On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-01-00024.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Messano.
Defendant was indicted on one count of aggravated sexual assault under N.J.S.A. 2C:14-2a(7) ("[t]he victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated"), a crime of the first degree, and one count of sexual assault, N.J.S.A. 2C:14- 2c(1), a crime of the second degree. Tried to a jury, defendant was acquitted of the first charge but convicted of the second. The trial court sentenced defendant to six years in prison, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged with assaulting K.B., who was twenty years old at the time. She attended college and worked part-time as a bartender. Defendant and his cousin came to K.B.'s workplace on the evening of October 18, 2005. Defendant and K.B. recognized each other from having previously worked at the same restaurant although they did not know each other, and the three began talking. K.B.'s shift ended at 8:00 p.m., and defendant invited her to go with him and his cousin to another bar, Uncle Vinnie's, where, he said, he knew someone who would be willing to serve alcohol to K.B. She agreed.
K.B. drove her car to a nearby Dunkin' Donuts and parked it there and then got into defendant's car and accompanied defendant and his cousin to Uncle Vinnie's. During the course of the evening, K.B. drank approximately three beers and seven shots of alcohol. She also had something to eat. At one point during the evening, a friend of K.B.'s, Samantha, who lived nearby, joined them at Uncle Vinnie's. At around ll:00 p.m. defendant and K.B. walked Samantha home and then returned to Uncle Vinnie's together. She left Uncle Vinnie's around midnight, with defendant and his cousin.
She did not remember much of the drive. She did recall being in defendant's bedroom and being uncomfortable with the situation. She asked defendant to drive her back to her car and he agreed. She recalled being in defendant's car and defendant grabbing her leg; she asked him to let her go, and she then sent a text message, after which she blacked out. She awoke to find defendant putting on his shirt and buttoning his pants; she asked what had happened, and he did not answer. She said she was going to the police, and he asked her not to. She then said she wanted to go home, and defendant drove back to the Dunkin' Donuts parking lot to get her car.
When they arrived there, K.B. realized she had lost her cell phone, and she told defendant she needed it. He then drove her back to his home. He went in, retrieved her cell phone and came back to the car and gave it to her. He then drove her back to her car. She got in her car and drove home, where she became sick and went to bed.
She went to school the following day but felt uncomfortable and experienced flashbacks of events of the night before. She talked to a friend of hers, who urged her to contact the police. She did so, and related her story. The police took her to the hospital for examination, which revealed a tiny laceration at the bottom of her genital area and swelling in the area of her cervix. There was testimony the laceration and swelling were consistent with sexual trauma. When K.B. was at the hospital, a blood sample was drawn. In light of the passage of time, no alcohol was detected. There was evidence that based upon the amount of alcohol K.B. consumed during the evening, she would have had a blood alcohol level of at least 0.188%.
K.B.'s cell phone was examined, and it showed that K.B. had, during the course of the evening, sent a number of text messages. One of her friends testified that he spoke with her by telephone between 12:15 a.m. and 12:30 a.m., and she sounded intoxicated. He also said he received a text message from her around 1:30 a.m. saying, "Help."
The police questioned defendant. He recounted the events of the evening. He said he took K.B. back to his house because he felt that she was too intoxicated to drive. He said she was in and out of consciousness. He said he started to rub her back and admitted that he pulled her pants down. The tape of this interview was not entirely clear, and the prosecution and the defense differed over whether during the interview defendant admitted or denied that he penetrated K.B. digitally.
The defense at trial was that K.B. had consented to whatever activity occurred. Defendant ...