On appeal from the Superior Court, Law Division, Essex County.
Dreier and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
Defendant Ian Tronchin, a/k/a "T", was tried to a jury and acquitted of kidnapping (N.J.S.A. 2C:13-1b(1)), first-degree aggravated sexual assault (N.J.S.A. 2C:14-2a(3)) and third-degree terroristic threats (N.J.S.A. 2C:12-3). He was found guilty of second-degree sexual assault (N.J.S.A. 2C:14-2c(1)), a lesser included offense of first-degree aggravated sexual assault and sentenced to imprisonment for a period of five years. A $25 Violent Crimes Compensation Board penalty was also assessed.
On appeal from the judgment of conviction defendant contends that the jury's finding that he was guilty of second-degree sexual assault was the result of a compromise verdict, made possible because the court erroneously denied his motions for acquittal at the end of the State's case concerning kidnapping and aggravated sexual assault.
At trial the State presented evidence that on September 5, 1985, at approximately 12:15 a.m., R.M., a ticket agent for the Olympia Trails Bus Company, completed her shift at the Newark Airport and caught the bus to Grove Street and Springfield Avenue in Irvington. She walked down Springfield Avenue, stopped at a bar and called a friend to pick her up. R.M. waited outside the bar knowing that if her friend was not there within the hour, it meant that his car would not start and that he was not coming. While she waited, she saw defendant and a female passenger drive up. They asked her if she wanted a ride. She declined. About 20 to 25 minutes later, defendant's companion left and defendant again offered R.M. a ride to her home.
More than an hour having passed and her friend not appearing, R.M. accepted defendant's offer. She said she asked him to "just drive me down Springfield Avenue." Defendant gave his name as "T". He drove two blocks down Springfield before he turned off the main street, suggesting to R.M. that they "ride around for awhile." R.M. said that she "figured it was okay." They talked in a conversational, social manner. Defendant told R.M. about his girl friend and his former job. They rode around for hours. After a while, defendant parked the car, got out, and engaged in conversation with people on the street. R.M. said that she did not know where she was. She expressed no fear.
Defendant returned to the car. He told R.M. that she could drive the car, but not in the city. He drove the car through winding roads ending up at the South Mountain Reservation, a park in South Orange. R.M. said she did not know the road. R.M. said that at no time prior to arriving at the Reservation was sex a topic of conversation. R.M. said she told defendant that she wanted to go home on three separate occasions during the drive.
When they arrived at the park, it was dark and deserted. Defendant shut off the engine and told her that she "was going to be his woman and he wanted [her], and stuff like that." He insisted that she get out of the car, telling her that "when the car cools off, we are going to leave." Once out of the car defendant was "grabbing onto [her] and kissing [her]." R.M. said that she demanded to be taken home, telling defendant that she would walk if necessary. Defendant again promised to take her home, saying, "I hate to see what [those white boys out there] will do to you."
R.M. said defendant then told her that "he wanted to have sex with [her]." She refused. "Then he told [her] that [she] was going to do it and if she didn't do it what he was going to do to [her]." R.M. continued to resist and defendant threatened to really give her something to cry for if she didn't "shut
up." R.M. said defendant then put her "up on the car," pulled off her underwear, and forced sexual intercourse.
R.M. said that prior to sexual intercourse, defendant "made [her] feel him and get him hard." He also told her she was going to "give him some head." Since she was "crying real loud," he covered her mouth, having vaginal sexual intercourse with her twice, once from the front and ...