June 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRELL LOGAN, A/K/A DARYL LOGAN, DERRELL LOGAN, DEFENDANT-APPELLANT.
On appeal from the New Jersey Superior Court, Law Division, Cumberland County, Indictment Nos. 04-09-0952 and 05-06-0531.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2007
Before Judges Coburn and Gilroy.
Following a jury trial, defendant was convicted under Cumberland County Indictment No. 04-09-0952 of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count One); fourth-degree sexual contact, N.J.S.A. 2C:14-3b (Count Two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (Count Three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Count Four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Five); and third-degree escape, N.J.S.A. 2C:29-5a (Count Six). On August 8, 2005, pursuant to a plea agreement, defendant pled guilty to Count Two of Indictment No. 05-06-0531, charging him with fourth-degree failure to register under Megan's Law, N.J.S.A. 2C:7-2d.
On October 21, 2005, defendant was sentenced on all convictions. On Indictment No. 04-09-0952, defendant was sentenced on Count One as a persistent offender to an extended term of eighteen years' imprisonment, subject to the 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The conviction on Count Two was merged with Count One. Concurrent terms of four years, five years, fifteen months, and four years were imposed on the convictions on Counts Three, Four, Five, and Six, respectively. On Indictment No. 05-06-0531, Count One was dismissed, and defendant was sentenced to a term of nine months on Count Two, concurrent with the sentence imposed on Count One of Indictment No. 04-09-0952. The aggregate custodial sentence was eighteen years subject to the NERA. All appropriate fees and penalties were also imposed. Defendant appeals. We affirm the convictions; vacate the sentence imposed on Count I under Indictment No. 04-09-0952; and remand for re-sentencing on that count only.
On appeal, defendant argues:
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF INTOXICATION (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN THE OPENING STATEMENT AND IN THE SUMMATION (NOT RAISED BELOW).
THE EIGHTEEN (18) YEAR EXTENDED TERM BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT ON COUNT ONE OF INDICTMENT NO. 04-09-0952 WAS MANIFESTLY EXCESSIVE, REPRESENTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON*fn1 AND STATE V. NATALE.*fn2
A. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.
B. IMPOSITION OF A BASE CUSTODIAL TERM OF EIGHTEEN (18) YEARS VIOLATED THE DEFENDANT'S RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
C. THE DEFENDANT'S CONVICTIONS FOR SEXUAL CONTACT, CRIMINAL RESTRAINT, AND AGGRAVATED ASSAULT ON COUNTS TWO, THREE AND FOUR OF INDICTMENT NO. 04-09-0952 SHOULD BE MERGED INTO THE DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT ON COUNT ONE.
We have reviewed defendant's arguments in Points I and II in light of the record and the applicable law, and find the arguments are without merit. R. 2:11-3(e)(2). Nevertheless, we add the following comments. In Point I, defendant argues that the trial judge committed plain error by not instructing the jury sua sponte on the defense of intoxication. We disagree.
Defendant did not challenge the jury instructions below. In this context, "a defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005); R. 1:7-2. Accordingly, we review the matter under the plain error standard and will reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2. That "requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)).
Self-induced intoxication is a defense where the underlying criminal offense requires a purposeful or knowing mental state. State v. Cameron, 104 N.J. 42, 52 (1986). "A trial court is only required to instruct the jury on intoxication if there is a rational basis for a conclusion that defendant's faculties were so prostrated that he or she was incapable of forming an intent to commit the crime." State v. Green, 318 N.J. Super. 361, 370 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). In determining whether a rational basis exists, the court views the evidence in the light most favorable to defendant. State v. Bauman, 298 N.J. Super. 176, 195 (App. Div.), certif. denied, 150 N.J. 25 (1997).
Here, the record does not support a finding that defendant had reached the level of intoxication where his faculties were so prostrated that he was incapable of forming the intent necessary to commit the crimes. The only evidence in the record, concerning defendant's consumption of alcohol, is the testimony of the victim. She testified on direct-examination that after going to defendant's room: "We drank a couple of beers with the door open." On cross-examination, she responded to defense counsel's question concerning what she started doing when she entered defendant's room by stating: "We started drinking beer. We started talking and drinking beer." Such evidence did not require the judge to instruct the jury on the defense of intoxication.
Defendant argues next that the eighteen-year extended term imposed on his conviction on Count One of Indictment No. 04-09-0952 was manifestly excessive, represented an abuse of the trial court's sentencing discretion, and violated defendant's constitutional rights under Blakely and Natale II. Because the discretionary extended-term sentence was imposed with the trial judge deciding all four prongs of the Dunbar*fn3 standard, we vacate the sentence imposed on Count One of Indictment No. 04-09-0952 and remand the matter to the trial court for re-sentencing on that count only in light of the recent decision of the Supreme Court in State v. Pierce, 188 N.J. 155, 166-69 (2006).
Lastly, defendant argues that his convictions for sexual contact, criminal restraint, and aggravated assault on Counts Two, Three, and Four of Indictment No. 04-09-0952 should have been merged with his conviction for sexual assault on Count One. We find the argument unpersuasive.
"Merger implicates a defendant's substantive constitutional rights." State v. Miller, 108 N.J. 112, 116 (1987). A defendant may not be convicted of more than one offense if one is included in the other. N.J.S.A. 2C:1-8a(1). An offense is included in another if it is established by proof of the same or less than all the facts required to establish the commission of the other offense. N.J.S.A. 2C:1-8d(1). Because the statutory test is somewhat "mechanical," State v. Truglia, 97 N.J. 513, 520 (1984), we continue to be guided on questions of merger by the more flexible pre-Code standard articulated in State v. Davis, 68 N.J. 69, 81 (1975). State v. Hill, 182 N.J. 532, 542-43 (2005). The flexible approach requires a sentencing court "to focus on 'the elements of the crimes and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" State v. Cole, 120 N.J. 321, 327 (1990) (quoting State v. Miller, supra, 108 N.J. at 116-17). Under that approach, the guiding principle is that "'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" State v. Miller, supra, 108 N.J. at 116 (quoting State v. Davis, supra, 68 N.J. at 77). "Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternate basis for punishing the same criminal conduct will merge." State v. Brown, 138 N.J. 481, 561 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997). In deciding whether separate offenses have been committed, the sentencing court examines numerous factors, including the time and place of each offense, whether a single act was part of a larger scheme, the intent of the defendant and the consequences of the criminal standards transgressed. State v. Davis, supra, 68 N.J. at 81.
Here, each the convictions on Counts Three, Four, Five, and Six is predicated on independent facts that are not required to sustain the finding of guilt on the sexual assault conviction. The convictions on the four latter counts require different elements of proof and protect different interests. State v. Crawley, 149 N.J. 310, 320 (1997). Accordingly, merger of the convictions on Counts Three through Six with the conviction on Count One was not required.
The convictions are affirmed; all sentences, except on Count One of Indictment No. 04-09-0952, are affirmed; and the conviction on Count One of Indictment No. 04-09-0952 is vacated and remanded to the trial court for a new analysis of the sentence pursuant to State v. Pierce, supra, 188 N.J. at 168-74.