Before Judges Pressler, Wefing and A.a. Rodriguez. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
This is a date-rape case. Following a trial by jury, defendant Rodney F. Lyles was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree terroristic threats, N.J.S.A. 2C:12-3a; first-degree aggravated assault by reason of sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2a(3); and second-degree sexual assault, N.J.S.A. 2C:14-2c(1). Defendant was sentenced to a twenty-year term on the kidnapping charge, into which the first-degree aggravated assault was merged. He was also sentenced to a concurrent three-year term on the terroristic threats conviction and a concurrent seven-year term on the second-degree sexual assault. Appropriate VCCB and SNSF penalties were also imposed.
In challenging the judgment of conviction, defendant raises two issues, the first involving fresh-complaint evidence and the second involving the court's failure to hold a hearing to determine his competency to stand trial. Defendant does not raise an appellate challenge to the sufficiency of the evidence to support either the kidnapping conviction or the conviction of sexual assault during the course of kidnapping, although the trial court did deny defendant's motion for acquittal of these two charges. Because, however, of our concern with the adequacy of the State's proofs to support those two convictions, we afforded the parties the opportunity to submit supplemental briefs on that issue. Having considered the record in the light of all the briefs, we are now satisfied that while neither the trial court's handling of the fresh-complaint evidence nor its failure to have held a competency hearing constituted plain error, the two first-degree convictions cannot stand because of insufficiency of evidence.
The State's case depended on the testimony and hence the credibility of the complaining witness, I.P. There was no corroborating physical evidence, and defendant, although he had no prior criminal or juvenile record, did not testify on his own behalf. This is what I.P. testified to.
In August 1993, I.P., then twenty-four years old and employed as a sales agent by Continental Airlines at Newark Airport, moved to a studio apartment in Elizabeth. Because she knew no one in Elizabeth and was of athletic inclination, she joined the neighborhood YMCA, enrolling in an exercise and nutrition program. It was her custom to walk to the YMCA from her home and back. On the evening of Wednesday, August 25, 1993, she finished her workout late, about 9:30 p.m., and was concerned about walking home in the dark. One of the instructors suggested that defendant, then twenty-seven years old and also a participant in the program, drive I.P. home. The instructor vouched for defendant, telling I.P. that he would trust him with her sister. I.P. agreed.
On the way home, I.P. and defendant agreed to stop for something to eat and went to a neighborhood gyro restaurant. While there, they were handed a flyer promoting a pool party that weekend, and they discussed going together. As they became acquainted, they agreed to spend more time together that evening to get to know each other. Because I.P.'s furniture had not yet arrived at her new apartment, they agreed that they would first stop there to pick up some board games and then drive to defendant's house in Plainfield to spend the rest of the evening. They followed this program, playing the games and talking.
Shortly after midnight, I.P. told defendant she had to go home as she had to be up at 4 a.m. to go to work. Defendant responded that he was too tired to drive and suggested that she remain overnight in his house, assuring her that he would drive her home the next morning in time for her to get ready for work and that he would then drive her to work. I.P. agreed, and defendant showed her into a bedroom. He joined her there, lying next to her. They embraced. As she explained, "we were just kissing with each other. I turned over to let him lay on top of me, and we were still kissing." At that point defendant attempted to initiate an act of penetration. I.P. stopped him, saying "no, we don't really know each other that well. Let's not do this. We just met." Defendant promptly acquiesced, and the two fell asleep. The following morning he took I.P. home, waited for her to change into her working clothes, drove her to the airport, and arranged to pick her up and drive her home at the end of the day. He did so. On the way home, they talked again about going to the pool party together. Defendant apparently was not sure and gave I.P. his phone number, asking her to call him. At that point I.P. still had not yet had a telephone installed in her new apartment. In any event, defendant left her at her door. That was Thursday evening. I.P. described her feelings about defendant at that point as follows:
I thought he was a real nice guy. The fact that be did all these things for me, and I felt he would have been a good friend to have, and everything. The fact that everything that happened, the respect that he gave me at a time, I didn't oppose of seeing him anymore. I was looking forward to going to the pool party with him.
On the next day, I.P. and defendant ran into each other leaving the YMCA. I.P. had not actually expected to see him and had written a note to him which she was going to leave on his car. The note, as she described it, expressed her thanks for his friendliness to her and said she liked him as a friend. She gave him the note, and after a brief conversation, they went their own ways.
I.P. and defendant did not see each other again until Sunday, the day of the pool party. Defendant had left several notes on I.P.'s car asking her to call him. She did not do so until Sunday morning because of her busy work schedule and her limited access to a telephone. Defendant apparently then expressed some annoyance because it had taken her so long to call him, but nevertheless arranged to pick her up at her home at 3 p.m., three hours before the start of the party. As we understand I.P.'s testimony, there was a $25 per person admission charge, and defendant had told her he would pay for them both. When he picked her up at the appointed time, he first made several stops either to borrow the money or to try to call in money owed to him. He was unsuccessful. They reached the pool party at about 5:30 and defendant waited for some of his friends, apparently fellow corrections officers, to arrive. Eventually, they were able to gain admission either on a complementary basis or at a reduced rate. Once inside, defendant stayed with his friends and I.P. circulated on her own, playing volleyball and entering a dance contest, which she won. She explained that "I was kind of glad we went our separate ways, the fact that he was in a bad mood. So, I just went ahead and tried to say I was going to have a good time in spite of his mood. . . ." Although the pool party was over at 11:30, the sponsors of the party had arranged for an "after party" at a club. I.P. and defendant, who had rejoined each other by that time, agreed to go together to the "after party." Defendant had a change of clothes in his car, but I.P. had to go home to change. Defendant drove her, and at her suggestion they stopped at a Chinese restaurant for take-out food at I.P.'s expense, detouring on the way there so that she could make a cash withdrawal at an automatic teller machine. She wanted to pay because, as she said
The events that led to these charges and convictions occurred after defendant and I.P. returned to her apartment with their Chinese food. Defendant brought in his bag, which I.P. assumed contained the clothes into which he would be changing. They ate the food with the intention of changing afterwards and going to the "after party." I.P., however, had some stomach distress after eating, and she lay down on the opened sofa bed that had just recently been delivered to her. She was still wearing her bathing suit and a T-shirt over it. Defendant lay down next to her, saying "I want to hold you." She attempted to rebuff his advances, saying she did not feel well. Defendant became hostile, telling her she was not getting up and that she would feel the pain she had made him feel. He told her no one would believe her protestations and he could either cut off her hair or pull her teeth out with pliers if she did not yield to him. Nevertheless, he allowed her to go into the bathroom. Not knowing ...