Opinion
DOCKET NO. A-0137-10T2
03-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD WILLIS a/k/a RICHARD DWAYNE WILLIS, RICHARD DWAYNE WILUS, Defendant-Appellant.
Michael B. Jones, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Jones, of counsel and on the brief). Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-07-0608.
Michael B. Jones, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Jones, of counsel and on the brief).
Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief). PER CURIAM
Defendant appeals from his sentence and convictions for third-degree criminal restraint, N.J.S.A. 2C:13-2(b)(2) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a) (count four). We affirm his convictions and remand for resentencing.
Defendant was indicted for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C-14-2(c)(1) (count three); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count four). He was acquitted on count two, convicted on count three and convicted of the lesser included offenses on counts one and four.
The convictions arise from events that occurred on April 25, 2006. K.M., the victim of the sexual assault, testified that, at approximately 3:30 p.m., she walked from her house in North Plainfield to Plainfield where she performed acts of prostitution with one to five people and purchased crack. She smoked a "little" of the crack and took "some meth" at a methadone clinic, as well as "a couple of Xanax."
Between 10:00 and 10:30 p.m., K.M. began to walk home. Defendant, driving a black SUV, pulled to the side of the road in front of K.M. He asked her if she was "working" and she replied no. K.M. believed that the driver was her friend, "Pookie," who went to the same methadone clinic and sometimes supplied her with drugs. She asked if his name was "Pookie." Defendant responded, "Yeah. Don't I know you?" and offered her a ride home. K.M. accepted the offer.
K.M. realized the driver was not Pookie after she was in the car. Defendant apologized for lying, said his name was Terrance, and asked if K.M. still wanted a ride home. She accepted and instructed him to turn left on Richmond Street. Ignoring her, defendant turned right.
Defendant asked K.M. if she used drugs. When she responded yes, he offered to provide her with crack in exchange for "sexual favors[.]" K.M. refused. Defendant continued driving, and then parked the car on the side of a street in a "pretty dark" residential area. K.M. testified she was "feeling that something bad was going to happen."
After shutting off the car, defendant grabbed K.M.'s wrist, took the cigarette out of her mouth and proceeded to burn her arm with it. K.M. screamed and attempted to pull away. Defendant grabbed the back of K.M.'s head and forced it into his lap, where his penis was exposed. She "grabbed his balls and . . . twisted them" so she could release herself. Defendant slapped K.M. in the face and her head "bounced off" the passenger window. He then "climbed on top of [K.M.] and pulled [her] pants down." She struggled to hold her pants and underwear up but defendant pulled them both down to K.M.'s lower legs, ripping her underwear. Without wearing a condom, defendant inserted his penis in K.M.'s vagina and lifted her shirt and kissed her chest. K.M. cried, but did not ask defendant to stop, believing that if she did not fight, "it would just go faster and end quicker[.]" After a few minutes, defendant ejaculated inside K.M.'s vagina, "rolled off [her] and pulled his pants up."
K.M. dressed herself and defendant pushed her out of the car through the passenger door. Once outside, K.M. realized that she left her purse in the car. Defendant drove off. K.M. screamed "Rape," and then yelled at defendant, "Hey, asshole, you got my pocketbook, you are going to get caught." She noticed that defendant's vehicle had a New Jersey license plate, but did not get the plate number.
K.M. testified that "somebody" in a nearby house probably called for police to come. In the interim, she disposed of a $20 pack of crack; another "20 piece" remained in her pocketbook.
The responding officer, Craig Kennovin, described K.M. as "[c]rying, very upset . . . distraught." K.M. explained what defendant had done and provided a physical description of him. She did not disclose that she had thrown away the crack she had purchased or admit to prostitution. She testified that, because she was too ashamed, she told them she was "window shopping" when defendant approached. Police transported her to Muhlenberg Hospital.
Because K.M. was "too high[,]" she could not consent to a rape kit that night. Thelma Keiser, a SANE (Sexual Assault Nurse Examiner Program) nurse, waited until the following afternoon on April 26, 2006 to administer the examination. Keiser testified that K.M. had fingerprints and bruises on the back of her neck, burn marks on her wrist, a bruise on her thigh, and a cut and swelling on her face. A vaginal swab yielded semen that was matched some months later to defendant's DNA through CODIS (Combined DNA Index System).
