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N.J.S.A. 2C:14-2(a)(1); one count of second-degree criminal attempt, N.J.S.A. 2C:5-1, 2C:14-2(a)(1); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Tried to a jury, defendant was convicted of the lesser included offense of second-degree sexual assault, first-degree aggravated sexual assault and second-degree endangering the welfare of a child. On January 29, 2007, defendant was sentenced to a term of six years on the second-degree sexual assault charge; a consecutive term of sixteen years on the first-degree aggravated sexual assault charge; and a concurrent term of eight years on the endangering charge. His aggregate sentence of twenty-two years was subject to an eighty-five percent period of parole ineligibility as prescribed by the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2. "> Original

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(NOTE: The status of this decision is Unpublished.) RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4480-0T44480-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAGOBERTO GUTIERREZ, Defendant-Appellant. _________________________

Submitted February 3, 2009 - Decided Before Judges Wefing, Yannotti and LeWinn. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-11-4478. Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Camden County Indictment No. 04-11-4478 charged defendant, Dagoberto Gutierrez, with three counts of firstfile:///C|/Users/Peter/Desktop/Opinions/a4480-06.opn.html[4/20/2013 4:56:56 PM]

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degree aggravated sexual assault, N.J.S.A. 2C:5-1, 2C:14-2(a)(1); one count of second-degree sexual assault, N.J.S.A. 2C:43-7.2. The charges spanned the period from May 2003 to September 2004, during which time defendant was living with his girlfriend, F.R., and her then-eight-year-old daughter, M.R., who was the victim of the offenses charged. F.R. and defendant had lived together for approximately eight years, and had two children together, A.R. and J.G. F.R. testified that, in September 2004, M.R. approached her and said "she had something very important to tell" her. M.R. then "started crying and became nervous," but eventually disclosed to F.R. that defendant had touched her. M.R. told her mother that defendant "had touched her vagina, that he put his penis on the front, that he had rubbed the front, and he had also put it in the back." M.R. further disclosed that defendant "would try to get her to put her mouth on his penis and that he would make her, and he would pull her by the hair." On September 3, 2004, F.R. contacted the Camden City Police Department, and was referred to Janene Bahr, an investigator in the Child Abuse Unit of the Camden County Prosecutor's Office. Bahr interviewed M.R., her mother, and her brother, A.R., on September 7, 2004. During that interview, which was videotaped, M.R. detailed an extensive history of sexual abuse inflicted upon her by defendant, and used anatomically correct dolls to demonstrate the abuse she described. M.R. told Bahr that the first person she told about this abuse was her mother just a few days prior to the interview. M.R. stated that she had not told her mother anything earlier because she was "scared that [defendant] was [going to] do something to [her] mom [be]cause those days he wasn't working . . . and . . . he said . . . if you put me in jail . . . before I go to jail I'm gonna kill your . . . mom." M.R. stated that defendant warned her against telling her mother after each incident of sexual abuse. A.R. was also interviewed by Bahr, and testified at trial. A.R. stated that he saw defendant "pulling" M.R. into bed one morning in 2004. A.R. testified that on another occasion, he observed defendant "grabbing" M.R. and pulling her to him in the kitchen; defendant was wearing boxer shorts at that time. A.R. testified that he observed defendant touch M.R.'s "butt" with his hands on an occasion when M.R. was sleeping on the couch; A.R. then saw defendant try "to put his thing into . . . [M.R.'s] butt." A.R. confirmed that he saw defendant's penis on that occasion. Based upon her interviews with M.R., A.R. and F.R., Investigator Bahr, along with Senior Investigator Chuck Bentham, arrested defendant at his residence. Defendant was taken to the Camden County Prosecutor's office, where he was interviewed by Bahr and Bentham.

