March 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES PINNOCK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-09-0888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2009
Before Judges Lisa, Baxter and Alvarez.
Following a trial by jury, defendant James Pinnock was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) (count one); first-degree robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:15-1a(3) (counts three and four); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), N.J.S.A. 2C:14-2a(5), and N.J.S.A. 2C:14-2a(4) (counts five, seven and eight); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count nine); third-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count eleven).*fn1
The trial judge imposed a sentence of thirty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, first-degree kidnapping. He also imposed a fifteen-year NERA term on count three, concurrent to count one. Count four was merged into count three. On count five, the trial judge imposed a ten-year NERA sentence consecutive to counts one and three. Counts seven and eight were merged into count five. On count nine, the trial judge imposed a five-year term concurrent to count one. On count ten, the court imposed an eight-year sentence, subject to three years of Graves Act parole ineligibility, N.J.S.A. 2C:43-6(c), to run concurrent with count one. A five-year sentence was imposed on count eleven, to run concurrent with count one. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm the judgment of conviction, but remand for a statement of reasons and reconsideration of sentence, and the issuance thereafter of an accurate judgment of conviction.
The facts developed at trial are as follows. At approximately 10:30 p.m. on August 7, 2003, S.M., a college student, began her walk home from a friend's house while listening to her CD player. She decided to take 9th Avenue in Paterson, rather than 10th Avenue, because it was quieter. Her mother called her cell phone to offer her a ride home; she declined because she was so near her destination. Immediately after this conversation, S.M. noticed someone behind her. She looked up and saw a second man in front of her pointing a gun at her face. The man with the gun was approximately five-foot-four in height, while the man behind her was approximately six feet tall. S.M. later identified the taller man as defendant.
The shorter individual, co-defendant Andrew Morgan, demanded that S.M. surrender her money. As she began to go through her pockets, defendant took S.M.'s book bag and began to rummage through it. S.M. handed the men her cash, but defendant motioned to Morgan to take S.M. behind a nearby house. They walked her the length of the driveway from the sidewalk into a dark backyard.
Once there, the men instructed S.M. to leave her CD player near the porch steps and to lie down on the ground. She was forced to pull down her pants while Morgan continued to hold the gun. Defendant "bent down and tried to have sex with" S.M. As she described it, defendant's penis "touched my -- like my --lips down there." When asked by the prosecutor if defendant was able to engage in full intercourse with her, S.M. said no. Once defendant was finished, Morgan, who had forced S.M. to perform fellatio, unsuccessfully attempted to engage in vaginal intercourse with S.M. He then turned her around, and penetrated her anally, as S.M. put it, "he put it in a little bit." During the entire episode the gun was held either by Morgan or by defendant.
Finally, defendant told Morgan to get up because they were going to take S.M. to another location. Defendant ran ahead down the driveway towards the sidewalk as Morgan followed, holding onto S.M.'s arm. S.M. asked Morgan if they were going to kill her; he told her to talk to his friend. He called out to defendant, who said, "[w]e're going to go back to the rest and, after I f--k you, then I'm going to kill you." As they approached the sidewalk, defendant insisted that S.M. hold hands with him, at which time she began to plan her escape. She testified at trial:
I was just thinking that I was going to die. And I . . . thought to myself that if I was going to die, I'd rather have him shoot me while I was running away rather than my mother have to find me in some ditch somewhere like raped and dead. So, I just started thinking that I was going to die anyway, so I might as well think of a way to get out of it.
S.M. told defendant that she needed to wipe her eyes because since it was raining she could not see. He assented, and as she lifted up her arm, she pulled away and ran into the street. Cars swerved to avoid striking her and she began to scream. Meanwhile, defendant and Morgan fled. S.M. arrived at a nearby friend's home, rang the doorbell, yelled for help, and hid in the shrubbery. S.M.'s mother and step-father arrived immediately after she called them, and they took her to one hospital emergency room and then a second, as the first facility did not have a rape kit.
