On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 01-12-1394-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2006
Before Judges Collester and Sabatino.
Defendant Alan Loeffler appeals his conviction for sexual assault, a crime of the second-degree, contrary to N.J.S.A. 2C:14-2(c), and his penal sentence of eight years subject to parole ineligibility pursuant to the No Early Release Act (NERA). We affirm the conviction and remand for sentencing in light of State v. Natale, 184 N.J. 458, 484 (2005).
As of June 2001, J.B. was a seventeen-year-old residing at the Wyoming Girls' School, a correctional facility in the State of Wyoming. While she was participating in a work release program on June 27, 2001, she ran away, stole a car, and headed east toward New York City. She arrived in New Jersey on July 3, and met a homeless person named David Outlaw. She joined up with Outlaw and slept in his tent in a public park in Edison. On July 9, 2001 she was with Outlaw when he got drunk and passed out in front of a 7-Eleven store in Edison.
At 2:45 a.m. on July 10, Sergeant Milton Bridges of the Edison police was on routine patrol when he saw a man lying on the sidewalk in front of the 7-Eleven and a female standing next to him. The man was asleep and had urinated in his pants. He described J.B. as "dressed as though she was homeless, very dirty." When Bridges asked J.B. if she needed assistance, she said she was homeless and had met the man she called Outlaw. She said she was trying to get him to his home nearby. Bridges told her to lead the man to a nearby grassy area until she was able to escort him home. After being assured by J.B. that she and Outlaw would not create a disturbance, Bridges left. Later he recalled that while he was speaking with J.B., a man stepped out of a van with a sign "Express Towing" and was watching. He described the man as a white male, stocky build, blond hair, and wearing a uniform-type tee shirt and blue pants.
Twenty minutes later a second Edison police officer, David Salardino, drove up to the 7-Eleven and saw an obviously intoxicated man sitting alone on a parking block. As he approached, J.B. came out of the store and yelled to him that the man was her boyfriend. Nearby, Salardino saw a man he recognized as a tow truck driver who frequently responded to accidents and disabled vehicles in the area. The man, later identified as defendant, made a general comment to Salardino about Outlaw being intoxicated. Salardino approached J.B. and told her that she had to remove Outlaw from the property or he would be arrested or taken to the hospital. He watched as J.B. helped Outlaw walk away from the building in the direction of Woodbridge. Salardino went inside the 7-Eleven, and when he returned, J.B. and Outlaw had gone.
J.B. testified, as she tried to drag Outlaw behind the 7-Eleven, he "backhanded her." She got angry and told him he "can go to jail." At that moment defendant walked up to her. He said his name was David and told her, "You look like you need a clean up." He asked if she was okay and if she needed a ride. J.B. told him that he could take her to Roosevelt Park to look for Outlaw's dog who was near the tent where they had been living. Defendant agreed. J.B. got into the towing van, and they drove off. During the ride, defendant asked her name and how old she was. J.B. told him her name but did not give her age. At the park they talked for about fifteen minutes. After J.B. asked the defendant if he knew of a homeless shelter, defendant called a friend who told him of one far away.
Defendant then offered to take J.B. to a motel so she could take a shower. She agreed. They went to a cash machine for the defendant to withdraw money. Defendant then drove with J.B. to the Beauty Rest Motel and paid for a room. His signature on the motel registration card indicated his first name was "Alan." The last name was impossible to read. J.B. testified that when they got to the room, defendant slammed the door and grabbed her. She said he punched her in the ribs several times, causing her to loose her breath. He then threw her on the bed and pinned her down. J.B. said defendant had a deformed arm, but was able to restrain her with his good arm. He sat on one of her arms and bound her hands. He pushed up her shirt and fondled her breasts. He removed her pants, fondled her vaginal area, and penetrated her with his penis. J.B. said she asked defendant to stop, but he did not. He rolled her over on her stomach and raped her anally. J.B. struggled throughout, told defendant to stop, and told him he was not going to get away with it.
J.B. testified that after defendant finished sexually assaulting her, he got dressed and told her not to tell anyone or he would kill her. After he left the room, J.B. was afraid to leave because she was afraid he was still outside. She took a shower and walked to a nearby convenience store to purchase a telephone card. She called Gary Kopsa, the supervisor of the Wyoming Girls' School, and told him that she was in New Jersey, had just been raped, and did not know what to do. Kopsa told her to hang up and call the police, which she did.
At 5:30 a.m. Edison Police Officer Michael Muldowney responded to J.B.'s call and found her at a gas station near the motel. He took her back to the motel, secured the room where she had been and took her statement. J.B. admitted that she had run away from the Wyoming correctional facility, and as a result she was placed under arrest. She was taken to a hospital because her ribs were sore and then to a rape crisis center. Adrienne Garber, the nurse at the rape crisis center, examined J.B. and testified that she had bruising in her calf and thigh area, scratches, and a black and blue mark on her abdominal area. She used a rape kit to collect evidence of vaginal penetration. She did not take an anal specimen because J.B. denied any anal contact had occurred. J.B. explained in her testimony that she was embarrassed to acknowledge the anal sex. She also told Garber she had not showered because she knew she was not supposed to shower after such an incident.
