STATE OF NEW JERSEY VS. GABINO RIVERA (13-01-0020, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2646-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GABINO RIVERA,
Defendant-Appellant.
_______________________________
Submitted October 11, 2017 – Decided November 13, 2017
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 13-
01-0020.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, of counsel
and on the brief).
Thomas K. Isenhour, Acting Union County
Prosecutor, attorney for respondent (Cynthia
L. Ritter, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant G.R. appeals from his December 4, 2015 judgment of
conviction (JOC) for sexual assault, criminal sexual conduct, and
endangering the welfare of a child, S.M.1 He contends fresh-
complaint testimony from S.M.'s stepsister A.S. was improperly
admitted, and that his sentence is excessive. We affirm his
convictions, but vacate the sentence and remand for resentencing.
I.
The following facts come from the transcripts of defendant's
jury trial.
Defendant was in a romantic relationship with S.M.'s paternal
grandmother prior to S.M.'s birth in 1995.2 From the age of four,
S.M. lived on and off with her grandmother and defendant.
Defendant helped raise S.M., and S.M. considered and called
defendant her grandfather.
S.M. testified as follows. Defendant first began acting
inappropriately toward her when she was eight years old. At that
time, S.M.'s father was in prison, so S.M. lived with her mother
during the week and her grandmother and defendant on the weekends.
Defendant kissed S.M. on the lips once, and made subsequent
1
We use initials to protect the privacy of the victim.
2
At trial, S.M. referred to defendant as her step-grandfather,
and her grandmother's "husband," but it appears he was her long-
term live-in boyfriend.
2 A-2646-15T2
unsuccessful attempts to kiss her until her father was released
from prison. S.M. then went to live with her father. Eventually
her father's home grew to include her stepmother and her stepsister
A.S.
In 2006, on S.M.'s eleventh birthday, her stepmother suffered
a miscarriage. As a result, that night, S.M. and A.S. slept at
the residence her grandmother shared with defendant. S.M. and
A.S. slept on the two sides of an L-shaped sofa in the living
room.
S.M. testified defendant came into the room, put his hands
in her pants, and digitally penetrated her vagina for several
minutes while she was laying on the sofa. S.M. did not yell
because she did not want A.S. to wake and see her grandfather
touching her. Instead, S.M. tried to move away from defendant and
groan while pretending to be asleep until he left.
Unbeknownst to S.M., A.S. was awake. A.S. testified she saw
defendant enter the room, lift S.M.'s blanket, and start touching
S.M.'s "butt." A.S. was in shock and did not say anything.
A.S. testified the sexual abuse came up in conversation with
S.M. about a year later. A.S. testified S.M. "asked me if I
remembered what happened that night and I said yes and she told
me not to say anything."
3 A-2646-15T2
S.M. testified that she did not tell her mother because they
had no relationship at that time. She did not tell her father
because she was concerned that he might react violently, and she
did not want him to get sent back to prison. She did not tell her
sick grandmother because S.M. was worried that she would die if
she learned her "husband" had sexually abused her granddaughter.
S.M. and A.S. testified that defendant would touch S.M.'s
thigh inappropriately when he was driving them to school over the
following years. S.M. also testified that defendant digitally
penetrated her vagina in February 2011 and in August 2011.
S.M. testified that in October 2011 defendant sent S.M. a
text message stating that he "desired" her. S.M. told defendant
she was tired of his behavior and was going to tell her father.
Defendant begged her not to do so.
S.M. did not discuss defendant's behavior with anyone else
until March 2012 when she told the social worker at her school.
The social worker alerted S.M.'s father and the police.
The jury convicted defendant of second-degree sexual assault
on a victim less than thirteen years old, N.J.S.A. 2C:14-2(b);
second-degree endangering the welfare of a child through sexual
conduct, N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual
4 A-2646-15T2
conduct using physical force or coercion, N.J.S.A. 2C:14-3(b).3
The court merged the criminal sexual conduct conviction with the
sexual assault conviction. On the sexual assault conviction, the
court sentenced defendant to seven years in prison with an 85%
period of parole ineligibility pursuant to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent
seven-year sentence on the endangering conviction.
