March 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEON NELSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 27, 2008
Before Judges Axelrad and Sapp-Peterson.
Defendant Leon Nelson was convicted by a jury of second-degree sexual assault as a lesser-included offense of first-degree aggravated assault, and was also found guilty of third-degree criminal restraint, N.J.S.A. 2C:13-2. He was acquitted of third-degree threatening to kill and third-degree burglary. On August 12, 2005, defendant was sentenced on the sexual assault conviction to a discretionary extended term of twenty years with an 85% term of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year term on the criminal restraint conviction. Appropriate mandatory monetary assessments were imposed.
On appeal, defendant raises the following arguments:
BY FAILING TO PROPERLY INSTRUCT THE JURY ON SEXUAL ASSAULT AS A LESSER-INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT, THE TRIAL COURT DENIED MR. NELSON HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
A. A SEPARATE INSTRUCTION ON SEXUAL ASSAULT WAS ESSENTIAL TO A FAIR TRIAL.
B. QUESTIONS 1 AND 1a ON THE VERDICT SHEET COULD NOT SUBSTITUTE FOR A PROPER JURY INSTRUCTION ON AN OFFENSE BEFORE THE JURY.
C. IT WAS NOT SUFFICIENT FOR THE TRIAL JUDGE TO EXPLAIN SOME OF THE ELEMENTS OF SEXUAL ASSAULT WHILE INSTRUCTING ON AGGRAVATED SEXUAL ASSAULT.
D. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON SEXUAL ASSAULT WAS BOTH PLAIN ERROR AND STRUCTURAL ERROR.
THE COURT ABUSED ITS DISCRETION IN SENTENCING MR. NELSON TO AN EXTENDED TERM AS A PERSISTENT OFFENDER. EVEN IF AN EXTENDED TERM HAD BEEN APPROPRIATE, THE MAXIMUM 20-YEAR TERM IMPOSED WAS EXCESSIVE.
A. THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING THAT AN EXTENDED TERM WAS WARRANTED.
B. THE COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM EXTENDED TERM (20 YEARS) UNDER THE CIRCUMSTANCES OF THIS CASE.
We are not persuaded by defendant's arguments raised in Point I and affirm his conviction. We remand for resentencing, however, under State v. Pierce, 188 N.J. 155 (2006).
The victim, M.T.M., testified at trial that she tried to end her relationship with defendant in September 2003, but he had difficulty accepting it. For the next several months he went to her house on several occasions to try to reconcile with her, phoned her constantly, and left messages crying and begging her to be with him. She testified that shortly before noon on November 5, 2003, defendant let himself into her house and went into the bedroom where she was talking on the phone with another ex-boyfriend. When she saw defendant standing in the doorway, she informed the caller and presumably he phoned the police. When defendant told M.T.M. to get off the phone and she refused, he disconnected the phone and threw it down. A struggle then ensued in which defendant grabbed her by the neck, led her to another bedroom, and in a jealous rage ripped off her shorts and underpants, grabbed her by the hair, laid her down on her stomach, licked her breasts, vagina and "butt," and penetrated her from behind with his "semi-soft" penis.
The responding police officers confirmed that they arrived at the scene and decided to force entry into the victim's residence when they heard her scream. One of the officers stated that the scream was so terrible it scared him to the point where he drew his firearm. The officers then made entry into a room where a door was partially opened and found defendant on all fours over the victim with his pants around his ankles and her clad only in a t-shirt. The officers observed that the victim was extremely shaken up and almost in a state of hyperventilation, and she had red marks and swelling on her arms, neck and face.
Defendant testified that M.T.M. admitted him into her house as she usually did when he visited her and the children. He claimed he then joined her and the children in a bedroom, and proceeded to play with the children. According to defendant, M.T.M. then led him into another bedroom and tried to initiate sex but he was unable to become aroused because he disliked having sex with her when she was menstruating. He explained that the marks on M.T.M.'s neck were from rough foreplay during prior lovemaking.
The trial court gave an instruction on aggravated sexual assault pursuant to the Model Jury Charge. The court noted and explained the four elements the State needed to prove beyond a reasonable doubt to find defendant guilty of that offense: (1) committing an act of sexual penetration; (2) acting knowingly; (3) using physical force or coercion; and (4) that the victim sustained severe personal injury. The Model Jury Charge for sexual assault is identical to the Model Jury Charge for aggravated sexual assault with the exception of element number four, severe personal injury. Therefore, rather than reiterating the first three elements, the judge then noted that the first three elements of the offenses were identical and aggravated sexual assault additionally required severe personal injury. The court stated, in summary:
[I]f you find the State has failed to prove any of the first three elements that I have reviewed with you [that defendant committed an act of sexual penetration on the victim, that defendant acted knowingly, and that defendant used physical force or coercion] beyond a reasonable doubt then you must find the defendant not guilty of aggravated sexual assault. If you find that the State has proven beyond a reasonable doubt all four of the elements that I've just reviewed with you [the additional element that the victim sustained severe personal injury] then you must find the defendant guilty of the crime of aggravated sexual assault. And if you find that the State has proved the first three elements beyond a reasonable doubt but failed to prove the fourth element then you must find the defendant guilty of sexual assault.
