October 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH DRAKE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Parrillo and Messano.
Defendant Keith Drake appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2c(1). The trial judge granted the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender, N.J.S.A. 2C:44-3a, and imposed a seventeen-year term of imprisonment, 85% of which was to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following points for our consideration:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUTIOUSLY VOLUNTEERED BY THE VICTIM INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT SIMILAR TO THAT FOR WHICH HE WAS ON TRIAL. (PARTIALLY RAISED BELOW)
THE DEFENDANT IS ENTITLED TO A REMAND FOR A RESENTENCING PURSUANT TO STATE V. PIERCE.
THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE.
In a pro se supplemental brief, defendant additionally argues:
THE TRIAL COURT'S FAILURE TO DEFINE COERCION AS AN ELEMENT OF THE SEXUAL ASSAULT ALLEGED IN COUNT 3 DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW.
DEFENDANT WAS FOUND GUILTY BY A JURY OF COUNT 3 SEXUAL ASSAULT BY PERFORMING CUNNILINGUS. THE STATE MUST PROVE BEYOND A REASONABLE DOUBT ON ALL ELEMENTS.
THE TRIAL COURT ERRED WHEN CHARGING THE JURY ON THE ELEMENTS, THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT.
PROSECUTOR FAILED TO PROVE BODILY INJURY BEYOND A REASONABLE DOUBT.
WHERE THE DEFENDANT WAS FOUND GUILTY OF COUNT 3 SEXUAL ASSAULT PERFORMING CUNNILINGUS AND THE ACTOR USED PHYSICAL FORCE OR COERCION, BUT THE VICTIM DOES NOT SUSTAIN SEVERE PERSONAL INJURY.
LEWDNESS IS NOT A LESSER INCLUDED OFFENSE OF SEXUAL ASSAULT.
THE DEFENDANT . . . RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE COURSE OF HIS TRIAL.
We have considered the arguments raised in light of the record and applicable legal standards. We affirm defendant's conviction, but remand the matter to the trial judge for re-sentencing.
On March 30, 2005, at approximately 2:30 p.m., J.H., an eighteen-year old high school student, visited her neighbor, defendant's mother, a woman known in the neighborhood as "Mama Drake." J.H. frequently visited her, and defendant, who was thirty-five years old at the time, often stayed at his mother's home. On the day in question, he was there when J.H. arrived.
Defendant told J.H. that his mother was at the nail salon, and as J.H. attempted to leave through the front door, defendant gave her a hug, told her he missed her, loved her, and "wanted to take care of her." He asked J.H. to stay and watch television with him, and she sat on the couch next to defendant. Defendant tried to kiss J.H., but she "shoved him to the side," and told him to stop. When J.H. tried to leave the house, defendant blocked the door.
Defendant grabbed J.H., brought her back to the couch, and straddled her. He tried to kiss J.H.'s neck and said, "I just want to taste you. Let me taste you." J.H. resisted and said, "No, I'm like not into boys." Defendant knew J.H. was a lesbian and that she was dating a female. While kneeling in front of J.H., defendant unbuckled her pants, pulled them down, and exposed her underwear. J.H. tried to push defendant off and repeatedly told him she was "not into males." Defendant was unable to remove J.H.'s shorts, so he moved them to one side and began performing oral sex on her. J.H., who was 5'2" and weighed about 120 pounds, tried to push defendant, who was 5'7" and weighed 200 pounds, off her, but he was able to hold her down with his legs and forearms.
Defendant unbuckled his pants, removed his penis, and tried to penetrate J.H.'s vagina, but she testified that defendant "didn't go all the way in." Defendant masturbated, ejaculated, and some sperm came in contact with J.H.'s shirt. Defendant asked J.H. if it was her first sexual encounter, she told him it was, and defendant pulled up his pants and went to the bathroom.
After cleaning herself, J.H. started to leave the house, telling defendant she was going to her brother's house. Defendant called her on her cell phone and asked her if she had enjoyed what had just happened. When J.H. said "No," defendant asked, "[S]o it ain't gonna ever happen again?" J.H. responded, "I said no . . . it's never gonna happen again . . . ."
Instead of going to her brother's house, J.H. went home and called her cousin and best friend, A.H. J.H. told her about the entire incident. After taking a shower and changing her clothes, J.H. went to see her brother but did not reveal any details of the incident to him or her mother, who returned home around 6 p.m. J.H. stayed home from school the next day.
The following day, J.H. noticed spotting in her vaginal area, became upset, and told her brother what had happened. She told him that defendant had "violated me." J.H. telephoned her mother at work and told her the same thing. Her mother left work, returned home, and called the police. When the police arrived, J.H. told them about the incident.
Police officer Desmond Clark questioned J.H. and she told him that the defendant had sexually assaulted her two days earlier, but that she was too upset and scared to report it. Clark testified that J.H. was crying and embarrassed. The police obtained the shirt J.H. wore during the assault, and they transported J.H. to the hospital for a medical evaluation and forensic tests. J.H. had no visible signs of physical injury.