Defendant appeals, raising the following arguments:
POINT I – THE ALLEGED FRESH-COMPLAINT EVIDENCE
WAS NOT OF A "COMPLAINT" AT ALL, AND SHOULD
NOT HAVE BEEN ADMITTED.
POINT II – THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE.
II.
Defendant first argues that the trial court should not have
admitted testimony of step-sister A.S. as "fresh complaint"
evidence regarding defendant's sexual abuse of S.M. on her eleventh
birthday. We must hew to "our deferential standard for reviewing
a trial court's evidentiary rulings, which should be upheld
3
The jury acquitted defendant of first-degree aggravated sexual
assault on a victim less than thirteen years old, N.J.S.A. 2C:14-
2(a)(1); first-degree sexual assault on a victim at least thirteen
and less than sixteen years old committed by a guardian, N.J.S.A.
2C:14-2(a)(2)(c); second-degree sexual assault by using physical
force or coercion, N.J.S.A. 2C:14-2(c)(1); and second-degree
sexual assault on a victim less than thirteen, N.J.S.A. 2C:14-
2(c)(4).
5 A-2646-15T2
'"absent a showing of an abuse of discretion, i.e., there has been
a clear error of judgment."'" State v. Perry, 225 N.J. 222, 233
(2016) (citations omitted). "An appellate court applying this
standard should not substitute its own judgment for that of the
trial court, unless 'the trial court's ruling "was so wide of the
mark that a manifest denial of justice resulted."'" Ibid.(citation omitted).
Before allowing A.S. to testify before the jury, the trial
court heard her testimony in a hearing under N.J.R.E. 104. The
court considered the fresh-complaint doctrine, which "allows the
admission of evidence of a victim's complaint of sexual abuse,
otherwise inadmissible as hearsay, to negate the inference that
the victim's initial silence or delay indicates that the charge
is fabricated." State v. R.K., 220 N.J. 444, 455 (2015). "In
order to qualify as fresh-complaint evidence, the victim's
statement must have been made spontaneously and voluntarily,
within a reasonable time after the alleged assault, to a person
the victim would ordinarily turn to for support." Ibid. (citations
omitted).
The fresh-complaint "requirements are relaxed when they are
applied to juvenile victims." Ibid. (citation omitted).
"[C]hildren may be 'too frightened and embarrassed to talk about'
the sexual abuse they have encountered, and therefore, juvenile
6 A-2646-15T2
victims are given additional time to complain, and their complaint
may be elicited through non-coercive questioning." Ibid.(citation omitted).
The trial court found A.S. credible, ruled the discussion
between S.M. and A.S. approximately one year after the sexual
assault satisfied all of the fresh-complaint requirements, and
held A.S.'s testimony about this conversation was admissible under
the fresh-complaint doctrine. "Whether these criteria for
admissibility are satisfied is committed to the sound discretion
of the trial judge." State v. W.B., 205 N.J. 588, 616 (2011)
(upholding the trial court's finding that a sixteen-year-old girl
who complained "more than one and one-half years" after the abuse
complained within a reasonable time).4
At the 104 hearing, defendant gave the reasons for excluding
S.M.'s fresh complaint to A.S., arguing that the complaint was too
long after the sexual assault, and that there was no evidence of
intimidation. On appeal, however, defendant instead argues this
testimony "was not of a 'complaint' at all" because, unbeknownst
to S.M., A.S. already knew about the abuse.
This argument "was not raised at trial, and thus defendant
can prevail on it only by demonstrating 'plain error.'" State v.
4
The trial court did not admit A.S.'s testimony about
conversations with S.M. in 2010 and 2011.
7 A-2646-15T2
Angoy, 329 N.J. Super. 79, 89 (App. Div.), certif. denied, 165
N.J. 138 (2000). To show plain error, "'defendant has the burden
of proving that the error was clear and obvious,'" and that it had
"'the clear capacity to bring about an unjust result.'" State v.
Koskovich, 168 N.J. 448, 529 (2001) (citations omitted).
