Opinion
DOCKET NO. A-1882-14T1
10-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. P.M., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Nugent. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-01-0136. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sara M. Quigley, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried by a jury in April 2014, defendant P.M. was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count two). The trial court sentenced defendant to a custodial term of seven years on count one, subject to the 85% parole ineligibility period prescribed by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(d). The court further sentenced defendant to a concurrent one-year custodial term on count two. In addition, the court imposed various costs and penalties, including a $1000 maximum penalty under N.J.S.A. 2C:14-10(a)(2) for the Sex Crime Victim Treatment Fund ("SCVTF").
Because the sexual assault victim was defendant's stepdaughter, we use initials for her and defendant to protect her privacy. --------
Defendant raises several arguments on appeal challenging his convictions and sentence. For the reasons that follow, we affirm the convictions but partially remand the sentence, with the State's consent, to (1) require the merger of the conviction on count two with count one, and (2) reconsider and justify with ample reasons the imposition of the SCVTF penalty.
I.
The proofs at trial revealed the following facts. In December 2011, twenty-one-year-old A.G. fell asleep in her bedroom after becoming intoxicated and ill during a Christmas party hosted by her mother and defendant, P.M., her stepfather. A.G. awoke early the next morning to find defendant vaginally penetrating her. A.G.'s own daughter and mother were asleep in another bedroom at the time. A.G. reported the sexual attack immediately afterwards to her boyfriend, who in turn called the police. She was treated at a local hospital and a sexual assault examination was performed. Defendant's DNA matched sperm found on samples taken from A.G. at the hospital.
During the ensuing trial, defendant testified that he was so drunk that night that he could not remember having sex with A.G., nor could he recall his interaction with police and his responses to questions the following morning. His primary claim at trial was that he was intoxicated at the time of the alleged sexual acts. His trial counsel also indirectly implied in questioning witnesses that the sex was consensual, or that defendant at least reasonably believed it was consensual, due to A.G.'s supposed lack of physical resistance. However, this implication of consent was not expressly mentioned by defense counsel in summation. In a related argument, defense counsel also suggested A.G. fabricated her allegations of sexual wrongdoing in order to retaliate against him for past disputes.
On appeal, defendant presents the following points in his brief for our consideration:
POINT IHaving carefully considered these arguments in light of the record and the applicable law, we affirm the judgment of conviction, except to remand the sentence with respect to the merger of count two and for reconsideration of the SCVTF monetary penalty.
THE JURY INSTRUCTION ON THE ISSUE OF CONSENT WAS ERRONEOUS IN TWO RESPECTS: (1) SHIFTING PART OF THE BURDEN TO DEFENDANT TO SHOW CONSENT BEFORE THE STATE HAD TO DISPROVE CONSENT, AND (2) FAILING TO INFORM THE JURY THAT, WHILE UNDOUBTEDLY A REPELLANT, REPUGNANT ACT, CONSENSUAL SEX BETWEEN A PARENT (OR STEPPARENT) AND AN ADULT CHILD IS NOT AN ILLEGAL ACT IN NEW JERSEY. (NOT RAISED BELOW).
POINT II
WHEN THERE WAS NO ALLEGATION OF AN ACT OF CRIMINAL SEXUAL CONTACT SEPARATE FROM THE SEXUAL ASSAULT, DEFENDANT'S CONVICTION FOR THAT CRIME SHOULD HAVE MERGED INTO HIS SEXUAL-ASSAULT CONVICTION.
POINT III
DEFENDANT'S NERA SENTENCE FOR SECOND-DEGREE SEXUAL ASSAULT IS ILLEGAL BECAUSE THE GOVERNING STATUTE REQUIRES A DEFENDANT TO BE CONVICTED OF VIOLATIONS OF BOTH "SUBSECTION B. OF N.J.S. 2C:14-2 AND PARAGRAPH (1) OF SUBSECTION C. OF N.J.S. 2C:14-2" IN ORDER FOR NERA TO APPLY.
POINT IV
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
II.
A.