Two days later, when defendant and Morgan were arrested on an unrelated matter, a revolver was found in Morgan's possession. Defendant waived his Miranda*fn2 rights and admitted his involvement in the incident with S.M., asserting that the victim had performed fellatio upon him and upon Morgan. He claimed he thought the sexual encounter was consensual because at some point during the incident, S.M. told Morgan that he could put away the gun.
After their arrests, S.M. identified both defendant and Morgan from a photo array. The scant DNA samples taken during the administration of the rape kit indicated defendant could not be positively excluded as a contributor of the DNA, although Morgan was excluded.
During the charge conference, the trial judge advised that he would not instruct the jury as to attempted aggravated sexual assault but would charge as to the lesser-included offense of sexual assault, N.J.S.A. 2C:14-2c, and aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. He considered S.M.'s testimony unequivocal that Morgan's sexual assaults resulted in penetration. Additionally, defendant had admitted in his statement to police that he had engaged in fellatio with the victim. Defense counsel concurred with the decision not to charge attempted aggravated sexual assault, as he planned to argue in summation that the State had failed to prove penetration, and therefore the "failure to instruct attempt in a way might be actually beneficial to my client." In addition to the Model Jury Charge for aggravated sexual assault, sexual assault and criminal sexual contact, the judge instructed the jury as to accomplice liability. On the verdict sheet, the jury indicated as to each count whether their decision was based on liability as a principal or an accomplice or both.
Count one of the indictment charged that defendant and Morgan committed "an act of kidnapping by unlawfully removing S.M. a substantial distance from the vicinity where she was found to facilitate the commission of aggravated sexual assault or flight thereafter, and the defendants did not release S.M. unharmed and in a safe place prior to apprehension." The trial judge said, in accord with the Model Jury Charge, that:
A person is guilty of kidnapping if he unlawfully removes another a substantial distance from the vicinity where she is found or if he unlawfully confines another for a substantial period with any of the following purposes: one, to facilitate the commission of any crime or flight thereafter; or two, to inflict bodily injury on or terrorize the victim.
In order for you to find the Defendant guilty of kidnapping, the State is required to prove each of the following two elements beyond a reasonable doubt: that the Defendant . . . unlawfully removed [S.M.], a substantial distance from the vicinity where she was found or; (b) unlawfully confined [S.M.] for a substantial period. So, it's A or B is the first element.
And the second element is that the removal or confinement was with the purpose to (a) facilitate the commission of any crime or the flight thereafter; or (b) to inflict bodily injury on or terrorize the victim.
At sentencing, the trial judge found aggravating factor three, the "risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3). Despite defendant's lack of a prior criminal history, the judge said: "for someone to do that which was done in this case, I believe the risk does apply that another offense could occur." He also found the need to deter "defendant and others from violating the law," N.J.S.A. 2C:44-1a(9), "[o]n a very strong level." The trial judge found mitigating factor seven, that defendant had no prior criminal history, N.J.S.A. 2C:44-1b(7), and mitigating factor eleven, that "imprisonment of the defendant would entail excessive hardship to himself or his dependents," N.J.S.A. 2C:44-1b(11). As to this factor, he said: "he's only I believe 22 years of age, -- no actually he's 23. . . . [I]t's one thing to say that for a 50 year old person, it's another thing to say it for a 22 year old person. . . . I give it slight weight." The trial judge stated, somewhat surprisingly, that he found mitigating factor eleven because it "applies in all cases. . . . I don't give that very significant weight." Therefore, "[o]n a qualitative basis, [he found] that the [a]ggravating [f]actors outweigh[ed] the [m]itigating [f]actors."
Defendant raises these points on appeal:
BECAUSE ATTEMPTED AGGRAVATED SEXUAL ASSAULT WAS "CLEARLY INDICATED" ON THIS RECORD, THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT CHARGING IT AS LESSER-INCLUDED OFFENSE, DESPITE COUNSEL'S REQUEST THAT IT NOT BE CHARGED. (Not Raised Below)
A. The Testimony.
B. The Charging Decision.
C. Because The Record "Clearly Indicated" That Defendants Had "Tried" to Sexually Penetrate The Victim, And Because It Was Unclear Whether They Had Done So, The Trial Court Erred In Failing To Charge Attempted Aggravated Sexual Assault.
