September 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RAUL D. LOPEZ, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-03-00366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 2, 2012
Before Judges Cuff, Lihotz and Waugh.
By leave granted, we review an order granting defendant Raul D. Lopez's petition for post-conviction relief (PCR) which vacated his conviction of first degree kidnapping and third degree aggravated criminal sexual contact and ordered a new trial on these charges. The judge entered an order staying the new trial pending appeal.*fn1
The facts of the case are set forth in our opinion addressing defendant's direct appeal. State v. Lopez, 395 N.J. Super. 98, 104-06 (App. Div.), certif. denied, 192 N.J. 596 (2007). Briefly, defendant, then twenty-four years old, drove from the hotel in which he was staying in Edison to pick up thirteen-year-old M.B., a friend of another minor with whom he was chatting on line. Id. at 104. M.B. got in his car and they drove to Edison making two stops along the way. Ibid. M.B. and defendant entered his hotel room at about 1:00 a.m. and departed together the next morning at about 11:00 a.m. Ibid. The trial testimony centered on the different versions of what occurred in the hotel room. Ibid. M.B. provided a detailed description of sexual activity, including intercourse. Id. at 105. Defendant described hugging, kissing, and "touching her bare breasts under her clothing." Ibid.
The jury convicted defendant of first degree kidnapping during the
course of a crime, contrary to N.J.S.A. 2C:13-1c(2) (Count One); third
degree aggravated criminal sexual contact,
contrary to N.J.S.A. 2C:14-3a, as a lesser included offense of second
degree sexual assault (Count Three); and third degree endangering the
welfare of a child, contrary to N.J.S.A. 2C:24-4a (Count Four). The
trial judge imposed an aggregate seven-year term of imprisonment
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn2
The State invoked the ten-day stay provision of Rule
3:21-4(i) and appealed the sentence. It contended the judge imposed an
illegal sentence. Defendant filed a cross-appeal raising eight
arguments, including an argument that the trial judge failed to
provide a legally adequate instruction on kidnapping and that his
sentence was manifestly excessive.
On appeal, we affirmed the conviction but vacated the sentence as illegal and remanded for entry of a twenty-five-year term on the kidnapping charge subject to a twenty-five-year mandatory minimum term. Lopez, supra, 395 N.J. Super. at 108-09. Judge Nieves re-sentenced defendant as instructed.
On March 9, 2009, defendant filed a pro se "Petition to Correct an Illegal Sentence" in which he argued that the trial judge failed to instruct the jury on all elements of aggravated criminal sexual contact and this omission tainted the kidnapping conviction. Defense counsel asserted defendant had never been informed of a pre-trial plea offer extended by the prosecutor. Judge Nieves conducted an evidentiary hearing. Two further hearings occurred and defendant obtained new counsel in Spring 2011. Treating defendant's petition as one for PCR, the judge denied the ineffective assistance of counsel claim based on the failure of defense counsel to communicate a plea offer of three years with no mandatory minimum term. The judge found the assistant prosecutor's testimony credible. She testified she communicated a "three years flat" offer but defendant rejected it. The judge also found defendant's testimony credible. He testified that he refused to enter a guilty plea to any sexual offense. The judge held this admission by defendant prevented PCR because he could not satisfy the two-prong Strickland*fn3 /Fritz*fn4 standard.
Addressing the contention that the trial judge delivered an erroneous instruction on the first degree kidnapping charge, Judge Nieves held the instruction on aggravated criminal sexual contact omitted critical elements. He held the omission undermined both the kidnapping and aggravated criminal sexual contact convictions. The judge also held that aggravated criminal sexual contact is not a lesser included offense of sexual assault, although it is a lesser included offense of aggravated sexual assault. The judge stated:
[The trial judge] failed to give a complete jury instruction on aggravated sexual assault. He charged the jury as follows . . .: "So for you to find Mr. Lopez guilty of aggravated criminal sexual contact upon [M.B.][,] the State must prove beyond a reasonable doubt each of the following elements: First, that Mr. Lopez committed an act of criminal sexual contact upon [M.B.]. And, second, that [M.B.] was at least 13 years of age but less than 16 years old at that time." Although he properly charged the elements of the other crimes, the jury could not have known to apply the relevant element from aggravated sexual assault which instructed that it must have occurred during the course of a kidnapping to aggravated sexual contact.