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At a pre-trial Miranda hearing, Bahr and Bentham described their interview with defendant. Initially, they conversed with defendant in English and defendant appeared to speak and understand English clearly. Bahr explained to defendant that she and Bentham wanted to discuss M.R.'s allegations with him. Bahr provided defendant with an English-language Camden County Prosecutor's Statement of Rights Form. Bahr began to read the rights card out loud to defendant, who indicated that he understood both his right to remain silent and that anything he said could be used against him in court. Defendant wrote the word "yes" next to each of those rights on the form. However, when Bahr read the third right -- the right to consult with an attorney and have one present before making any statements -- defendant stated that he was "having a hard time reading the English," and Bahr offered to bring in a Spanish translator for him. Investigator Miguel Rubert testified at the Miranda hearing that Bahr brought him into the interview room. Rubert presented defendant with a Spanish-language rights form and read the rights to him in Spanish. Defendant circled "yes" for each statement of rights and initialed each answer. Defendant, Bahr, Betham and Rubert all signed the Spanish-language form. After defendant signed the Spanish-language rights form, Bahr re-read to him the English-language rights form, during which Rubert was present to translate. Once again, defendant indicated that he understood and signed the card. Following the waiver of his rights, defendant stated that he no longer required Investigator Rubert's translation services because he had no problem speaking English, but that he only had difficulty reading. Rubert thereupon exited the interview room, leaving Bahr and Bethem to interview defendant. During that interview, Bahr disclosed to defendant the substance of M.R.'s allegations. Defendant became "upset," and "denied having had any type of sexual contact" with M.R. After Bahr disclosed additional information from M.R.'s interview, however, defendant eventually admitted that he had had sexual contact with M.R. Bahr obtained defendant's permission to tape the interview. Defendant told Bahr that M.R. had approached him "a few times" and started "playing" with his penis. Defendant further stated that M.R. would often lie next to him, give him massages and try "[to] put it inside [of her] . . . ." Defendant described an incident during which M.R. gave him a massage in his bed and then "jumped on top" of his penis and tried to "play around with it." Defendant claimed that he told M.R. to stop, but "she just ke[pt] on doing it."

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Defendant stated that, on approximately three separate occasions, his penis went into M.R.'s vagina "about an inch . . . ." Defendant claimed that he warned M.R. that she would "put [him] in trouble . . . with [the] police and mommy . . . ." Defendant stated, "she was . . . still [a] little girl, you know, still a baby . . . [and] . . . she . . . d[id]n't realize probably . . . , and I probably made . . . [a] mistake too . . . ." When Bahr asked him to clarify what he meant by a "mistake," defendant stated, "[y]ou know, let her do things like that . . . I was weak probably." During one incident, defendant acknowledged that he touched the outside of M.R.'s vagina with his finger, which he stated was at her request. Defendant claimed that he was trying to show M.R. what she should not let anyone do to her because "that's no good, that's not right." Defendant described another incident that took place in his bedroom in the presence of A.R. and J.G. He stated that, while he was lying on his bed, M.R. "came to [him] and [asked], . . . you want a massage?" Defendant "brought the cream down" and "because [he] was so tired . . . [M.R.] came and gave [him] a little massage." Defendant continued that M.R. then "came down and then she start[ed] playing with [him], . . . like touching [his] . . . penis and [his] balls and all that stuff . . . with [her] hand . . . ." Defendant stated that he tried to make M.R. stop, but she would "go on . . . playing around . . . ." Defendant stated that M.R. took his erect penis and put it "[p]robably in her butt," and although he told her repeatedly to stop, "she was keeping going," and "was laughing." In all, defendant stated that he put his penis in or on M.R.'s buttocks "no more than five" times. He added that every time one of these incidents occurred with M.R., F.R. was at work. He also stated that every time he engaged in sexual activity with M.R., A.R. and J.G. were present in the room. Defendant acknowledged that he told M.R. "not to tell [any]body" about the incidents. When asked how he felt about having had sexual contact with M.R., defendant stated that he felt "embarrassed" and that it was "wrong." He stated, "I ma[d]e a big mistake, like the man I am, . . . and . . . like, [a] sick person, you know, it's not right, it's not right what I . . . did . . . it's not right at all." At trial, M.R. was found competent to testify, and gave the following testimony. She stated that defendant had "touched [her] on [her] private parts," and that defendant had put his penis inside of her vagina and her anus; she also testified that defendant inserted his finger into her vagina. She further stated, as she had in her videotaped interview, that he engaged in these activities on more than twenty occasions and, at all times, against her will. Additionally, M.R. testified that, prior to her interview with Investigator Bahr, she had told her mother, maternal grandparents and three other individuals about defendant's sexual abuse.