THE JURY CHARGE ON KIDNAPPING WAS ERRONEOUS IN THAT IT ALLOWED THE JURY TO CONVICT ON A THEORY NOT SET FORTH IN THE INDICTMENT. (Not Raised Below).
BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES FOR KIDNAPPING AND AGGRAVATED SEXUAL ASSAULT, AND BECAUSE IT ERRED IN ITS FINDINGS ON AGGRAVATING AND MITIGATING FACTORS, THE DEFENDANT'S SENTENCE SHOULD BE REDUCED OR THE MATTER REMANDED FOR RESENTENCING.
THE TRIAL COURT ERRED IN REFUSING TO MERGE THE CONVICTION FOR POSSESSION OF A HANDGUN WITH INTENT TO USE IT UNLAWFULLY INTO THE CONVICTION FOR ARMED ROBBERY.
In his supplemental pro se brief, defendant raises these additional points:
INVALID INDICTMENT PROSECUTOR MISCONDUCT PRESENTING HEARSAY TESTIMONY OF DETECTIVE COLON NOT PRESENTING EXCULPATORY EVIDENCE
ERROR IN JURY CHARGE ON THE ELEMENTS THAT THE STATE NEEDS TO PROVE TO CONVICT DEFENDANT ON KIDNAP[P]ING
JURY CHARGE ERROR COUNT FOUR ROBBERY THE JURY CHARGE IS IN ERROR OF THE INDICTMENT.
Defendant's first contention is that the trial court's failure to charge attempted aggravated sexual assault as a lesser-included was error because the jury could have found, based on S.M.'s conflicting versions of the incident, that there was no penetration. S.M. did not mention fellatio in relation to defendant in her initial statements to her mother or to police, and she, defendant asserts, arguably did not establish penetration in her trial testimony.
Our review of this claimed error is subject to plain error analysis. See R. 1:7-2 and R. 2:10-2. See also State v. Macon, 57 N.J. 325, 336-37 (1971). Because this alleged error went unchallenged at trial, it will be reversed only if it was "'clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Stated another way, purported error in a jury charge will only constitute a basis for reversal if it "prejudicially" affected defendant's "substantial rights." State v. Chapland, 187 N.J. 275, 289 (2006) (citation omitted).
Based on our review of the record, we conclude that the jury had ample evidence from which to find penetration had occurred. S.M. testified that she performed acts of oral sex upon Morgan and that he also anally penetrated her. She testified that defendant's penis touched her genitals, although there was not "full intercourse." As stated in the Model Jury Charge the court read to the jury, "[a]ny amount of insertion, however slight, constitutes penetration; that is, the depth of the insertion is not relevant." In addition to S.M.'s trial testimony, defendant admitted to police, in a statement read to the jury, that S.M. performed an act of fellatio upon him. In other words, defendant himself acknowledged an act of penetration. The jury had ample proofs from which they could conclude that penetration occurred, therefore the argument that attempt should have been charged has no support in the record.
Furthermore, for each count of aggravated sexual assault, the jury was asked whether liability should be imposed on defendant as a principal actor or as an accomplice. As to count five, the jury found defendant liable as an accomplice and a principal on the charge that an act of sexual penetration was inflicted upon S.M. by Morgan and defendant "during the commission or attempted commission of a [r]obbery and/or
[k]idnapping." Similarly, on count seven, defendant was convicted of an aggravated sexual assault both as a principal and an accomplice on the theory that an act of sexual penetration was inflicted upon S.M. and the actors [defendant and Morgan] aided and abetted each other and used physical force or coercion to accomplish the penetration. In contrast, defendant was found guilty of count eight, first-degree aggravated assault, only as an accomplice, on the basis that an act of sexual penetration was inflicted upon S.M. when "the actor was armed with a weapon."
