NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-01-00010.
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).
John K. McNamara, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Mr. McNamara and Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Yannotti, St. John and Leone.
Defendant Andrew Pena was tried before a jury and found guilty of first-degree aggravated sexual assault, criminal restraint and other offenses. He appeals from the judgment of conviction entered on December 14, 2009. We reverse.
Defendant was charged with various offenses arising out of the assault of E.D., specifically first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2(b) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count four); and third-degree criminal restraint, N.J.S.A. 2C:13-2(b) (count five).
At the trial, the State presented evidence which established that, in the early morning hours of January 28, 2007, E.D. and her friends C.C. and L.D. were at a party. E.D. was nineteen years old at the time. At approximately 3:00 a.m., E.D. volunteered to "drive and go get everybody bagels." E.D., C.C., and L.D. drove in C.C.'s car to a nearby bagel store.
E.D. dropped off C.C. and L.D. at the store, and parked the car in the parking lot. As she sat in the car, E.D. saw someone sweeping with a push broom and thought he was employed at the bagel store. E.D. later identified defendant as the person she saw sweeping.
According to E.D., defendant came up to the driver's side window, which was closed. He said she should move the car "because he didn't want [her] to get in trouble and . . . he needed to sweep the snow." E.D. said she was able to look at defendant "for a good ten to fifteen seconds." He was wearing a red and blue fitted snow hat, a snow jacket and blue pants.
E.D. moved the car to the side of the building, but defendant told her that she "had to keep going." E.D. continued until she could go no further. She parked the car "on an angle" and turned the engine off. Defendant told her to turn off her headlights so she would not "wake up the neighbors."
While she was sitting in the car, E.D. received a call from C.C., who asked if she wanted a bagel. As E.D. and C.C. were talking, defendant said "can you watch out for me, I have to go to the bathroom." Defendant "disappeared" towards the inside of the building for "five seconds" and returned. When E.D. looked up again, defendant was walking towards her with "his pants a little bit down and he had an erection."
E.D. became "really scared" and put the phone down. She tried to start the car as defendant walked over to her, but the car would not start. She tried to lock the door, but she did not know where the lock was. E.D. testified:
So he got to my car, and when he got to my car, he opened the door, . . . he went inside, he took his hands, rubbed his hand around my hair, pulled it back and put his whole body in front of me and said "Have you ever seen something so big, " he said, "Just touch it, " and I was yelling at him and screaming to get out of my car, like "Get the fuck out of my car, " and he wouldn't listen and he just kept pulling my hair back and saying, "Shh, shh, just touch it, just touch it."
And, after he did that, he forced me to touch it, and after I did that, he then ripped me -- like grabbed me by my pants and ripped me out of my car and pulled my pants right down, and then he got on top of me, jammed four fingers inside of me and I was just -- I don't know, scared and I tried to get him to calm down by talking to him and he had like four fingers inside me and he was just jamming them inside me and he was like "Shh, I just want to feel this, " and then I - and then one of the girls came out, said something, and then I was able to push him off of me and run inside the building and told them to call 911 because I had just been raped.
According to E.D., when defendant was on top of her inside the car, he reached for the cellphone and threw the phone and the keys outside the car. E.D. said the length of time that she was forced to touch defendant's penis was "[t]hree seconds." In court, E.D. identified defendant as the man who had assaulted her.
C.C. testified that she had been on the phone with E.D., who asked how much the bagel cost and then did not respond when C.C. continued to talk to her. As C.C. and L.D. exited the store, they saw E.D. running to the store "crying hysterically" and shaking. C.C. said that E.D. could "barely speak."
L.D. testified that she and C.C. were inside five or ten minutes and, when they came out, they could not see E.D. or the car. They looked around the side of the building and saw the car "in the back facing like [E.D.] was going to try to go around the building and realizing that she couldn't." The only other vehicle there was a silver pickup truck backed up to the building.
The driver's side door of C.C.'s car was open and L.D. could hear "shuffling, movement on the ground" and E.D. saying something that L.D. could not understand. L.D. first thought E.D. lost something, but then she saw a man "pop up" by the driver's side door and take a step back. He had "something shiny in his hand" that looked like a lit up cellphone.
The man took a step back, stared at L.D. and ran behind the building. L.D. said the man was about her height, five-feet-five or five-feet-six inches tall, he had darker skin and was not Caucasian, and looked "younger than forty." He was wearing "a very colorful hat" that tied underneath and had a ball on top, like hats worn by little kids.
E.D. ran up to L.D. and C.C. She was "hysterical, crying, frantic" and said "he just raped me." They went into the store and called 911. E.D. reported that "he fingered me, he put his fist in me." At 3:43 a.m., an employee of the bagel store called 911. The 911 tape was played for the jury.
The police and an ambulance arrived and took E.D. to the hospital. L.D. told the police she thought the pickup truck was a silver Ford F-150. She gave the police a partial plate number for the truck and the police issued an alert for the truck.
Detective Brian Ahern of the Morris County Sheriff's Office responded to the scene at 5:22 a.m. There was a light dusting of snow on some areas of the parking lot. Ahern observed numerous impressions of footwear in the snow on the driver's side and behind the victim's vehicle. He saw impressions of tire tracks near the dumpster in the parking lot, and impressions of footwear with a triangular pattern that matched the pattern Ahern saw in the footprints next to the victim's car.
Footwear impressions near a bucket at the north side of the building's rear also showed the same triangular pattern. Ahern was able to determine that some of the footwear patterns in the snow matched his boots and those of other officers, but that none of the shoes of the employees or officers had the triangular pattern. The car's keys were missing.
