STATE OF NEW JERSEY v. VICTOR A. RODRIGUEZ (17-06-0706, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-3012-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VICTOR A. RODRIGUEZ,
Defendant-Appellant.
________________________
Argued November 9, 2021 – Decided February 15, 2022
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-06-
0706.
Jason Goldman argued the cause for appellant (Law
Offices of Jeffrey Lichtman, attorneys; Jason Goldman,
on the brief).
Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the brief).
PER CURIAM
Defendant Victor A. Rodriguez appeals from a January 8, 2020 judgment
of conviction entered after a jury found him guilty, following a six-day trial of
second-degree sexual assault, third-degree child endangerment, and fourth-
degree criminal sexual contact. We affirm.
We discern the following facts from the trial record. S.M. was born in
October 2002. She was thirteen years old when she began communicating with
defendant, who was twenty-four at the time. S.M. began conversing with
defendant via Facebook Messenger during the late summer and early fall of
2016. Their conversations soon turned sexual, and they exchanged nude
photographs of themselves.
They allegedly met for the first time in early September 2016. S.M.
testified that defendant, unsolicited, sent taxi cabs to her home late at night to
bring her to his apartment on at least five occasions, which she initially refused.
Eventually, she accepted the offer and took a taxi to defendant's home in New
Brunswick.
Defendant, who uses a wheelchair, 1 was waiting for her downstairs when
she arrived. She helped him get upstairs to his bedroom, where he left her while
1
Defendant is physically handicapped from injuries suffered in 2012 such that
he is unable to walk without assistance.
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he got them both beverages. He returned and they began talking. S.M. testified
that the next thing she remembered after consuming the beverage was waking
up naked in defendant's bedroom at approximately 7:00 a.m. She returned home
in a taxi. Defendant later went to S.M.'s home and gave her Plan B.2 S.M.
testified that she stopped answering his messages shortly thereafter.
S.M. began communicating with defendant again after she returned to
school. On October 3, 2016, defendant sent S.M. the following message:
Thanks for fucking up my life. I had to leave town, and
delete all my social media and everything because your
parent[s] called me, telling me they were going to
report me to [the] police department for child
pornography for talking to a [thirteen]-year-old. Just
leave me alone. I don't want nothing with you. You
had your chance and you lie your whole life. Just [to]
get with me. Thanks you I lear[ned] my lesson.
S.M. responded by telling him that she was seventeen years old, not
thirteen. At defendant's request, she sent him a photograph of her birth
certificate as proof. S.M. testified that she sent the messages to appease
defendant out of fear for her safety.
2
Plan B One-Step is a brand name for the generic drug levonorgestrel. It is
emergency contraception commonly referred to as the morning after pill.
A-3012-19
3
In the early morning of October 23, 2016, S.M. returned to defendant's
home in a taxi he sent to her house. S.M. witnessed defendant take one Xanax
for his pain and "finish[] off . . . the butt of . . . weed." Defendant initially
scolded her for "ruin[ing] his life" but eventually began to make sexual
advances. Defendant removed her pants and underwear, put a condom on, and
began having vaginal intercourse with S.M., mounting her from behind.
Defendant eventually removed the condom then continued to have intercourse.
He ejaculated on S.M.'s lower back. His semen dripped onto her shirt.
The next day, S.M.'s mother, A.V., tried to question S.M. about her
whereabouts the previous night. After speaking with S.M., A.V. called the
police.3 Officer Brian Quigley of the Franklin Police Department arrived shortly
thereafter. Quigley spoke to S.M.'s father, R.M., who indicated his daughter had
been sexually assaulted in New Brunswick the previous night. Quigley advised
his dispatcher of the incident, and officers from the New Brunswick Police
Department were sent to the address. An officer took statements from S.M. and
her parents, and collected the shirt, shoes and underwear that S.M. had worn the
previous night, as well as two surveillance camera photographs. The items were
3
A.V. had called the police earlier that day. The officer who responded spoke
to S.M., and then left without taking further action.
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marked and placed into the evidence locker at the New Brunswick Police
Station.
S.M. and her parents were taken to the New Brunswick Police Department
for an interview. At the station, S.M. was medically examined, which revealed
signs of recent intercourse. After the State later obtained defendant's buccal
swab, analysis revealed that the sample matched the DNA of the semen found
on S.M.'s clothes.
On October 24, 2016, S.M. was re-interviewed, this time by detectives
from the Middlesex County Prosecutor's office. S.M. cooperated during the
interview but did not reveal any information about the September incident.
Detectives obtained consent to search S.M.'s phone, which revealed
communications with defendant via Facebook Messenger.
