STATE OF NEW JERSEY v. BRYAN S. CALIMANO-SUAREZ
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1147-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYAN S. CALIMANO-SUAREZ, a/k/a
BRYAN S. CALIMANOSUAREZ, BRYAN
CALIMANO, BRYAN C. SUAREZ, BRYAN
S. SUAREZ, BRYAN S. CALIMANO,
Defendant-Appellant.
___________________________
Submitted December 19, 2017 — Decided January 26, 2018
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
13-11-0935.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Thomas K. Isenhour, Acting Union County
Prosecutor, attorney for respondent (Meredith
L. Balo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
A jury convicted defendant Bryan Calimano-Suarez of third-
degree aggravated criminal sexual contact,
N.J.S.A. 2C:14-3(a),
and fourth-degree criminal sexual contact,
N.J.S.A.
2C:14-3(b). The jury was unable to reach a unanimous verdict on
charges of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-
2a(7), and second-degree sexual assault,
N.J.S.A. 2C:14-2c(1).
Thereafter, the State dismissed the first-degree and second-degree
charges.
The court merged the fourth-degree conviction with the third-
degree conviction, and sentenced defendant to time served (746
days) and parole supervision for life. The court also ordered
defendant to have no contact with the victim, and to comply with
Megan's Law restrictions. Defendant appeals his convictions,
arguing that repeated instances of prosecutorial misconduct
deprived him of a fair trial. We affirm because the prosecutor's
comments during summation do not warrant reversal of defendant's
convictions.
I.
In June 2013, the victim, M.A.,1 lived with her husband, her
five children, her sister, her sister's girlfriend, and defendant.
Defendant's mother and M.A. were close friends, and M.A. allowed
1
We use initials to protect the identity of the victim. R. 1:38-
3(c)(12).
2 A-1147-15T4
defendant to live with her after he was kicked out of his own
home.
On June 27, 2013, M.A. learned that her husband was having
an extramarital affair and threw him out of their home.
Thereafter, she invited several people over to help console her.
During the evening, M.A. consumed one or two shots of rum. Later
in the evening, defendant asked if he could watch a movie in M.A.'s
bedroom. M.A. agreed, but told defendant that she was going to
sleep soon, and that he had to leave her room when his movie
finished. Shortly before going to sleep, M.A. took her prescribed
anti-depressant medication and changed into sweatpants and a tank
top. She then laid down on her bed facing away from defendant,
and placed a pillow between her knees for comfort.
After falling asleep, M.A. had a disturbing dream. At trial
she explained that she has recurring nightmares about sexual abuse
that she endured as a child. Typically, the nightmares did not
cause any physical sensations. This time, however, she felt
something inside her vagina, which she described as "a scratch"
that "woke [her] up out [of her] sleep." When she awoke, she saw
defendant laying in front of her with his eyes open, and felt him
pull his hand out from between her legs. M.A. also noticed that
the drawstrings in her sweatpants were untied, and the pillow that
she had placed between her knees was moved.
3 A-1147-15T4
M.A. pushed defendant away from her and jumped out of bed.
She testified that after she confronted defendant, he immediately
began apologizing to her. Defendant left M.A.'s home and she
reported the incident to the police. M.A. provided a sworn
statement to the police, and went to the hospital to see a sexual
assault nurse examiner (SANE nurse). At the hospital, the SANE
nurse collected swabs from M.A.'s vagina, and conducted a visual
examination to look for scratches, cuts, or abrasions. The nurse
also used a colposcope to illuminate and magnify the area to search
for micro-dermal abrasions. The examination did not reveal any
visible marks or injuries to M.A.'s vagina.
On November 1, 2013, a Union County grand jury returned an
indictment charging defendant with first-degree aggravated sexual
assault,
N.J.S.A. 2C:14-2a(7); second-degree sexual assault,
N.J.S.A. 2C:14-2c(1); third-degree aggravated criminal sexual
contact,
N.J.S.A. 2C:14-3(a); and fourth-degree criminal sexual
contact,
N.J.S.A. 2C:14-3(b). Thereafter, defendant was tried
before a jury.
At trial, defense counsel argued that M.A. was mistaken about
the entire situation. Specifically, during closing arguments
defense counsel argued that (1) there was no physical evidence
that M.A.'s vagina was digitally penetrated, (2) M.A. had a tragic
history of sexual assaults and realistic, recurring nightmares
4 A-1147-15T4
about being sexually assaulted, and (3) M.A. was extremely upset
after learning about her husband's extramarital affair on the
night of the incident. Thus, defense counsel contended that M.A.
was not lying, but that her tragic past experiences with sexual
assault, her realistic nightmares, and the stress caused by her
marital issues clouded her perception and caused her to misconstrue
the situation.
