July 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM FISHER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0620.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 30, 3009
Before Judges Skillman and Wefing.
A jury found defendant guilty of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(7); sexual assault, in violation of N.J.S.A. 2C:14-2(b); sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1); sexual assault, in violation of N.J.S.A. 2C:14-2(c)(4); aggravated sexual contact, in violation of N.J.S.A. 2C:14-3(a); sexual contact, in violation of N.J.S.A. 2C:14-3(b); and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). The trial court sentenced defendant for the aggravated sexual assault to a thirteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a concurrent seven-year term for one of the sexual assaults, and a concurrent four-year term for endangering the welfare of a child, both of which were also made subject to NERA. The court merged defendant's other convictions.*fn1
The victim of these offenses was a developmentally disabled teenager, who resided with her grandfather when the sexual assaults occurred. Defendant, who was an uncle of her grandfather's wife, resided three houses away. Defendant would take care of the victim when her grandfather was not home. The victim referred to defendant as "Uncle Buzz."
The victim was fourteen when she first reported defendant's sexual assaults to her special needs teacher in January 2004.
At that time, the victim was reading on a third-grade-level and doing fourth-grade-level math. The special needs teacher described her as "slightly dyslexic" and "communication handicapped." The teacher expressed the opinion that the victim was not "retarded." She also testified that the victim "seemed embarrassed" reporting the sexual assaults.
The first sexual assault incident occurred when the victim was twelve. When the victim went to the defendant's house to get some birthday cake and ice cream, defendant fondled her breasts and rubbed her vagina. The victim testified on direct examination that defendant's sexual touching occurred under her clothing, but she indicated on cross-examination that defendant touched her breast over her bra. The victim did not report this incident because she was "scared."
The second sexual assault incident occurred when the victim was "almost fourteen." Defendant came into a bedroom in his house where the victim had been watching television and started rubbing her thighs. He then grabbed the victim and started to take her clothing off. She attempted to resist by kicking defendant but he overpowered her and pinned her arms down over her head. After defendant took her clothing off, the victim tried to escape, but defendant grabbed her leg, physically restrained her, and then vaginally penetrated her. The victim did not report this sexual assault because she was "scared" and did not think anyone would believe her.
Defendant committed a third sexual assault upon the victim when she was "around fifteen." On this occasion, defendant came into a bedroom where the victim was reading a book and again started by touching her thighs, then removed her clothing, and penetrated her anally.
A few days later, defendant walked into a bedroom where the victim was watching television, told her that she was "sexy," and again started to rub her thighs. However, the victim picked up a telephone and pretended to talk to someone so that, as described by the victim, defendant would "leave me alone." Defendant then left the room. The following day, the victim reported defendant's sexual assaults to her special needs teacher.
The victim subsequently gave two statements regarding the assaults to members of the Plainfield Police Department, which were typed and signed by the victim. Before trial, defendant filed a motion for a "Michaels*fn2 taint hearing" regarding those statements, which the trial court denied.
In addition to the victim and the special needs teacher, the State presented testimony by an expert on Child Sexual Abuse Accommodation Syndrome and by Dr. Anthony D'Urso, a clinical psychologist, who testified in support of the charge that defendant had committed an aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(7), because the victim was "mentally defective" within the intent of this subsection when the sexual assaults occurred. Dr. D'Urso's testimony is discussed in greater detail later in this opinion.
Defendant took the stand in his own defense and denied that he ever had sexual intercourse with the victim or touched her inappropriately. He also testified that he was experiencing erectile dysfunction, which prevented him from getting an erection, during the time period when the victim said he had sexually assaulted her.
Defendant presented the testimony of his internist, who stated that defendant complained to him about "occasional impotence" in 1999 and that he prescribed Viagra for him in both 1999 and 2001, which was before the alleged sexual assaults upon the victim. Defendant testified that he filled only the second of those prescriptions and that it did not relieve his erectile dysfunction. The internist testified that defendant again complained to him about erectile dysfunction in May 2005, after the charges in this case had been made, and that he prescribed Cialis for defendant at that time. The internist subsequently prescribed five refills of Cialis.
On appeal, defendant presents the following arguments:
POINT I: THE PROSECUTOR'S REPEATED MIS- CONDUCT DURING SUMMATION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).
POINT II: BECAUSE THE TRIAL COURT DENIED DEFENDANT'S REQUEST FOR A MICHAELS TAINT HEARING BASED ON ONLY PARTIAL INFORMATION THE MATTER MUST BE REMANDED FOR A FULL HEARING.
POINT III: BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT B.B. MET THE DEFINITION OF MENTALLY DEFECTIVE AS CONTAINED IN N.J.S.A. 2C:14-1(H), DEFENDANT'S CONVICTION UNDER COUNTS I AND VI MUST BE VACATED AND A JUDGMENT OF NOT GUILTY ENTERED.
We reject the arguments presented under the first two points of defendant's brief. However, we agree with defendant's argument that the State failed to prove that the victim was "mentally defective" within the intent of N.J.S.A. 2C:14-1(h). Accordingly, we reverse defendant's conviction for aggravated sexual assault but affirm his other convictions.
Defendant did not object at trial to any of the alleged improprieties in the prosecutor's summation that he now urges require a new trial. We conclude that defendant's arguments regarding those alleged improprieties are clearly without merit and only warrant brief discussion. R. 2:11-3(e)(2). The prosecutor did not vouch for or express a personal opinion about the victim's credibility but instead properly argued to the jury, based on the victim's testimony and the other evidence presented at trial, that the jury should find that her allegations concerning defendant's sexual assaults were believable. The prosecutor also properly argued to the jury that it could find that defendant's complaints to his doctor about erectile dysfunction in May 2005 after he had been charged with sexual assaults and statements to the doctor that the Viagra "had not worked" were contrived in an effort to construct a defense to those charges.
