On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-02-0224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judge A.A. Rodriguez, Grall and LeWinn.
Defendant appeals from the July 23, 2008 judgment of conviction entered after a jury found him guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2(a)(1). The judge sentenced him to an aggregate term of thirty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served at the Adult Diagnostic and Treatment Center (ADTC), pursuant to N.J.S.A. 2C:47-1 to -10. He was also ordered to pay a $300 Victims of Crime Compensation Board (VCCB) penalty; an $800 Statewide Sexual Assault Nurse Examiner Program penalty; a thirty dollar Law Enforcement Officers Training and Equipment fund penalty; and a $2000 penalty to the Sex Crime Victim Treatment Fund (SCVTF).
On appeal, defendant asserts several claims of trial error, all raised as plain error. He also claims that both his sentence and the $2000 penalty the judge imposed under the SCVTF are excessive. We remand for further proceedings with respect to the SCVTF penalty but otherwise affirm.
Both the victim, M.D., and defendant testified at trial. Credibility was thus the critical issue for the jury.
M.D. testified that she and defendant began a dating relationship in 2005; at some point he moved into her house and they lived together for "about . . . five months." They had an "intimate" relationship and defendant was "nice at that time." A "[c]ouple [of] months down the road[,] . . . [defendant] started getting . . . very different towards [her], . . . bossing [her] around and telling [her] what [she] had to do and how to go about [her] life." In January 2006, M.D. asked defendant to leave; he gave her a hard time but finally left.
After defendant moved out, M.D. stated that he would call her, but she would never call him. Defendant called her at home and while she was at work; he called "[m]any times a day." M.D. stated that she "would argue with him and tell him to please leave [her] alone and stop calling [her] so much, that [she] did not want to be bothered with him anymore [sic]." She discussed this situation with her co-worker, Barbara Welke, and asked Welke to answer her phone and if defendant called, to "tell him [she was] at a meeting or . . . doing something where [she could not] speak to him."
M.D. stated that on June 13, 2006, she was walking on her street on her way home from work at approximately 4:45 p.m. Defendant was standing across the street in front of a body shop with "Eric."*fn1 M.D. had brought some papers from her work that were for Eric. She approached the two men and said "hello" to defendant, who then asked her if he could "get a bucket that . . . he had left . . . in the basement." M.D. told defendant to wait where he was and that she would go into the basement and retrieve the bucket for him. She "didn't want [defendant] in [her] home," and wanted "nothing to do with him."
Defendant followed M.D. across the street. She again told him to wait and she would "come up with his bucket." She then unlocked her door, turned off her alarm and closed the door behind her. M.D. testified that she did not lock her door because it was her "intention . . . to go get the bucket, and just bring it right up to him and give it to him so he could leave." She never gave defendant permission to enter her house, adding that "he knew [she] didn't want him in [her] house."
M.D. went to the basement, "got the bucket . . . and whatever else [she] could think that was his that [she] didn't realize . . . was there." As she was coming up the steps from the basement, she "heard a big slam and it was [her] front door, and [she] heard someone cross [her] front room very fast." "[T]hinking that it was [defendant]" and "thinking the worst things[,]" M.D. "got very upset, nervous. [She] started crying." Before she "went up the steps, [she] grabbed a pair of scissors that were laying on [the] basement floor . . . [t]o protect [her]self in case [defendant] had any intentions of hitting [her] or doing anything else to [her]."
Before M.D. could "get upstairs to get out of the basement, [defendant] was already coming downstairs and [closed] the door that goes to [the] basement behind him." M.D. was crying, asking defendant to leave her alone. He "kept pushing [her] with his arm to go back down the steps. . . . [H]e took [her] wrist and . . . forc[ed her] to go back down the steps." M.D. still had the scissors in her hand and defendant told her that "[she] wouldn't need them."
Once they were in the basement, defendant said, "You know what I'm here for. . . . I'm here to relieve myself." M.D. took this to mean that he "wanted to have sex with [her]." She "kept pleading and begging for [defendant] to leave [her] alone . . . because [she] was on [sic] [her] period." Defendant "forced" M.D. to say she still loved him; she was in fear for her life. Defendant told M.D. "to lay on the floor" and "to take [her] underclothing off." Defendant them removed his pants, laid down on top of her and "put his penis in [her] vagina." M.D. did not scream because she was "locked in a basement where no one would hear [her]." Defendant ejaculated and as he moved off her, they were both "drenched in blood" from her period. She gave defendant a towel to wipe himself; he used it and threw it on the floor.
Defendant "kept pleading [with M.D.] not to tell" anyone and she promised because she "just wanted [him] out of [her] house." Defendant put on his pants, picked up the bucket and left her house. M.D. remained in the basement "[s]till very upset, very nervous." She threw her bloody clothes into the washing machine, but left the scissors and the towel on the basement floor.
After she cleaned up, M.D. call 9-1-1 and asked to have a patrol car come to her house because she wanted "to put a restraining order on [her] ex-boyfriend." She did not tell the 9-1-1 dispatcher that she had been raped. When police officers arrived, "[a]bout five to ten minutes" later, she did not "tell them immediately at the time what happened[,]" but she was still "[u]pset and crying" and then stated that defendant "had forced [her] to have sex with him when [she] did not want to."
The police went into the basement and saw the scissors and the towel. A short while later, M.D. gave a statement at police headquarters.
The prosecutor showed M.D. a pair of scissors that had been marked S-1 for identification. M.D. stated those were not the scissors she picked up to defend herself, adding that she did not "remember having scissors like this in [her] house." She thought the scissors she used had an orange handle, which S-1 did not. She acknowledged she had been nervous at the time, and reaffirmed that she definitely had scissors and they were about the same size as S-1.
Barbara Welke testified that she has worked with M.D. at the Motor Vehicles Commission for seven-and-a-half years. She described their relationship as "like friends all the time"; they saw each other socially and would talk about "family problems and different things that have been going on." Welke was familiar with the history of M.D.'s relationship with defendant.
Police Officer Tomas Martinez responded to M.D.'s 9-1-1 call. He described her as "[n]ervous, . . . sad, . . . [and] distraught" upon his arrival. He went down into the basement and saw "a towel with some blood on it, used tampon, and underwear" on the floor. Detectives Terman and Ertel arrived, secured the scene, took photographs and collected evidence.
The following day, Martinez and his partner, Officer Santiago, arrested defendant. They did not question defendant upon arrest because, Martinez explained, "it was Detective Terman's case and [he] did not want to jeopardize the case at all."
Detective Michael Terman testified that he responded to M.D.'s house, examined the basement and was present when Detective Ertel took photographs. He identified various photographs of the scene, which included the bloody towel, underwear and tampon. He also identified a photograph of the pair of scissors.
Terman interviewed defendant sometime following his arrest. After Terman advised him of his Miranda*fn2 rights, defendant spoke to him voluntarily. He stated that he and M.D. had engaged in "a consensual sex act." Defendant was "very concerned" about "what type of evidence" the police had, and at one point "referred to . . . a 'problem.'" When Terman asked defendant what he meant, defendant would not respond. The police did not take a formal statement because defendant "wished the interview to end" at that point and stated that he "wanted to seek legal counsel."
Detective Thomas Ertel identified the photographs he took of M.D.'s basement on the night of the incident. He identified S-1 as the scissors he "collected as evidence" that night. He stated that he personally ...