June 17, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
THOMAS R. REEVEY, a/k/a THOMAS REEVEY, a/k/a RAYMOND PETERSON, a/k/a THOMAS R. SMITH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-1807.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
A multi-count indictment charged that on November 11, 2008, defendant Thomas R. Reevey unlawfully entered the home of his son's mother, kidnapped her, made terroristic threats, committed aggravated sexual assault and aggravated assault, and violated a domestic violence restraining order. The jury found defendant guilty of disorderly persons simple assault, N.J.S.A. 2C:12-1a, as a lesser included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and petty disorderly persons harassment, N.J.S.A. 2C:33-4, as a lesser included offense of third-degree terroristic threats, N.J.S.A. 2C:12-3a; and in a bifurcated trial, fourth-degree contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9b. The jury acquitted defendant of all other charges, including first-degree kidnapping, N.J.S.A. 2C:13-1b(1), and four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (6). Defendant appeals his convictions. Having reviewed the record in light of the applicable law, we affirm.
At the main trial, the State presented evidence of the victim's substantial physical injuries when police discovered her, naked and dazed in her bathtub. The jury heard extensive supporting testimony from medical personnel. The State also relied on the victim's recorded statement, given shortly after her seven-day hospital stay. In her statement, the victim asserted defendant broke into her home through a window, punched her until she lost consciousness, penetrated her vaginally and orally against her will, assaulted her with a lamp, and confined her to her home for several hours while he committed these crimes. At the end of the assault, according to her statement, he attempted to wash her bloodied wounds in a bathtub. As she lay in the tub, he watched over her while sitting on the toilet. When a person came to the front door, the victim, still in defendant's presence, did not respond as the visitor knocked for an extended period of time.
The State's case was weakened by two letters the victim wrote in September 2009 and June 2010, after defendant's indictment. In those letters, she recanted her principal allegations. She asserted that she voluntarily admitted defendant to the home, they drank several bottles of beer and wine together, and engaged in sex. Then, they began to fight. She suffered physical injuries because she accidentally hit herself with the lamp while attempting to strike defendant. While taking a shower, she fell in the bathtub. In one letter, she stated that they had been drinking. In another, she said she had been smoking PCP. The victim testified at trial, but professed a failure of memory, and did not clearly confirm the allegations made in her 2008 statement to police.
The State called a DNA witness who supported the allegation that defendant vaginally penetrated the victim. The State also called an expert on battered spouse syndrome, whose testimony provided the jury with a basis to discount the victim's letters and trial testimony.
In the main trial, defendant moved for an acquittal after the State rested. Specifically regarding kidnapping, Judge Gwendolyn Blue granted the motion to the extent the indictment charged kidnapping by asportation, but denied the motion as to kidnapping by confinement. The court denied the motion in all other respects, except to dismiss a fourth-degree charge of unlawfully taking a means of conveyance.
Defendant did not testify nor call witnesses. In his summation in the main trial, defense counsel conceded that defendant was present in the home. Counsel also conceded defendant engaged in intercourse with the victim. But, counsel argued the sexual relations were consensual. He argued the victim's injuries resulted from the subsequent "tussling" between defendant and victim, "possibly a result of maybe being under the influence of smoking [PCP.]"
At sentencing, the court reviewed defendant's extensive criminal record. Thirty-seven years old at the time, defendant had four prior indictable convictions. The judge stated defendant had eight municipal court convictions, "at least four" of which involved assaults against the same victim. The court sentenced defendant to eighteen months incarceration, with nine months of parole ineligibility on the criminal contempt, and six-month terms on the assault and harassment convictions. All three terms were concurrent to each other.
Defendant thereafter entered a plea to violating probation, to which he had been sentenced after being convicted in August 2008 for fourth-degree criminal trespass at the victim's home. The court revoked probation and resentenced defendant to twelve months incarceration, to run consecutive to the sentence for the contempt, assault, and harassment.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE KIDNAPPING COUNT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH CONFINEMENT FOR A SUBSTANTIAL PERIOD OF TIME.
Although the jury acquitted defendant of the kidnapping count, defendant argues the alleged "overcharging" of kidnapping infected the jury's verdict on criminal contempt, assault, and harassment.
Defendant's argument lacks sufficient merit to warrant extended discussion. We limit ourselves to these brief comments.
