July 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 14, 2009
Before Judges Fisher and Grall.
Defendant was charged with various offenses as a result of having been found to have entered into the female victim's home without consent. The evidence also revealed that following his entry into the home, defendant punched, sexually molested, threatened, and stole from the victim.
At the conclusion of a trial, defendant was convicted of: second-degree burglary, N.J.S.A. 2C:18-2b(1); third-degree criminal restraint, N.J.S.A. 2C:13-2a; two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3b; third-degree theft, N.J.S.A. 2C:20-3a; and third-degree terroristic threats, N.J.S.A. 2C:12-3a. The trial judge sentenced defendant to a seven-year prison term on the burglary conviction, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, and concurrent four-year terms on all other convictions, except to the fourth-degree theft conviction, as to which the judge imposed a concurrent eighteen-month term.
Defendant appealed, posing the following arguments for our consideration:
I. THE COURT ERRED IN PERMITTING OFFICER VARGAS TO TESTIFY TO HIS "CONCLUSION" THAT ANY SEXUAL CONTACT BETWEEN [THE VICTIM] AND THE INTRUDER HAD NOT BEEN CONSENSUAL.
II. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE COURT REPEATEDLY AND IMPROPERLY ADVISED THE JURY THAT THE CASE WAS "UNCOMPLICATED," THUS BLURRING THE LINE OF DEMARCATION BETWEEN THE VARIOUS CHARGES.
III. THE COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE CRIMINAL RESTRAINT CHARGE. IN THE ALTERNATIVE, THAT CHARGE SHOULD HAVE MERGED INTO THE SEXUAL CONTACT CHARGES FOR SENTENCING PURPOSES.
We find insufficient merit in any of these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Points I and III.
In Point I, defendant argues that it was improper for the State to elicit from an investigating police officer that the sexual contact between defendant and the victim was not consensual. Specifically, defendant complains of the following testimony given by the police officer:
Q: . . . Based upon the nature of your questions and what was in your investigation, were you able to ascertain whether the conduct was consensual?
Q: What did you conclude?
A: That it wasn't.
The subject was not further broached by the prosecutor from this witness.
The State argues that this testimony was admissible and, had defendant objected, the judge would have been required to allow it. We disagree. The questions sought and elicited inadmissible hearsay. However, defense counsel did not object at the time, requiring that we consider the admission of this testimony pursuant to the plain-error standard. See R. 2:10-2. In this regard, we observe that the testimony in question was extremely brief. Moreover, the record reveals that by the time the officer gave this testimony, the victim had already testified and expressed in no uncertain terms that she did not consent to having sexual relations with defendant. As a result, we reject the argument that the admission of this brief testimony was "clearly capable of producing an unjust result." State v. Daniels, 182 N.J. 80, 95 (2004).
In Point III, defendant argues that his motion for judgment of acquittal on the criminal restraint charge should have been granted or, in the alternative, his conviction on that charge should have merged with the sexual contact conviction for sentencing purposes. We disagree. As for the first aspect, defendant argues that the evidence suggested only that the restraint in question was used to perpetrate the sexual contact. This represents a mischaracterization of the record. Not only was the victim threatened and coerced with regard to the sexual molestation but, the record further contained evidence that defendant struck the victim prior to the sexual molestation and, once it had concluded, defendant threatened her again and told her "he didn't want to have to hurt [her] anymore." In light of the applicable standard, State v. Reyes, 50 N.J. 454, 458-59 (1967), the judge correctly denied the motion to acquit on the criminal restraint charge. For the same reason, it was not appropriate for the judge to merge the conviction for criminal restraint with the criminal sexual contact convictions.
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