Police spoke to K.M. on two separate occasions, the first of which was on April 27, two days after the incident. She denied working as a prostitute and but admitted to drug use that evening. She described her attacker as a "black male," age twenty-nine to thirty-seven, "dark complected, heavy, possibly with braids or bushy hair." He had a "thin strip beard with a goatee." Detective Robertson testified that defendant was "in his 40s" at the time of the incident and "was a big man[,]" who weighed 260 pounds and had a goatee.
The second meeting occurred approximately one year later, when K.M. was shown an array of six photographs. K.M. did not select any photograph but asked to see the third photograph, which was of defendant, twice. She testified that "he looked familiar," but she "wasn't completely sure" because the incident had occurred nearly a year ago, when "it was dark" outside and "she was high[.]"
Detective Robertson testified that the photo array questionnaire stated that K.M. was under the influence of cocaine. It is unclear whether this referred to her status at the time of the incident or when viewing the photo array.
Defendant did not testify at trial. However, the defense offered on his behalf was that he had engaged in consensual sex with K.M.
After a hearing was conducted pursuant to N.J.R.E. 104, the State was permitted to present testimony regarding an incident involving N.J., a medical assistant, that occurred three years earlier, on May 9, 2003. The court ruled that N.J.'s testimony was only admissible to show that defendant "had the intent to sexually assault [K.M.]"
N.J. testified that she and her friend, Michele, visited N.J.'s grandmother in a retirement center in Plainfield. When they left the center, Michele's car did not start. The two walked to a nearby convenience store. Michele entered the store, and N.J. met a friend, Scoop, outside.
N.J. testified that as she and Scoop walked away from the store, defendant drove by in a "Buick or Oldsmobile" and honked his horn. Scoop and N.J. waved to him. Scoop knew defendant and N.J. was familiar with him "from the neighborhood." Defendant pulled to the side of road. Defendant identified himself as "Xavier." N.J. asked if defendant could drive her to her sister's house and defendant agreed.
After N.J. was in the car, defendant said he was "out doing the devil's work." N.J. asked him to drive to her sister's house but defendant drove in "the wrong direction." When N.J. questioned him, defendant stated he needed to make a stop. He drove to the rear of an apartment building. Defendant backed into a parking space, rolled up the windows, and locked the doors.
He then jumped over and started choking N.J. She testified,
As he was choking me . . . he took one of his hands off and he had unbuttoned my pants and was still holding me and trying to pull my pants down while I'm trying to keep pulling them up. He pulled up my shirt. He touched me. And he just kept choking me, kept choking me . . . [and] telling me be quiet.N.J. continued to resist, screamed, and pled "for [her] life." N.J. was able to escape after asking defendant to let her up for air. She slid over the back of the car seat, unlocked the door and got out. She testified that, as she exited, "stuff" including a baseball hat and CDs, fell out of defendant's car. N.J. threw the items back in the car, and defendant sped off.
N.J. ran into four or five of her husband's friends. She told them what happened and provided a description of defendant. The friends stated they knew who defendant was and were going to find him. N.J. then entered her friends' vehicle. As they were driving, she called 911 and flagged down a police vehicle. N.J. told Officers David Driscoll, Rakeem Lewis, and McDonald about the incident. Driscoll described N.J. as "upset, nervous" when she met with police roadside. According to Lewis, N.J. described her attacker as "a black male with a short haircut[,] . . . wearing a red T-shirt, gold chain with a cross and dirty white sneakers." While N.J. was speaking with the officers, defendant drove past. N.J. identified defendant to the officers and also gave them a description of his clothes and the items in his car. Driscoll and McDonald pursued defendant, who was driving an Oldsmobile, and stopped his car.
Lewis proceeded to defendant's car with N.J. in his patrol car. Lewis testified that N.J.'s description was consistent with defendant's appearance. Defendant denied having had someone in his car earlier. Detectives arrived and placed him under arrest. An inventory of his vehicle revealed several items, including a baseball hat and CDs.
N.J. moved several times thereafter, finally moving to Virginia in December 2006. In 2008, N.J. was contacted by a sergeant in the prosecutor's office. Although she made two separate trips back to New Jersey to cooperate with investigators, charges were never filed regarding the May 2003 incident.
