On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-12-1534.
The opinion of the court was delivered by: LE Winn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2011
Before Judges A.A. Rodriguez, LeWinn and Coburn.
The opinion of the court was delivered by LE WINN, J.A.D.
This appeal requires us to interpret language in the sexual assault statute, namely N.J.S.A. 2C:14-2(a)(3), which elevates the offense to first-degree aggravated sexual assault if an act of sexual penetration of another person is committed under . . . the following circumstance: . . . [t]he act is committed during the commission, or attempted commission . . . of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape [Emphasis added.]
We conclude that the proper interpretation of the phrase "on another" in this section is that the aggravated assault must be on a third person, committed for the purpose of compelling the submission of the sexual assault victim. Elevation of the offense based on aggravated assault of the sexual assault victim is addressed in N.J.S.A. 2C:14-2(a)(6), discussed below. Because defendant was indicted and tried under N.J.S.A. 2C:14-2(a)(3), and the record does not establish that he assaulted a third party during his sexual assault of the victim, we vacate his convictions based upon that statutory section.
Defendant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1(a)(3) and 2C:14-2(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree criminal restraint, N.J.S.A. 2C:13-2(b) (count four); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five); and fourth-degree obstructing the administration of justice, N.J.S.A. 2C:29-1 (count six). The State dismissed count four prior to trial. Tried to a jury, defendant was convicted of all remaining counts.
Defendant was sentenced to a term of twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), on the first-degree aggravated sexual assault charge; a consecutive term of seven years on the second-degree aggravated assault charge; and a concurrent 365-day term on the fourth-degree obstruction charge; he was also sentenced to five years of parole supervision. The remaining charges were merged.
The trial evidence established that in the early morning hours of April 22, 2007, then-eighteen-year-old P.F. was walking home from a party, first with two girlfriends but then alone after her friends took a different route. As she walked, P.F. heard a man shouting at her from behind. She saw defendant approaching and began to run away. As defendant chased her, P.F. called 9-1-1 on her cell phone and was on with the dispatcher when defendant caught up with her. A tape of P.F.'s 9-1-1 call was marked into evidence and the prosecutor played it for the jury during her testimony.
Defendant attacked P.F. from behind, repeatedly punching her in the head and face, causing her to fall and strike her head on the pavement. She continued to fight back while on the ground, punching defendant in the face. Defendant continued to strike her and finally, fearing for her life, P.F. stopped fighting.
As P.F. lay motionless on the ground, defendant "ripped off [her] pants . . . [and] started touching [her] vagina with his fingers." She then "hear[d] a belt come off and . . . [h]e was taking off his pants." She felt what she thought was a penis touching the lips of her vagina.
The police arrived at this point. Defendant "got up and tried putting his pants on and he . . . ran, and then an officer came over to [her] and covered [her] with some blanket." P.F. was taken to the hospital by ambulance. Her head was pounding and she was bleeding from her nose. Photographs taken at the hospital showed that P.F.'s lips and nose were swollen.
At the conclusion of the State's case, defendant moved for a judgment of acquittal on count one based on the argument he has raised in his first point on appeal, namely that the term "aggravated assault on another" in N.J.S.A. 2C:14-2(a)(3) means an assault on a person other than the victim of the sexual assault. The judge denied the motion, concluding that "the statute is referring to acts upon the victim. It is an enhancement feature because it reflects an additional threat of physical harm to the victim that's over and above the act of penetration or the violent act." The judge noted further that defendant's motion for a judgment of acquittal was based on a legal, not factual, argument.
At the outset of the prosecutor's summation, she told the jury, "Let's put the focus back where it belongs, on that man. That man chased, attacked, beat and, yes, raped [P.F.]." Defendant immediately objected to use of the word "rape" and, following a sidebar conference, the judge told the jury that they were the judges of the facts and would be charged as to the law "us[ing] the language ...