First, substantially for the reasons set forth in Judge Blue's well-reasoned oral decision, we reject defendant's argument that he was entitled to an acquittal of the kidnapping by confinement charge. The court properly gave the State the benefit of all favorable testimony and all favorable inferences. See State v. Reyes, 50 N.J. 454, 459 (1967) (stating that court must give the State the benefit of all favorable testimony and all favorable inferences on a motion for a judgment of acquittal); see also R. 3:18-1.
Judge Blue stated:
The Court finds that there was certainly sufficient evidence that a reasonable jury could draw an inference that the victim was, in fact, confined for a substantial — unlawfully confined for a substantial period of time. The testimony that was given or put before this jury in the victim's statement, the victim states that this incident occurred for hours. Her testimony in her statement is that she tried to stop the defendant from entering her home. One could certainly draw the inference that he was an intruder at that time. Pursuant to the statement, the defendant was successful in entering the home. The victim was beat, knocked unconscious, only to be awakened by the defendant sexually penetrating her vaginally.
The Court finds that pursuant to that testimony that this incident happened for hours, that the victim was beat[en], she was knocked unconscious, the Court finds that this certainly heightens the victim's danger or the danger to the victim.
The statement is that she was, again, unconscious, sexually penetrated, hit again and penetrated, and that she was struck when she would not perform fellatio on the defendant, as the Court recalled the statement that was put before the jury.
I find that the unconscious nature of the victim, the alleged beating that the victim said she incurred, the forceful entry into the home, the victim's testimony that the defendant threatened to kill her, the condition of the victim when she's found by the defendant's sister and EMTs, as well as the location, that the State presented sufficient evidence to go before the jury on the theory of unlawful confinement for a substantial period only.
We discern no error in Judge Blue's reasoning. "[T]he Code does not make kidnapping a 'free crime' when it accompanies another violent crime such as rape or robbery." State v. La France, 117 N.J. 583, 590 (1990). The State must prove the confinement under N.J.S.A. 2C:13-1b is more than "merely incidental to the underlying crimes." Ibid. The State may do so by showing qualitatively that the confinement increased the "dangerousness or undesirability of the defendant's behavior." Id. at 593 (citation and quotation omitted).
The victim alleged defendant confined her from about 3:00 a.m. until the following morning. The jury could reasonably conclude that her confinement was more than incidental. In particular, the jury could find defendant held his victim captive in the bathtub, guarding her as he sat on the toilet, intimidating her to ignore the knocks at the door. By that time, the alleged assaults were complete. The jury could reasonably conclude that the confinement was not incidental to the underlying crimes.
Second, there is no basis in the record before us to conclude that, even if there were overcharging, it was harmful error as defined by Rule 2:10-2, that is, it was "of such a nature as to have been clearly capable of producing an unjust result." See State v. Wilder, 193 N.J. 398, 418 (2008) (stating that the "unjust result" standard in Rule 2:10-2 governs alleged overcharging errors). Moreover, as defendant did not present his overcharging argument to the trial court, we must review the argument pursuant to a plain error standard. Wilder, supra, 193 N.J. at 412. "The possibility of an unjust result must be '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. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Defendant's argument falls woefully short. A party arguing jury-overcharge "must present cognizable evidence that an error occurred." Wilder, supra, 193 N.J. at 418. For example, a defendant may show "evidence that would have been inadmissible in respect of the lesser-included charge on which defendant was convicted was admitted because of the overcharge." Id. at 418 n.2. Defendant has presented no cognizable evidence that the jury, in convicting the defendant of criminal contempt, simple assault and harassment committed an error as a result of the kidnapping charge
Rather the evidence was overwhelming that defendant committed criminal contempt of a restraining order — the most serious charge for which he was convicted The restraining order barring defendant from the victim's home was served on defendant Defendant's presence in the victim's home was essentially uncontested and supported by forensic and testimonial evidence The jury found defendant committed two predicate offenses assault and harassment Although the victim's contradictory statements apparently created sufficient doubt to result in acquittals of the more serious crimes charged defense counsel conceded that defendant was "tussling" with the victim It is far from an unjust result for the jury to have found that defendant committed assault and harassment concluding impliedly not all the victim's extensive injuries were self-inflicted
We therefore affirm the convictions but remand for resentencing on the harassment conviction to comply with NJSA 2C:43-8