Defendant was sentenced on March 27, 2009. The judgment of conviction (JOC) states he was sentenced to four years imprisonment on the criminal restraint charge (count one); ten years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the sexual assault charge (count three), to run consecutive to count one; and six months on the assault charge (count four), to run concurrently with the sentences imposed on counts one and three. The court also sentenced defendant to parole supervision for life, to comply with Megan's Law, and ordered him to pay various fines and penalties, including two $800 SANE penalties for counts one and three.
Defendant presents the following issues for our consideration in this appeal:
POINT IAfter reviewing defendant's arguments in light of the record and applicable legal principles, we are satisfied that none of the arguments addressed to his convictions have merit but conclude that a remand is necessary regarding his sentence.
THE N.J.R.E. 404(b) EVIDENCE, OFFERED TO PROVE INTENT, SHOULD NOT HAVE BEEN ADMITTED, AND ONCE IT WAS ADMITTED, WAS WHOLLY UNSANITIZED, GROSSLY MISUSED IN THE PROSECUTOR'S SUMMATION, AND POORLY LIMITED BY THE JUDGE'S INSTRUCTION TO THE JURY. (PARTIALLY RAISED BELOW).
A. THE N.J.R.E. 404(b) EVIDENCE SHOULD NOT HAVE BEEN ADMITTED SINCE IT DID NOT MEET THE SECOND PRONG OF THE TEST ESTABLISHED IN STATE V. COFIELD.
B. THE JUDGE'S BALANCING BETWEEN PROBATIVE VALUE AND PREJUDICE UNDER THE FOURTH PRONG OF THE COFIELD TEST UTTERLY MISSED THE MARK.
1. THE EVIDENCE WAS OF SUCH LIMITED RELEVANCE THAT IT SHOULD NOT HAVE BEEN ALLOWED.C. THE JUDGE'S CHARGE WAS INSUFFICIENT TO GUIDE THE JURY TO ANY PROPER USE OF THE N.J.R.E. 404(b) EVIDENCE.
2. BECAUSE THERE WAS OTHER EVIDENCE AS TO DEFENDANT'S INTENT, THE N.J.R.E. 404(b) EVIDENCE SHOULD NOT HAVE BEEN ADMITTED AND THE BALANCING OF PROBATIVE VALUE AND PREJUDICE WAS WHOLLY WRONG.
3. THE EVIDENCE ADMITTED UNDER N.J.R.E. 404(b) WAS NOT IN ANY WAY SANITIZED AS REQUIRED BY CASE LAW.
D. IN HIS SUMMATION, THE PROSECUTOR URGED THE JURY TO USE THE N.J.R.E. 404(b)
EVIDENCE AS PROPENSITY AND IDENTITY EVIDENCE.
POINT II
THE JUDGE'S CHARGE ON IDENTIFICATION WHICH SOUGHT TO GUIDE THE JURY ON THE CONSIDERATION OF BOTH MS. J'S IDENTIFICATION AND KMB'S IDENTIFICATION WAS CONFUSING AND LED THE JURY TO CONFLATE THE STRONG IDENTIFICATION IN THE N.J.R.E. 404(b) EVIDENCE WITH THE WEAK IDENTIFICATION IN THE CASE THE JURY WAS TO CONSIDER. (NOT RAISED BELOW).
POINT III
THE STATEMENTS, DURING THE N.J.R.E. 404(b) TESTIMONY, ABOUT WHAT MS. J'S HUSBAND'S FRIENDS SAID ABOUT WHO DEFENDANT WAS AND WHERE HE LIVED WERE HEARSAY AND VIOLATED DEFENDANT'S CONFRONTATION RIGHT. (NOT RAISED BELOW).
POINT IV
DEFENDANT'S SENTENCES SHOULD HAVE MERGED, SHOULLD [SIC] NOT HAVE BEEN MADE CONSECUTIVE, AND DEFENDANT SHOULD NOT BE REQUIRED TO SERVE THE MOST RESTRICTIVE TERM LAST. ADDITIONALLY, THE SANE PENALTY ON DEFENDANT'S JUDGMENT OF CONVICTION IS WRONG AND MUST BE CORRECTED.