In any event, we reject defendant's parsing of the word
"complaint." A "complaint" has long been defined as an "expression
of grief, pain, or resentment." Webster's New Collegiate
Dictionary 230 (1977); accord Merriam-Webster's Collegiate
Dictionary 254 (11th ed. 2014). A "complaint" does not require
the complaining party to relay information the hearer does not
know. A person can "complain" about the weather even though the
hearer is equally aware of the weather.
Moreover, S.M.'s conversation with A.S. served the purpose
of the fresh-complaint doctrine. The purpose of fresh complaint
evidence is "'to prove only that the alleged victim complained [at
a particular time].'" W.B., supra, 205 N.J. at 616-17 (citation
omitted) (alteration by Court). Whether the hearer already knew
about the crime is irrelevant. It is similarly irrelevant whether
the victim conveyed the details about the crime. "The narrow
purpose of fresh-complaint testimony extends only to the fact of
the victim's complaint, not to its details." R.K., supra, 220
N.J. at 460. "[T]he gist of the evidential circumstances is merely
8 A-2646-15T2
non-silence." State v. Bethune, 121 N.J. 137, 146 (1990) (quoting
4 Wigmore On Evidence § 1136 at 307 (Chadbourne rev. 1972)).
Here, A.S.'s testimony showed S.M. did not remain silent.
A.S. testified S.M. raised the subject of defendant's sexual
assault. S.M.'s question "do you remember what happened that
night" sufficiently alerted A.S. that S.M. was talking about
defendant's sexual abuse on her birthday night. See ibid. A.S.
testified "[i]t was the only night that really stood out." When
A.S. replied she knew what happened that night, nothing more needed
to be said.
After A.S. testified at the 104 hearing, S.M. testified at
trial about the first time she and A.S. discussed defendant's
sexual abuse. S.M. testified A.S. "brought it to my attention,"
and "she saw and she knew." Defendant cites the former phrase to
show S.M. did not complain, but it also could mean A.S. brought
to S.M.'s attention that A.S. saw and knew about the sexual assault
after S.M. raised the issue. Indeed, A.S. reaffirmed in her trial
testimony that S.M. raised the issue. Moreover, S.M. testified
she and A.S. "spoke about it," so S.M. was not silent. In any
event, S.M.'s trial testimony came after the court's ruling at the
104 hearing, and defendant did not seek to reopen that ruling.
Defendant also cannot show prejudice. A.S.'s testimony about
the conversation was brief and contained no details about the
9 A-2646-15T2
sexual assault. Moreover, the trial court "charge[d] the jury
that fresh-complaint testimony is not to be considered as
substantive evidence of guilt, or as bolstering the credibility
of the victim; it may only be considered for the limited purpose
of confirming that a complaint was made." R.K., supra, 220 N.J.
at 456 (citation omitted). Thus, defendant cannot show an error
"clearly capable of producing an unjust result." R. 2:10-2.
III.
Defendant next challenges his sentence. "It is well-
established that appellate courts review the trial court's
'sentencing determination under a deferential standard of
review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation
omitted). This court is "'bound to affirm a sentence, even if
[we] would have arrived at a different result, as long as the
trial court properly identifies and balances aggravating and
mitigating factors that are supported by competent credible
evidence in the record.'" Ibid. (citation omitted).
Defendant challenges the trial court's finding of aggravating
factor two. That factor addresses:
The gravity and seriousness of harm inflicted
on the victim, including whether or not the
defendant knew or reasonably should have known
that the victim of the offense was
particularly vulnerable or incapable of
resistance due to advanced age, ill-health,
or extreme youth, or was for any other reason
10 A-2646-15T2
substantially incapable of exercising normal
physical or mental power of resistance[.]
[N.J.S.A. 2C:44-1(a)(2) (emphasis added).]
At sentencing, defense counsel argued it was double-counting
to consider S.M.'s age. Nonetheless, the court found:
As to Aggravating Factor 2 the victim was
young. She was less than 13 years old at the
time she was sexually assaulted by the
defendant. She was particularly vulnerable
to his actions due to her age and her
relationship to the defendant, who was like a
grandfather to her, as, in fact the defendant
himself pointed out. I don't agree that it's
double-counting at all, [defense counsel].