During the charge on kidnapping, he charged the jury with determining whether aggravated sexual assault, sexual assault, or aggravated criminal sexual contact occurred during the kidnapping, but in failing to properly charge the jury with respect to aggravated criminal sexual contact[,] it is likely that the deliberative process was tainted with confusion. Certainly, [the trial judge] asked the jury to consider if aggravated sexual contact occurred during the kidnapping charge but considering he should have never charged aggravated sexual contact as a lesser included of sexual assault[,] it can hardly be considered sufficient to cure the possibility of confusion.
The judge also held that the bar of issues that were raised or could have been raised on direct appeal, Rule 3:22-4 and-5, did not apply. The judge reasoned that the errors in the charge undermined the integrity of the process and required a new trial.
On appeal, the State raises the following arguments:
POINT I SINCE THE GUILTY VERDICT IN 2004,
JUDICIAL BIAS HAS BESET THIS CASE AND JUDGE NIEVES' ANIMUS AGAINST THE MANDATORY SENTENCE DEFENDANT MUST SERVE FOR HIS FIRST DEGREE KIDNAPPING CONVICTION ADVERSELY INFLUENCED HIS DECISION MAKING IN THIS CASE.
POINT II THE PROCEDURAL BARS OF R. 3:22-5 AND R.
3:22-4 APPLY HERE AND DEFENDANT'S CLAIM CONCERNING THE INEFFECTIVENESS OF APPELLATE COUNSEL FOR FAILURE TO ADDRESS THE AGGRAVATED CRIMINAL SEXUAL CONTACT CHARGE IS PROCEDURALLY BARRED AND THE GRANTING OF PCR SHOULD BE REVERSED.
POINT III THE GRANTING OF PCR WAS IMPROPER AND SHOULD BE REVERSED.
The State argues the current position of defendant, that the judge issued an erroneous jury charge, is barred by Rule 3:22-4 and -5. Rule 3:22-5 bars a defendant from raising arguments in a PCR petition that have been addressed on direct appeal. Rule 3:22-4(a) bars arguments not raised at trial, direct appeal from the conviction, or a prior PCR. Defendant responds that the precise issue was not addressed on direct appeal and that enforcement of the procedural bar would result in fundamental injustice.
This court previously addressed defendant's argument on direct appeal challenging the jury charge on the kidnapping charge as flawed. The point heading was as follows:
POINT II THE TRIAL COURT'S FAILURE TO GIVE ADEQUATE JURY INSTRUCTIONS WITH RESPECT TO THE KIDNAPPING COUNT, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, PAR. 1 (PARTIALLY RAISED BELOW).
We rejected defendant's argument that the instructions for kidnapping and aggravated criminal sexual contact were "circuitous" and "absurd" because each was an element of the other offense. Lopez, supra, 395 N.J. Super. at 106. We also rejected defendant's argument that he was entitled to a "released unharmed" charge. Id. at 107.
As presented on direct appeal, neither argument highlights the missing elements of aggravated criminal sexual contact. We, therefore, hold that Rule 3:22-5 does not bar consideration of this issue in this PCR petition.
Rule 3:22-4(a) provides an argument that could have been raised at trial or on direct appeal is barred, unless "(2) [e]nforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice[.]" A flawed jury instruction that may have contributed to an erroneous verdict, which, in turn, renders defendant eligible for a substantial prison term, qualifies as a factor that may relax this procedural bar. State v. Lawton, 298 N.J. Super. 27, 30 (App. Div. 1997), certif. denied, 151 N.J. 72 (1997). We consider the error advanced by defendant to warrant relaxation of the procedural bar.
The judge granted defendant's PCR petition on the basis that the charge for first degree kidnapping and third degree aggravated criminal sexual conduct were fatally flawed and trial counsel had failed to object to the fundamentally flawed charge. The State argues aggravated criminal sexual contact is a lesser included offense of sexual assault, the charge on this offense was correct, and by finding defendant guilty of kidnapping, it implicitly found defendant committed each element of aggravated criminal sexual contact. Defendant argues aggravated criminal sexual contact is not a lesser included offense of aggravated sexual assault or sexual assault and the aggravated criminal sexual contact charge was incomplete; therefore, the guilty verdict on the kidnapping charge was also flawed.