Defense counsel had no objection to this instruction.
The jury was also given questions on the verdict sheet which delineated the elements of the specific charges, namely in question one whether defendant knowingly committed an act of sexual penetration upon M.T.M. using physical force or coercion, which constituted the lesser-included offense of sexual assault for which defendant was found guilty, and a second part which inquired whether the victim sustained severe personal injury, to which the jury answered in the negative.
Defendant asserts as plain error that the trial court failed to give a distinct jury charge on sexual assault that specifically defined the elements of that offense and included a question on the verdict sheet which set out the elements of the respective offenses, without identifying what offense it described so that the term sexual assault was never expressly defined for the jurors. He cites State v. Green, 318 N.J. Super. 361 (App. Div. 1999), aff'd, 163 N.J. 140 (2000), in support of his position that the trial court gave an improper jury charge constituting reversible error. In State v. Green, the jury was not given an instruction at all on count four of the indictment, second-degree aggravated assault while eluding a law enforcement officer, N.J.S.A. 2C:12-1(b)(6), an offense of which defendant was convicted. Instead, the jury was provided a verdict sheet that asked whether Green had caused bodily injury to a specific detective while fleeing or attempting to elude that law enforcement officer. Id. at 379-80. We held that a "verdict sheet is not a substitute for a verbal instruction from the judge" and that the trial judge's failure to instruct the jury at all on the offense of aggravated assault while eluding required plain error reversal of that conviction. Id. at 381.
Defendant in this case points to the fact that the trial judge in Green had discussed the elements of the aggravated assault offense, without identifying them as such, in the jury instructions she gave on the other counts of Green's indictment. The judge delineated and explained the element of "eluding a law enforcement officer" when she instructed the jury on second-degree eluding a law enforcement officer (count three) and also defined "bodily injury" when she charged third-degree aggravated assault on a police officer (count two). Ibid. Defendant thus claims the ruling in Green is dispositive of the present case because the judges in both cases made the same series of mistakes, demonstrating the same misconception of what may substitute for an acceptable jury instruction on an offense that the jury must decide upon. Specifically, according to defendant, both judges (1) failed to give a separate instruction on the offense that the respective juries ultimately convicted the defendants of, but instead; (2) included a question on the verdict sheet which set out the elements of the respective offenses, without identifying what offense it described; and (3) only defined elements of the given offense in their instructions on other offenses that shared one or more of those elements. Defendant concedes that this case differs from Green in that the offense he challenges as uninstructed was not charged in the indictment but rather was a lesser-included offense of aggravated sexual assault. Moreover, one of the noted deficiencies in the trial judge's instructions on the challenged offense in Green was, "at the very least," her failure to "refer to her prior instructions on eluding a police officer and bodily injury." Ibid.
Here, the trial court did not rely exclusively on the jury sheet in lieu of a jury instruction. Unlike the judge in Green, the court gave all the elements of sexual assault in his jury instruction and specifically tied them to the offense. The judge informed the jury that it would receive an instruction on both aggravated assault and sexual assault. However, because the first three elements of both offenses are the same, he did not repeat the first three elements when giving his instruction on sexual assault. Instead, the judge simply instructed the jury that if the State proved the first three elements beyond a reasonable doubt but failed to prove element number four, it must find defendant guilty of sexual assault. Thus, unlike in Green, the court did instruct the jury by essentially noting that satisfaction of the first three elements alone would establish the elements of the offense for sexual assault. We are satisfied the trial court's instruction was clear enough that no reasonable juror would have misunderstood the elements of sexual assault and that the State had to prove each element beyond a reasonable doubt. We are not convinced that had the trial judge read the first three elements on sexual assault over again, the result would have been any different. Thus, viewing the instructions as a whole, the verdict sheet, and defendant's conviction of the lesser-included offense, we are satisfied the instruction was not so prejudicial that it had the capacity to bring about an unjust result. State v. Afanador, 151 N.J. 41, 54 (1997); see also State v. Chapland, 187 N.J. 275, 289 (2006) (holding that any finding of plain error depends on an evaluation of the overall strength of the State's case).
Defendant was sentenced to a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3(a). The court imposed the maximum allowable extended term for a second-degree offense, twenty years, under a State v. Dunbar analysis.*fn1
Defendant was sentenced prior to the Supreme Court's decision in State v. Pierce, supra, which modified the four-step State v. Dunbar discretionary extended-term sentencing process. 188 N.J. at 168-70. As defendant's appeal was in the "pipeline" as defined in State v. Natale, 184 N.J. 458, 494 (2005), and as required by Pierce, defendant is entitled to a remand for resentencing.
The conviction is affirmed; remanded for resentencing.