On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-10-1055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2011
Before Judges Fisher and Sapp-Peterson.
Defendant was convicted of second-degree attempted kidnapping, N.J.S.A. 2C:13-1 and N.J.S.A. 2C:5-1 and -4; second-degree sexual assault, N.J.S.A. 2C:14-2a; third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and third-degree criminal restraint, N.J.S.A. 2C:13-2. At sentencing, the court merged the criminal restraint conviction into the attempted kidnapping conviction and imposed a ten-year prison term with an eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility. The court also imposed a concurrent ten-year sentence with a NERA period of parole ineligibility on the aggravated sexual assault conviction, and a consecutive five-year sentence on the aggravated assault conviction. In addition, the court imposed fines, penalties, and advised defendant that he was subject to Megans's Law, N.J.S.A. 2C:7-1 to -23, and the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
The evidence before the jury, relevant to the issues raised on appeal, is as follows. On the evening of May 5, 2006, around 9:30 p.m., T.S., who was forty-one years old at the time and a recovering heroin addict, was walking along Stuyvesant Avenue in Trenton when she encountered a woman she knew talking to a gentleman seated in a vehicle, who was later identified as defendant. T.S. was walking to a local bar to buy liquor and eventually decided to ride to the bar in defendant's vehicle. On the way to the bar, defendant struck her in the face and she passed out. When she regained consciousness, half of her body was in the back of defendant's car and her legs were in the front. She was naked below the waist and defendant was between her legs "having oral sex." She had not consented to engaging in sexual relations with defendant and begged him to stop. She tried to fight him off by kicking and swinging punches. Defendant punched her in the face. Defendant told her, "I'll kill you, bitch. I'll kill you. Don't you ever put your hands on me." T.S. believed she was fighting for her life.
T.S. testified that she passed out again. When she regained consciousness, she was in an ambulance. She did not remember seeing any police officers at the scene or putting her clothes back on. She also did not recall any other kind of sexual acts that defendant performed while she was in the car. She could not remember whether defendant had ejaculated while he was sexually assaulting her.
She was transported to a local hospital where she was examined by the Sexual Assault Nurse Examiner (SANE) and a physician. T.S. reported feeling pain in her face, eye, below her navel, around her vagina, inside her thighs, and in her stomach. She told the nurse that she had been attacked and raped. She had bruises on the right side of her forehead, scratches and bruises on her neck, and her arms displayed "thumbprint-like bruises." Her right eye was swollen shut. An internal examination revealed injuries to T.S.'s labia majora and some abrasions on her labia minora and urethra. There were no rectal injuries or injuries to T.S.'s cervix or vaginal walls. A blood test reported a .36 blood alcohol content. She was not tested for the presence of illegal substances. T.S. later gave a formal statement to police. During her trial testimony, she also identified defendant as her attacker.
Mildred Maxi, who lived in the area where police found defendant and T.S., testified that she awakened around 3:00 a.m. on May 6, and went into her bathroom. She heard moaning in the parking lot. She returned to bed and again heard moaning and talking that was not "friendly." She heard a female scream and cry "somebody help me." She then heard a man say "shut up before I knock your head off." She also heard what sounded like punches. She could not recall if her windows were open, but indicated that the glass was thin. She looked out of her bedroom window and saw a man laying on top of a woman in the back of a car. The car was shaking and a woman was screaming. She called 911 and the police responded while she was on the phone with dispatch. Once the police arrived, she saw a man and a woman exit the car. She heard the police tell them to get dressed. She saw the police handcuff the man and restrain the woman from fighting the man. A few hours later, officers came to her apartment to ask questions and take pictures. Around 10:30 a.m. that morning, she provided a formal statement to police at police headquarters.
Officers Sean Gaither and Peter Grehan were dispatched to Stuyvesant Avenue around 3:20 a.m. on May 6, 2006. Upon their arrival, they pulled into a driveway behind a building where they observed a blue Honda. The officers parked their vehicle nose-to-nose with the Honda. The headlights of the police car illuminated the inside of the Honda and the officers observed "a black male and a black female in the back seat. . . . [T]he male was on top of her. The female was striking out at the male yelling 'get off me,' and she then started to yell, 'help me.'"