The entire argument in support of this PCR petition rests on whether the trial judge provided an accurate statement of the law and whether defense counsel preserved any error. Our review of the legal adequacy of the jury charge, however, is in the context of a PCR proceeding. Defendant does not allege ineffective assistance of trial counsel. He does allege that the flawed jury instruction substantially denied him his "rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" R. 3:22-2(a).
The problem presented by inadequate or erroneous jury instructions is well-recognized. "'[E]rror in a jury instruction that is crucial to the jury's deliberations on the guilt of a criminal defendant is a poor candidate for rehabilitation . . . .'" State v. Vallejo, 198 N.J. 122, 141 (2009) (quoting State v. Burns, 192 N.J. 312, 341 (2007) (internal quotation marks omitted)). Accord State v. Jordan, 147 N.J. 409, 422 (1997). Proper jury instructions are "essential to a fair trial" and incorrect instructions "are almost invariably regarded as prejudicial . . . ." State v. Vick, 117 N.J. 288, 289 (1989); State v. Haley, 295 N.J. Super. 471, 476 (App. Div. 1996).
When a defendant challenges a jury instruction, the charge is read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). A defendant is not entitled to have the jury charged in his or her own words, but a defendant is entitled to a complete and accurate statement of the law. State v. Thompson, 59 N.J. 396, 411 (1971). This requirement includes instructing the jury on all essential and fundamental issues and elements of each offense. State v. Green, 86 N.J. 281, 290 (1981).
Reversible error in a jury charge has been described "as the failure of the [trial] court, whether or not requested, to instruct fully, clearly and accurately as to the fundamental and essential issues before the jury including . . . each of the elements of the offense including the standard of culpability." Pressler & Verniero, Current N.J. Court Rules, comment 3.3.1 to R. 2:10-2 (2012). See also State v. Gartland, 149 N.J. 456, 475 (1997) (emphasizing need for adequate and understandable instructions).
A. Whether aggravated criminal sexual contact was properly charged as a lesser included offense of sexual assault.
Defendant argues the judge erred by including an instruction on aggravated sexual contact because this charge cannot be considered a lesser included offense of sexual assault. We disagree.
As a threshold matter, we note that this is an issue that could have been raised on direct appeal but was not. Rule 3:22-4 bars litigation in the PCR context of such claims. Although proper jury instructions are critical to assure a just outcome at trial, this is normally an issue that should be procedurally barred. Nevertheless, we address the merits of this issue.
A lesser included offense is one that "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d). Generally, determining the appropriateness of a charged lesser included offense requires a determination as to whether the "'requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and . . . that there be a rational basis in the evidence to support a charge on that included offense.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The statutory definition, however, is not "'all-encompassing.'" State v. Purnell, 126 N.J. 518, 531 (1992 (quoting State v. Sloane, 111 N.J. 293, 300 (1988). The court may charge an offense as lesser included if it is supported by the evidence, even if it "does not meet the Code's definition of lesser-included offense," subject to the requirements of fair notice. Ibid. (quoting State v. Mancine, 124 N.J. 232, 265 (1991) (Stein, J., concurring)). Accord State v. Ciuffreda, 127 N.J. 73 (1992); Sloane, supra, 111 N.J. at 299-304; State v. Battle, 256 N.J. Super. 268, 280 (App. Div.), certif. denied, 130 N.J. 393 (1992); see also State v. LeFurge, 101 N.J. 404 (1986); State v. Talley, 94 N.J. 385 (1983).
Trial courts are "to see that justice is done, and that a jury is instructed properly on the law and on all clearly indicated lesser-included offenses . . . ." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). "[T]he integrity of . . . the fact-finding process is not subordinate to the singular interests" of any party. Ibid. Moreover, a criminal defendant should be "charge[d] on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993).
