August 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID C. THOMPSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Spring and waited for her to buy crack. He indicated that he did not frequent that neighborhood at night.
After she bought crack, they continued to ride around and she attempted to smoke the crack while he was driving. He told T.S. she could not smoke crack in his car until he found a place to park. He drank another beer while he was driving. He drove to a parking lot behind an apartment building on Stuyvesant and parked with the front of the car facing out so he could watch for the police while she smoked crack. While she was smoking, she told him about her boyfriend, who caused the injury to her swollen eye. Defendant noticed her eye was swollen even though the lighting was poor. He shared the Bacardi with T.S. and she drank most of it.
After she finished smoking, she put the pipe inside a cigarette pack in her pants pocket and told him she was not taking off her bra or blouse. He paid her the remaining ten dollars. She then took off her pants, and climbed in the back seat. As defendant removed his pants, T.S. got "on her hands and knees with her butt in the air." He told her he "don't roll like that" and said she needed to turn around the other way. He climbed over the seat and attempted to position himself on top of her and "she started hollering, oh, stop, you're hurting me, you're hurting me, stop, stop, stop." He indicated he "might have sucked her breasts" and "raised her bra up." He denied performing oral sex on her, denied penetrating her with his penis, denied striking her, and indicated that if he did hit her, it was accidental. He further indicated that at no time was T.S. unconscious. Defendant wore four rings on his fingers that night.
Defendant testified that he reached for a condom that was in red tin foil sitting on the dashboard. Before he could get the condom, the police pulled into the driveway and shined their lights into the car. He laid back on top of T.S. and told her to be quiet because the police were there. Once she realized the police had arrived, "[s]he went crazy" and "off the hook." T.S. began screaming and hollering and throwing her hands. His windows were open and his car was unlocked and the police shined a flashlight and told them to get out of the car. Defendant was placed in handcuffs and arrested. He never saw T.S. again.
On appeal, defendant raises the following points for our consideration:
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
THE TRIAL COURT AND COUNSEL ERRED BY NOT INCLUDING CRIMINAL RESTRAINT AS A LESSER-INCLUDED OFFENSE OF KIDNAPPING ON THE VERDICT SHEET. ALSO, THE JURY RECEIVED INCORRECT JURY INSTRUCTIONS (NOT RAISED BELOW).
A. CRIMINAL RESTRAINT SHOULD HAVE BEEN LISTED AS A LESSER-INCLUDED OFFENSE OF KIDNAPPING.
B. INCORRECT JURY INSTRUCTIONS WERE PROVIDED BY THE COURT.
THE DEFENDANT'S ABILITY TO DEFEND HIMSELF WAS SEVERELY LIMITED BY THE LACK OF A SPEEDY TRIAL.
THE DEFENDANT'S SENTENCE IS EXCESSIVE. A CONSECUTIVE SENTENCE SHOULD NOT HAVE BEEN IMPOSED.
Rule 2:10-1 provides:
In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.
Defendant failed to file the requisite motion and therefore his contention that the verdict is against the weight of the evidence is not cognizable on appeal. State v. Love, 245 N.J. Super. 195, 198 (App. Div.), certif. denied, 126 N.J. 321 (1991). Even if we were to consider the merits of defendant's contention, he is not entitled to a new trial.
Separate and apart from the testimony of the victim, there was a witness who heard a female scream and call for help, heard a male voice threatening someone, also heard what sounded like punches, and subsequently saw a man laying on top of a woman who was screaming. When police arrived, they observed the victim in a hysterical state and also struggling with defendant. The victim also exhibited physical injuries that included a right eye that was swollen shut, scratches and bruises on her neck, and thumbprint-like bruises on her arms. Therefore, notwithstanding defendant's testimony, there was additional testimonial and physical evidence to aid the jury in its credibility assessments as the trier of fact.
"Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (citing State v. Haines, 20 N.J. 438, 446-47 (1956)), certif. denied, 134 N.J. 476 (1993). There was more than sufficient evidence in the record to support the jury's verdict, negating any finding of an "injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Butler, 32 N.J. 166, 196 (citation and internal quotation marks omitted), cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960).
Defendant argues that criminal restraint is a lesser-included offense of kidnapping and the fact that the court merged criminal restraint with attempted kidnapping lends credence to his contention that criminal restraint should have been included as a lesser-included offense of kidnapping on the verdict sheet, rather than as a separate offense on the verdict sheet as the court listed it. Because defendant did not request a jury charge on criminal restraint as a lesser-included offense or object to its listing on the verdict sheet as a separate offense, we review the claimed error under the plain error standard, determining whether the claimed error was sufficient to "'raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Proper jury charges "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Jury instructions guide jurors in discharging their deliberative responsibilities, and in the absence of appropriate instructions, "a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).
N.J.S.A. 2C:13-1b] provides in pertinent part that
[a] person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter;
(2) To inflict bodily injury on or to terrorize the victim or another . . . .
A person commits criminal restraint if the person "knowingly . . [r]estrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or . . . [h]olds another in a condition of involuntary servitude." N.J.S.A. 2C:13-2.