On each count of aggravated sexual assault, the jury found defendant guilty as an accomplice. Even if the jury concluded that the State proved only that Morgan penetrated S.M., defendant was nonetheless held culpable under a theory of accomplice liability. Instructing the jury as to attempt was not warranted, much less necessary, given Morgan's conduct and defendant's accomplice status. It would not have spared him from first-degree liability.
Additionally, to determine whether one offense is included in another, a court must compare "'the statutory elements of each charge.'" State v. Cassady, 198 N.J. 165, 177 (2009) (quoting State v. Thomas, 187 N.J. 119, 129 (2006)). "An offense is . . . included when . . . [i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1). A court may only charge the jury as to a lesser-included offense if "there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e. Generally, juries may only consider lesser-included offenses after having "acquitted [the defendant] of the greater offense." State v. Cooper, 151 N.J. 326, 366 (1997) (citation omitted).
The judge in fact charged the jury as to the lesser-included offenses of sexual assault and aggravated criminal sexual contact. The options were explicitly set forth on the jury verdict sheet as to count six. The jury could have found defendant guilty of these lesser offenses, but instead found the proofs sufficient to impose culpability for the completed, most serious acts.
Defendant also contends that the jury charge on kidnapping issued in error because it gave the jury the means to convict defendant on a theory different from the one asserted in the indictment. This claim must also be examined pursuant to the plain error doctrine. See State v. Chapland, supra, 187 N.J. at 289 (citation omitted).
A defendant in a criminal action must receive "'notice and a meaningful opportunity to be heard.'" State v. Lisa, 391 N.J. Super. 556, 578 (App. Div. 2007), aff'd, 194 N.J. 409 (2008) (citations omitted). In the criminal context, notice requires that statutes defining crimes be "'clear and understandable.'" Ibid. (citation omitted). It follows that an indictment charging criminal activity "must be sufficiently clear to apprise a defendant of 'that against which he must defend.'" Ibid. (citations omitted). But "a defendant indicted for a particular offense is deemed to be on notice" that the circumstances referred to in the indictment may also give rise to other charges and theories of criminal liability. Ibid. (citation omitted). See also State v. Branch, 155 N.J. 317, 324 (1998) (enumerating situations in which trial testimony may give rise to charges not included in an indictment).
In our view, the trial court's charge did not constitute plain error. Although the judge added to the jury charge the following language not mentioned in the indictment: that S.M. was unlawfully confined for the purpose of "inflict[ing] bodily injury on or . . . terroriz[ing] the victim or another," N.J.S.A. 2C:13-1b(2); and S.M. was unlawfully confined "for a substantial period," N.J.S.A. 2C:13-1b, these additions did not prejudice the defendant. He was well aware of the proofs that the State intended to present, including his confession. S.M.'s testimony went unchallenged that her assailants kept a weapon pointed at her from the moment the incident began until they returned to the sidewalk, and that they were moving her to another location to assault her again.
State v. Smith, 279 N.J. Super. 131 (App. Div. 1995) is precisely on point. In that case, the defendant was charged "with attempted murder, kidnapping, robbery, aggravated assault, aggravated sexual assault, sexual assault, endangering the welfare of a child and weapons offenses." Id. at 147. The second count of the indictment charged the defendant with kidnapping for the purpose of facilitating the commission of an aggravated sexual assault. Ibid. The trial judge instructed the jury, in virtually identical words to this trial judge, that a kidnapping "occurs when an individual removes" a victim a substantial distance or unlawfully confines him with either the purpose to facilitate the commission of a crime or flight thereafter or the purpose to inflict bodily injury or terrorize the victim or another. Ibid. The precise language of the indictment was not included in the instruction, although it mirrored the language of the Model Jury Charge. Ibid. We found that defendant was not surprised by the additional language and therefore was not prejudiced. Ibid. Because the remaining counts of the indictment put defendant on notice of the conduct which the State was attempting to prove, the additional language did not "impermissibly increase the scope of defendant's liability." Id. at 147-48. Just as in Smith, the trial court's instruction in this case did not surprise defendant, nor in any way prejudice him.
