May 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRY CORNELIOUS JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-12-1276-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2008
Before Judges Winkelstein and Yannotti.
A Union County grand jury indicted defendant, Terry C. Jones, charging him with second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count two); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count four). Following a trial in April and May 2005, a jury convicted defendant of all counts. The court imposed consecutive seven-year prison terms for counts one and three, each subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; and concurrent eighteen-month prison terms on counts two and four.
On appeal, defendant raises two legal arguments:
THE JURY INSTRUCTIONS ON THE STATE'S EXPERT WITNESSES WERE DEFICIENT AND LACKING CRITICAL PORTIONS OF THE MODEL INSTRUCTION. (Not Raised Below).
THE JUDGE'S STATEMENT OF REASONS DOES NOT SUPPORT CONSECUTIVE SENTENCING; ADDITIONALLY, MERGER SHOULD BE ORDERED.
We agree with that portion of defendant's final point that the convictions for fourth-degree sexual contact should have been merged into his convictions for second-degree sexual assault. Otherwise, we find defendant's arguments to be without merit and affirm his judgment of conviction.
Nineteen-year-old K.A. was the daughter of an old friend of defendant's, and she considered defendant a "father figure" who had always been a positive force in her life. In January 2003, she moved from Florida, where she had been physically abused by her boyfriend, to New Jersey to attend school. She moved into defendant's three-story home in Elizabeth. Also living in the home were his brother, Denard, and defendant's six-year-old nephew. Because the first floor of the home was being renovated, they all lived on the top two floors.
The first incident that led to the charges against defendant occurred on the evening of Monday, March 17, 2003. K.A. testified that after she had gone to her room, the bedroom door opened, and defendant entered, wearing a t-shirt with a blue towel wrapped around his lower body. Defendant appeared to have been drinking. He told K.A. that he had fallen in love with her.
Defendant was active in the Mason's, and had encouraged K.A. to become a part of Eastern Star, the female branch of the Mason's. According to K.A., defendant told her that to become a member of Eastern Star, she would have to have sex with him because "that is how the women got in. They had to have sex with their fathers." K.A. testified that defendant then forcibly sexually assaulted her. She testified as follows:
A: I had my legs locked together, so he was having a hard time getting the pants down. So in order for him to get my pants down he couldn't do it with his hand, so he took his knee and put his knee to my knees applying pressure, which it hurt. So, eventually, my legs unlocked and he was between me on his knees.
While I was resisting at one point that is when I really, really started to fight him trying to get away. He had my hands over my head. He was holding them with one hand, like this, but he had both of my hands, and I maneuvered my way out, and when I maneuvered my way out I remember . . . he was between my legs then. So he reached over the bed and grabbed a Trojan condom, I don't know where that came from, but it was on the side of the bed.
Q: Then what happened?
A: He took the blue towel off, and while he was holding my forearm he put the condom on.
Q: Okay, and what did he do next?
A: I was still resisting, trying . . . to prevent it. So by that time he was erect and my legs were open, so he penetrated me.
Q: When you say penetrated you, he put his penis in your vagina?
Q: Approximately, how long was his penis in your vagina?
A: About, 10 minutes, something like that.
Q: Was he making any kind of movement when he did that?
A: Yes, Ma'am, he was pumping.
Q: And when you say pumping, meaning moving back and forth?
K.A. testified that at one point she had broken loose, and defendant restrained her by her neck, causing her to gasp for breath.
Following the assault, K.A. did not retrieve the condom, which defendant had placed in the trashcan, and she did not tell Denard, who was present in the home. She did not go to the police because she was "in shock." Although there were two phones in the home, she claimed that she did not have access to them, nor did she have her own cell phone. She testified that as a result of the incident, her "lip was bust," she sustained a bruise where he applied pressure to her arm, and she had scratches on her hand. The injury to her lip lasted three or four days, and the bruises remained on her arm for over a week.
K.A. testified that the following day, she told her boyfriend what had occurred. He told her to go to the police, but she did not do so because she was afraid.
The second incident occurred on March 22, 2003. According to K.A., at approximately 4:00 a.m. defendant entered her room, wearing the same towel that he had worn the first time, but wearing a different t-shirt. She testified that "[h]e sat on the foot of my bed and he began to talk to me about child/father -- well, parent/child relationship, basically, about how I should just listen and do what he says, obedience. Obedient child will live long, a disobedient child won't." She described what happened:
So he began to try to tug on my clothes. I held onto my shorts tightly. At one point I heard the elastic begin to rip, like you would hear the strings popping, and I let go and at this time instead of trying to cover myself with the nightgown I put it between my legs and held my legs together tightly.