Defendant's first argument contends that the jury charge was flawed because it allegedly placed the burden of proving A.G.'s consent on him rather than appropriately placing the burden of showing her lack of consent on the State. In an additional criticism of the jury charge, defendant contends that the judge should have issued a special instruction to the jurors advising them that, although a sexual act between a father and his adult child or step-child may be repugnant, it is legal if there is consent.
The record shows that the trial judge read to the jury, verbatim, the applicable substantive criminal model jury instructions for the charged offenses. See Model Jury Charge (Criminal), N.J.S.A. 2C:14-2(c)(1), "Sexual Assault (Force/Coercion)" (Jan. 24, 2005) ("Model Charge, Sexual Assault"); Model Jury Charge (Criminal), N.J.S.A. 2C:14-3(b), "Criminal Sexual Contact" (Jun. 11, 2012) ("Model Charge, Sexual Contact").
During the initial charge conference, which took place prior to the defense's case, the judge discussed with counsel various details of the model charges that she anticipated delivering to the jury. Neither the State nor defense counsel presented any objections or requests at that time.
The discussion of jury charges continued the next day prior to defendant, the final witness in the case, taking the stand. During that colloquy, the judge further previewed her intended tailoring of the model charges for sexual assault and criminal sexual contact to the facts of this case. Again, neither party raised any objections. Defense counsel also requested an intoxication instruction, which the judge granted and issued in the final charge.
In addressing defendant's present criticisms of the jury charge on appeal, we recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). Those instructions must be accurate and provide a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Singleton, 211 N.J. 157, 181-82 (2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
When a defendant fails to object to the jury charge at trial, "there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." Singleton, supra, 211 N.J. at 182. In such cases, an appellate court will only reverse if there is plain error. State v. Walker, 203 N.J. 73, 90 (2010). Plain error exists when the jury charge, considered in its entirety and evaluated in light "of the overall strength of the State's case," was error "clearly capable of producing an unjust result." Ibid.; see also R. 2:10-2. However, due to their fundamental importance to a fair trial, jury charges "are poor candidates for rehabilitation under the harmless error theory." State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
The portion of the model jury instruction for both sexual assault and criminal sexual contact that deals with the element of physical force and consent is based on the Supreme Court's holding in State in the Interest of M.T.S., 129 N.J. 422, 444-46 (1992). M.T.S. involved a fifteen-year-old girl who was allegedly sexually assaulted while she was asleep by a seventeen-year-old male the girl's family had agreed to temporarily house. Id. at 425-26. The girl claimed she awoke after penetration had occurred, and the defendant stopped immediately once the girl began to resist. Id. at 426-27.
The family court judge found in M.T.S. that the girl had not been asleep at the time of penetration, but determined nonetheless that she had not consented to the sexual act and adjudicated the defendant delinquent. Id. at 428-29. The adjudication called into question the meaning of the "physical force" element of New Jersey's rape laws, which were amended in 1979 to eliminate the historical requirement that the female victim prove she resisted the attack and the alleged assailant overcame that resistance. See id. at 429-39.
After analyzing the history of our sexual assault laws and society's evolving understanding of rape, the Court concluded in M.T.S. that the Legislature, in enacting the current language in N.J.S.A. 2C:14-2(c)(1), intended to "prevent the possibility that the establishment of the crime will turn on the alleged victim's state of mind or responsive behavior." M.T.S., Supra, 129 N.J. at 444. The Court thus defined the "physical force" element as "sexual penetration . . . accomplished without the affirmative and freely-given permission of the alleged victim." Id. at 448. The Court further clarified that the focus of that element is on the defendant, requiring that the State prove "beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission." Id. at 449.
This approach outlined in M.T.S. has made the construction of the sexual assault offense consistent with the law's treatment of other violent crimes, including other forms of assault, rather than treating it as a distinct type of offense where the injury was to a woman's chastity rather than her person. Id. at 437-38, 442-43; see also State v. Triestman, 416 N.J. Super. 195, 216-19 (App. Div. 2010) (discussing M.T.S. and sexual assault's relation to other assault crimes). Like other forms of assault, the focus of the statute is on the defendant's conduct and state of mind, not the victim's. M.T.S., supra, at 129 N.J. at 448.
