STATE OF NEW JERSEY v. RUEL LAWAS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1581-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUEL LAWAS,

Defendant-Appellant.

October 7, 2013

Submitted September 16, 2013 Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-0845.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Ruel Lawas was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree child endangerment, N.J.S.A. 2C:24-4(a). After merging the latter offense with the former, the court sentenced defendant to a five-year prison term, subject to an eighty-five percent parole disqualifier. All requisite fines and penalties were also imposed. Defendant appeals, and we affirm.

According to the State's proofs, in the summer and fall of 2009, defendant's six-year-old niece, J.G., slept over at the apartment defendant shared with his wife Liwaya and family approximately two or three times. According to J.G.'s mother, M.A.G., "a few days after the [last] sleepover," sometime in October 2009, her daughter told her that "Uncle Ruel did an inappropriate thing to [me]." In particular:

the last time that [J.G.] slept over at Auntie [Liwaya]'s house with her brother, she woke up in the middle of the night and went to Auntie [Liwaya]'s room and Uncle Ruel . . . came out and was supposed to put her back in bed, and instead put her on the couch and straddled her and went back and forth . . . in the private area, stomach area.

M.A.G. had J.G. demonstrate what defendant did to her. J.G. got on top of her mother and rubbed back and forth, simulating a sex act.

It was not until late February 2010, that M.A.G. told her sister Liwaya about J.G.'s accusations, although she did not tell her husband, J.G.'s father, until March 2010. One week later, he reported the incidents to the Division of Youth and Family Services (Division).1 After receiving the complaint on March 21, 2010, a Division caseworker, Elisia Erman, visited J.G. at her home that same day and spoke with her and her family members individually. Erman then proceeded to defendant's residence where she spoke to defendant and his wife separately.

Erman also immediately contacted Detective Luke Ireland of the Atlantic County Prosecutor's Office, Crimes Against Children Unit, who interviewed J.G. the next day, March 22, 2010. According to office protocol, Detective Ireland interviewed J.G. alone and the interview was videotaped.

During the interview, J.G. said that when she stayed at defendant's house, he "put his private spot on her private spot and pushed." Although she did not remember exactly when the incident occurred, she said it was last year, at the defendant's apartment. J.G. went on to say that defendant did this two times, "one was at night, and one was in the morning," on two different days.

According to J.G., the first time she slept over, she was sleeping "in the big bed," with her brother, when defendant "came and he did it." She was still sleeping, but she woke up "after he was done doing that." Then, using two anatomically correct dolls, J.G. demonstrated the act, and said the defendant was on top of her, and "he was pushing and pushing, he was between [her] legs, and [she] felt it on [her] private spot." The second incident occurred the next day, when defendant "came back in the morning and did the same thing. He put his private spot on mine."2

After interviewing J.G., Detective Ireland, along with Detective William Adamson, interviewed defendant. The interview with defendant was recorded and conducted after defendant was given his Miranda3 rights. During the interview, defendant told the detectives that when J.G. stayed over his house in August 2009:

I saw [the victim] was lying prone on her back and I don t know why I think I just laid on top of her and I'm still sleeping

. . . I'm not really . . . myself at the time I'm just half awake. I just don t know why I listened to the devil . . . I just laid on top of her just like for a few . . . seconds. I felt strange and I know it [was] wrong and so I g[o]t out and just went back to sleep. That was the worst thing I have ever done in my life.

Defendant told the detectives that both he and J.G. were clothed, and that she was in between his legs. While he was on top of her, he "was trying to press" his penis against her, "but it [was] not working out [because] it was not erect." Defendant also stated that he did not ejaculate, nor touch her body at all, other than "tr[ying] to position her."

Defendant believed the second incident might have occurred in September 2009 and described it thus:

this second other night [J.G. slept over]

. . . I decided to sleep in the living room in between the two rooms. [J.G.] woke up again cause she [was] cry[ing] and I was trying to get her [to] sleep on the couch and [] I was still sleeping also . . . I was just tucking her in[, and] I was laying on the couch and suddenly it came to me again that I lay her in [and] try to be on top of her on the couch . . . I did it[,] I just go[t] on top of her on the couch [for] just a couple seconds and . . . something inside of me [said] that [this] is really wrong so I decided to just put her back to sleep [in] her bed . . . [b]ut then when I put her back to sleep I tried to be on top of her again[,] but that was it[,] I sa[id] I won t do this again[,] no and I went back again to sleep . . . so I told her I [would] just carry her to my wife s room . . . and told my wife to let her sleep with her so that I would [not] be able to do that to her again.

Defendant also told the detectives that while he was trying a third time, J.G. was lying with her legs open; they were both clothed; he attempted to "rub back and forth again but it didn't work so [he] just stopped"; that it lasted for about twenty seconds; and that the reason he did this to J.G. was to obtain an erection. At the conclusion of the interview, defendant was arrested.