During trial, A.H., defendant's brother, and mother all testified regarding the statements J.H. made to them about the incident. A DNA sample taken from defendant when he was arrested matched the DNA found in the semen stain on J.H.'s shirt. Defendant chose not to testify and offered no witnesses in his defense.
Defendant moved to dismiss count one of the indictment which charged him with third-degree criminal restraint, N.J.S.A. 2C:13-2. After denying defendant's motion, the judge conducted a charge conference with the attorneys. Defendant objected to the inclusion of any lesser-included offenses in the charge. However, over defendant's objection, the judge charged the jury as to false imprisonment, N.J.S.A. 2C:13-3, as a lesser-included offense to count one. He also charged the jury as to fourth- degree criminal sexual contact, N.J.S.A. 2C:14-3b, and lewdness, N.J.S.A. 2C:14-4a, as lesser-included offenses to counts two (second-degree sexual assault by vaginal penetration through physical force or coercion, N.J.S.A. 2C:14-2c(1)), and three (second-degree sexual assault by performing cunnilingus through physical force or coercion, N.J.S.A. 2C:14-2-c(1)).
The jury acquitted defendant of counts one and two, and all lesser-included offenses, but returned a guilty verdict as to count three. We discuss below defendant's sentence in the context of the issues raised on appeal.
Defendant argues the following comments made by the prosecutor in her summation amounted to misconduct requiring reversal:
And there has been no evidence . . . that this was consensual at all. Don't be deceived by what's not important here. There was no evidence that this was a consensual act.
Again, I remind you there has been no evidence that this was consensual sex.
And there has been no evidence submitted in this case that . . . there was consent given by [J.H.] at any time to the defendant's act.
At another point in her summation, in discussing J.H.'s reluctance to tell her mother about the assault, the prosecutor argued the following:
If I'm gonna accuse my neighbor's son of sexually assaulting me, I'm gonna think about it. Why? Not because I'm lying, I submit to you, but because I care about those relationships and my relationship with those around me, those people peripherally involved in this case. I don't want to upset my mother unless I have to. Is that consistent here? Yes. Why? She knew her mother was gonna flip. Whose mother wouldn't? Does anyone like to upset their mother? I submit to you they do not. Does anyone want to . . . upset someone else's mother? Not without good reason.
Defendant lodged no objection to the comments, and so we review them utilizing the plain error standard. R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971)(noting the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached").
As to the first set of comments made by the prosecutor, it is defendant's contention that she improperly drew attention to his decision not to testify, and as to the second, he argues the prosecutor "vouched for the victim's credibility." We find no merit to the arguments raised.
"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). They are therefore allowed "considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. As long as the comments do not misstate the evidence, prosecutors are permitted to rebut the specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006). Additionally, a defense counsel's "failure to object suggests that [he] did not believe the remarks were prejudicial at the time they were made," and that failure "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84 (citation omitted).
In her first comments, the prosecutor was responding directly to the main thrust of the defense in the case, i.e., that a sexual encounter occurred, but that it was consensual. In his summation, defense counsel explicitly stated as much, and highlighted the lack of any physical injuries to J.H. as indicative of the consensual nature of the encounter. As to the latter comments, credibility was the essential issue in the case. Defense counsel argued in summation that J.H. could not be believed, in part because of her delay in telling people close to her about the occurrence and the details of the assault. None of the prosecutor's comments were impermissible, much less plain error.
During direct examination, the following exchange took place between the prosecutor and J.H.:
Q: Okay. How did you feel when you told [your friend A.H.]?
A: Because . . . she's my best friend. And I mean she had an incident that went on between her and [defendant] too.
Defense counsel objected, and after a brief sidebar at which the prosecutor explained that she was not seeking to elicit that information with her question, the judge told the jury,
Ladies and gentlemen, if you would disregard that last question and the response to that, and so it should not be considered. [Prosecutor], the objection is sustained.
Defendant argues J.H.'s answer implied prior, similar sexual conduct on his part with her best friend, that this violated N.J.R.E. 404, and that the judge's curative instruction was insufficient.
We agree the answer given by J.H. was improper, however, given the fact that 1) the prosecutor did not seek to elicit this information; 2) a timely objection was made so that the answer was limited; and 3) the judge gave an immediate and forceful charge to the jury, the error was harmless. Macon, supra, 57 N.J. at 337-38.
Turning to the arguments raised by defendant in his pro se supplemental brief, we find them to be of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments.
Defendant contends the judge erred in his charge because he failed to define "coercion" as part of the instructions on the two counts of sexual assault; the State counters that the court properly did not define "coercion" because it was the State's theory, and the evidence adduced proved, that defendant used physical force during the assault, and therefore any instructions regarding the definition of "coercion," see N.J.S.A. 2C:14-1(j), were unnecessary and would have confused the jury.
We agree. The trial judge must tailor the charge to the particular facts of the case. State v. Savage, 172 N.J. 374, 389 (2002). Here, there was no allegation that defendant coerced J.H. into the sexual encounter. Rather, the State contended he used physical force to achieve his result. The judge properly charged the jury on the essential elements of the crime--defendant does not contend otherwise--and in all respects the charge comported with the model jury charge on sexual assault.