In keeping with these principles, the model charge for sexual assault instructs the jury that "the State must prove beyond a reasonable doubt . . . that defendant used physical force or coercion," and then defines "physical force" by quoting the language of M.T.S. Model Charge, Sexual Assault, supra. It further instructs that "[p]roof that the act . . . occurred without the victim's permission can be based on evidence of [the victim's] conduct or words in light of surrounding circumstances, and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed" consent had been freely given. Ibid. (emphasis added). These model instructions, which track the Court's opinion in M.T.S., properly advise a jury that the State must prove beyond a reasonable doubt that a defendant could not reasonably have believed the victim freely consented to sex, without placing the onus on the victim to show that she actually resisted.
The model instructions provided in this case were entirely appropriate. The instructions placed no special burden upon defendant to prove consent, other than to rebut the strong inference created by the "surrounding circumstances" of this case and the direct testimony provided by A.G. Defendant is incorrect that the State's burden does not arise under the model charge until a defendant first provides evidence of consent. Rather, the instructions clearly state that the prosecution carries the burden at all times.
We reject defendant's reliance upon Humanik v. Beyer, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989), a habeas corpus case. That opinion reaffirms the general, well-settled principle that the burden of persuasion with respect to a necessary element of a crime may not be placed upon a defendant. In Humanik, the defendant was tried for murder and pursued a mental incapacity defense. Id. at 441. The trial judge provided a jury charge that instructed that the State carried the burden of persuasion with respect to the mens rea of the crime, but that the defendant carried the burden in proving his affirmative defense. Ibid.
The Third Circuit granted the habeas petition in Humanik because the ultimate issue of mens rea and the affirmative defense were identical i.e., whether the defendant was capable of possessing the requisite state of mind. Id. at 441, 443. The Third Circuit reasoned that a jury, upon being instructed to consider whether the defendant had proven mental incapacity by a preponderance of the evidence, would likely disregard any evidence of the mental incapacity if it determined the standard for that affirmative defense had not been met. Id. at 443. The jury would then move on to the ultimate question regarding mens rea without properly reconsidering that evidence, which would be problematic. Ibid.
The constitutional burden-allocation problem encountered in Humanik does not exist here. At no point did the trial court advise or imply to the jury in this case that the burden of proving consent (as opposed to the State disproving consent) is borne by defendant, or that defendant is obliged to come forth with any evidence at all.
As set forth in his brief, defendant's argument is essentially based upon an unwarranted assumption that the source of any evidence of consent "would necessarily have to be defendant." However, as the model jury charge issued in this case rightly explains, the evidence is derived from "words or through actions . . . in light of all the surrounding circumstances." Model Charge, Sexual Assault, supra (emphasis added).
The specific model charge language that defendant criticizes only clarifies that, if that evidence "suggest[s] that the defendant reasonably believed that such permission had been given," then the State must further demonstrate "either that the defendant did not actually believe that such permission had been freely given, or that such a belief was unreasonable under all of the circumstances." Ibid. This paragraph within the model charge is directly quoted from the Supreme Court's opinion in M.T.S. See M.T.S., supra, 129 N.J. at 448-49. Moreover, defendant's parsing of discrete portions of the jury charge inappropriately fails to evaluate the charge in its entirety. Walker, supra, 203 N.J. at 90.
The model instruction creates no greater a burden than that which is placed upon any other defendant who attempts to negate evidence supporting a necessary element of the charged crime. A.G. testified that she did not consent, and that she was asleep and intoxicated when the intercourse began. Both expert and fact witnesses corroborated A.G.'s severe intoxication. The jury presumably found her credible, and found that defendant was not too drunk himself to act "knowingly." Defendant failed to show A.G. lacked credibility, or to undermine the State's evidence with regard to consent. The burden of proving consent was never placed upon him.
Even assuming for the sake of argument that the jury instructions in this respect were error, and despite jury charges being "poor candidates for rehabilitation," Harrington, supra, 310 N.J. Super. at 277, it is unclear how such an error would have prejudiced defendant. Id. at 90; R. 2:10-2. As noted above, the State presented ample direct and circumstantial proof that A.G. did not freely consent to intercourse with defendant, and there is an utter absence of proof suggesting otherwise. Consent was not even argued as a defense theme throughout the case, nor was it pursued during defense counsel's summation.