Defendant gave a different version at trial. He testified that when J.G. woke up crying one night he "tried to comfort her and . . . put her back to sleep" by "carry[ing] her in [his] chest . . . and [that] she usually wrap[s] her legs like around [the] trunk of [his] body." On the night of the first incident, defendant "tried to rock [J.G.] in the rocking chair," then he "st[oo]d up and [was] just like dancing around." Then, he finally put her back to bed with her brother, who sleeps with her when they stay at defendant's house.

Defendant attempted to clarify and reconcile his statements to Detective Ireland in March 2010. He explained that during his interview with Detective Ireland he thought: (1) "pressing" meant, "pressing when [he would] hug [J.G.]"; (2) when he said "it won't work," he was referring to his method of helping her sleep on the rocking chair; (3) whenever he said, "going back and forth," he was referring to rocking her in the rocking chair; (4) he did not know the meaning of the word ejaculate; and (5) when he referred to "positioning the victim," he meant positioning her in the bed with her brother.

Defendant also explained that the reason he said he "was just on top of her just a couple of seconds," was because the Division caseworker told him this is what he did and he thought he had to repeat it. He further clarified that he answered "yes" to many of the questions that were asked as a sign of respect to the detectives.

Evidently crediting the State's proofs, the jury convicted defendant of second-degree aggravated assault and third-degree child endangerment. This appeal follows in which defendant raises the following issue:

THE PROSECUTOR SO OVERSTEPPED THE BOUNDS OF FAIR COMMENT IN HER OPENING AND SUMMATION THAT R.L. WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).

Defendant argues for the first time on appeal that the prosecutor made improper comments during both her opening and closing statements, depriving him of his constitutional right to a fair trial. Because defendant did not object to any of the remarks now challenged on appeal, we review only for "plain error" and will not reverse on that ground unless defendant shows that the error was "clearly capable of producing an unjust result." R. 2:10-2. However, the mere possibility of an unjust result will not suffice. Rather, the likelihood must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Furthermore, prosecutorial misconduct, such as improper remarks in openings or summation, can be a ground for reversal only if the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 457 (1987). In order to justify a reversal on appeal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant s fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). See also State v. Smith, 212 N.J. 365, 403-04 (2012) (internal quotation marks and citations omitted), cert. denied, ___ U.S. , 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

In reviewing allegedly improper remarks by the prosecutor, we must consider: "[(1)] whether defense counsel made a timely and proper objection[;] [(2)] whether the remark was withdrawn promptly[;] and [(3)] whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Timmendequas, supra, 161 N.J. at 576; see also State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

Defendant challenges as improper several comments in the prosecutor's opening statement that he argues affected the jury's ability to view the evidence dispassionately. Specifically, he criticizes: (1) the remark that "[J.G.'s] secret went untold . . . out of shame and fear"; (2) commentary concerning J.G.'s daily activities; and (3) references to "little, six-year-old [J.G.]" and that "it will be painful and

. . . very very scary" for J.G. to testify in open court. We view none of these statements as improper.

In the first place, defendant's failure to object to these remarks may be deemed indicative of a lack of prejudice. Smith, supra, 212 N.J. at 407; State v. Echols, 199 N.J. 344, 361 (2009); State v. Atkins, 405 N.J. Super. 392, 401 (App. Div. 2009). Second, the challenged remarks are not inconsistent with the evidence or the reasonable inferences to be drawn therefrom. State v. Bradshaw, 195 N.J. 493, 510 (2008); State v. Mahoney, 188 N.J. 359, 376, cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 268 (2006); Frost, supra, 158 N.J. at 85; Loftin, supra, 146 N.J. at 347. J.G. testified that during both of the incidents, she felt "kind of scared . . . and weird." Indeed, given the victim's age and nature of the crimes committed against her, it would be reasonable for the jury to infer that a six-year-old would be nervous and embarrassed to report an incident of sexual assault, as it would be "painful and scary" for her to testify about it in open court.

As for the prosecutor providing brief background information on the victim as a means of introduction, J.G. herself testified that she liked to read, that her favorite subject was math, and that she enjoyed watching the Disney channel. Not only was there adequate support in the record for the prosecutor's brief description of the victim, see State v. Rodriguez, 365 N.J. Super. 38, 48-49 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004), it was entirely neutral and benign and incapable of prejudicing defendant or evoking sympathy for the victim.

In any event, the trial judge instructed the jury that

the mental considerations, or the mental anguish, or whatever of the little girl based on what happened or didn t happen in this case, is not an element of any of the offenses . . . [s]o even if you were to say there were emotional distress or emotional scars . . . that's not an element of the offense.