127 N.J. 328 (1992).
I.
We first consider defendant's challenge to the admission of evidence of the incident involving N.J. The admission of other-crimes evidence is governed by N.J.R.E. 404(b), which states:
In addition to N.J.'s testimony, this evidence included the testimony of Officer Driscoll and Officer Lewis.
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The Supreme Court has established a four-part test to determine whether evidence of other crimes is admissible under Rule 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338; see also State v. Rose, 206 N.J. 141, 159-60 (2011).]
The trial judge considered each of these factors in turn. As to the first factor, the trial judge determined that the proffered evidence was relevant to a material issue, "whether the sexual act between the defendant and [K.M.] was consensual, or whether it was that of an aggravated assault." Addressing the second factor, the court noted the distinct similarities between the defendant's actions with K.M. and N.J. Defendant approached each woman while he was driving, encouraged them to get into his car, took them to secluded locations and attacked both victims in a particular manner. The court held that the "similar in kind and reasonably close in time" requirements of factor two were satisfied. Finding N.J.'s testimony believable, the court concluded that it constituted clear and convincing evidence that defendant assaulted N.J., satisfying the third Cofield factor. Finally, the court stated that the probative value of N.J.'s testimony was not outweighed by any prejudice to defendant. It therefore admitted the testimony, and gave a limiting instruction that was consistent with the applicable Model Jury Charge.
Our review of the trial court's decision to admit the 404(b) evidence is limited. Although N.J.R.E. 404(b) is "generally viewed as a rule of exclusion rather than a rule of inclusion[,]" State v. Gillispie, 208 N.J. 59, 85 (2011), we accord "great deference" to the trial court's decision to admit other-crimes evidence. Id. at 84. "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard." State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)); see also State v. Krivacska, 341 N.J. Super. 1, 40 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). Therefore, we will reverse the trial court's decision only where there has been a "clear error of judgment." Gillispie, supra, 208 N.J. at 84 (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).
The DNA evidence was unrefuted proof that defendant had intercourse with K.M. The question was whether this was consensual, as defendant's counsel argued, or an aggravated sexual assault. Defendant's intent was, therefore, clearly a material issue in the trial. In State v. Covell, 157 N.J. 554 (1999), the Court acknowledged the expansive view regarding the admissibility of evidence under such circumstances:
Although he does not directly challenge the court's finding on the first factor, defendant attempts to deny that his intent was a material issue, arguing that the actual issue was K.M.'s credibility.
New Jersey courts generally admit a wider range of evidence when the motive or intent of the accused is material. That includes evidentiary circumstances that tend to shed light on a defendant's motive and intent or which tend fairly to explain his actions, even though they may have occurred before the commission of the offense.
[Id. at 565 (internal citation and internal quotation marks omitted).]
Defendant also concedes that the two incidents in question met the "similarity" requirement of the second Cofield factor and does not challenge the trial court's determination that there was clear and convincing evidence that defendant committed the assault upon N.J.
Defendant contends that the nearly three-year interval between the incidents was "clearly far too long" to satisfy the requirement in the second Cofield factor that the incident involving N.J. was "reasonably close in time to the offense charged." He argues further that the trial court erred in finding that the probative value of the evidence was not outweighed by its prejudice. We disagree.
The court stated erroneously that the assaults occurred within two years of each other. They occurred approximately three years apart.
To support his challenge regarding the second Cofield factor, defendant argues that Cofield, supra, 127 N.J. at 337- 38, stands for the proposition that a two-and-one-half-year separation between acts is "clearly" too long. However, neither Cofield nor any case that followed has established a bright-line rule for the temporal requirement. The inquiry is whether the events are reasonably close in time, a question that is not conducive to a bright-line rule. As the Court observed in Covell, remoteness "cannot ordinarily be determined by the passage of time alone." 157 N.J. at 569 (quoting State v. Sands, 76 N.J. 127, 144 (1978)).
Defendant also argues that a period of six months was considered too long in Barden, supra, 195 N.J. at 375. This is a mischaracterization of the holding in Barden. In fact, the Court found the second prong was not applicable under the circumstances presented, stating, "the second prong of the test served no beneficial purpose and should not have been considered." Id. at 392.