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Dr. Marita Lind, a pediatrician at the University of Medicine and Dentistry of New Jersey, examined M.R. on September 8, 2004. Dr. Lind testified at trial that M.R. had "normal genitalia" and that her anus was "normal." Dr. Lind testified that often "children who have experienced sexual assault . . . [and] anal penetration" have normal anal tissue because the anus "can stretch and expand and come back down to normal." Dr. Lind further explained that, in anal exams, "the fact that there wouldn't be a residual doesn't tell [her] anything about what happened." Defendant did not testify at trial; however, he presented three witnesses, including Iris Portal, a Foster Care Supervisor with the Division of Youth and Family Services (DYFS). Portal testified that, in 1998, M.R.'s grandmother had made an allegation to DYFS that M.R. was being sexually abused by defendant, but the allegation was never substantiated due to lack of corroboration, and the case was closed. On appeal, defendant raises the following issues for our consideration: POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MIRANDA MOTION POINT II THE COURT FAILED TO ORDER A BILL OF PARTICULARS (NOT RAISED BELOW) POINT III THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE THE VIDEO TAPE OF THE VICTIM'S STATEMENT POINT IV THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE AN IRRELEVANT AND PREJUDICIAL PORTION OF THE VICTIM'S VIDEOTAPE POINT V THE TRIAL COURT ERRED BY CONTINUING TO ALLOW WITNESS BAHR TO ARGUE WITH DEFENSE COUNSEL CONTRARY TO DEFENDANT'S SIXTH AMENDMENT RIGHTS POINT VI THE TRIAL COURT ERRED IN ITS TREATMENT OF THE FRESH COMPLAINT ISSUE (NOT RAISED BELOW) POINT VII IT WAS ERROR ON THE PART OF THE TRIAL COURT TO PERMIT WITNESS JENNINGS TO TESTIFY OVER DEFENDANT'S OBJECTION POINT VIII THE TRIAL COURT ERRED IN THAT IT DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL IN THAT THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE POINT IX
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THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE IN ERROR (PARTIALLY RAISED BELOW) POINT X THE TRIAL COURT ERRED BY ALLOWING CERTAIN PROSECUTORIAL REMARKS WHICH WERE IMPROPER POINT XI THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED; THE AGGRAVATING AND MITIGATING FACTORS WERE NOT PROPERLY ADDRESSED BY THE COURT WHICH WAS ERRONEOUS Having reviewed these arguments in light of the record and the controlling principles of law, we conclude that they are without merit; therefore, we affirm. The trial judge held a two-day Miranda hearing, at which Bahr, Bentham, Rubert and defendant testified. Defendant disputed the investigators' testimony and claimed that: (1) he was told that he was not eligible to have an attorney; (2) he did not remember signing the Miranda rights form; (3) Bentham told defendant he would "put a bullet in [his] head"; (4) he was continually denied the opportunity to speak to an attorney; (5) the investigators told him he would get thirty-five years in prison if he did not confess; (6) Bentham screamed and cursed at him; and (7) he cried during the taping of his statement but the investigators turned the tape off during those times. At the conclusion of all the testimony, the trial judge rendered an extensive decision from the bench, in which he found the State's witnesses credible and concluded that defendant's testimony was not "reflective of the truth." The judge found that defendant was specifically advised and that he acknowledged on . . . the Spanish document, that he understood the right to remain silent, he understood that anything he said could and would be used against him, that he understood he had the right to talk to a lawyer, that he had the right to have the lawyer present while he was being questioned, he understood that if he could not afford a lawyer, one would be appointed for him, and he understood that he would have the continuing opportunity to exercise these [r]ights at anytime during the questioning. The trial judge concluded that defendant "understood and clearly made the determination to speak." We conclude that the judge's factual findings were reasonably based upon "sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We accord substantial deference to a trial judge's credibility determinations, as those determinations are based on the judge's ability to observe the witnesses' demeanor. State v. Locurto, 157 N.J. 463, 474-75 (1999). As the Supreme Court noted in State v. Galloway, 133 N.J. 631 (1993), in order to determine whether a defendant's

