November 30, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID QUINTYNE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-2384.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Axelrad, Payne and Messano.
A jury convicted defendant, David Quintyne, of first-degree aggravated sexual assault committed during a kidnapping, N.J.S.A. 2C:14-2a(3); first-degree aggravated sexual assault committed during a burglary, N.J.S.A. 2C:14-2a(3); first-degree aggravated sexual assault while armed with a deadly weapon, a knife, N.J.S.A. 2C:14-2a(4); second-degree sexual assault by use of physical force, N.J.S.A. 2C:14-2c(1); first-degree kidnapping, N.J.S.A. 2C:13-1b; second-degree burglary while armed, N.J.S.A. 2C:18-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; third-degree utterance of terroristic threats to kill, N.J.S.A. 2C:12-3b; third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant was sentenced to concurrent twenty-year terms for aggravated sexual assault during the commission of a kidnapping and for kidnapping, both of which terms were subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Following merger, defendant was sentenced to lesser concurrent terms for the remaining crimes.
Defendant has appealed from his conviction and sentence, raising the following arguments:
THE COURT WRONGFULLY DENIED THE MOTION FOR JUDGMENT OF ACQUITTAL.
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW.)
THE COMMENTS OF THE PROSECTUTOR IN SUMMATION ARE REVERSIBLE ERROR.
THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
THE SENTENCE WAS MANIFESTLY EXCESSIVE.
We affirm defendant's convictions and remand the matter for resentencing.
Testimony at trial, as adduced from the victim (fictitiously, Sara) and other witnesses produced by the State, established that defendant and Sara had previously been involved in a romantic relationship. Although at one point the two had been engaged, Sara had terminated the engagement while remaining on friendly terms with defendant and occasionally engaging in sexual relations with him. Defendant permitted Sara to retain her engagement ring.
In September 2002, as the result of financial difficulties, defendant requested that Sara permit him to reside in her apartment on a temporary basis. Sara agreed, on the condition that he comply with house rules that she formulated to protect her independence and privacy. Among them, defendant was required to pay rent and to sleep on the couch in the living room, and he was barred from entering Sara's bedroom. However, defendant extended what had been proffered as an interim living arrangement, while failing to pay rent and frequently violating Sara's house rules.
During the evening of March 2, 2003, while still living in the apartment, defendant sexually assaulted Sara in her bedroom as she prepared for sleep. On the following day, she reported defendant's assault to a rape crisis center and to the police, but did not file charges against him. She also collected defendant's belongings and placed them by the apartment's door to speed defendant's permanent departure from her residence. That evening, defendant returned to the apartment, insistently seeking entry. Sara called the police and, upon their arrival, the police required defendant to leave, permitting him to return on the following day to gather his belongings only while under police escort. Although defendant called Sara repeatedly during the remainder of the evening, Sara refused to allow his re-entry that night, but consented to his return the next day at noon, accompanied by the police, to retrieve his possessions.
On March 4, when Sara returned from class to her apartment at approximately 1:00 p.m., she was accosted by defendant, who had entered by breaking the kitchen window. While wielding a knife and uttering death threats, defendant proceeded to sexually assault Sara, at one point dragging her by the hair, and committing rape on three separate occasions over an eight-hour period, allegedly as defendant's revenge against Sara for having had to sleep in his van on the preceding night and for Sara's act of summoning the police. During this time period, defendant successfully prevented Sara from leaving the apartment, severing the telephone connection, restraining Sara physically, and accompanying her to the bathroom to prevent her escape. However, Sara eventually trapped defendant behind an opened refrigerator door by pulling out one of the crisper drawers. She ran from the apartment, naked, and was rescued by a neighbor, who took her to the police station.
Defendant was found by the police hiding behind a truck. In a search incident to arrest, defendant was found to have possession of Sara's engagement ring, a bracelet given by defendant to Sara, and currency in the amount of $550 that defendant had witnessed Sara placing in a book.