Q: What happened next?
A: He got my pants off and I had my legs up with my hands around them, like this. So by that time, again, he couldn't unlock my legs. So he pulled me by my ankles, and when he pulled me I came to him, but this time I went completely off the futon bed and my butt ended up on the floor. I tried to cross my legs, which I did, like crossed them.
Q: One on top of another, you mean?
A: Yeah. He, eventually, [pried] them open and had one knee in between me again. Again, he did the same thing. He reached to the side of the bed and picked up a condom, again, and applied the condom. . . .
A: When he pulled me off of the bed he penetrated me again and I screamed, and I just remember screaming because it hurt, like he had poked something. I was screaming. It was discomfortable, and I think I was screaming more out of terror and fear, but it was painful when . . . his penis went inside my vagina.
Q: About how long was he inside you?
A: This time he didn't do any pumping or anything. He looked at me with a dead stare, like, "Why are you screaming," and I didn't respond. I was, like, just crying and screaming. So he stayed there for a minute like I said. He just did like a dead stare at me and then he got off.
Following the second incident, K.A. logged onto the computer and entered a chat room, and told someone, who had identified herself as a young girl, that she needed help, and she gave the girl her boyfriend's telephone number. She subsequently reported the incident to the police, who sent K.A. to a local hospital emergency room, where she was examined by a sexual assault nurse examiner, Elizabeth Deo.
According to Deo, K.A. did not complain of vaginal pain or tenderness. Deo did not observe any injuries during her physical examination of K.A. She did testify, however, that physical injuries are not always present, and in fact in the twenty rape examinations that she had done, she had only seen vaginal injuries on two or three occasions. She testified that vaginal injuries normally only occur in instances of gang rape or when an object is inserted into the vagina. Deo did not observe K.A. to have a "busted lip" nor did she see any bruising or other injuries to her legs. Deo did observe a number of scabbed abrasions on the back of K.A.'s hand and broken blood vessels on the upper part of her arm. Officer Lawrence Gioconda testified that when K.A. turned the condom over to him, he saw her "fat lip" and scratches on her left arm.
Detective Michael Meola arrested defendant that evening. According to Detective Meola, after he told defendant that K.A. said that defendant had sexual intercourse with her, and that the police were in possession of the condom, which was to be tested for DNA, defendant said:
"Maybe this could have happened," and he said because he was drinking and he was drunk, and I said, well, can you tell me why you think that you were drunk? He said that he has about five or six beers every night and that on Friday night he had some Hennessy, cognac, and maybe that was the reason why . . . .
K.A.'s boyfriend corroborated that K.A. complained to him that defendant forcibly sexually assaulted her. He also noticed a "reddish" mark on her arm. T.C., the twelve-year-old girl who had received the chat room message from K.A. on March 22, testified that she told K.A.'s boyfriend that K.A. had contacted her and she was in trouble.
Margaret Cuthbert, a forensic scientist, testified that the "rape kit" from K.A.'s physical examination yielded no blood or semen. Semen was detected, however, on the blue towel wrap that defendant had been wearing, and on the bedspread, as well as inside the condom. She admitted, however, that there was no way to test for the age of the semen stains that were found on the bedspread.
Christopher Knickerbocker, a DNA analyst, concluded that the sperm in the condom belonged to defendant, and that the nonsperm-containing fluids on the condom could not exclude K.A. and defendant as contributors. Nonetheless, the test results were not conclusive, in that the nonsperm sample could have come from one in 350,000 African Americans, one in 4.7 million Hispanics, or one in 1 million Caucasians. Furthermore, at one location on the DNA strand, a sample was inconsistent with either K.A.'s or defendant's DNA.
Defendant did not testify at trial. His brother, Denard, testified that he did not observe any injuries on K.A.'s lip, and she never mentioned the assault by defendant. Denard testified that although he was present in the house on the evening of the first incident, he did not hear any commotion, screaming or fighting.
Against this factual background, we turn to defendant's first argument on appeal, that the court failed to properly instruct the jury with regard to the testimony of the State's experts, Nurse Elizabeth Deo, forensic scientist Margaret Cuthbert, and DNA expert Christopher Knickerbocker.