An actor is guilty of sexual assault if he commits an act of sexual penetration with another person, along with a certain aggravating factor, such as that the victim was at least thirteen but less than sixteen years old with the actor at least four years older than the victim. N.J.S.A. 2C:14-2(c)(4). Criminal sexual contact is defined as an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts. N.J.S.A. 2C:14-1d. Criminal sexual contact could be a necessary prelude to the act of penetration or could occur without penetration at all. State v. Muhammad, 182 N.J. 551, 576 (2005). An actor is guilty of aggravated criminal sexual contact when he commits an act of criminal sexual contact along with a certain aggravating factor, such as an intentional touching during the course of the commission of a kidnapping. N.J.S.A. 2C:14-2a.
Due to the difference in the definitions of the essential elements of penetration and contact in N.J.S.A. 2C:14-1, the two offenses have been found "generally distinct forms of touching." Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:14-2 (2012). Lesser included offenses of sexual assault, such as criminal sexual contact, however, may be included if the charges allege alternative theories of guilt. Muhammad, supra, 182 N.J. at 575. Where there is testimony to substantiate sexual assault, "an act that by its nature involves physical contact between the assailant and the victim," a verdict might reflect the fact that the jury credited part and rejected part of that testimony and, therefore, concluded that the defendant touched the victim, but did not penetrate her. Id. at 577-78. Only if a basis exists for a jury to find that penetration did not occur should the trial judge instruct the jury on the lesser included offense of criminal sexual contact. State v. Gallagher, 286 N.J. Super. 1, 14 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). Accordingly, criminal sexual contact may be charged as a lesser included offense of sexual assault.
The Supreme Court has held "that a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). Moreover, "'[a] jury is not bound to believe the testimony of any witness, in whole or in part.'" Muhammad, supra, 182 N.J. at 577 (quoting State v. Bentley Bootery, Inc., 128 N.J.L. 555, 561 (Sup. Ct. 1942), aff'd o.b., 129 N.J.L. 386, 387 (E. & A. 1943)). Jurors "'may reject what in their conscientious judgment ought to be rejected and accept that which they believe to be credible.'" Ibid. (quoting Bentley Bootery, supra, 128 N.J.L. at 561). Here, there was contradictory testimony about penetration. Accordingly, the jury bore the responsibility to resolve this factual dispute. This determination could allow for conviction for sexual assault, if penetration were found; or the lesser included offense of criminal sexual contact, in the absence of penetration; or aggravated criminal sexual contact, in the absence of penetration but with an aggravating factor depending on the jury's findings and witness credibility.
Here, although the elements of aggravated criminal sexual contact do not subsume the elements of sexual assault, the judge appropriately charged this offense. The evidence supported the charge of aggravated criminal sexual contact because the facts indicate a possibility that defendant intentionally touched the victim in a sexual manner during the course of the commission of a kidnapping. Moreover, defendant was on notice he was charged with both sexual assault and kidnapping and was afforded the opportunity to defend against these charges.
B. Whether the jury instructions correctly stated the law. Defendant was charged with first degree kidnapping contrary to N.J.S.A. 2C:13-1b(1), which provides:
A person is guilty of kidnapping if he unlawfully removes another from his place of residence . . ., or 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[.]
Kidnapping is a first degree offense. N.J.S.A. 2C:13-1c.
In this case, the State alleged that defendant removed the victim from her home near Philadelphia and drove her to his hotel in Edison with the purpose of committing aggravated sexual assault, sexual assault, or any included offenses. Therefore, proper instructions on the offenses the kidnapping facilitated are critical.
On direct appeal, defendant argued that the jury instructions were erroneous because the instructions highlighted the circularity of the elements of the kidnapping and sexual offenses. In rejecting this contention, we stated:
We, likewise, reject defendant's argument that the trial court gave an erroneous charge to the jury on kidnapping. There is no invalidating inconsistency or, as defendant argues, "circuitous[ness that] leads to an absurd result" just because kidnapping is one of the predicate offenses of aggravated sexual assault, see N.J.S.A. 2C:14-2a(3); and sexual assault and aggravated sexual assault of a victim below the age of sixteen, as well as aggravated criminal sexual contact with such a victim, are predicate offenses for the enhanced mandatory minimum sentencing provision for first-degree kidnapping . . . . [Lopez, supra, 395 N.J. Super. at 106.]
