NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...