The officers approached the Honda and observed that neither individual was wearing pants. Officer Gaither observed that T.S. was "distraught," "highly upset," "crying," and looked like "[s]omeone being assaulted." He further observed that T.S. was punching and kicking defendant and defendant was punching T.S.'s chest, face, and head. Officer Grehan retrieved defendant's pants from the front of the car, searched them, gave them to defendant to put on, and ordered him to exit the car.
Officer Gaither observed T.S. exit the car on the driver's side and come toward him wearing nothing but a torn white top and bra. He described that T.S. was "hysterical" and testified that he put his arms around her. T.S. was yelling at defendant to "stay away from her." He noticed that T.S.'s eye was "swollen practically shut." Officer Grehan also noticed that T.S.'s eye was swollen and neither officer observed any injuries on defendant. Officer Grehan retrieved T.S.'s pants from the passenger seat, searched them, and found nothing. He handed the pants to Officer Gaither, who gave them to T.S. to put on. Officer Gaither handcuffed and arrested defendant. T.S. was transported to Helene Fuld Medical Center via ambulance.
The officers spoke to T.S. at the hospital and observed she was "still upset" and "somewhat intoxicated." Officer Gaither indicated that although T.S. "really didn't know what had happened to her[,]" she did say she was sexually assaulted by defendant.
Detective Brian Egan responded to the hospital where T.S. was taken. Officer Gaither briefed him. He also met with T.S. and observed bruising on her neck and arms, and testified that her right eye "looked like if you were to pull the lid out and stuff a golf ball [in] there." He could not "tell that she was under the influence of anything." The officer determined at the scene that the Honda was registered to defendant. No condom was found. He said he interviewed Maxi and supervised the photographs taken from her apartment window. On May 7, he spoke to T.S. again at the station and observed that her eye was still swollen and her neck was still bruised.
Detective Thomas Ertel testified that he responded on the night in question to take photographs of the scene. He found a stain on the back seat of the Honda, but the lab would not accept his request for analysis of the stain. He did not find a condom in the car. He photographed the scratches and redness on the side of defendant's chest. He did not observe any cuts, scrapes, or injuries on defendant's hands.
Rupal Frank-Slotwinski, a forensic scientist from the New Jersey State Police ("NJSP"), testified that no spermatozoa were found in T.S.'s vaginal and cervical smears or swabs but blood was present in both areas. Spermatozoa was also not found in T.S.'s oral swabs but blood was present. T.S.'s left and right breasts tested positive for dried saliva and blood but negative for spermatozoa. Her bra also tested positive for saliva. T.S.'s fingernails and pants tested negative for blood or spermatozoa. T.S.'s vaginal samples were not tested for saliva due to the natural presence of amylase in the vagina. Finally, another forensic scientist from NJSP, Theresa Nezezon, testified that DNA in the saliva found on T.S.'s left breast matched defendant's DNA.
Defendant, who was fifty-eight years old at the time of the trial, testified that around 10:00 p.m. on May 5, 2006, he stopped at a liquor store and purchased a six-pack of beer and one-half pint of Bacardi Limon. After midnight, he met T.S. in a deli on the corner of Perry and Montgomery Streets, where he had stopped to buy cigarettes. T.S. approached him in the store and he noticed she had a lump on her face and her eye was swollen. Defendant had never seen her before. She followed him out of the store, asking if she could ride around with him. Defendant agreed and they rode to the Los Amigos Bar to buy another six-pack of beer and a pint of Bacardi Limon. T.S. initially waited in the car while defendant bought the liquor, but after fifteen minutes, she came into the bar to find out what was taking so long.
After he bought the liquor, they continued to ride around and she asked defendant "what's up" and he asked her if she was "trying to get into a little something." She told defendant she was "trying to make a few dollars" and indicated she would have sex with defendant if he paid her ten dollars for a hit of crack and ten dollars for sex. Reluctantly, at around 12:40 a.m., he dropped T.S. off at Passaic and ...