It's a factor that certainly applies here,
[t]he Court has found, because of the age of
the victim at the time . . . of the events for
which the defendant was convicted.
On appeal, defendant argues the trial court's consideration
of age constituted double-counting because age is an element in
both offenses for which he was sentenced. Under the circumstances
here, we are constrained to agree.
Generally, "established elements of a crime for which a
defendant is being sentenced should not be considered as
aggravating circumstances in determining that sentence." State
v. Kromphold, 162 N.J. 345, 353 (2000). It is an element of
second-degree sexual assault that the victim had to be "less than
13 years old." N.J.S.A. 2C:14-2(b).
11 A-2646-15T2
In State v. C.H., 264 N.J. Super. 112 (App. Div. 1993), the
defendant committed sexual assault against a victim "who was age
eight." Id. at 118. We found the sentencing judge "err[ed] in
applying aggravating factor number two since the age of victim was
an element of the offense itself." Id. at 140. By contrast, in
State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988), where
the victim of the sexual assault was four years old, we held "[t]he
extreme youth of the victim was a proper aggravating factor to
have been considered by the court." Ibid.Our Supreme Court ultimately adopted the Taylor standard,
allowing consideration of aggravating facts if they are more
extreme than necessary to establish an element of the offense. "A
sentencing court may consider 'aggravating facts showing that
[the] defendant's behavior extended to the extreme reaches of the
prohibited behavior.'" State v. Fuentes, 217 N.J. 57, 75 (2014)
(quoting State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010)
(citing Taylor, supra, 226 N.J. Super. at 453)).
Applying that standard, eleven-year-old S.M. was not at the
extreme reaches of the prohibited behavior under the sexual assault
statute, which covers victims "less than 13 years old." N.J.S.A.
2C:14-2(b). She was three years older than the victim in C.H.,
who like defendant was closer to the maximum age than the minimum
12 A-2646-15T2
age. She was seven years older than the victim in Taylor, who was
closer to the minimum age.
It is a closer call under the statute barring endangering the
welfare of a "child," which covers victims "under 18 years of
age." N.J.S.A. 2C:24-4(a)(1), (b)(1). However, as eleven-year-
old S.M. was nearer the maximum age than the minimum age, it cannot
be argued she was at "'the extreme reaches of the prohibited
behavior'" under the endangering statute. Fuentes, supra, 217
N.J. at 75 (citation omitted). Thus, her age could not considered
as an aggravating factor for either conviction.
The trial court offered a second reason for applying
aggravating factor two, namely that S.M. "was particularly
vulnerable" due to "her relationship to the defendant," her de
facto grandfather. "[S]ince the age of the victim alone makes the
crime" a sexual assault, and the relationship of the defendant to
the victim is not an element of sexual assault, it is "appropriate
to consider the relationship between the parties as an aggravating
factor" for sexual assault. State v. Yarbough, 100 N.J. 627, 646
(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.
2d 308 (1986).
However, it is unclear that the trial court would have found
the relationship alone sufficient to find aggravating factor two.
The court found aggravating factor two applied because S.M. was
13 A-2646-15T2
"young," "less than 13 years old," and vulnerable "due to her
age," and "because of the age of the victim."
Moreover, the court did not explain whether it was relying
on the relationship between defendant and S.M. in imposing an
identical seven-year sentence for endangering. One element of
endangering is that the defendant has "a legal duty for the care
of a child or who has assumed responsibility for the care of a
child." N.J.S.A. 2C:24-4(a)(1). An aggravating factor
inappropriate regarding one count can be considered in sentencing
on another count, State v. Boyer, 221 N.J. Super. 387, 405-06
(App. Div. 1987), but it appears the court relied on the same
aggravating factors for both sexual assault and endangering, as
it imposed seven-year sentences on both.