Defendant, who testified on his own behalf, gave a different version of events from that described by Sara, claiming that the romantic relationship between himself and Sara had never been severed. Defendant claimed that the assault on March 2 was, instead, consensual sex, although the two had later quarreled, leading to Sara's request that he vacate the apartment. Additionally, while acknowledging that the police had required him to leave the apartment and had forbidden his return without police escort, he claimed that he had later been given permission by Sara to return, alone. This he did, at approximately 11:00 a.m. on March 4, breaking a window to enter because of his need to use the bathroom. Upon Sara's return to the apartment, she allegedly confessed that she was being pressured by her family and friends to sever her relationship with defendant, and she stated that their pressure had caused her to turn him out on the preceding evening. However, defendant claimed that Sara agreed to permit him to remain for a few more weeks while he looked for somewhere else to live. During the course of the evening, the two had consensual sex on three occasions. However, after a further argument regarding whether defendant could return his clothes to the closet, Sara ran out of the apartment threatening to call the police.
Defendant denied accosting Sara with a knife, dragging her by the hair, and sexually assaulting her. He stated that the engagement ring had been returned by Sara to him voluntarily and that the bracelet was merely on loan to her.
The jury acquitted defendant of charges arising from the assault of March 2, but found him guilty of all charges relating to March 4.
On appeal, defendant first argues that the court erred in denying his motion for a judgment of acquittal on the kidnapping charge, made at the conclusion of the State's case. Defendant claims that the only evidence supporting the charge was provided by Sara, and that her testimony was insufficient to prove each element of the crime beyond a reasonable doubt. We disagree.
In determining defendant's motion for a judgment of acquittal, the trial judge was required to view the State's evidence in its entirety and, having given the State the benefit of all favorable testimony and inferences, to determine whether a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). We utilize the same standard upon appellate review. State v. Moffa, 42 N.J. 258, 263 (1964).
In this matter, defendant was charged pursuant to N.J.S.A. 2C:13-1(b), which provides in relevant part:
A person is guilty of kidnapping if he . . . unlawfully confines another for a substantial period, with any of the following purposes:
(2) To inflict bodily injury on or to terrorize the victim or another . . . .
In order to support a conviction for kidnapping under this provision, the confinement must be "criminally significant in the sense of being more than merely incidental to the underlying crime," State v. Masino, 94 N.J. 436, 447 (1983), a determination that requires an analysis not only of the duration of the confinement but also the "'enhanced risk of harm resulting from the [confinement] and isolation of the victim . . . . That enhanced risk must not be trivial.'" State v. La France, 117 N.J. 583, 594 (1990) (quoting Masino, supra, 94 N.J. at 447).
In the present case, evidence was presented of a confinement lasting approximately eight hours, during which time defendant threatened Sara with a knife, uttered threats of death and serious bodily injury, physically restrained her on the bed, cut the phone wire, and accompanied her to the bathroom to prevent her from leaving the premises. Each of these acts enhanced the risk of harm, consisting of repeated sexual assaults, sustained by Sara. Moreover, evidence of defendant's vengeful motives provided a basis for concluding that the confinement was not merely incidental to the assaults, themselves, but rather was but one of several means employed by defendant to degrade and punish Sara for her claimed misdeeds. Unlike the facts in State v. Lyles, 291 N.J. Super. 517, 525-26 (App. Div. 1996), certif. denied sub nom, State v. R.F.L., 148 N.J. 460 (1997), the force and coercion employed by defendant here was far in excess of any required to commit second-degree sexual assault pursuant to N.J.S.A. 2C:14-2c(1), and instead constituted the separate crime of kidnapping by unlawful confinement for the purpose of inflicting bodily injury or terrorizing the victim.
We thus regard the evidence as sufficient for a jury to conclude that the necessary elements of N.J.S.A. 2C:13-1(b) had been demonstrated beyond a reasonable doubt. That the evidence consisted principally of Sara's testimony does not compel a different conclusion in this "he said/she said" case. The jury was free to determine that Sara's testimony as to what occurred was more credible than that of defendant and to base its verdict on that testimony, alone. State v. Feaster, 156 N.J. 1, 81 (1998).
Defendant next argues that the jury's verdict was against the weight of the evidence - an argument that he failed to preserve by filing the requisite motion for a new trial on this ground. R. 2:10-1.
Nonetheless, following our review of the evidence, which we have briefly detailed, we do not find the miscarriage of justice that must exist in order for a jury's verdict to be overturned on this ground, and instead determine that the evidence was sufficient to support each of the charges upon which defendant was convicted. Ibid. In arguing otherwise, defendant claims that Detective Robinson, an employee of the Bergen County Sheriff's Office who investigated the crime, testified that Sara's clothes were folded neatly under her pillow at the head of her bed, that defendant and Sara ate together on the bed, no ripped or torn clothing belonging to Sara was found, and, despite Sara's testimony that she "fought" defendant, there was no evidence of fingernail scrapings introduced at trial.
