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State v. Fraction

Decided: December 16, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES E. FRACTION, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Burlington County.

Brody, Gaynor and Baime. The opinion of the Court was delivered by Baime, J.A.D.

Baime

[206 NJSuper Page 533] Following a jury trial, defendant was found guilty of two counts of aggravated sexual assault in violation of N.J.S.A.

2C:14-2a(4). The convictions emanated out of a single criminal episode in which defendant forcibly committed acts of vaginal intercourse and cunnilingus while threatening the victim with a knife. The trial judge imposed concurrent custodial terms of 20 years. Pursuant to N.J.S.A. 2C:43-6b, the judge directed that defendant serve eight and one-half years without parole eligibility. As part of the sentence, defendant was ordered to pay the sum of $231.82 as restitution for various expenses incurred by the victim. In addition, the judge assessed penalties totaling $50 payable to the Violent Crimes Compensation Board. This appeal followed.

Defendant seeks a reversal on a variety of grounds. He first contends that the crime of aggravated sexual assault by an act of cunnilingus requires proof of vaginal penetration. Defendant asserts that the judge's refusal to so instruct the jury constitutes reversible error. He also claims that the aggravated sexual assault convictions should merge because the offenses constituted episodic fragments of a single criminal transaction. Defendant's final argument concerns the trial judge's refusal to admit evidence of the results of a polygraph examination. In essence, defendant asks us to reexamine the principles established in State v. McDavitt, 62 N.J. 36, 46 (1972) which preclude admission of such evidence in the absence of a clearly expressed stipulation between the parties. Our thorough review of the record convinces us that defendant's contentions are wholly devoid of merit. We affirm.

We need not recount the facts at length. The jury could reasonably have found from the evidence that the victim was accosted while leaving her place of employment. According to her testimony, she was threatened with a knife and dragged into nearby woods where she was sexually attacked. Defendant forced her to undress and then attempted to have intercourse. His initial attempt failed, however, because he did not have an erection and was unable to penetrate the victim's

vagina. Defendant then engaged in cunnilingus with the victim. She testified that he "licked [her] outer labia" but did not insert his tongue into her vagina. Following this, defendant penetrated the victim's vagina with his penis but withdrew when she told him that she had recently undergone some undisclosed "female operation."

Defendant was arrested shortly after the incident. He admitted that he had threatened the victim with a knife. However, he claimed that his intent was only to rob her of her automobile. According to his testimony, he forced the victim to undress in order to facilitate his escape. He then decided to engage in sexual intercourse, but changed his mind when the victim mentioned that she recently had an operation. Defendant denied engaging in oral sex or vaginal intercourse, but conceded that at some point he had intended to do both.

I

Initially, we reject defendant's argument that the trial judge erred in his instruction to the jury. N.J.S.A. 2C:14-2a(4) provides that one "is guilty of aggravated sexual assault if he commits an act of sexual penetration" and threatens the victim with a weapon. N.J.S.A. 2C:14-1c defines "sexual penetration" in the following terms:

"Sexual penetration" means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime.

By its very terms, therefore, the phrase "sexual penetration" includes the act of cunnilingus. Although the word "cunnilingus" is not defined in the Code of Criminal Justice, we are in accord with the trial judge's determination that it must be given its ordinary and well understood meaning. Service Armament Co. v. Hyland, 70 N.J. 550, 556 (1976). It is generally defined as "oral stimulation of the vulva or clitoris." Webster's Ninth New Collegiate Dictionary 315 (1985). See also ...


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