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Indeed, the other-crimes evidence in State v. Eatman, 340 N.J. Super. 295, 297-301 (App. Div.), certif. denied, 170 N.J. 85 (2001), concerned a far longer period of time. Defendant had committed six acts of domestic violence against three different women between 1965 and 1982, the earliest of which occurred thirty-two years before he stabbed his girlfriend to death. The defendant's psychiatric expert testified that he suffered from dissociative amnesia at the time of the stabbing and was therefore unable to form the specific intent to murder. The State's psychiatric expert testified that defendant had a "barely suppressed rage against women as evidenced by a long-standing pattern of domestic violence." Id. at 301. The other-crimes evidence was offered to assist the jury in evaluating the conflicting testimony as to whether it was defendant's conscious object to kill or seriously injure his victim. We held that it was not a violation of N.J.R.E. 404(b) to admit the evidence of the prior acts of domestic violence. Id. at 301-02. See also State v. Stevens, 115 N.J. 289, 295-96 (1989), (defendant's prior misconduct approximately two-and-one-half years earlier was admissible under Evid. R. 55, the precursor to N.J.R.E. 404(b)); N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010) (holding that testimony of ex-wife concerning conduct that led to final restraining order approximately six years earlier was admissible against father in civil proceedings for the protection of a child); State v. Burris, 357 N.J. Super. 326, 334-36 (App. Div. 2002) (two-year interval), certif. denied, 176 N.J. 279 (2003). We are satisfied that the trial court did not abuse its discretion in concluding that the incident involving N.J. was reasonably close in time to the assault upon K.M.
The fourth prong of the Cofield test is considered "'the most difficult part of the test.'" Gillispie, supra, 208 N.J. at 89 (quoting Barden, supra, 195 N.J. at 389). To determine whether it has been satisfied, we apply the balancing test of N.J.R.E. 403, excluding evidence if "its probative value is substantially outweighed by the risk of . . . undue prejudice." See Covell, supra, 157 N.J. at 568 (alteration in original). Such undue prejudice is present when the "inherently inflammatory potential" of the other-crimes evidence has "a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." Gillispie, supra, 208 N.J. at 90 (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)).
Evidence is probative if it tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. We look to see whether there is a "logical connection between the proffered evidence and a fact in issue[,]" State v. Darby, 174 N.J. 509, 519 (2002), and assess whether the "evidence offered makes the inference to be drawn more logical[.]" Covell, supra, 157 N.J. at 565; see also State v. Bakka, 176 N.J. 533, 545 (2003). In determining the probative value of the evidence, the factors to be considered include the nature of the evidence, its remoteness, and whether other, non-inflammatory evidence is available that is relevant to the material issue in question. See Gillispie, supra, 208 N.J. at 90; Barden, supra, 195 N.J. at 389; Covell, supra, 157 N.J. at 568-69.
When, as here, "a defendant claims that he penetrated with permission, he puts his own state of mind in issue: he argues that he reasonably believed that the alleged victim had affirmatively and freely given him permission to penetrate." State v. Oliver, 133 N.J. 141, 155 (1993). Under such circumstances, the State is permitted to introduce evidence, including prior acts, "to disprove that the defendant had that state of mind." Ibid.
As the trial court described, the nature of the evidence here concerned an encounter with N.J. that was remarkably similar to that described by K.M. In incidents that occurred just three years apart, defendant approached both women while driving in Plainfield, lured them into his car under the pretense of providing them with rides, and gave each a false name. He ignored their driving directions and took them to secluded locations where the assaults occurred. Other than K.M.'s own testimony, defendant does not identify any evidence that was available to the State to prove his intent was to have intercourse with K.M. against her will. See Gillispie, supra, 208 N.J. at 90. The evidence made the inference that defendant intended to sexually assault K.M. more logical and thus, was highly probative.
The fact that the material issue here was defendant's intent also factors into our assessment of the potential for prejudice in the other-crimes evidence. As noted, the standard for undue prejudice is whether the evidence has "a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." Gillispie, supra, 208 N.J. at 90. However, the Court has observed that "[s]ome types of evidence require a very strong showing of prejudice to justify exclusion." Covell, supra, 157 N.J. at 570. When the material issue is the motive or intent of the defendant, evidence will be admissible "even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." Ibid. We note that the events described by N.J. were no more inflammatory than the events described by K.M. and introduced no facts with "a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." Gillispie, supra, 208 N.J. at 90.
