On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0488.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Simonelli and Hayden.
A grand jury indicted defendant for second-degree forcible sexual assault, N.J.S.A. 2C:14-2c(1) (count one); third-degree criminal restraint, N.J.S.A. 2C:13-2b (count two); and second-degree sexual assault of a victim at least 13 but less than 16 years old, N.J.S.A. 2C:14-2c(4) (count three). Defendant was also charged with the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1a, and offering an alcoholic beverage to an underage person, N.J.S.A. 2C:33-17a.
The trial judge dismissed count two at the close of all testimony. The jury found defendant guilty on count three, and not guilty on count one. The judge found defendant guilty of both disorderly persons offenses. The judge denied the State's motion for an extended-term sentence, and imposed an eight-year term of imprisonment on count three, and a concurrent 180 day term of imprisonment on the disorderly persons convictions. For the reasons that follow, we affirm defendant's conviction and sentence, but remand to the trial court to correct the judgment of conviction to reflect the denial of the State's motion for an extended-term sentence.
We discern the following facts from the evidence presented at trial. Defendant met S.C.*fn1 in March or April of 2007; S.C. was fifteen years old and defendant was twenty-eight at the time. Shortly thereafter, the couple began a sexual relationship that continued until November 2007.
On November 11, 2007, S.C. accompanied defendant to a motel, where they drank alcoholic beverages and began arguing. According to S.C., defendant became angry when she said that she wanted to end their relationship. He then started hitting her, threw her on the floor, and threatened "to smash a bottle in her face." She also testified that she had sexual relations with defendant that night, but not willingly, and that defendant physically assaulted her both before and after they had sexual relations. Around 4:00 a.m., when defendant went into the bathroom threatening to kill himself, she left the motel room and ran three miles to her home.
The following day, S.C. showed her mother the bruises from defendant beating her. At her mother's insistence, they went to the police station to file a complaint against defendant. At first, S.C. only told the interviewing officer that defendant had physically assaulted her, explaining later that she did not say anything about a sexual assault because she was too frightened. However, when speaking with a female officer, S.C. told the officer that defendant had forced her to have sex the prior night. S.C. refused to go to the hospital for an examination to corroborate the sexual assault claim. The police took photos of S.C.'s injuries, which showed bruising and scrapes to her back, chest area, knees, arms, and wrist.
On January 4, 2008, the police, with S.C.'s consent, recorded a series of phone calls made by S.C. to defendant. During the calls, defendant at first admitted to hitting S.C., but later said he didn't "smack or punch the shit out of" her, but only pushed her. He also acknowledged having sexual relations with S.C.
During cross-examination at trial, defense counsel questioned S.C. about the inconsistency of her previous statements concerning both the night in question and her relationship with defendant. S.C. admitted that at the outset she had told the police officer the sexual assault happened before defendant beat her. She also had told the detective she had not been drinking alcohol that night, but later admitted that she had. At first, S.C. told the detective that she began having sexual relations with defendant in the summer of 2007, but later said that she was fifteen years old at the time. Since she turned sixteen on June 12, 2007, she explained that she considered summer to begin in March or April, when it was warm in New Jersey. She recalled that defendant had given her a necklace and flowers for her birthday and they were sexually involved at the time.
Additionally, upon further cross-examination, S.C. conceded that, although she originally claimed she had instigated the breakup, defendant might have broken up with her. The following dialogue between defense counsel and S.C. occurred:
Q: [S]o after that conversation when you told him that you weren't faithful, that's when the argument occurred, right?
Q: And he wanted to break up with you because of that, didn't he?
A: I guess. . . . He wanted to break up with me.
Q: He tried to leave right, and you didn't want him to ...