Defendant claims the judge should not have charged the lesser-included offense of lewdness. Whether lewdness was in fact a lesser-included, as opposed to a lesser-related offense, see State v. Thomas, 187 N.J. 119, 132-33 (2006)(discussing the difference and whether the court may charge a lesser-related offense if objected to by defendant), may be open to debate under the facts of this case and the State's theory of guilt. However, we are hard-pressed to see how including the charge resulted in any prejudice to defendant since the jury found him guilty of the greater charge of sexual assault in the second degree, the crime for which he was indicted.
Defendant's claim that the verdict was against the weight of the evidence is both procedurally-barred, and unavailing on the merits. Having never moved for a new trial, defendant's claim is not cognizable. Rule 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Moreover, there was more than sufficient evidence in the record to support the jury's guilty verdict on the charge.
Lastly, defendant's ineffective assistance of counsel claim is difficult to comprehend since it seemingly is based upon the issues raised in Point I and II of the appellate brief filed by his designated counsel. However, to the extent the claim involves allegations outside the trial record, they are preserved in the event defendant files a petition for post-conviction relief. R. 3:22-1; State v. Preciose, 129 N.J. 451, 462 (1992).
We conclude our review by considering the points raised by defendant as to the sentence imposed. He contends that the judge did not follow the guidance provided by our Supreme Court in State v. Pierce, 188 N.J. 155 (2006), thus requiring our remand for re-sentencing. Additionally, defendant contends the judge erred in assessing the applicable aggravating, N.J.S.A. 2C:44-1a, and mitigating, N.J.S.A. 2C:44-1b, sentencing factors.
Defendant concedes that the State proved the statutory requirements of N.J.S.A. 2C:44-3a, permitting the imposition of a discretionary extended term. He further concedes that the sentencing in this case is governed by the holding in Pierce, a decision that was announced seven months before he was actually sentenced. He contends, however, that since the judge never specifically referenced Pierce, "it is clear neither the court nor respective counsel was aware of it, and the manner in which it had changed the imposition of extended terms on persistent offenders."
In sentencing defendant, the judge recited verbatim the Supreme Court's extended term analytic paradigm enunciated in State v. Dunbar, 108 N.J. 80 (1987).
First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility. [Id. at 89.]
In deciding whether to impose an extended term in the first instance, under Dunbar, the judge was to focus primarily on "the interest of public protection." Id. at 91.
However, in Pierce, the Court modified the framework. It held that in order to comport with "recent Sixth Amendment decisions,"
The sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process. [Pierce, supra, 188 N.J. at 168.]
"[T]he range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169.
Our review of the transcript of defendant's sentence does not convince us that the judge applied Pierce's modified paradigm in imposing sentence upon defendant. He instead employed Dunbar's analysis, did not consider the full-range of sentences available, and utilized "protection of the public" as a reason to impose an extended term, as opposed to considering that factor solely to fashion the proper sentence within the expanded range of sentences available.
Defendant's arguments regarding the trial judge's determination of the applicable aggravating and mitigating factors lack merit, with one exception. The judge concluded aggravating factors two, three, six and nine applied, and he found no mitigating factors. Given defendant's prior record that included nine prior indictable convictions, five prior sentences to state prison, three prior probationary sentences, and an extant restraining order, the judge's conclusion that defendant posed a risk to re-offend, had a prior, serious criminal record, and needed to be deterred, N.J.S.A. 2C:44-1a(3), (6), (9), is beyond dispute.
In concluding aggravating factor two applied, the judge addressed defendant at sentencing and noted,
[J.H.] regarded your mother as Mama Drake. It was a house of . . . trust, it was a house of refuge. She was a person, your mother, who the victim trusted and looked to go to that home and was safe and knew it was safe and secure. And she wasn't the only one . . . .
[T]he other problem . . . is that you're 35 years old. [J.H.] was 18. She kind of grew up with you. She grew up in this neighborhood. It wouldn't be, I'm sure when she was several years younger, to run into the house for milk and cookies. And she . . . got something she never anticipated.
This is somebody 18 years old, just an adult, her whole life in front of her. Her first sexual experience . . . this is not what she should find that life is about.
Aggravating factor two permits the judge to consider
[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance. [N.J.S.A. 2C:44-1a(2).]
Although J.H. was half defendant's age, and knew him and his family for some time, she was not of "extreme youth." She suffered from no physical or mental condition that made her particularly vulnerable to defendant's assault, and, while the crime perpetrated upon her was serious and disturbing, every sexual assault is an offense of similar "gravity and seriousness." It was defendant's mother, not defendant, in whom J.H. reposed a special relationship of trust and friendship. Therefore, we must conclude that in this limited sense, the trial judge erred in concluding aggravating factor two applied and in utilizing it in considering the appropriate sentence.
We affirm defendant's conviction. We remand the matter to the trial court for re-sentencing, utilizing the framework established in Pierce; in doing so, the judge may not apply aggravating factor two to the analysis. We do not retain jurisdiction.
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