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State v. Day

Decided: March 12, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARIUS DAY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Burlington County.

Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

[216 NJSuper Page 35] Defendant has appealed from his convictions and sentences on multiple counts of a 31-count indictment, including five counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2; six counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) and (2), and numerous other charges. He was sentenced to a total of 49 years and assessed a Violent Crimes Compensation Board penalty of $550. No period of parole ineligibility was imposed. The facts giving rise to the charges and convictions need not be recounted in detail, although some of the events must be discussed later in this opinion. Defendant's actions towards the victims can accurately be characterized as brutal physical torture, constituting both aggravated sexual assault, aggravated assault and other crimes warranting the 22 convictions here under review. The repeated rape of the adult victim with various implements, the senseless beatings and torture with heated nails, and other gruesome acts place defendant beyond the pale of a decent society. These events, which took place over a three-week period while he held the victim in her apartment by threats to harm their infant daughter,

are described in detail in her testimony. By the verdict the jury obviously accepted that testimony. Defendant has raised two points on the appeal:

Legal Issue # 1

As a matter of law, the appellant could not be found guilty of either first degree sexual assault or aggravated assault because the state failed to prove beyond a reasonable doubt with corroborating expert medical testimony the element of the offenses that the victim sustained 'severe personal injury' or 'serious bodily injury' as defined in N.J.S.A. 2C:14-1(f) and N.J.S.A. 2C:12-1b(1).

Legal Issue # 2

The consecutive sentence imposed on the appellant was excessive and an abuse of discretion under the totality of the circumstances.

Defendant first claims that he should not have been convicted of first degree sexual assault or aggravated assault, since there was insufficient proof to show the victim sustained "severe personal injury," or "severe bodily injury" as defined in N.J.S.A. 2C:14-1f and N.J.S.A. 2C:12-1b(1) respectively. "Severe personal injury" under N.J.S.A. 2C:14-1f includes the term "severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." "Severe" bodily injury is not further defined, although "serious bodily injury" is defined in N.J.S.A. 2C:11-1b as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." It is this latter definition which is incorporated by reference in the aggravated assault section, N.J.S.A. 2C:12-1b, which defines the conduct constituting aggravated assault as such where an actor "attempts to cause serious bodily injury to another, or causes such injury. . . ." Whether each actual injury is permanent is irrelevant, since attempts to cause such injury suffice.

In this case defendant's treatment of the victim over the three-week period can only be described as depraved. The fortunate fact that she recovered from her wounds in no way

mitigates defendant's actions as to the sexual offenses where he clearly used "physical force or coercion and severe personal injury [was] sustained by the victim." N.J.S.A. 2C:14-2a(6). The evidence sustained at least an inference of mental anguish, and there is no requirement of permanent bodily injury under N.J.S.A. 2C:14-1f.*fn1 After substantial testimony, verified by medical examinations, of defendant's raping the victim with a coat hanger on several occasions and a club on another and dropping heated nails on her body, including an attempt to burn her clitoris, the aggravated sexual assaults were clearly established. As to the aggravated assaults, the testimony and physical evidence of his beating the victim so fiercely about the head and face that her tongue was nearly torn from her mouth, shows either an actual "serious bodily injury" or at least an attempt to cause the same. Although there was no permanent loss of either of victim's sexual function or the use of her tongue or other organs, the beatings and use of heated nails among other tortures satisfied the statutory test required under both N.J.S.A. 2C:14-2a(6) and 2C:12-1b(1).

Defendant also alleges that the consecutive sentences imposed were excessive under the standard of State v. Yarbough, 100 N.J. 627, 644 (1985), cert. den. sub nom. Yarbough v. New Jersey, U.S. , 106 S. ...


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