However, our review of the record discloses that Robinson did not testify as defendant claimed with respect to the location of Sara's clothes, which he stated were found at the bottom, left side of the bed underneath a pillow. He did not state that they were neatly folded or found at the head of the bed. Additionally, although Sara confirmed that the two had eaten together on the bed, she provided an alternative explanation for that fact, stating that she thought it might provide an opportunity for her escape. The jury was entitled to credit this testimony. As a final matter, Sara's testimony as to what occurred was sufficient to support the jury's guilty verdicts on the charges arising from the events of March 4, regardless of the lack of any evidence of ripped clothing or fingernail scrapings. We thus decline to reverse defendant's convictions for lack of evidence.
In his third argument, defendant contends that the comments of the prosecutor in his summation require reversal of defendant's convictions. Specifically, defendant argues that the prosecutor improperly commented on his constitutional right to be present at trial by implying that he tailored his testimony to that of prior witnesses. In this regard, the prosecutor stated in summation:
And when [defendant] took the stand after the trial, you heard answers for everything. And that, ladies and gentlemen, I know you all saw it. So many of those answers planned to conform to the facts as they were, and he could not dispute them.
Defense counsel objected to this comment, but the objection was overruled. Defendant now argues that the comment should be understood to have conveyed the argument that defendant, who was present throughout the trial, had tailored his testimony to what he had heard from the preceding witnesses for the State. The Supreme Court has held that, because a defendant has a constitutional right to be present at his trial, a prosecutor, without a specific evidentiary basis for doing so, may not attack the defendant's credibility by drawing the jury's attention to the defendant's presence during trial and to his concomitant ability to alter his testimony to fit that which precedes it. State v. Daniels, 182 N.J. 80, 97-98 (2004). However, we do not understand the prosecutor to have erred as defendant argues in the present case, but instead construe his statement as recognition of the fact that, when physical evidence of defendant's break-in and intimate sexual contact with Sara was plain, defendant did not seek to deny the undeniable. No violation of defendant's constitutional rights as recognized in Daniels took place.
Defendant also claims that the prosecutor attacked his credibility by suggesting that he lied to the police. He, likewise, claims reversible error as the result of comments by the prosecutor that the testimony of Sara was more credible than his. The two statements by the prosecutor, to which no objection was interposed, are as follows:
Some people do lie to police. Not because they're guilty of crimes. Some people lie to the police because they don't want to get involved with investigation, "I didn't see anything," when they did. Some people do lie to the police and they're not guilty of a crime. Some people lie to the police because they are guilty of a crime.
And shortly thereafter:
And when you compare that [Sara's testimony] to the defendant, ladies and gentlemen, I would put [Sara] up against David Quintyne any day in the truth-telling contest. And I submit that most of you would, too.
We find no plain error to be presented, here. It is clear that a prosecutor must refrain from using epithets to describe a defendant or his character. State v. Clausell, 121 N.J. 298, 341 (1990). Nonetheless, the prosecutor may forcefully and vigorously present the State's case. State v. Morton, 155 N.J. 383, 457 (1998). Further, a prosecutor is not precluded from responding to the remarks of opposing counsel. State v. DiPaglia, 64 N.J. 288, 297 (1974).
We regard the comments of the prosecutor to which defendant now objects as such a response. In her summation, defense counsel stated that Sara was "making up" her entire story, stating that Sara "rambled on" while testifying, refused to answer defense counsel's questions, and used "the same words, repeated words, the same rehearsed words" to describe what had occurred. Defense counsel argued further that defendant, in contrast, was forthright with the police about what had happened, and that in general, his testimony was worthy of credence. The prosecutor's arguments met these statements. If any error occurred, it clearly did not rise to the level of plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
We similarly reject defendant's fourth argument that cumulative error requires a reversal in his case, finding that defendant's arguments in this regard lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Because defendant's sentence, imposed before the Supreme Court's decision in State v. Natale, 184 N.J. 248 (2005), was rendered in a fashion that does not conform to that decision's precepts, we remand the matter for resentencing in light of that case. Defendant's additional sentencing arguments can be considered by the trial judge at that time.
Defendants convictions are affirmed; the matter is remanded for resentencing.
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