On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-02-0332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Grall, Messano and LeWinn.
Atlantic County Indictment No. 05-02-0332 charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count three); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count five); two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (counts six and seven); two counts of fourth-degree child abuse, N.J.S.A. 9:6-3 (counts eight and nine); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eleven); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count twelve); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count thirteen). Co-defendant Troy Wicks was also charged in counts one, three, five through nine, and eleven through thirteen. A third co-defendant, Larry Huggup, defendant's brother, was also charged in counts two and four through thirteen.
Tried to a jury, defendant was found guilty on all charges except unlawful possession of a weapon. Co-defendants Wicks and Larry Huggup disposed of their charges through negotiated plea bargains with the State. Larry Huggup testified against defendant at trial.
The victim of these offenses was defendant's then girlfriend, M.M., with whom he lived along with his brother and his fiancée, known as Nici, and the latter's one-year-old baby girl, M.H. Co-defendant Wicks moved in with the group in October 2004. Nici's eleven-year-old niece, V.E., would sometimes stay with them on weekends.
The events giving rise to the indictment occurred from the early morning of Sunday, October 17, 2004 into the following day. M.M. testified at trial that early on the morning of October 17, Larry Huggup awakened her and began an argument. M.M. stated that Larry Huggup and defendant began to jump on her, kick her, throw her up in the air and toss her. She specifically testified that defendant sat on her "to twist [her] legs."
M.M. testified that defendant and his brother invited Wicks to join in the abuse, which was witnessed by Nici, V.E., and M.H. M.M. stated that at one point, V.E. and Nici joined in hitting her, at the direction of Larry Huggup.
M.M. further testified that Larry Huggup burned her with a cigarette lighter on her back and set her hair on fire; he also tied a belt around her neck, dragging her around; defendant and Wicks eventually participated in that conduct as well. Larry Huggup also put M.M.'s head in the toilet.
In addition to physical abuse, M.M. stated that both Wicks and defendant raped her; defendant then forced her to perform oral sex on him.
After the sexual assaults, M.M. testified that defendant made her take a cold shower with her clothes on. After the entire group forced her to clean the house, M.M. was placed in a closet by Larry and tied up with a belt. At some point defendant brought M.M. out of the closet and raped her again.
On the following morning, October 18, M.M. testified that she was stripped of all her clothing. Eventually she was able to escape through a window wrapped only in a sheet. She approached a stranger who took her to the hospital.
Holly Bolicki and Jill Fussner-Hankins, both of whom worked at the Shore Ambulatory Surgery Center where M.M. was taken, testified at trial that an unidentified man brought M.M. to the Center; she was naked except for a sheet and was badly bruised.
Larry Huggup testified at trial, pursuant to a plea agreement. He essentially corroborated M.M.'s testimony in all pertinent aspects. He acknowledged that Nici, V.E. and the baby were all present and observed the assault on M.M.
Detective Nelson Denan of the Somers Point Police Department executed a search warrant on the residence after talking with M.M. on October 18, 2004. He found defendant, Larry Huggup, Nici and the baby, all of whom were taken to police headquarters.
Defendant and his brother spent the night in separate holding cells; Denan returned the next morning around 11:00 a.m. to begin processing them.
Denan testified that defendant told him he wanted to talk. Denan then interviewed defendant and took a statement from him; this statement was the subject of a pre-trial Miranda*fn1 hearing.
Defendant admitting beating M.M., tying her up and leaving her in the closet. He also admitted to "wrestling" with her which caused her to "bleed a little bit." Defendant stated that he and the two co-defendants performed wrestling moves on M.M. for about two and a half hours.
Although defendant admitted to holding a lighter near M.M.'s body and her hair, he denied burning her. Defendant told Denan that he tied M.M. up and placed her in the closet to keep her from leaving because he loved her and wanted to talk to her.
The State produced the testimony of Brett Hutchinson, a forensic scientist at the Central Laboratory of the New Jersey State Police, who testified about DNA tests done on specimens taken from M.M. Hutchinson testified that defendant was identified as the source of sperm cells found on M.M.'s clothing and "cannot be excluded" as a source for the DNA found in a vaginal swab of M.M.
On appeal, defendant raises the following contentions for ...