Defendant contends that his sentence is excessive because the trial court imposed separate consecutive sentences for the kidnapping and the aggravated sexual assault convictions, and made errors in its finding of aggravating and mitigating factors. In imposing consecutive sentences for the kidnapping and the aggravated sexual assault, the trial court concluded that the harms inflicted upon the victim were "separate and distinct," requiring proof of disparate and unrelated elements. See N.J.S.A. 2C:13-1b and N.J.S.A. 2C:14-2a. We agree, and are therefore satisfied that the record provided ample support for consecutive sentences. The victim was sexually assaulted, and then removed from that location so she could be assaulted again.
Moreover, to have sentenced defendant concurrently would have allowed him free crimes in contravention of the principles enunciated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). N.J.S.A. 2C:44-5(a) was amended with the specific purpose to eliminate overall outer limits on consecutive sentences for multiple offenses. State v. Abdullah, 184 N.J. 497, 513 (2005) (citation omitted). The amendment was adopted in order to vest greater discretion in judges in their sentencing decisions, a policy fairly implemented in this case because the facts warranted consecutive sentences. Ibid.
Defendant further asserts that because the kidnapping was committed with the purpose of the commission of the crime of robbery and/or aggravated sexual assault, there exists a "linkage" between the crimes that mandates concurrent sentences. This connection alone does not make imposition of consecutive as opposed to concurrent sentences improper. Unity of purpose does not result in an automatic imposition of concurrent sentences for two offenses; in other words, the fact that a "kidnapping was committed for the purpose of committing the [aggravated] assault," and that "the crimes were somewhat interdependent of one another, and were committed within a short period of time of one another, . . . does not necessarily mean that defendant was entitled to concurrent sentences." State v. Swint, 328 N.J. Super. 236, 264 (App Div.), certif. denied, 165 N.J. 492 (2000).
Aggravating and mitigating factors are to be premised upon competent credible evidence in the record. State v. Cassady, supra, 198 N.J. at 180-81. In fact, the only basis for the court's decision to find aggravating factor three was the gravity of the offenses. If this were permissible, every first-time offender convicted of a serious crime would have the potential to reoffend, an impermissible generality and possibly impermissible double-counting as well. See State v. Kromphold, 162 N.J. 345, 356 (2000). Similarly, the finding of mitigating factor eleven, in the complete absence of any record or facts justifying the factor, was improper. In the absence of credible evidence establishing these two factors, the sentence will be vacated and the matter remanded for reconsideration of sentence.
The necessity for a remand is of particular importance here where the sentence, thirty years, was at the high end of the range. See State v. Kruse, 105 N.J. 354, 362 (1987). The judge did not explain his reasoning other than by finding aggravating factor nine, the most general of factors. State v. Gardner, 113 N.J. 510, 520 (1989). The court did not articulate why that factor had particular meaning for this defendant.
We also agree with defendant's final point that the conviction for possession of a weapon for unlawful purpose should merge with the armed robbery conviction. Where the trial proofs establish that a firearm is possessed solely for the purpose of accomplishing the crime in which it is used, a possession conviction should merge with the conviction of the other crime. State v. Parolin, 171 N.J. 223, 228 (2002); State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999). Here, no proofs were presented that the firearm was possessed for the purpose of committing any other offense or for any other purpose. As a result, this count must merge and the sentence corrected.
As to defendant's pro se brief, his first contention relating to flaws in the grand jury presentment cannot be entertained. Once the matter is tried, a defendant is foreclosed from raising such objections. State v. Lee, 211 N.J. Super. 590, 598-99 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987) (citation omitted). See also State v. Allah, 170 N.J. 269, 288-89 (2002) (distinguishing errors in grand jury proceedings from other pre-trial errors). Defendant's second point relating to the kidnapping charge has already been addressed. The third point in his pro se brief does not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed as to the convictions, remanded for reconsideration of defendant's sentence, to address merger, and to correct the judgment of conviction.