On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justice Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J. Schreiber, J., concurring. Schreiber, J., concurring in the result.
Defendant, Juan Martinez, was convicted of aggravated sexual assault under N.J.S.A. 2C:14-2a(4). The crux of this appeal is whether there is sufficient evidence for a jury to find beyond a reasonable doubt that at the time of the sexual assault defendant threatened his victim with a gun, within the meaning of N.J.S.A. 2C:14-2a(4). The Appellate Division, reversing the conviction, held there was insufficient evidence to support the trial court's instruction on aggravated sexual assault. We granted certification, 96 N.J. 286 (1984), and now reverse the judgment of the Appellate Division.
Early one evening, as Evelyn and her girlfriend were about to enter Evelyn's home, they met defendant Juan Martinez and his friend, Harry Roman. Evelyn, a small fourteen year old, was a special education student at Mount Carmel Guild School where she had been sent because of her difficulties with reading and writing. Evelyn knew the defendant, who was then forty-seven, from the time he resided with her family for a couple of months.
Evelyn joined the two men. They drove in Roman's automobile to a restaurant where they purchased some food, and then proceeded to Roman's junkyard. At the junkyard, they ate the food in a small building that Roman used as an office.
After eating, they left the office and entered a converted bus located in the junkyard. The bus was furnished with a couch, table, bed, television, and other items. Evelyn and defendant began watching television while Roman, who was intoxicated, slept.
Evelyn asked defendant to awaken Roman so that she could be driven home. Defendant told her that Roman was too drunk and she should wait. She waited a while and then began to insist upon being taken home. Frustrated by his inaction, she grabbed something and threw it at defendant.
At this point, Evelyn's testimony became confused, rendering the chronology of events uncertain. It is clear, however, that at some point during the evening in question, defendant grabbed Evelyn, pushed her, removed her shorts, and forced her to submit to vaginal intercourse. Evelyn screamed, cried, and attempted to kick defendant during the assault. Roman continued to sleep in a drunken stupor on the bed.*fn1
It is also indisputable that at some point prior to the sexual assault, Evelyn was playing with Roman's gun. Defendant took the gun from her and menacingly pointed it at her. He then placed the gun on the shelf under the table next to the couch on which she later was attacked. According to Evelyn, defendant "put the gun up under there where I was laying there and then from there that's how everything started."
After the assault, defendant warned Evelyn not to tell her mother, and threatened to harm her mother if she did. Bruised and bloody, Evelyn then left the junkyard. Defendant walked a few blocks with her to set her in the right direction for home. Evelyn, whose mother was then in the hospital, spent that night at the home of a neighbor. Immediately after arriving at the neighbor's home at approximately 2:00 or 3:00 A.M., she took a bath and advised the neighbor that defendant had sexually assaulted her.
After the mother's release from the hospital, Evelyn told her of the incident. Subsequently, she and ...