To the extent defendant relies upon State v. Scherzer, 301 N.J. Super. 363 (App. Div.), certif. denied, 151 N.J. 466 (1997), in advocating that the State was obligated to make a greater evidentiary showing, his reasoning is counter to the Supreme Court's holding in M.T.S. The proof the State is obligated to present is that which tends to show defendant could not reasonably have believed consent was given, not that the victim, here A.G., failed to give it. See M.T.S., supra, 129 N.J. at 448 (holding that the victim's subjective state of mind or reasonableness of the victim's actions are irrelevant). Further, this court reversed the sexual assault conviction in Scherzer because there was overwhelming evidence that the alleged victim was a willing participant in the sexual acts that took place. Scherzer, supra, 301 N.J. Super. at 395-404. That is not the case here.
We likewise reject defendant's novel and separate argument that the court was obligated to advise the jury that incest is generally not unlawful under the laws of our State. Defendant did not ask potential jurors questions related to this concern during voir dire, failed to object to the jury instructions, and actively used his relationship with A.G. as a basis for his defense. As the State also points out, there are numerous crimes that involve close, interpersonal relationships between defendants and alleged victims, and none of them require special instructions intended to make the alleged crime seem less offensive or morally repugnant to a jury.
A jury is presumed to follow the trial court's instructions. State v. Burns, 192 N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). Here, the jury charge provided by the court clearly instructed the jury at length that the State must prove defendant could not have reasonably believed A.G. freely and affirmatively consented beyond a reasonable doubt. Defendant has not identified any persuasive reason why the jury at his trial would have disregarded those instructions and convicted him based solely on A.G.'s status as his stepdaughter.
Defendant's invocation of the policies underlying the "prior bad acts" doctrine in N.J.R.E. 404(b) is unavailing. Although concerns over undue prejudice and propensity arguments do underpin New Jersey's evidence rules concerning character and prior bad acts, see State v. Blakney, 189 N.J. 88, 92-93 (2006), those same concerns do not apply to the circumstances of this case. The general objective of Rule 404(b) is to prevent the introduction of propensity proof, subject to narrow exceptions. Ibid.; see also N.J.R.E. 404(b); State v. Willis, 225 N.J. 85, 97-103 (2016) (discussing the limitations of using prior bad acts to prove lack of consent in a sexual assault case and reversing this court because of the risk of its use as propensity evidence in that case and the prejudice outweighing the probative value); State v. J.M., 225 N.J. 146, 157-64 (2016) (discussing the same and affirming this court's rejection of the prior bad acts evidence).
Defendant's parental relationship with A.G. is not prohibited "propensity" evidence. As the State persuasively argues, the fact of that relationship is no more prejudicial to defendant than any other crime involving a defendant and a particularly vulnerable or closely-related victim. Defendant cites to no authority requiring a special jury charge of the kind for which he is now advocating. His concern that the jurors may have been motivated to find him guilty merely because of his status as a stepfather is entirely speculative, and is contrary to well-established precedent that jurors are presumed to abide by the court's instructions and apply the law to the evidence.
B.
Defendant next argues that his conviction under count two of the indictment (fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b)) should have been merged with count one (second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1)). The State concedes this point, and we need not comment on it further. The judgment of conviction shall be amended accordingly by the trial court.
C.
With respect to his sentence, defendant further argues that he is not subject to the minimum parole ineligibility provisions of NERA. We disagree.
NERA requires courts to set a minimum parole ineligibility term of 85% of the base sentence actually imposed for certain violent first- and second-degree offenses. N.J.S.A. 2C:43-7.2. Under N.J.S.A. 2C:43-7.2(d)(8), NERA applies to persons convicted pursuant to "subsection b. of [N. J.S.A. 2C:14-2] and paragraph (1) of subsection c. of [N. J.S.A. 2C:14-2], sexual assault[.]" (Emphasis added).