During her summation, the prosecutor contended that (1) the
characteristics of vaginal tissue could explain why there were no
visible scratches or abrasions, (2) M.A. had lost her friendship
with defendant's family after reporting the sexual assault, and
(3) M.A. would not have made the allegations against defendant and
relived the painful experiences from her past unless she was sure
about what happened.
The jury returned a verdict, finding defendant guilty of
third-degree aggravated criminal sexual contact, and fourth-degree
criminal sexual contact. The jury could not reach a unanimous
verdict on the first-degree aggravated sexual assault or the
second-degree sexual assault charges.
At defendant's sentencing, the court merged defendant's
fourth-degree conviction with his third-degree conviction, and
sentenced him to time served (746 days), parole supervision for
life, and Megan's Law. In addition, the court ordered defendant
5 A-1147-15T4
to have no contact with the victim. The court also granted the
State's motion to dismiss the first-degree aggravated sexual
assault and second-degree sexual assault charges. Defendant now
appeals from the judgment of conviction.
II.
On appeal, defendant makes one argument, which he articulates
as follows:
POINT I – REPEATED INSTANCES OF PROSECUTORIAL
ERROR IN SUMMATION DEPRIVED DEFENDANT OF A
FAIR TRIAL AND REQUIRE REVERSAL OF THE
CONVICTIONS. (Partially Raised Below).
[A.] Comment on the Nature of Vaginal
Tissue.
[B.] Comment on M.A.'s Lost Friendship With
Defendant's Family. (Not Raised
Below).
[C.] Repeated Vouching for M.A. (Not Raised
Below).
Having reviewed defendant's arguments in light of the record and
applicable law, we affirm because none of the prosecutor's comments
warrant reversal of defendant's convictions.
We begin with the basic principle that prosecutors are
afforded wide latitude during summations. State v. R.B.,
183 N.J.
308, 330 (2005). Nevertheless, they must "confine their comments
to evidence revealed during the trial and reasonable inferences
to be drawn from that evidence." State v. Smith,
167 N.J. 158,
6 A-1147-15T4
178 (2001). When considering claims of prosecutorial misconduct,
we first determine whether misconduct occurred and, if so, whether
it deprived the defendant of a fair trial. State v. Wakefield,
190 N.J. 397, 446 (2007). Thus, even when a prosecutor's comments
constitute misconduct, reversal of a defendant's conviction is not
justified unless the comments were "so egregious that [they]
deprived the defendant of a fair trial." State v. McGuire,
419 N.J. Super. 88, 139 (App. Div. 2011) (quoting State v. Ramseur,
106 N.J. 123, 322 (1987)).
A. Prosecutor's Comments Regarding Vaginal Tissue
Defendant contends that the prosecutor's comments regarding
the nature of vaginal tissue were not supported by the testimony
of the SANE nurse, and were not reasonable inferences that could
have been drawn from that testimony. Since defense counsel
objected to the prosecutor's comments about vaginal tissue, we
review the alleged misconduct de novo. State v. Smith,
212 N.J.
365, 387 (2012).
During summation, defense counsel called the allegation of
sexual assault into question by emphasizing the lack of physical
evidence corroborating M.A.'s claim that defendant digitally
penetrated her vagina. In that regard, defense counsel stated
that "corroboration is so important . . . because of the notion
that sometimes people can be sure, yet so wrong." Defense counsel
7 A-1147-15T4
also pointed to the SANE nurse's testimony concerning her
examination of M.A. and the lack of scratches or abrasions in
M.A.'s vagina. Specifically, he stated
[the SANE nurse] . . . was clear, [she] did
not observe . . . anything abnormal. There's
nothing. [She] looked, [she] magnified it,
[she] had light, [she] had this, and there was
just nothing there. And when the State even
asked her, is there evidence of penetration,
the [nurse] said, no.
In response, the prosecutor attempted to explain the lack of
scratches or abrasions in M.A.'s vagina during her summation by
contending
[s]o a woman's – because that area of our
bodies is a little bit more sensitive . . .
we're going to have that heightened awareness
of it . . . .
You know when you have dry skin in the winter
and you scratch and you leave like little
white lines on your arm, and they go away.
That's dried skin in the winter when the heat
is blasting and your skin is dry. The vagina
is not a dry space. It's very wet. It's dark.
It's built to be wet, and not only that, it's
built to be very stretchy . . . . So the fact
that this scratch that she felt, that she was
aware of and that woke her up, it's of no
moment that there was no evidence of that
scratch later on found by the [SANE] nurse.