In denying defendant's motion for a "Michaels taint hearing," Judge Perfilio delivered a comprehensive and well-reasoned oral opinion. We affirm the denial of that motion substantially for the reasons expressed by Judge Perfilio. We agree with his conclusion that this case is similar in some respects to State v. Scherzer, 301 N.J. Super. 363, 397, 464-67 (App. Div.), certif. denied, 151 N.J. 466 (1997), which also involved alleged suggestive questioning by police officers of a developmentally disabled teenager. Indeed, the victim in this case had a higher level of mental functioning than the victim in Scherzer and the evidence of her susceptibility to suggestive questioning and of the suggestiveness of the police questioning in this case was much weaker than in Scherzer. Therefore, we conclude that a taint hearing would not have resulted in the exclusion of the victim's trial testimony regarding defendant's sexual assaults.
Finally, we consider whether the State presented sufficient evidence to support a finding that the victim was "mentally defective" within the intent of N.J.S.A. 2C:14-1(h), which is one of the elements of the aggravated sexual assault the jury found defendant had committed.
N.J.S.A. 2C:14-1(h) provides:
"Mentally defective" means that condition in which a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent . . . .
N.J.S.A. 2C:14-2(a)(7) provides that an act of sexual penetration constitutes aggravated sexual assault if "[t]he victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated." The State claimed that defendant knew or should have known that the victim was "mentally defective."
In State v. Olivio, 123 N.J. 550, 564 (1991), the Court held that a person may be found to be "mentally defective" within the intent of the predecessor to N.J.S.A. 2C:14-2(a)(7) only "if, at the time of the sexual activity, the mental defect rendered him or her unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another." In explaining this holding, the Court stated:
The statutory concept of "mentally defective" implicates both the intellectual or cognitive capacity and the volitional or consensual capacity of the individual with respect to personal sexual activity. The consensual capacity involves knowing that one's body is private and is not subject to the physical invasions of another, and that one has the right and ability to refuse to engage in sexual activity. The cognitive capacity, which is also implicit in the notion of consensual capacity, involves the knowledge that the conduct is distinctively sexual. In the context of this criminal statute, that knowledge extends only to the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders, or possible adverse moral or social effects. [Ibid.]
The State attempted to show that the victim of defendant's assaults was "mentally defective" through the testimony of Dr. Anthony D'Urso, a clinical psychologist. Dr. D'Urso expressed the opinion that the victim was "retarded" under the criteria established by the Association of Mental Retardation. He acknowledged that the victim "understood what sexual behavior was" and that "there was forced behavior." However, Dr. D'Urso testified that "she was unable to functionally exercise the right to refuse" because she placed herself "in vulnerable situations . . . time and time again." This testimony was based on the fact that the victim returned to defendant's home even after he had sexually assaulted her. In explaining his opinion that the victim was mentally defective, Dr. D'Urso stated:
[K]nowing the right of refusal is a cognitive thing, but you have to be able to exercise it. And, in my judgment, her limitations, because of the repetitive nature of what occurred, her isolation in the home, in the defendant's home, those kinds of things resulted in her being functionally unable to be self-protective.
We conclude that Dr. D'Urso's testimony, considered in light of the victim's own trial testimony, was insufficient to support a finding that the victim was "mentally defective" within the intent of N.J.S.A. 2C:14-1(h) as interpreted in Olivio. The victim's testimony indicates that she was well aware of the distinctively sexual nature of defendant's conduct and of her right to refuse to engage in such activity. In fact, she actively resisted defendant's sexual assaults. On one occasion, she kicked defendant as he was attempting to undress her and then attempted to escape after he had taken off her clothing. On another occasion, she successfully employed a ruse of pretending to be on the telephone in order to distract defendant and then the next day reported defendant's sexual assaults to her special needs teacher.
In concluding that the victim was "functionally unable to be self-protective," Dr. D'Urso relied on the fact that the victim returned to defendant's home after he sexually assaulted her. However, the victim's presence in defendant's home was not voluntary. Her grandfather, who was her custodian, had directed the victim to go to defendant's home when he was not home so that defendant could take care of her. Consequently, the only way the victim could have avoided going to defendant's home was to disobey her grandfather's direction. Such circumstances are insufficient to establish that the victim was "incapable of . . . exercising the right to refuse to engage in [sexual] conduct with [defendant]." Olivio, supra, 123 N.J. at 564. Therefore, defendant's conviction for aggravated sexual assault must be reversed.
The trial court merged defendant's convictions for two counts of sexual assault, aggravated sexual contact and sexual contact into his conviction for aggravated sexual assault. Since we have reversed defendant's conviction for aggravated sexual assault, those convictions are now unmerged. See State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.), certif. denied, 137 N.J. 313 (1994). Defendant's conviction for aggravated sexual contact must be reversed because one of the elements of that offense is that the victim was "mentally defective." N.J.S.A. 2C:14-3(a). However, defendant must be sentenced for his unmerged convictions for the two counts of sexual assault and sexual contact.
Accordingly, we reverse defendant's convictions for aggravated sexual assault and aggravated sexual contact. We affirm defendant's conviction and sentence for sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1). We also affirm defendant's conviction and the base term of his sentence for endangering the welfare of a child but reverse the part of that sentence that imposed a period of NERA parole ineligibility because this offense is not subject to NERA. See N.J.S.A. 2C:43-7.2(d) (endangering the welfare of a child is not among the enumerated crimes to which NERA applies);*fn3 see also State v. Messino, 378 N.J. Super. 559, 587 (App. Div. 2005). We affirm defendant's convictions for the other two counts of sexual assault and sexual contact and remand the case to the trial court to impose sentence for those convictions.