The judge went on to say, "[i]t's your duty to weigh all the evidence in the case calmly and without passion, prejudice, bias or sympathy for or against the other side. Those emotions can deprive both the State and defendant of what you promised them

. . . a fair and impartial verdict by fair and impartial jurors." The trial judge's instructions to the jury, coupled with defendant's lack of objection, were sufficient to cure any possible prejudice to defendant.

Defendant takes issue with one more remark in the prosecutor's opening, namely that defendant "planned" the alleged assaults, as unsupported in the record. To the extent the prosecutor was referring to the incidents occurring at an opportune time, such a suggestion was reasonably inferable from the evidence. To the extent it may have suggested more, namely premeditation, the remark was admittedly beyond the proofs of record. See State v. Jackson, 211 N.J. 394, 411-13 (2012); Frost, supra, 158 N.J. at 84; State v. Spano, 69 N.J. 231, 236 (1976). However, the trial court repeatedly remedied any prejudice resulting therefrom. Specifically, the judge addressed the jury before summation:

"[y]ou'll remember that I told you when we started that what the lawyers say in their openings and closing is not evidence. It's their recollection of the evidence and their argument to you based on the evidence in the case. If they say something about the facts of the case that's different from your recollection singly or with your fellow jurors, it is your recollection that you should rely on."

And at the end of the parties' summations, the judge went on to say that, "[a]rguments of counsel, openings and closing are not treated as evidence. Although the lawyers may point out to you what they think is important and highlight it in their case in chief, you must rely solely on your understanding and your recollection of the evidence that was admitted during the trial." Such instructions, which we assume the jury adhered to, Smith, supra, 212 N.J. at 409, cured any prejudice that may have inhered in the challenged remark.

Defendant also complains of several remarks during the prosecutor's summation. First, he criticizes the reference to J.G. as a "brave and courageous witness," who had "guts" coming forward, as improper vouching for her credibility. We disagree. The prosecutor was simply referring to J.G.'s trial testimony that she was "scared" after the incidents, and was not commenting on the truth of J.G.'s testimony.

Next, defendant argues the prosecutor offered unsworn testimony during summation about Division procedures regarding interviewing a child alone.4 Although the comment referred to a matter not in the record, it was fairly responsive to a statement by the defense, State v. R.B., 183 N.J. 308, 329 (2005), questioning why J.G. was interviewed alone by the Division, and suggesting that it would lead to a false accusation. Therefore, the prosecutor's comment was an attempt to "right the scale," State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991), certif. denied, 130 N.J. 393 (1991), countering defense counsel's contrary suggestion.

Finally, defendant argues that the prosecutor improperly asked the jury to "send a message" by commenting:

[y]ou ladies and gentlemen have the power, you are the law here today, you can tell that man, tell him, I know what you did to [J.G.], but more importantly, tell him he s not going to get away with it; find him guilty on all counts.

We disagree. The prosecutor did not ask the jury to "send a message" to defendant or the community, see, e.g., State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000), or tell them they had a duty to protect the child-victim, see, e.g., State v. Buscham, 360 N.J. Super. 346, 364 (App. Div. 2003), or a duty to protect "young victims" of sex offenses as a group, see, e.g., State v. Acker, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993). On the contrary, the prosecutor simply asked the jury to tell defendant they knew what he did was wrong by finding him guilty. We find no impropriety in this commentary.

When viewed in the context of the trial as a whole and the lack of any objection voiced, the challenged remarks, whether individually or cumulatively considered, were not prejudicial to defendant, much less so egregious as to deprive him of a fair trial. State v. Jackson, 211 N.J. 394, 409 (2012); State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. R.B., 183 N.J. 308, 330 (2005).

Affirmed.

1 The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 At trial, J.G.'s recollection of the incidents closely matched the account she gave Detective Ireland. She testified that

when [she] was sleeping . . . [she] woke up because [she] couldn't sleep, so then [she] tried to walk to [her] aunt and uncle's room to tell them [she] couldn't sleep, and then [her] uncle he was on the couch, and then he said, What's wrong? And [she] said that [she] couldn't sleep; so he said that just lie down on the couch and he'd help [her] sleep. And then while [she] was sleeping, [she] felt something on [her] private spot, and then [she] thought it was [her] uncle rubbing his private spot on [hers].

J.G. further testified that "[another] night when [she] was sleeping on the bed, [she] felt the same that happened the last time . . . when [defendant] like rubbed his private spot on [hers]." She said the defendant was on top of her, "pushing against [her] private spot." J.G. said that she felt scared and weird after it happened.

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

4 Specifically, the prosecutor remarked:

He made a big point why did [Division] worker pull her aside? What was he telling her? Well, DYFS always interviews a child alone. The reason for that is in many families the perpetrator is in the family, so you have to talk to the kids alone so they will be able to speak out. This case the perpetrator is in the family too. A lot of times the family tries to cover it up. Well, mom did try to cover it up because she didn't come forward for six months.