On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-02-0195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Skillman and Yannotti.
Defendant was indicted for sexual assault, in violation of N.J.S.A. 2C:14-2c(1); and attempted sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c(1). A jury found defendant guilty of attempted sexual assault. The jury acquitted defendant of sexual assault, but found him guilty of the lesser included offense of criminal sexual contact, in violation of N.J.S.A. 2C:14-3. The trial court granted the State's motion to sentence defendant to an extended term and imposed a seventeen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for attempted sexual assault, and a concurrent eighteen-month term for criminal sexual contact.
Defendant's convictions were based primarily on the testimony of the alleged victim, B.S., a twenty-two-year-old married woman with a two-year-old-son. Defendant and the victim were friends who smoked marijuana together.
In the late afternoon on October 10, 2001, B.S. had a pizza delivered to her apartment. According to B.S., defendant knocked on the window to her apartment bedroom and told her the pizza delivery man had arrived. B.S. went outside and paid the delivery man for the pizza. She brought the pizza inside and put it down on the kitchen table. Defendant opened the door for her as she entered the apartment and followed her inside.
Defendant asked B.S. whether he could have a slice of the pizza, and she said yes. When she handed him a slice of pizza, defendant said: "I don't want that, I want you." Defendant then grabbed her around the waist. B.S. told him to stop, but defendant would not let go of her. According to B.S., they "ended up in the living room, tussling[,]" and she "told [defendant] to get off me, stop playing and let me go." She also told defendant that she was pregnant.
At this point, B.S.'s son, who had been asleep on the living room couch, began to wake-up. Defendant let go of B.S., and she walked over to the couch and patted her son back to sleep. After the child calmed down, defendant pulled B.S. into her son's bedroom, pushed her down on the bed and tried to pull her pants down. B.S. continued to resist, but defendant succeeded in pulling her pants down and also pulled down his own pants. According to B.S., defendant then penetrated her anally. He also attempted to penetrate her vaginally but was unsuccessful.
Defendant then asked B.S. whether she was "mad at him." She responded with an obscenity and told defendant to leave the apartment, which he did. Afterwards, B.S. called her mother and subsequently called the police to report the incident.
On cross-examination, B.S. indicated that she had let defendant into her apartment on prior occasions. However, she denied that their relationship involved hugging or defendant patting her "on the butt."
Defendant did not testify. However, the State introduced a statement that defendant gave the police after his arrest, which set forth his version of the events of October 10, 2001. According to defendant's statement, after B.S. paid the pizza delivery man, she asked him whether he wanted some pizza. After he said no, they stood outside talking for a little while, and he then "gave her a hug and smacked her on the butt." B.S. opened the front door to her apartment and again asked defendant whether he wanted some pizza. Defendant responded: "I don't want none of the pizza, I want you." According to defendant, "[B.S.] starting laughing and opened the screen door for me." She then handed him a slice of pizza, and when defendant told her he was "about to go back out there[,]" she again started laughing, put her slice of pizza down, and "walked up close to [defendant]." He put his "hands around her, like hugging her." After looking out a window to see whether her husband was coming home, she walked back towards defendant in the bedroom, and he again began "touching her butt" and started "grinding" her. At this point, B.S.'s son woke up and she went into the living room to take care of him.
Defendant gave the following account of what occurred after B.S. returned to him:
I told her, "You did that on purpose, to wake him up so we wouldn't have sex. Then she started laughing and said she was on her period anyway. She said, "If you keep feeling on my butt, you're going to touch a pad."
So I grabbed her butt and wanted to see if she had a pad on, and I didn't feel one. Then she said, "It's not a pad, it's a tampon." She stared laughing, and I said, "It ain't no tampon, because if it was, you would have said it was a tampon and not a pad."
Then she walked toward the room and lifted her shirt and asked me, "Don't I look pregnant?" And I told her, "No, you always been fat." She started laughing and went back into the room and sat on the bed. Then I went in the room and sat next to her, put my arms around her shoulder. We, like, on the bed grinding and stuff.
Then I asked her, "Let me hit that." She never said nothing, so I started taking off her pants. That took a long time, like three to five minutes. By that time her pants, like, below her waist on her butt, then that was it. We was still grinding. I still had on my pants, my clothes.
Some type of way, I stood up. And she was sitting on her butt, and then I started laying on her, grinding on her. Both our clothes are on. Then I started sweating and I said, "something stink." It was her.
. . . Then I said, "I don't want to stick you. Let me just rub on you," meaning, like, put my penis head on her vagina and rubbing it. Then she never said nothing, and started pulling her pants back up. Then I caught another scent and I sat up on my knees. I said, "It's too strong in here." Then I said, "Who you pregnant by, Keith or Derrick?"
I started laughing at her. Then she got up, walked in the front room. Then I asked her, "I know you're not mad at me. You don't got no attitude." Then she looked at me like, "Where the fuck you going? I know you ain't leaving." I told her, "I'm about to go back out."
Defendant also told the officers that B.S. never told him to stop and that "[s]he got mad" because he would not have intercourse with her. Defendant stated that when he said B.S. and he had been "grinding," he meant they had been "humping" with their clothes on. Defendant was not sure if his penis ever touched any part of B.S.'s body, but acknowledged ejaculating.
In addition, when one of the officers asked defendant whether he had ever had "sexual relations" with B.S., he responded: "No. We had a relationship, like, if I saw her, I'd smack her ass." Defendant concluded his statements by telling the officers: "I did not have any sex with her. Everything I did with her she agreed to it. I want you to investigate her. Most I did with her was grind on her and grab her ass."
Defendant attempted to present as a defense witness Nicole Blackshear, who resided in the victim's apartment for two to three months in the summer of 2001, to testify that B.S. had led the defendant on sexually and that she and defendant engaged in hugging and "butt touching" activity. However, the trial court barred Blackshear from testifying on the ground that her proposed testimony was subject to the Rape Shield Statute and that defendant ...