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statement was voluntarily made, the court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. [Id. at 654.] In applying these factors, the trial judge found that defendant, who was thirty-one years old at the time he gave his statement, had substantial work experience in both English-speaking and Spanish-speaking work environments. Although defendant left high school after eleventh grade, the judge found that he "realized the import of [the] questions and tailored his answers appropriately." The judge found that defendant had "a high level of intelligence" and an "ability to think and to reason clearly." The judge further found no evidence of mental exhaustion, noting that defendant's voice was "very, very calm," as reflected in the tape recording of his statement. In sum, the trial judge found no evidence to support defendant's claim that his will was overcome, either physically or psychologically. Rather, the judge specifically credited Investigator Bahr's testimony, finding "her and her manner to be exceptionally careful in attempting to describe what had occurred[,]" with a demeanor of "calmness" and "careful thought," an "extremely detailed" description of the events. We are satisfied that the trial judge's findings are supported by the record. Johnson, supra, 42 N.J. at 162. Deference to the trial judge's credibility determinations is particularly appropriate here. Locurto, supra, 157 N.J. at 474. Defendant's next argument, that he was prejudiced because the indictment did not allege specific dates, and, therefore, the court should have ordered a bill of particulars, is raised as plain error. Therefore, defendant has the burden to persuade us that this error was "clearly capable of producing an unjust result . . . ." R. 2:10-2. We conclude that defendant has failed to meet this burden. Pursuant to Rule 3:7-5, it is defendant's obligation to move, prior to trial, for a bill of particulars, "point[ing] out clearly the particulars sought by the defense." Defendant brought no such motion below. He now argues that, "[i]f defense counsel had known the specific dates of the[] alleged incidents[,] a possible alibi defense or other possible witnesses could have been identified." Considering the tenor of defendant's statement to the prosecutor's investigators, in which he acknowledged incidents of sexual contact with M.R. over a specific period of time, although he could not remember exact dates, his attempt to demonstrate prejudice from the lack of a more specific timeframe in the indictment is meritless.

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Moreover, "[w]hile ordinarily an indictment must state the date of the alleged criminal act, a charge of crime involving a child need not, provided the indictment otherwise gives defendant sufficient notice of the crimes to permit him to prepare his defense." Pressler, Current N.J. Court Rules, comment 1.2.3 on R. 3:7-3 (2009). The Supreme Court has expressly recognized that young children "cannot recall precise dates or even approximate times the way a normal adult can." State in the Interest of K.A.W., 104 N.J. 112, 118 (1986). We conclude that the failure to move for a bill of particulars below, particularly in light of defendant's own statement which, as noted, contained references to specific timeframes, did not constitute an error that was "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Defendant's next two arguments relate to the admission into evidence of the videotaped interview of M.R. We note at the outset that the admission of evidence is committed to the sound discretion of the trial judge and, therefore, our standard of review is limited to whether that discretion was abused in the particular case. State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed.2d 306 (2001). Applying this standard here, we find no abuse of discretion in the trial judge's admission of this videotape. The judge held an extensive hearing pursuant to N.J.R.E. 104, at the conclusion of which the judge determined that the videotape was admissible under N.J.R.E. 803(c)(27), which provides: A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . the child testifies at the proceeding . . .; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601. The record clearly demonstrates that M.R.'s videotaped statement satisfied the requirements of N.J.R.E. 803(c)(27): (1) M.R. was nine years old at the time she made her statement; (2) the State "ma[d]e known" to defendant that it intended to offer M.R.'s statement at trial; (3) defendant had "a fair opportunity to prepare to meet" that statement; (4) the trial judge held an extensive N.J.R.E. 104(a) hearing and determined that the statement was trustworthy; and (5) M.R. testified at trial, having been determined to be a competent witness. The trial judge issued a lengthy decision, finding M.R.'s statement to be trustworthy. We concur with that decision, and accord it "[c]onsiderable latitude" in rejecting defendant's challenges to the admission of the videotape into