Detectives also obtained consent to conduct a consensual intercept of
S.M.'s communications with defendant, which took place later that day. While
detectives observed, S.M. responded to message defendant sent on Facebook
Messenger. Defendant inquired as to whether she needed Plan B. He indicated
that he could not recall if he ejaculated inside of her. Defendant asked if S.M.
could use a phone to call him. While speaking on the phone, S.M. told him she
did not know where he ejaculated because that was the first time she had
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intercourse. Defendant responded: "Your first time? First time on what? . . . .
First time I'm fucking you? . . . . That's not the first time I fucked you."
Defendant also made several other incriminating statements.
On June 9, 2017, a Middlesex County grand jury returned a multi-count
indictment against defendant, charging him with second-degree sexual assault
of a victim between the ages of thirteen and sixteen when the actor was four or
more years older than the victim, N.J.S.A. 2C:14-2(c)(4) (count one); third-
degree endangering, abuse, neglect, or sexual act by a non-caretaker, N.J.S.A.
2C:24-4(a)(1) (count two); and fourth-degree criminal sexual contact, N.J.S.A.
2C:14-3(b) (count three). The indictment was based on allegations stemming
"on or between September 3, 2016 and October 23, 2016."
On August 5, 2019, defense counsel filed a motion to correct the
indictment by striking all reference to the September 3, 2016 incident and
excluding all reference to the incident at trial. A hearing was conducted the
following day, at which defense counsel argued that the State was attempting
"to combine two alleged incidents in one count" of the indictment. Defense
counsel contended that, if the jury finds defendant guilty, it would be unclear
which incident was the basis for the verdict. In denying defendant's request, the
judge determined:
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There [was] . . . evidence presented to the grand jury
. . . that there were two separate incidents that occurred
on two separate dates. Based on what was presented,
. . . there's prima facie evidence based on inferences that
could be drawn that . . . defendant sexually assaulted
the victim on September 3rd, and he also assaulted her
on October 23rd. Those are two separate incidents.
Although they are separate incidents . . . there's
nothing in the case law that I'm aware of or that's been
brought to my attention . . . when you're dealing with
child victims . . . that requires that the State allege . . .
separate dates and separate incidents for each assault.
On August 7, 2019, defendant filed a motion to dismiss the indictment,
which was virtually identical to the previous motion filed. At oral argument,
defendant did not challenge the sufficiency of the evidence, just the impropriety
of "the indictment . . . charging two separate counts . . . . in count." In denying
the request, the judge determined that there was not any rule or case that
"prevents the [p]rosecutor from proceeding in that fashion. I guess the
[p]rosecutor could have decided to charge each event separately. They didn't. I
don't think it necessarily makes the indictment defective." Defendant filed an
application for permission to file an emergent motion, which was denied.
At trial, the State presented testimony from various witnesses including:
Officer Brian Quigley of the Franklin Township Police Department; Officer
Nicole Lewis of the New Brunswick Police Department; Detective William
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Coleman of the New Brunswick Police Department; A.V.; R.M.; S.M.; Detective
Deon McCall of the Middlesex County Prosecutor's Office; Eileen Aiossa, the
Forensic Nurse Examiner Coordinator of the Middlesex County Prosecutor's
Office; Allison Lane, a forensic scientist with the New Jersey State Police;
Linnea Schiffner, a forensic expert with the New Jersey State Police; and Officer
Felix De La Cruz, a supervisor in the Special Victim's Unit of the Middlesex
County Prosecutor's Office. Additionally, a recording of the intercept was
played at trial. Following the State's case-in-chief, defendant moved for a
judgment of acquittal, which was denied.
At trial, defendant admitted that S.M. came to his house in September
2016, but denied engaging in any sexual conduct, sending the taxis, or bringing
her Plan B afterwards. After speaking to S.M.'s mother, defendant sent the
October 3, 2016 message and stopped trying to contact S.M. S.M. subsequently
contacted him, indicated that she was actually seventeen, and sent a picture of
her birth certificate.
Defendant believed S.M. came to his home on October 23, 2016, to
discuss the situation regarding her age and her mother. He had taken his
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medication4 that night. Defendant "passed out" at around 4:30 a.m., and the next
thing he remembered was having a sexual dream. Around the time he ejaculated,
defendant allegedly woke up to find S.M. having sex with him. He pushed her
off of him, asked her what had happened, and told her to leave. Defendant
alleged that due to his injuries, he is only able to have sex while lying flat on his
back.
During the charge conference, defense counsel raised concerns that,
because the indictment alleged two separate instances in one count, that the jury
could return a guilty verdict without unanimity. The judge created a special
verdict sheet that separated each count of the indictment based on these incidents
and instructed the jury that the verdict must be unanimous.
Following the closing of evidence, summations, and the jury instructions,
the jury returned a question: "How was [S.M.'s] age and birthdate . . . verified?