We are therefore satisfied that the trial court did not commit a "clear error of judgment[,]" id. at 84, in finding that the probative value of the evidence regarding the assault upon N.J. was not outweighed by its prejudicial nature. Given the exceedingly probative value of N.J.'s testimony and the trial court's appropriate limiting instruction, the trial court properly allowed this evidence.
II.
In addition to challenging the admission of the other-crimes evidence, defendant raises certain issues regarding this evidence for the first time on appeal, i.e., that the evidence was not properly sanitized, that the limiting instruction given by the court was insufficient and that the prosecutor made improper references to the N.J.R.E. 404(b) evidence in his summation. Because these issues are raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006).
Defendant argues that the trial court failed to sanitize the other-crimes evidence here, allowing "graphic details of [N.J.'s] struggle to avoid being raped[,]" and her own statements to defendant and perceptions regarding the attack. Defendant contends that this testimony was more detailed than necessary to be probative of intent. We disagree. N.J.'s description of these facts illuminated defendant's intent and foreclosed any interpretation of her conduct in getting into the car of someone she barely knew as consenting to defendant's advances.
Defendant also complains that the evidence of N.J.'s conversations with friends of her husband following the assault was hearsay not relevant to the issue of intent. We note that the testimony complained of -- that these friends knew who defendant was -- was not inherently prejudicial, particularly in light of N.J.'s testimony that she recognized defendant from the neighborhood. Moreover, such testimony provided the jury with the sequence of events that preceded N.J.'s identification of defendant as her assailant. Because the jury was instructed that it should not give any weight to N.J.'s testimony unless it was "satisfied that the defendant committed the other crime against" her, this evidence was relevant to that determination. We are satisfied that defendant's argument regarding the scope of the N.J.R.E. 404(b) evidence lacks merit.
Defendant also challenges the limiting instruction given by the court for the first time on appeal. The charge given was consistent with the Model Jury Charge. There was no error, let alone plain error, in the limiting instruction.
Turning to the allegedly improper comments made by the prosecutor in summation, defendant argues that the prosecutor used the N.J.R.E. 404(b) evidence for "identification" purposes and to "impugn the defendant's character." We are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
III.
Defendant also argues for the first time on appeal that the trial court erred in its charge on identification. This argument is, therefore, also subject to the plain error standard, State v. Joseph, 426 N.J. Super. 204, 227 (App. Div.), certif. denied, 212 N.J. 462 (2012); R. 2:10-2, and will not warrant a reversal unless "the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969).
DNA evidence established that defendant had intercourse with K.M. and he did not dispute his identity at trial. This argument is, therefore, entirely lacking in merit.
IV.
Finally, defendant challenges his sentence. He argues that his conviction for criminal restraint should have merged with his conviction for sexual assault; that the imposition of consecutive sentences was improper; that the trial court abused its discretion in directing that the sentence for criminal restraint be served before the sentence for sexual assault; and that the JOC conflicts with the sentence announced at sentencing by stating two SANE penalties were imposed. We agree that a remand is necessary to address the order of sentences imposed and to correct the JOC. However, we find defendant's other challenges to his sentence to lack merit.
The merger doctrine is designed to prohibit "multiple punishment for a single wrongdoing." State v. Davis, 68 N.J. 69, 77 (1975); see also State v. Diaz, 144 N.J. 628, 637 (1996). N.J.S.A. 2C:1-8, which sets forth the statutory standards for merger, provides in pertinent part:
a. . . . . When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection d. of this section;
. . . .
d. . . . . A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]
Here, defendant was convicted of criminal restraint and sexual assault. Criminal restraint is the "knowing [r]estrain[t] [of] another unlawfully in circumstances exposing the other to risk of serious bodily injury[.]" N.J.S.A. 2C:13-2(a). Separately, sexual assault is defined as "an act of sexual penetration with another person[,]" during which time the "actor uses physical force or coercion, but the victim does not sustain severe personal injury[.]" N.J.S.A. 2C:14-2(c)(1).