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evidence. State v. Feaster, supra, 156 N.J. at 82. Similarly, we reject as baseless defendant's argument that the trial judge erred in allowing into evidence that portion of the videotape showing M.R. "sitting and playing with items in the interview room." As the trial judge noted, in overruling defendant's objection to the admission of this particular evidence, M.R. was not simply sitting and playing with anatomically correct dolls; rather she was "actually manipulating the dolls" in a sexual manner. The judge concluded that this portion of the videotape, which was two minutes in duration, was "prejudicial" to the defendant "in the same way that testimony of the alleged victim" would be prejudicial. The judge further found that M.R.'s behavior tended "to prove her knowledge, potentially, of sexual activity"; the judge concluded that it was, therefore, "highly relevant." Pursuant to N.J.R.E. 403, a trial judge has broad discretion in determining the admissibility of evidence and "may" exclude "relevant evidence . . . if its probative value is substantially outweighed by the risk of . . . undue prejudice . . . ." In order to find that a trial judge abused his discretion under this rule, "the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)). We conclude that defendant has failed to make such a showing. Defendant's remaining claims of trial error are "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Finally, we address defendant's argument that his sentence is excessive. Specifically, defendant argues that (1) the trial judge failed to consider applicable mitigating factors; (2) the judge should have sentenced defendant "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted[,]" pursuant to 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d, 308 (1986). The trial judge found aggravating factors number one, "[t]he nature and circumstance of the offense, and the role of the actor therein," N.J.S.A. 2C:47-1 to -10, which concluded that defendant's conduct did not constitute a pattern of repetitive and compulsive sexual behavior. The report noted, however, that defendant did not take responsibility for his act; nor did he perceive himself to be in need of any type of psychotherapy. Therefore, the judge concluded that defendant was unlikely to participate willingly in any form of treatment. In analyzing the Yarbough factors, the judge found: (1) the types of abuse found by the jury were distinct in counts one and two of the indictment, as each act had as its objective the satisfaction of defendant's needs "in distinct

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ways and at distinct moments in time"; (2) the offenses in counts one and two "did entail separate acts of violence perpetrated against the victim"; (3) counts one and two "described detailed information about sexual acts that occurred at different times"; and (4) the "two distinct acts of which the defendant stands convicted . . . cannot be said to be so closely linked as to constitute a single period of aberrant behavior." We find this analysis to be consistent with that set forth in Yarbough, supra, 100 N.J. at 644, and support the imposition of consecutive sentences upon "an offender who has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes." Defendant's argument that the judge erred in imposing consecutive sentences based on the presumption "that the defendant was found guilty of offenses over a substantial period of time when it was unclear whether that was the case[,]" is without merit. The jury's verdict clearly established that presumption to be "the case." The jury verdict sheets on counts one, two and six clearly indicate that the jury found defendant guilty of the offenses charged therein "[o]n diverse dates between May, 2003, and September, 2004 . . . ." These verdict sheets undermine defendant's claim as to "the lack of clarity in the verdict . . . ." In sum, we conclude the trial judge engaged in an appropriate analysis of aggravating and mitigating factors, and rendered findings "based upon competent credible evidence in the record[,]" and sentenced defendant "in accordance with the guidelines . . . ." State v. Roth 95 N.J. 334, 364 (1984). Further, we are satisfied that the trial judge's discretionary decision to impose consecutive sentences comports with the mandates of State v. Yarbough. Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). N.J.R.E. 601 provides that "[e]very person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury . . . , or (b) the proposed witness is incapable of understanding the duty . . . to tell the truth, or (c) except as otherwise provided by these rules or by law." (continued) (continued) 22 A-4480-06T4 July 1, 2009

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