On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Parker and LeWinn.
Camden County Indictment Number 05-08-3205 charged defendant Darnell Stewart with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree criminal attempt/sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2). Defendant was tried to a jury between June 12 and 21, 2006. At the close of the evidence, defendant moved for a mistrial and for a judgment of acquittal; the trial judge denied both motions. The jury thereafter convicted defendant of all charges.
The State moved to have defendant sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). At sentencing, the trial judge granted the State's motion, denied defendant's renewed motion for a mistrial and his motion for a new trial, and sentenced defendant to an aggregate term of sixty years with an 85% period of parole ineligibility.
On appeal, defendant raises two claims of trial error and contends that his sentence is excessive. For the reasons that follow, we remand for re-sentencing in accordance with N.J.S.A. 2C:44-5(a)(2), but otherwise affirm.
The pertinent trial evidence may be summarized as follows. On October 23, 2004, at approximately 7:00 a.m., thirty-eight-year-old B.S. was returning to her home in Camden after an evening in Atlantic City. She alighted from a bus at the intersection of Broadway and Chelton, approximately four blocks from her house. B.S. testified that she routinely got off at this stop, about "eight or nine times a week," and regularly took a "shortcut" that involved crossing over railroad tracks. On this occasion, however, B.S. stated she did not walk along the tracks because "[s]omebody was trying to get [her] attention in back of [her]."
B.S. testified that a man, later identified as defendant, called out to her three times and said "'[y]o, ho, wait up,'" and "'[c]an you hold on? I want to talk to you,'" but she rebuffed him, stating, "'I'm going home, I'm not interested in talking to you.'" B.S. testified that she had never seen defendant before, and described him as being six-foot-two-inches tall with a ponytail, "slanted" eyes, "a little beard," and wearing "a black hoodie [and] two-tone [blue] jeans[.]"
After defendant called out to her three times, B.S. began "walking fast... [b]ecause he was getting really close" to her. At this point, she "felt him hit [her] on the side of [her] face and then he grabbed [her] by [her] neck...." B.S. stated that defendant hit her twice, presumably with his fist, and that she "felt the blood coming down on the side of [her] face." He told her not to scream, and "grabbed [her] by the neck and took [her]... to the walkway... under [Route] 676, under the [underpass]."
B.S. testified that once beneath the underpass, defendant took her behind a support pillar and ordered her to "pull [her] pants down and bend over," and she complied by pulling her pants down "halfway." B.S. stated that it was noisy under the underpass because of the "[c]ars riding back and forth on the freeway... on... 676," but that she screamed and tried to make noise.
At the point when B.S. partially removed her pants, defendant "rubb[ed] his penis... between [her] butt and [her] vagina and tr[ied] to put it in[.]" B.S. stated, "I felt his head going into my vagina, but not all the way, and that's when I made an attempt to run." However, because her pants were at her knees, B.S. only ran approximately twenty feet before tripping.
B.S. testified that after she tripped, defendant "grabbed [her], he hit [her] [and]... punched [her] like a punching bag, splitting [her] lip; he stomped [her]." B.S. stated that he then said to her "'I should just cut off your nipples or your titties, I should just stab them.'"*fn1 Defendant then "dragged [her] right back to the spot and persisted [i]n telling [her] to bend over again." B.S. testified that she complied and that she stopped making noise because of the beating she had just received.
B.S. further testified that after she bent over, defendant once against rubbed up against her buttocks in an attempt to achieve an erection, but "[t]his time he couldn't get it up...." B.S. stated that she did not feel his penis go inside of her during the second attack, and that he said to her, "'[b]itch, I should have killed you,'" before walking away. B.S. thought the entire attack lasted approximately thirty minutes, but that it "[r]eally seemed like it was a long time."
B.S. watched defendant walk away; she then "started screaming for somebody to help [her] again." She began walking in the same direction as defendant, hoping to see someone who could assist her. Defendant was not in sight when B.S. reached the road, and she continued home.
Upon arriving home, B.S. called 911. The police arrived and took her to the hospital where she underwent a rape kit examination and met with a victim advocate. During the rape kit examination, nurse Lisa Easterby took external skin swabs and pictures of the injuries, and performed an internal vaginal examination and swab.
B.S. suffered a split eyebrow, a split lip, bruising to her back and chest and swelling of her face. It took B.S. approximately one month to heal fully. B.S. testified that she also suffered emotional injury in that she was "scared" and "nervous," had difficulty communicating with people, experienced trouble concentrating, did not want any men to touch her and felt like every man who resembled defendant may be her attacker. B.S. testified that she eventually had to leave her job because of the emotional effects of the assault.
Approximately two months later, on December 1, 2004, B.S. gave a statement to Detective Monica Davenport of the Camden City Police Department's Special Victims Unit. On April 25, 2005, B.S. was shown a photo array by another detective in the police department. B.S. positively identified defendant's picture from the photo array.
Camden City Patrolman Rahsan Tatem testified that he was dispatched to B.S.'s home on the morning of October 23, 2004, along with his partner, Officer Will Ramos. Upon arriving at the house, Tatem observed that B.S. "was upset, her shirt was dirty,... as if someone had been tugging on it, kind of off her body." He also saw that B.S. "had cuts... around her lips and around her eye and a little bleeding."
Tatem stated that when B.S. told him she had been sexually assaulted, he and his partner contacted their sergeant and the paramedics. After B.S. was taken to the hospital, Tatem and Ramos conducted an investigation of the area where B.S. said the attack had occurred. They observed no visible evidence of an assault or struggle.
Lisa Easterby testified that when she met B.S. at the hospital she observed that B.S. was "seriously injured in her facial area. She was swollen. She had deep cuts that did require stitches. She was bleeding.... She was quite disheveled... and she quite upset, quite hysterical...."
Easterby further testified that she took a cheek swab from B.S. for DNA. She also performed a visual inspection of B.S.'s body for injuries, using a black lamp to search for dried secretions on her skin; she swabbed the dried secretions found on B.S.'s right scapula, right buttocks and right calf. The nurse also performed an external and internal genital inspection using a culpascope,*fn2 and took vaginal and cervical smears.
Easterby observed the following injuries on B.S.: an open laceration on the mouth about one centimeter by one centimeter...; and above the right eyebrow a two centimeter open laceration; on the back of the body there were multiple scrapes and superficial lacerations, a lot of them - - most of them... on the arms; a ...