Defendant argues that the language of the statute — specifically the use of the word "and" — requires that defendant be convicted under both subsections for NERA to apply. He maintains that not only must a defendant be convicted of "an act of sexual penetration" using "physical force or coercion," N.J.S.A. 2C:14-2(c)(1), but also of "sexual contact" with a victim "less than 13 years old," N.J.S.A. 2C:14-2(b). See N.J.S.A. 2C:43-7.2(d)(8). The State counters that such an interpretation is contrary to legislative intent and leads to absurd results.
After defendant's brief in this appeal was filed, we rejected the same argument he is making here concerning NERA's interpretation in our published opinion in State v. Drake, 444 N.J. Super. 265, 273-84 (App. Div.), certif. denied, 226 N.J. 213 (2016). In Drake, we held that the term "and," as used in N.J.S.A. 2C:43-7.2(d)(8), should be logically read in the disjunctive as "or," in light of the overall objectives and structure of the NERA statute. Id. at 276-77. We apply our holding in Drake here and need not comment further.
D.
Defendant next argues that his sentence is excessive because he has no prior criminal convictions and the circumstances of his crime do not portend a realistic threat of re-offense. This contention is unavailing.
During sentencing, the trial judge found that aggravating factors three (risk of re-offense) and nine (need to deter) were present. The judge gave factor three "moderate weight," and did not discuss the weight of factor nine. In support of these factors, the judge found that defendant was an alcoholic in denial, and reasoned that he would "remain lawless until the alcoholism is effectively dealt with." The judge also found that defendant does not "accept personal responsibility" and blames his shortcomings on others. The judge concluded that, "unless there's a substantial change in [defendant's] attitude, there's a high likelihood of reoffending." The judge acknowledged reviewing a report prepared by the Adult Diagnostic and Treatment Center, which found "insufficient psychological evidence to support a finding of repetitive or compulsive sexual behavior," but was unable to "glean any further understanding" of defendant from it.
The judge at sentencing additionally found mitigating factors four (excuse or justification); seven (no prior criminal convictions); ten (ability to respond to probation); and eleven (excessive hardship caused by incarceration). She gave factor seven "moderate weight," factors four and eleven "slight weight," and factor ten "slight, slight weight." In addition, she discussed each of the mitigating factors she rejected for which defense counsel had argued. As to mitigating factor four, the judge deferred to the jury's conclusion that defendant's intoxication excuse should be "discounted" and was not "a valid defense" by giving the factor "slight weight." With respect to mitigating factor seven, the judge noted that defendant had nine prior arrests, but that those "contacts were all dismissed and downgraded." She therefore assigned the factor "moderate weight." For mitigating factor ten, the judge only gave "slight, slight weight" because NERA requires incarceration, and she did not find probation to be "an appropriate sentence." Finally, under mitigating factor eleven, the judge gave "slight weight" because incarceration causes "some type of hardship" to everyone convicted of a crime, but there was no indication that defendant would suffer any particularly "excessive" hardship.
On balance, the trial judge found that the aggravating factors substantially outweighed any mitigating factors. We discern no reason to interfere with the judge's careful assessment of the sentencing criteria. The judge appropriately considered and balanced the pertinent factors in accordance with the applicable law. See State v. Case, 220 N.J. 49, 65 (2014). The seven-year sentence for this sexual offense does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). The custodial term is therefore affirmed.
E.
The last issue we must briefly address is defendant's argument that the trial court did not adequately explain its reasons for imposing the maximum $1000 SCVTF penalty under N.J.S.A. 2C:14-10(a)(2). The State concedes that this aspect of the sentence must be remanded because the trial court did not expressly consider defendant's ability to pay that penalty. Nor did the court state on the record why imposing that maximum monetary sanction in this case was warranted. See State v. Bolvito, 217 N.J. 221, 233-35 (2014) (requiring trial courts to address such factors when calibrating an SCVTF penalty). Accordingly, we remand this discrete penalty issue for reconsideration, with the State's assent.
III.
Defendant's conviction and sentence are affirmed, except as to the merger of count two with count one and the SCVTF penalty issues we have remanded.
Affirmed in part, remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION