On appeal from Superior Court of New Jersey, Law Division, Essex County.
Antell, Long and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.s.c. (temporarily assigned).
[216 NJSuper Page 40] An Essex County Indictment charged defendant with second degree aggravated assault, contrary to N.J.S.A. 2C:12-1 b(1) (count one); aggravated sexual assault, a first degree crime, contrary to N.J.S.A. 2C:14-2 (count two) and fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2 (count three). A jury returned guilty verdicts on counts two and three and on
the lesser included offense of simple assault on count one. Defendant appeals. We affirm.
On appeal, defendant raises the following issues:
POINT I The trial court erred in denying the Defendant's motion to acquit him of the charges of aggravated assault and aggravated sexual assault.
POINT II The trial court committed plain error when it did not sua sponte [sic] strike part of the Prosecutor's inflammatory summary [sic] argument which referred to the Defendant as a professional rapist. (Not raised below)
POINT III The trial court erred in not granting a mistrial or temporarily halting the proceedings for a private psychiatric examination of the Defendant when the Defendant experienced a mental breakdown during his counsel's summation. (Not raised below)
The only issue requiring discussion is defendant's contention that the trial court erred in denying his motion to acquit addressed to the charge of aggravated sexual assault.
The State introduced evidence to establish that defendant entered an office building in Bloomfield, New Jersey during regular business hours. The victim was an employee of a firm occupying the building. As the victim emerged from a women's restroom into the public hallway, she was confronted by defendant. He pushed her into the restroom, punched and threatened her and committed an act of sexual penetration.
Defendant conceded having had sexual contact with the victim but testified that she approached him, a stranger, in the hallway and invited him into the restroom for a consensual sexual adventure. The jury resolved the credibility issue in favor of the State.
Sexual penetration constitutes aggravated sexual assault if the actor uses physical force or coercion "and severe personal injury is sustained by the victim." N.J.S.A. 2C:14-2 a.(6). Severe personal injury is defined as "severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." N.J.S.A. 2C:14-1 f. The theory of the State's case is that the victim sustained ...