On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-07-00510.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Simonelli and King.
After his motion to suppress his statement was denied, defendant went to trial on the two charges in the indictment, second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count one), and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count two). The jury acquitted defendant of terroristic threats and the lesser-included offense of harassment. The jury convicted defendant of sexual assault. The judge sentenced defendant to seven years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also ordered parole supervision for life and registration under Megan's Law, N.J.S.A. 2C:7-2. Defendant argues on appeal:
POINT I THE POST-POLYGRAPH STATEMENTS WERE INADMISSIBLE BECAUSE THE INTERROGATING OFFICERS FAILED TO TAKE REASONABLE STEPS TO MEMORIALIZE THE INTERROGATION AND BECAUSE THE STATE FAILED TO PROVE THEIR VOLUNTARINESS BEYOND A REASONABLE DOUBT.
A. The Detectives' Account of the Interrogation
B. The Interrogating Officers' Failure to Make Reasonable Efforts to Memorialize [J.G.]'s Post-Polygraph Statements Rendered Them Inadmissible
C. The Officers' Failure to Create and Preserve a Record of the Interrogation Prevented the State From Proving Its Voluntariness Beyond a Reasonable Doubt
D. The Admission of the Post-Polygraph Statements Was Not Harmless Error
POINT II THE COURT ERRONEOUSLY INSTRUCTED THE JURY THAT THE STATE MUST PROVE, IN ORDER TO SECURE A CONVICTION OF SECOND-DEGREE SEXUAL ASSAULT, THAT THE COMPLAINANT DID NOT SUFFER SEVERE PERSONAL INJURY.
POINT III THE TRIAL COURT'S FAILURE TO SUBMIT HARASSMENT AS A LESSER-INCLUDED OFFENSE OF SEXUAL ASSAULT AND CRIMINAL SEXUAL CONTACT WAS REVERSIBLE ERROR AND DEPRIVED [J.G.] OF DUE PROCESS OF LAW.
POINT IV THE TRIAL COURT'S IMPROPER FINDINGS ON AGGRAVATING AND MITIGATING FACTORS REQUIRE RESENTENCING.
We reject these arguments and affirm.
This is a case of what is often referred to as "date rape." There is no dispute that the parties engaged in sexual acts. According to K.M., defendant committed the acts upon her by force. According to defendant, they were consensual.
Defendant and K.M. met in January 2004 at a bar and restaurant owned by K.M.'s family. K.M. was the manager and also a bartender. On Monday, May 10, 2004, while at the bar, defendant asked K.M. for a date. She accepted, and they agreed to go out that Friday. That week they talked periodically on the phone.
On Friday, K.M. hosted a birthday party for her son in the early evening, and then drove to defendant's house at about 10:00 p.m. She parked in the driveway, went into the house for about fifteen minutes, and the two left in defendant's car and traveled to a bar. They had a few drinks and socialized there with some friends of defendant until about 12:30 a.m., and then walked to another nearby bar, where they remained until closing time. They then embarked on the drive back to defendant's house.
According to K.M., during the drive defendant began making comments that made her nervous. On a "few" occasions he said, "I'm going to fuck you baby." She responded "No, you're not," but "kind of laughed it off." When they arrived at defendant's house, defendant parked in the driveway. K.M. got out and stood between her car and defendant's. Defendant invited her in. She declined, saying she had a nice time and would call him, but she wanted to go home. He insisted she come in and led her into the house by the arm. She acquiesced, not thinking he would sexually assault her.
Defendant directed K.M. to the couch in the living room, where he began kissing her. She asked him to stop, and again said she had a nice time and would call him, but she wanted to go home. He forced himself on top of her, touching her chest, and continuing to kiss her. She continued telling him to stop. He forcefully removed her pants and underwear. Begging him to stop, K.M. was pushed down to the floor. Defendant followed her to the floor, removed his pants and inserted his penis in her vagina. Scared, crying and trying to squirm away, K.M. continued telling defendant to stop.
K.M. was able to reach her purse, from which she removed her cell phone and attempted to dial 911. When defendant saw the phone, he grabbed it and threw it across the room. Becoming more aggressive, he pulled her up by the arms, backed her through the living room, down the hallway and to the stairs. He shoved her up the stairs on her hands and knees while he held her by the arms, ultimately throwing her on the bed in his bedroom. She continued to beg him to stop. Defendant pulled off K.M.'s shirt and bra and straddled her, attempting to place his erect penis in her mouth. She moved her head back and forth, trying to get away, but he got his penis in her mouth "just for a second."
He put his hands on her throat, restricting her ability to speak. She begged him to "please stop," saying that she had two kids at home and just wanted to get home to them. He said he was doing nothing wrong and she wanted it. He grabbed her neck tighter and said that if she ...