The key distinction between the two offenses is that in addition to confining a person for a substantial period of time, kidnapping requires that the confinement must be for one of the enumerated purposes set forth in the offense. Additionally, criminal restraint does not require confinement for a substantial period of time. Unquestionably, criminal restraint is a lesser-included offense of kidnapping. Moreover, because our review of the record persuades us that there was a rational basis for the instruction, we are satisfied defendant was entitled to an instruction of criminal restraint as a lesser-included offense of kidnapping. We nonetheless conclude that the court's failure to instruct the jurors that criminal restraint is a lesser-included offense of kidnapping was not an error capable of producing an unjust result. R. 2:10-2.
The jury considered criminal restraint as a separate offense, convicted defendant of that offense, and also separately convicted defendant of kidnapping. Further, based upon the question the jury submitted to the court during deliberations, it is clear that in addition to being satisfied that the State proved criminal restraint beyond a reasonable doubt, the jury also understood that additional elements must be proved in order to sustain a conviction for kidnapping. The jury submitted the following question to the court:
THE COURT: We have a question from the jury . . . . [that] reads as follows: "In regards to Question 1A and B, can the
[j]udge redefine 'a substantial period?' Also, does the defendant have to meet all four criteria, (i.e., one, to facilitate the commission of a crime; two, flight thereafter; three, inflict bodily injury on T.S.; four, terrorize T.S.) or at least one of the criteria to be found guilty?"
The answer to that is one of the criteria, but I'll read into the record how I propose we answer that.
In response to this question, the court instructed the jury as follows:
Now, in response to the request to give the definition of "a substantial period." As I previously told you, and as I will give you now in writing, again, unlawful confinement must be for a "substantial period." However, for this purpose, a substantial period is not measured in seconds, minutes or hours, nor by any other standard based strictly on the passage of time. Rather, a substantial period is one that is significant, in that it is more than incidental to the underlying crime, and substantially increases the risk of harm to the victim. That increased risk of harm must not be trivial. If the victim is confined for only a slight period of time and such confinement does not create the isolation and increased risk of harm that are at the heart of the kidnapping statute, then you should not convict the defendant of the kidnapping charge.
Therefore, in determining whether confinement was substantial, you may consider the following: One, the duration of confinement; two, whether the confinement occurred during the commission of a separate offense; three, whether the confinement which occurred is inherent in the separate offense; and four, whether the confinement created a significant danger to the victim independent of that posed by the separate offense.
Now, you also asked in C-6A, "Does the defendant have to meet all four criteria?" And in response to that, I will again charge you as I did previously.
In order for you to find the defendant guilty of kidnapping, the State is required to prove each of the following two elements to you beyond a reasonable doubt: One, that defendant, David Thompson, did unlawfully confine T.S. . . . for a substantial period of time; and two, the confinement was with the purpose to do one of the following: A, facilitate the commission of any crime, or B, facilitate the flight after the commission of a crime, or, C, inflict bodily injury on T.S., or, D, terrorize T.S.
After these instructions, the court instructed the jurors to "send out a note" if the jurors needed "any further clarification." The jury submitted no additional questions concerning this issue. Nor did the jury submit any questions related to the separately-instructed offense of criminal restraint. We presume the jury understood and abided by the court's instructions. State v. Burris, 145 N.J. 509, 531 (1996) (citing State v. Manley, 54 N.J. 259, 270 (1969)), certif. denied, 152 N.J. 187 (1997). We are therefore satisfied the jury convicted defendant of kidnapping only after being convinced the State proved all of the elements of kidnapping beyond a reasonable doubt.
The remaining arguments advanced by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
Although defendant claims that he filed a motion for a speedy trial, the court had no record of such a motion. Defendant's arguments that he was prejudiced by the eighteen-month delay before going to trial are reduced to a generalized statement that memories may have faded or may have been distorted and the claim that defense counsel's ability to cross-examine the victim was severely hampered because she remembered very few details of the events that unfolded on the evening of May 5, into the morning of May 6, 2006. The record establishes, however, that the victim remembered very few details of the events from the outset. Thus, the eighteen-month delay between indictment and trial did not unduly prejudice defendant.
In imposing a consecutive sentence, the court considered factors our Court has instructed trial courts to review before determining whether a consecutive sentence should be imposed. State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The court observed that the aggravated assault upon the victim took place while the victim and defendant were, ostensibly, on their way to purchase liquor. The court recognized that this attack occurred during the course of the same events that evening but reasoned that "there are sexual assaults and then there [is] physical violence that go[es] in addition to the physical sexual assault." The court stated that "there should not be any free crimes," recalling further the photographs depicting the victim's "very swollen eye." The court also found that the aggravated assault occurred at a different location and was sufficiently removed from the sexual assault. Consequently, the court considered it a separate crime.
Although the judge's findings did not include express statements regarding all the Yarbough factors, we may surmise that he considered all of them. Moreover, even if it could be argued that all the Yarbough factors were not all considered or satisfied here, they are not all necessary to generate a consecutive sentence. See State v. Carey, 168 N.J. 413, 427-28 (2001) (holding that "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences."). We conclude that the circumstances on which the judge relied in sentencing defendant to consecutive terms were sufficiently met. We conclude further that the judge did not abuse her discretion in imposing a consecutive sentence in connection with the aggravated assault conviction. State v. Molina, 168 N.J. 436, 442 (2001) (reviewing consecutive sentencing decision for abuse of discretion).
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