On appeal from the Superior Court, Law Division, Monmouth County.
Furman, Brody and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.
Upon indictment in two counts, the first for sexual assault, N.J.S.A. 2C:14-2c(1), and the second for criminal sexual contact, N.J.S.A. 2C:14-3b, arising out of the same incident, defendant was convicted of both offenses by jury verdict. His criminal sexual contact conviction was merged into his sexual assault conviction. On appeal he raises three issues:
Point I: The trial court committed plain error when it did not charge the jury as to the lesser included offense of simple assault, notwithstanding the fact that no such request was made, because the facts clearly indicate the appropriateness of that charge. (Not raised below)
Point II: The trial court committed plain error, in violation of the fresh complaint rule, (1) when Detective Hoffman was permitted to testify as to the specific details of Ms. Farmer's complaint of sexual assault to the police and (2) when Detective Hoffman was permitted to repeat several of those details by reading a portion of the complainant's statement to the police. (Partially raised below)
Point III: The trial court committed plain error when it charged the jury that credible testimony must be probable under the circumstances. (Not raised below)
In a supplemental pro se brief defendant raises two additional issues:
Point I: The court committed plain error when it charged the jury prejudicially, in regards to the fresh complaint rule. (Not raised below)
Point II: The State used perjured testimony in using Terry Flowers as a witness.
The factual background may be stated briefly. According to both defendant and the victim, they met at a tavern on an early evening in October, bought a half pint of vodka and were sharing it together in the backyard of a rooming house near the tavern, defendant seated in a reclining chair.
The victim testified that she was seated on the arm of the reclining chair alongside defendant. After a half hour or so, defendant put his hand down her shirt and started squeezing
her breasts. She said, "Don't do that." Defendant hit her in the face and head, cutting her. He "flipped" her back of the chair. She landed on the ground. He pulled down her pants, ripping them, and lay on top of her. He was unable to penetrate her with his penis. He then grabbed her by the hair and "made" her take his penis in her mouth. Two teenage ...