Defendant argues that merger was required because the purpose of the criminal restraint here was to enable defendant to commit the sexual assault. However, the evidence necessary to convict defendant of criminal restraint was separate from that needed to prove sexual assault. See Davis, supra, 68 N.J. at 81. Significantly, the restraint here was not limited to the acts of restricting K.M.'s movement and exposing her to the risk of serious bodily injury during the sexual assault. The record reveals that defendant restrained and exposed K.M. to the risk of serious bodily injury before sexually assaulting her. Initially, he instilled fear in her by ignoring her directions and taking her to a secluded residential area where he burned her arm with a cigarette and slapped her face, causing her head to bounce against the passenger window. These actions, prior to the sexual assault, supported a conviction for criminal restraint. Thus, no merger was required.
Defendant next challenges the court's imposition of consecutive sentences. This determination is subject to review for an abuse of discretion. See State v. Spivey, 179 N.J. 229 245 (2004). State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), which establishes the applicable criteria, provides in pertinent part:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not
(a) the crimes and their objectives were predominantly independent of each other;[Id. at 643-44.]
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences to be imposed are numerous[.]
In this case, the trial court, citing Yarbough, emphasized "that there shall be no free crimes." It then observed, "Driving [K.M.] to the secluded spot, keeping her there, which formed the basis of the criminal restraint, is a separate act of violence upon this woman, followed by the unfortunate rape." For those reasons, the court imposed consecutive terms for the sexual assault and criminal restraint counts.
Although these crimes were committed against one victim with a common objective and at the same time, these facts do not dictate a concurrent sentence. The Yarbough guidelines demand a qualitative, not quantitative, analysis. State v. Ellis, 346 N.J. Super. 583, 594 (App. Div.), aff'd o.b., 174 N.J. 535 (2002). "[A] sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." State v. Carey, 168 N.J. 413, 427-28 (2001).
In State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000), we considered the propriety of imposing consecutive sentences when the defendant's "kidnapping was committed for the purpose of committing [] assault. . . ." Ibid. We emphasized that even though the assault and kidnapping "were not predominately independent of each other and were committed close in time and place," those were "not the only factors to be considered" under Yarbough. Ibid. Also relevant were the "nature of each offense, the purpose for which [the crimes] were committed, and the manner in which they were committed[.]" Ibid.
As noted, the offense of criminal restraint was complete prior to any sexual attack. Considering the manner in which the crimes were committed, we note that defendant's conduct escalated in its threatening, violent and violating nature, from the act of luring K.M. to burning her arm to attempting to coerce her to perform fellatio and, finally, to raping her. The consecutive sentences imposed do not shock the judicial conscience. See ibid. We are satisfied the trial judge did not abuse his discretion in imposing consecutive sentences.
Defendant next argues the trial court erred when, without justification, it sentenced him to serve his flat four-year sentence for criminal restraint prior to his ten-year term (subject to NERA) for sexual assault. We agree.
In Ellis, supra, 346 N.J. Super. at 583, we cautioned that, although a sentence that requires a defendant to serve the less restrictive sentence first is not illegal, such a sentence could constitute an abuse of discretion. Id. at 597. We explained:
In a very real sense, directing that a less restrictive sentence be served prior to the more restrictive sentence is akin to the discretionary imposition of an additionalSee also State v. Holland, 187 N.J. 76 (2006) (matter summarily remanded to the trial court for resentencing consistent with Ellis, and further ordering that defendant be sentenced with third-degree crime consecutive to second-degree crime on remand).
period of parole ineligibility. It should be imposed only when accompanied by specific findings. R. 3:21-4(g) . . . . A trial court that chooses to impose such a sentence should place on the record the specific consequences of that sentence. R. 3:21-4(j). A sentencing direction of this nature has a significant impact on defendant's real "in" time, and should not be rendered casually or with only a vague understanding of its import.
[Ibid.]
We therefore conclude that this matter must be remanded for resentencing consistent with Ellis, that is, that the sentence for criminal restraint is to be consecutive to the sentence for sexual assault. In addition, as the State concedes, the JOC improperly imposed two SANE fines for counts one and three. Therefore, on remand, the judgment of conviction should be corrected to reflect that only one such fine is imposed.
We affirm defendant's convictions and remand for resentencing in accordance with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELJLATE DIVISION