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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
A: He took the blue towel off, and while he was holding my forearm he ...