"The sentencing court must not only ensure that facts
necessary to establish the elements of the defendant's offense are
not double-counted for purposes of sentencing," but its analysis
must be "clearly explained so that an appellate court may be
certain that the sentencing court has refrained from double-
counting the elements of the offense." Fuentes, supra, 217 N.J.
at 76. That was not the case here.
Defendant also argues that the record did not support a
finding of aggravating factor nine. "[T]he need for deterring the
defendant and others from violating the law." N.J.S.A. 2C:44-
14 A-2646-15T2
1(a)(9). The trial court found "an overwhelming need to deter the
defendant from future sexual assaults and for sexual contacts and,
of course, to deter others from committing such egregious crimes."
Defense counsel conceded "the need to deter especially others from
doing this," but defendant contends there was not a need to deter
him.
We disagree. The record suggested defendant's feelings for
S.M. were extremely strong and led him to inappropriate behavior
when she was eight years old and eleven years old, at the very
least. Moreover, defendant's attraction to an eleven-year-old
overcame the taboos arising from his obligations as her de facto
grandfather, suggesting he needed to be deterred from similarly
pursuing other juveniles unprotected by such taboos.
We must consider whether the double-counting error regarding
aggravating factor two was harmless. E.g., State v. M.A., 402
N.J. Super. 353, 372 (App. Div. 2008). "Any error or omission
shall be disregarded by the appellate court unless it is of such
a nature as to have been clearly capable of producing an unjust
result." R. 2:10-2. Because defendant objected to the double-
counting, the State bears the burden.
The State stresses that even without aggravating factor two,
the aggravating factors would still outweigh the non-existent
mitigating factors. In additional to aggravating factor nine, the
15 A-2646-15T2
trial court found aggravating factor six, "[t]he extent of the
defendant’s prior criminal record and the seriousness of the
offenses of which he has been convicted." N.J.S.A. 2C:44-1(a)(6).
However, the court gave defendant "partial credit for the fact
that he has only one prior indictable conviction" and was sixty-
five-years old.
Moreover, the trial court did not state the weight it gave
to each of the aggravating factors. Further, the court did not
expressly balance the aggravating and mitigating factors at
sentencing, although the JOC stated it was "clearly convinced that
aggravating factors 2, 6, and 9 substantially outweigh the non-
existent mitigating factors."
The State stresses the trial court imposed only the
"presumptive" seven-year sentence on each second-degree crime.
See N.J.S.A. 2C:44-1(f)(1)(c). However, in State v. Natale, 184
N.J. 458 (2005), our Supreme Court "conclude[d] that the Code's
system of presumptive term sentencing violates the Sixth
Amendment's right to trial by jury," and remedied that defect by
"eliminating the presumptive terms." Id. at 484, 487.
The Supreme Court in Natale hypothesized "that many, if not
most, judges . . . will decide that [when] the aggravating and
mitigating factors are in equipoise, the midpoint will be an
appropriate sentence," "when the mitigating factors preponderate,
16 A-2646-15T2
sentences will tend toward the lower end of the range, and when
the aggravating factors preponderate, sentences will tend toward
the higher end of the range." Id. at 488. However, the Court
emphasized "[t]hat would be one reasonable approach, but it is not
compelled," and "no inflexible rule applies." Ibid. That is
evident here, as the trial court imposed a midpoint sentence even
though it found three aggravating and no mitigating factors. Thus,
it is not self-evident the court's sentence would remain unchanged
without aggravating factor two.
The outcome might be different if defendant was raising the
double-counting argument for the first time on appeal, as he would
have the burden to show plain error. However, the State has not
carried its burden to show by a preponderance of the evidence that
the sentence would not have been different in the absence of
aggravating factor two. Thus, the State failed to show that the
double-counting error was not "clearly capable of producing an
unjust result." R. 2:10-2.
Accordingly, we vacate the sentences and remand to the trial
court for resentencing in accordance with this opinion, which does
"not necessarily bar the application of aggravating factor" two
on remand as to the sexual assault conviction based on the
relationship, if appropriate findings are made. Fuentes, supra,
217 N.J. at 77. We do not retain jurisdiction.
17 A-2646-15T2
Affirmed in part, vacated in part, and remanded.
18 A-2646-15T2