Deo testified first. The State did not specifically qualify her as an expert, but during the State's initial voir dire of Deo, defendant submitted to Deo's qualifications. During the course of Deo's testimony, she explained her special training as a licensed forensic nurse, and that she had attended a class for sexual assault nursing, had other training, and had examined about twenty sexual assault victims. The judge did not provide the jury with an expert witness charge prior to or at the time Deo testified.
Cuthbert was the next expert to testify. The State qualified her as an expert and defense counsel stipulated to her qualifications. The judge gave the jury the following instruction:
Generally, when a witness testifies in a court of law they could only testify as to facts they perceived through one of their five senses and, generally, opinion evidence isn't allowed, but when somebody possesses some special skill, knowledge, training or experience that person may give opinion evidence, if it related to you, to your job as judges of the facts. You are not bound by this evidence. You judge the credibility of the witness, as any other. You may believe a portion of her testimony, all of it or none.
And [defense counsel] has stipulated that this witness is a forensic scientist.
The judge did not provide an additional expert witness charge to the jury during Knickerbocker's testimony.
Nonetheless, the court informed the jury that the parties had stipulated that Knickerbocker was an expert in DNA analysis and the judge qualified Knickerbocker as an expert to give opinion evidence in that field.
In his final charge to the jury, the judge did not follow the model charge on expert testimony, see Model Jury Charge (Criminal), "Expert Testimony," (2003); he did, however, give the jury the following instruction:
I want to remind you about the expert witness. As I told you, the expert witness is permitted to give opinion testimony when he possesses some special skill, knowledge, training or experience and that would assist you in your deliberations in this case.
As I indicated to you before, you are not bound by any such testimony. You can weigh the testimony of an expert witness the same way you weigh the testimony of any other witness. You could believe all of it, part of it or none of it.
Defendant did not object to the court's instructions to the jury regarding expert testimony. We therefore consider his argument under the plain error standard - that is, we will not reverse on the basis of that error unless it is "clearly capable of producing an unjust result." R. 2:10-2.
In determining the propriety of a trial court's charge to the jury, we review the charge in its entirety, and if "prejudicial error does not appear, then the verdict must stand." State v. Ramseur, 106 N.J. 123, 280 (1987) (internal citation omitted). "A party is entitled only to a charge that is accurate and that does not, on the whole, contain prejudicial error." State v. Labrutto, 114 N.J. 187, 204 (1989).
Here, defendant does not claim that the court provided the jury with an affirmative misstatement of the law, but rather an incomplete instruction. Defendant claims the court failed to inform the jury that Deo was an expert; that the value of all the experts' opinions was only as strong as the facts on which those opinions were based; and that the ultimate determination of whether defendant was guilty was the sole province of the jury. Although we agree with defendant that the court's instruction to the jury was not complete, we disagree that the incomplete instruction is grounds for reversal of defendant's conviction.
The court instructed the jury that it was not bound by an expert's opinion; it was free to believe all, some or none of the expert testimony; and the jury should weigh the expert's testimony the same as it would weigh the testimony of any other witness. That is, the jury could believe "all of it, part of it or none of it." The court further instructed the jury that it could consider "the extent to which, if at all, the witness was supported or contradicted by other evidence." In light of the instructions as a whole, the incomplete instruction did not "tip the scales in the jury's deliberations." State v. Marrero, 148 N.J. 469, 497 (1997). The jury was aware that Deo, Cuthbert and Knickerbocker were experts. Defense counsel had a full opportunity to challenge the credentials of each witness, and cross-examine them on their substantive testimony. The court gave the jury the standard charge as to witnesses in general, and sufficient information as to experts in particular. We do not find that the failure to give the complete expert witness charge was clearly capable of producing an unjust result.
We next address defendant's sentencing argument, that the trial court failed to make sufficient findings to justify consecutive sentences. Although we agree that the trial court did not adequately articulate the findings required to impose consecutive sentences under the standards established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), we nevertheless affirm the court's decision to impose consecutive sentences as the "facts and circumstances leave little doubt as to the propriety of the sentence imposed." State v. Jang, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003). The crimes charged in counts one and three occurred five days apart. They involved separate acts of violence against K.A. and were not committed so close in time as to reflect a single period of aberrant behavior. And, as the trial judge indicated, imposition of consecutive sentences fosters the first criterion enunciated in Yarbough, supra, that there can be no free crimes. 100 N.J. at 643.
Finally, neither party disputes that the court should have merged counts two and four, the convictions for criminal sexual contact, into counts one and three, respectively, the convictions for sexual assault. Consequently, we remand for the trial court to so amend the judgment of conviction. Otherwise, defendant's conviction and sentence are affirmed.
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