, and voluntary. See Knight, supra, 183 N.J. at 462-463.

III.

Defendant next argues that because the victims' ages were an element of each count of the indictment3, and because the court referred to each victim's birthday in its charge and on the jury verdict sheet, it in effect directed a verdict on that element of each offense. Defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. Although the court should not have included the victims' ages in its charge or on the verdict sheet, defendant did not object in either instance. Consequently, we review the argument under a plain error standard; that is, we consider whether the alleged errors were "clearly capable of producing an unjust result." R. 2:10-2. Here, three of the victims were less than thirteen years old when they testified at trial, the other was fifteen years old. They all testified to their dates of birth, as did their mothers, and defendant referred to their ages in his confession. Defendant's implicit assertion that somehow the victims' ages would have escaped the jurors' attention but for the charge and jury verdict sheet is simply implausible.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 We use pseudonyms for all family members to protect their privacy.

3 Defendant was charged with committing acts of sexual penetration with the children when they were less than thirteen years old, N.J.S.A. 2C:14-2a(1), and also with Emily, when she was between ages thirteen and sixteen, N.J.S.A. 2C:14-2c(4). The statute concerning endangering the welfare of children defines "child" as "any person under 16 years of age." N.J.S.A. 2C:24-4b(1).