The officers photographed a hand mark and fingerprints on the outside of the "very dirty" driver's side window above the door handle. They also collected a yellow-handled push broom from the back of the store, but were unable to obtain sufficient fingerprint detail from it. In addition, the police could not recover fingerprints from a cell phone found at the scene, and there were no surveillance cameras outside the store.
E.D. was examined at approximately 6:00 a.m. on January 28, 2007, by a trained sexual assault nurse examiner and an expert in the field of forensic nursing. The examination revealed scrapes and numerous linear scratches on the victim's buttocks, hands, upper leg and back, a bruise on her left buttock and some dried secretions on the left side of her face. An examination of E.D.'s internal and external genitals showed injuries and redness, and the cervix had a small laceration with dried blood.
Detective Colleen Pascale interviewed E.D. at the hospital. E.D. told Pascale she could identify her perpetrator by his teeth and his nose and she also said, "I guess another way would be from his private part because it wasn't normal at all."
Detective Susan Johnson met briefly with E.D. at the hospital and then conducted an audio and videotaped interview of her at approximately 11:00 a.m. on January 28, 2007. E.D. described the perpetrator as "possibly being Hispanic, late twenties, early thirties, " and said that he was wearing a hat and had "straight white teeth" and "a medium brown skin tone." He had brown eyes and wore dark denim jeans.
On January 29, 2007, the police determined that the fingerprint from the driver's side car door was defendant's fingerprint. Defendant stipulated that the fingerprint found on the car's window was his. In addition, the police confirmed that defendant owned a silver Dodge pickup truck and that the first three characters of the license plate were similar to that of the truck that "had been observed leaving the scene in a hurried manner."
On January 31, 2007, E.D. selected defendant's photograph from an array of six photographs. She commented that it "[l]ooks just like [her assailant], same face and same eyes." She also commented on the "roundness" of the man's face.
On February 1, 2007, Pascale called defendant and he came to the police station for an interview. He lived approximately thirty to thirty-five minutes from the bagel store. His teeth appeared to be straight and white and he owned a silver Dodge pickup with the license plate number that matched the number reported to the police. After the interview, the police arrested defendant.
Pascale said that after his bail hearing, defendant
"blurt[ed] out 'I was there.'" Later, while he was being transported, defendant stated that "he was there on Saturday night" and he asked Pascale "how much trouble he was in." Defendant told Pascale he had spoken to the victim and told her to move her vehicle because it was in his way.
A search of defendant's truck and house did not reveal the victim's keys, the multi-colored hat, or the snow jacket. However, in the house, the police found a shirt and pair of denim pants that were similar to the clothing described by the victim. Ahern compared photographs of the footwear impressions from the scene to a pair of size ten brown boots recovered from defendant's house, and Ahern said there was a "class match" between the boot prints in the snow and defendant's boots.
Ahern also compared photographs of impressions made from the tires on defendant's truck to photographs of the tire tracks found in the snow near the dumpster. He said the tires were similar in size, shape and design, but there was not enough detail to conclude that the tires were identical.
Defendant's first two witnesses were private investigator Timothy Braun and defendant's wife, Erin Pena. Braun testified regarding photographs he took of defendant's genitals on September 18, 2008, and the photos were admitted into evidence.
Erin testified that she and defendant had been married for five and a half years at the time of trial, but had been in a romantic relationship for seventeen years and were living together on January 28, 2007. Erin said she had never seen her husband in a snowboarding jacket or a multi-colored hat. He typically dressed in layers and did not wear hats.
Erin also said that, on Saturday, January 27, 2007, defendant told her that he would be "gone all day" to see a friend about "some possible side work." He called her later and said "he was going to be late." She went to bed and was awakened when defendant returned at approximately 4:30 a.m.
Later that morning, Erin found "smelly" clothes on the floor and put them in the laundry room. She said that after the police searched the house she discovered that those clothes were still there and she brought them to court in a bag. She also identified the photographs of her husband's penis.
After Braun and Erin testified, the prosecutor said he intended to cross-examine defendant concerning an earlier incident, in which defendant exposed himself to R.K. Prior to trial, the State sought leave to present evidence concerning two incidents of that nature pursuant to N.J.R.E. 404(b). The judge conducted a hearing and determined that the evidence might be admissible at trial, depending on the evidence that was presented.
At trial, the prosecutor argued that the State would be prejudiced if it had to wait to present the evidence on rebuttal. The judge agreed that the evidence was relevant on the issue of the size of defendant's penis because defendant had admitted photographs "which show [that his penis was] something like four inches" and, in rebuttal, the State could "bring in some testimony or evidence" indicating that defendant's penis was "more than four inches."
The judge additionally said the State could use the N.J.R.E. 404(b) evidence on identity if defendant claimed that someone else committed the crimes. The judge also stated that, if defendant testified, the evidence could be admitted on motive and intent if defendant testified that he went back to E.D.'s car to close the door. The judge added that there also was an issue as to defendant's state of mind.
The judge found the circumstances of the two prior incidents were similar. The judge noted that both incidents "involved young women, [twenty] or under" who were alone and were "either going to or leaving their cars . . . in parking lots, where [sic] the public is encouraged to use." The judge also said that all three incidents involved "feigned urination as an explanation . . . and an attempt to converse." The judge stated that the jury was "entitled to know the circumstances" of these incidents and their details did not require sanitization.
Defense counsel argued that the prejudice from this evidence was "just astronomical" because it involved "a lewd act [involving] a woman." The judge's response was that defendant had admitted committing the offense. Defense counsel also objected to the State's introduction of the evidence through its cross-examination of defendant. The judge overruled the objection.
Defendant then testified that he stopped at the bagel store on the way back from helping a friend in New York. He said he was driving his silver Dodge pickup truck. He could not find a parking spot and attempted to drive around the back of the store, but his way was ...