Doubt arises due to testimony about a false birth certificate, conflicting accounts
of S.M.'s age at the time of [the] incident, mother, brother, victim, [an d]
defendant." The judge instructed the jury that "you are to decide this matter
based only on the evidence presented. It's your function to determine [S.M.'s]
4
The medication was prescribed to treat pain and depression associated with
injuries defendant sustained in 2012.
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age at the time of the alleged crime. Both [S.M.] and her mother testified about
her birthdate and her age. It's your function to determine a witness's credibility."
Based upon this "one-sided" instruction, as well as the alleged deficiencies in
the indictment, defense counsel requested a mistrial. The judge denied the
motion.
The jury ultimately acquitted defendant of all counts as to the September
3, 2016 incident but found him guilty of all counts as to the October 23, 2016
incident. The verdict sheet reflects that each count of the indictment was
premised on both incidents.
At the sentencing hearing on December 16, 2019, the judge noted that
there was a presumption of imprisonment because count one was a second-
degree crime. He merged counts two and three with count one. As to count one,
the judge sentenced defendant to a seven-year term of imprisonment subject to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.5 He also required that
defendant comply with the reporting and notification requirements of Megan's
Law, N.J.S.A. 2C:7-1 to -23. On January 7, 2020, the judge further ordered that
he provide a DNA sample, imposed a sex offender restraining order, and parole
5
On January 7, 2020, defendant appeared again before the sentencing judge
who removed the imposed NERA conditions because it was not a crime subject
to NERA.
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supervision for life. A judgment of conviction was issued the following day.
This appeal ensued.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE JURY'S VERDICT WAS AGAINST THE
WEIGHT OF THE EVIDENCE.
....
POINT II
THE COURT EXCEEDED ITS AUTHORITY AND
VIOLATED [DEFENDANT'S] CONSTITUTIONAL
RIGHTS BY AMENDING THE INDICTMENT AT
TRIAL.
....
As a preliminary matter, defendant's argument that the verdict was against
the weight of the evidence is procedurally barred. Rule 2:10-1 states explicitly
that "the issue of whether a jury verdict was against the weight of the evidence
shall not be cognizable on appeal unless a motion for a new trial on that ground
was made in the trial court." (emphasis added); see also State v. Reininger, 430
N.J. Super. 517, 538 (App. Div. 2013) (noting that a defendant's argument that
there was insufficient evidence to support a conviction was "procedurally barred
because [the] defendant failed to move for a new trial based on that ground as
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required by Rule 2:10-1."). Defendant never moved for a new trial; therefore,
he cannot now argue the verdict was against his weight of the evidence.
Defendant's argument that the trial judge improperly amended the
indictment at trial by adding three new charges to the verdict sheet, thereby
impairing his ability to defend the case, is utterly without merit. "It is axiomatic
that an indictment 'must charge the defendant with the commission of a crime in
reasonably understandable language setting forth all . . . critical facts and . . .
essential elements' of the alleged offenses so as to enable defendant to prepare
a defense." State v. Salter, 425 N.J. Super. 504, 514 (App. Div. 2012) (quoting
State v. Wein, 80 N.J. 491, 497 (1979)). Nonetheless, "when an indictment
charges a sexual crime against 'a young victim[,] [it] will not have to be as
exacting when specifying dates of abuse.'" Ibid. (alterations in original)
(quoting State v. C.H., 264 N.J. Super. 112, 125 (App. Div. 1993)). "Thus, the
central issue is whether, in light of the facts in the particular case (e.g., the age
of the victim, the number of offenses and the time period involved), the
defendant has received 'fair notice' of the charges against him." State v. Hass,
218 N.J. Super. 133, 138 (App. Div. 1987); see R. 3:7-3(a).
Here, defendant clearly had fair notice. The indictment charged defendant
with three total counts. The three-count indictment indisputably was premised
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on both the September and October incidents. The judge charged the jury
consistent with what defendant already knew, which was that each of the three
counts in the indictment involved two incidents. The dates of the incidents were
known. That he understood the charges against him is evident by his repeated
attempts to declare the indictment deficient and/or strike all reference to the
September incident at trial.
Contrary to defendant's argument, the judge did not amend the indictment.
The judge did not add three new charges. Rather, for the purposes of unanimity,
the judge separated the two incidents underlying the indictment with the special
interrogatories on the verdict sheet to ensure defendant could only be found
guilty if the jury unanimously voted to convict. If the jury concluded defendant
was guilty of both incidents, he would have been sentenced for convictions
based on three counts, not six. Thus, the judge did not "charge another or
different offense from that alleged" in each of the three counts of the indictment.
R. 3:7-4.
Affirmed.
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