On cross-examination J.B. admitted that she had purchased pills on the street to get high and that she had taken them before this incident. She also acknowledged that she was serving a one to four-year term in a state penitentiary in Wyoming after pleading guilty to car theft.
The investigation began to focus on defendant after Bridges, the first officer who had seen J.B. at the 7-Eleven, told Muldowney that he saw a towing vehicle from Express Automotive at the scene. Muldowney later learned defendant's name from the owner of the towing company. On July 11, 2001, investigator Todd Gerba of the Middlesex County Prosecutor's Office, along with Detective Canavera and an Edison patrolman, went to the towing offices. Defendant arrived at 9:15 a.m., and at that time was told he was a suspect. He agreed to go to the Edison police headquarters. During the trip he was handcuffed for security purposes because the officers had arrived in an unmarked police vehicle with no cage equipment.
After he was unhandcuffed, defendant was read his Miranda*fn1 rights. Defendant agreed to speak to the police. The interview began at 9:35 a.m. and ended at 11:10 a.m. Although defendant admitted he had intercourse with J.B., he maintained it was consensual. Later, however, defendant admitted he had sexually assaulted J.B. He agreed to make a taped statement. In the taped statement played for the jury, defendant said that in the early hours of July 10, he stopped at the 7-Eleven and saw a police officer talking with a girl. He heard her tell the officer that she and the intoxicated man with her were homeless. Defendant said that J.B. came over to him after the officers left and said "can you take me away." They first went to the park, and he made some calls to locate a homeless shelter. J.B. asked him if she could go to his house to take a shower, but instead he offered to give her money for a motel room. Defendant withdrew the money from a cash machine and drove with J.B. to the Beauty Rest Motel.
When they walked into the room, defendant said he "snapped." He grabbed J.B., pushed her on the bed, hit her, and had forceable sexual intercourse with her. He admitted holding J.B. down to restrain her, and said he "blanked everything else out." He did not recall if he ejaculated. He denied that they had any sex other than vaginal intercourse. He said it happened "cause [he] just wanted to have sex and she was there." Defendant said that at first he denied raping J.B. because he "had a hard time dealing with it." He said he felt:
Like a shit, like I was wrong, like I need some help, big time. . . . I want to square this up, I want to apologize to her. I want to, I gotta, it's in my head, I gotta do something to show her it wasn't her fault, it wasn't her, it was me. I mean, right now I feel like, I actually shouldn't be living right now.
Results of the DNA test on the rape kit samples collected from J.B. on the date of the incident confirmed that defendant was the source of DNA on the vaginal swab.
At trial, defendant testified that his sexual encounter with J.B. was consensual. He said when he approached J.B. at the 7-Eleven to ask if she needed assistance, she asked for a ride. When she got into the van, she told him she had no friends and nowhere to go. He testified she made suggestive remarks, saying she was "horny." He offered to drive J.B. to a motel so she could shower and sleep and have sex with him if she wanted. When she agreed, he withdrew $60 from an ATM, drove to the Beauty Rest Motel and registered for a room. He said J.B. went into the bathroom to shower and came out wearing only a towel. She then dropped the towel and said, "You want this" and began to kiss him. He claimed she climbed on top of him and engaged in consensual vaginal intercourse. Defendant added that before he left he gave J.B. $7.00 for bus fare to a shelter in New Brunswick.
When asked about his taped statement, defendant said it was involuntary, and the result of police coercion. He said he was not advised of his rights when the questioning began and then told the interrogator "his side of the story" at least five times. He said Investigator Gerba and Detective Canavera yelled at him that he was lying, grabbed his chair, and threatened to burn him unless he told them "what they needed to know." They added that if he admitted that the sexual encounter was not consensual he could return to work. Defendant said that after he was worn down, he told them what they wanted to hear.
The jury returned its verdict of guilty of count one, sexual assault of J.B., and not guilty of count three, charging terroristic threats. Count two alleging aggravated assault had been dismissed at the conclusion of the State's case. Defendant was sentenced on April 30, 2004. This appeal followed.
Defendant makes the following arguments:
POINT I -- THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE FROM IMPEACHING J.B.'S CREDIBILITY WITH PROOF OF PRIOR INSTANCES OF LYING TO THE AUTHORITIES CONSTITUTED A MISAPPLICATION OF N.J.R.E. 608, VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT II -- THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE HIS ORAL AND TAPED RECORDED STATEMENTS MADE TO INVESTIGATOR ...