Defense counsel objected, arguing that it was improper for the
State to engage in speculation during summation given the lack of
expert testimony regarding vaginal tissue. The court overruled
counsel's objection, noting that the prosecutor's summation was
8 A-1147-15T4
"fair comment from the evidence and from [defense counsel's]
summation."
The State did not elicit any testimony regarding the
characteristics of vaginal tissue during trial. Given that lack
of testimony, the prosecutor's remarks pushed the bounds of fair
comment. Nonetheless, having reviewed the prosecutor's comments
in the full context of both summations, we find no showing that
those comments were so egregious that they deprived defendant of
a fair trial. The prosecutor's comments regarding vaginal tissue,
when read in context, were made in response to defense counsel's
summation. See Smith,
212 N.J. at 403-04 (stating that in
determining if a prosecutor engaged in misconduct, "an appellate
court will consider whether the offending remarks were prompted
by comments in [defense counsel's] summation"). Ultimately, "it
was for the jury to decide whether to draw the inferences the
prosecutor urged." R.B.,
183 N.J. at 330 (quoting State v. Carter,
91 N.J. 86, 125 (1982)).
B. M.A.'s Lost Friendship with Defendant's Family
Defendant also contends that the prosecutor's comments about
M.A.'s lost friendship with defendant's family were improper and
deprived him of a fair trial. There was no objection to that
comment and, therefore, we review that comment for plain error.
R. 2:10-2. In other words, the alleged misconduct by the
9 A-1147-15T4
prosecutor must have been clearly capable of producing an unjust
result. State v. Black,
380 N.J. Super. 581, 592 (App. Div. 2005).
Here, the jury heard testimony from M.A. that she and
defendant's mother "had" a good relationship, and that they "were"
friends. Based upon that testimony, the prosecutor's comment
about M.A.'s lost friendship with defendant's family after
reporting the sexual assault was a reasonable inference drawn from
M.A.'s testimony. Thus, the prosecutor's comments were not
"clearly capable of producing an unjust result[.]" Ibid.
C. Vouching for M.A.'s Credibility
Defendant contends that the prosecutor made several
inappropriate comments during her summation, which bolstered
M.A.'s credibility and deprived him of a fair trial. Again, we
review those comments for plain error because there was no
objection at the time they were made. R. 2:10-2.
A prosecutor may argue that a witness is credible, "so long
as the prosecutor does not personally vouch for the witness or
refer to matters outside the record as support for the witness's
credibility." State v. Walden,
370 N.J. Super. 549, 560 (App.
Div. 2004) (citing State v. Scherzer,
301 N.J. Super 363, 445
(App. Div. 1997)). Furthermore, "[a] prosecutor is not forced to
idly sit as a defense attorney attacks the credibility of the
State's witness[]; a response is permitted." State v. Hawk, 327
10 A-1147-15T
4 N.J. Super. 276, 284 (App. Div. 2000) (citing State v. C.H.,
264 N.J. Super. 112, 135 (App. Div. 1993)).
Although defense counsel did not explicitly contend that M.A.
was lying during his summation, he framed his arguments as
"misunderstandings" and used M.A.'s (1) tragic history of prior
sexual assaults, (2) realistic and recurring nightmares, and
(3) emotional distress caused by her husband's extramarital
affair, to contend that M.A.'s honest belief that defendant
sexually assaulted her was caused by her clouded perception.
Essentially, defense counsel's summation challenged M.A.'s
credibility not by calling her a liar, but by pointing out the
various factors that may have affected her ability to distinguish
her nightmare from reality.
Accordingly, the prosecutor responded to defense counsel's
attempt to diminish M.A.'s credibility by asking the jury, "[W]hy
would she come here, tell you about the abuse she suffered as a
child, tell you about what happened that night . . . reliving all
of that pain?" and "Why would she lie? Why, if for a second she
doubted herself, would she go through all of that?"
While the prosecutor did not personally vouch for M.A.'s
credibility, her rhetorical question "Why would she lie?" again
skirted the line between fair comment and misconduct. Nonetheless,
in the context of both summations, and defense counsel's closing
11 A-1147-15T4
arguments that opened the door for the prosecutor's comments, we
find no showing that defendant was deprived of a fair trial.
Moreover, there was no showing of plain error. R. 2:10-2. Indeed,
the failure to object suggests that defense counsel did not believe
the remarks were prejudicial at the time they were made. See
R.B.,
183 N.J. at 333 (citing State v. Frost,
158 N.J. 76, 82-84
(1999)).
In summary, we find that none of the prosecutor's remarks
were "so egregious that [they] deprived the defendant of a fair
trial." McGuire,
419 N.J. Super. at 139.
Affirmed.
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