Circularity did not render the charge erroneous; however, the inter-related elements of the various charges made it absolutely essential that the trial judge provide a full and complete instruction about each sexual offense that was a predicate offense for the first degree offense of kidnapping.
Because the jury found defendant guilty of only one sexual offense, aggravated criminal sexual contact, we concentrate on the charge provided by the trial judge for this offense. N.J.S.A. 2C:14-3a provides that "[a]n actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in 2C:14-2a(2) through (7)." "Sexual contact" is defined as an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor . . . . [N.J.S.A. 2C:14-1d.]
"Intimate parts" is defined as "sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person[.]" N.J.S.A. 2C:14-1e.
N.J.S.A. 2C:14-2a(2) through (7) delineates the circumstances that make criminal sexual contact aggravated criminal sexual contact. Those circumstances are
(2) The victim is at least 13 but less than 16 years old; and
(a) The actor is related to the victim by blood or affinity to the third degree, or
(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or
(c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household;
(3) The act is committed during the commission, or attempted commission, . . . of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;
(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;
(5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;
(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim;
(7) The victim is one whom the actor knew or should have known was physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. [N.J.S.A. 2C:14-2a(2) to (7) (emphasis added).]
Here, the operative circumstance making defendant's conduct aggravated criminal sexual contact was whether he committed an act of sexual contact during the course of a kidnapping. N.J.S.A. 2C:14-2a(3). Therefore, a complete charge for aggravated criminal sexual contact must contain the definition of sexual contact and intimate parts, N.J.S.A. 2C:14-1d and e, must identify the relevant factor from N.J.S.A. 2C:14-2a(2) to (7) that makes defendant guilty of this offense, and must address the relevant state of mind.
Here, the trial judge defined sexual contact and intimate parts, he instructed the jury that it must find that defendant acted purposely, and he reiterated how a jury can determine if defendant acted purposely. Then, he informed the jury that it must also find that M.B. was between the ages of thirteen and fourteen. That is, he cited factor or circumstance (2), N.J.S.A. 2C:14-2a(2), as the relevant factor the jury must find to return a guilty verdict on the aggravated criminal sexual assault charge. This charge is erroneous. In drafting section 2a(2), the Legislature utilized the conjunctive "and" after identifying age as a relevant factor. Thus, the age of the victim is relevant only if one of three cited factors is present. None of those factors are relevant to this case. Moreover, the jury was never informed that it could convict defendant of aggravated criminal sexual contact only if it found that he committed an act of sexual contact with M.B. in the course of committing a kidnapping. See N.J.S.A. 2C:14-2a(3).
To be sure, unlawfully removing M.B. from her home or a substantial distance from her home to facilitate any crime is a first degree offense. N.J.S.A. 2C:13-1c(1). Having been found guilty of first degree kidnapping, defendant could have been sentenced to an ordinary term of imprisonment between fifteen and thirty years. Ibid. When, however, the jury found defendant unlawfully removed M.B. from her residence to facilitate aggravated criminal sexual contact, defendant's sentencing exposure became magnified. N.J.S.A. 2C:13-1c(2) required the sentencing judge to impose either a twenty-five year term of imprisonment with no parole eligibility or a specific term between twenty-five years and life imprisonment, twenty-five years of which must be served without parole. N.J.S.A. 2C:13-1c(2).
Under these circumstances, we cannot hold the error harmless. The conviction of aggravated criminal sexual contact rests on a fundamentally flawed charge and must be vacated. Such an error also affects the kidnapping conviction because the judge instructed the jury that it must find that in unlawfully removing M.B. from her home, defendant intended to commit either sexual assault or aggravated criminal sexual contact. The jury found defendant not guilty of sexual assault but found him guilty of aggravated criminal sexual contact. The latter verdict is predicated on an erroneous charge that included an irrelevant and inapplicable statutory factor and omitted the only relevant factor for the jury's consideration.*fn5
Accordingly, we affirm the September 27, 2011 order granting defendant's petition for PCR.