STATE OF NEW JERSEY v. JOSEPH LIPHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5432-03T45432-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOSEPH BRIAN LIPHAM,

Defendant-Appellant.

__________________________________

 
 

Submitted: December 19, 2005 - Decided January 20, 2006

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-1399.

Yvonne Smith Segars, Public Defender, attorney for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Joseph B. Lipham was found guilty of second degree attempted sexual assault, contrary to N.J.S.A. 2C:5-1 and 14-2c(1). Subsequent to his conviction, defendant pled guilty to one count of attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1 and 14-2a. At sentencing, a seven-year custodial term to be served at Avenel was imposed for the attempted sexual assault conviction and a consecutive five-year term of imprisonment was imposed for the attempted aggravated sexual assault conviction. The requisite fines, penalties and assessments were also imposed.

On appeal, defendant presents the following arguments:

POINT ONE

DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE VICTIM NEVER IDENTIFIED THE DEFENDANT AS HER ASSAILANT AND THE STATE FAILED TO PRODUCE ANY EVIDENCE THAT DEFENDANT ATTEMPTED TO COMMIT A SEXUAL ASSAULT USING PHYSICAL FORCE OR COERCION.

POINT TWO

BECAUSE THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS THE MAN WHO ACCOSTED THE VICTIM, HIS CONVICTION FOR ATTEMPTED SEXUAL ASSAULT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

POINT THREE

THE SENTENCING COURT ABUSED ITS DISCRETION BY ORDERING THAT DEFENDANT SERVE A FLAT TERM OF SEVEN YEARS IN PRISON PRIOR TO SERVING A TERM OF FIVE YEARS IN PRISON, 85% WITHOUT PAROLE ELIGIBILITY.

POINT FOUR

THE IMPOSITION OF CONSECUTIVE SENTENCES ON THE TWO SEXUAL ASSAULT CHARGES IS CONTRARY TO BLAKELY V. WASHINGTON, 124 S. Ct. 2531 (2004).

The attempted sexual assault charge is based on an incident that occurred in the women's locker room at Giants Stadium on December 17, 2001. The State's evidence consisted of the testimony of the victim, a videotape of the locker room area, and a firefighter's badge retrieved from defendant. Patricia Leone testified that on December 17, 2001, she was employed as a cleaner assigned to Giants Stadium at the Meadowlands Sports Complex. She was in the women's locker room tying her shoe when a man wearing a yellow jacket of the type worn by stadium security personnel entered the room, flashed a badge, and informed her that he was from Immigration. He directed her into a bathroom stall, locked the door, and instructed her to remove her clothing to allow him to search her. When she repeatedly refused and started calling for her father, he left the stall and the locker room.

At trial, the prosecutor did not ask the victim to describe her assailant. He never asked the victim to identify defendant as her assailant. The prosecutor did, however, refer to defendant by name in two questions. The following questions and the victim's response to those questions are as follows:

[Q.] . . . When you said that you were in the stall, how long was the defendant, Joseph Brian Lipham in the stall with you?

A. It was some minutes, I don't know how long.

Q. After you told the different people about the incident, did you, at some point, see Mr. Lipham come out of the office?

A. Yes, when he was leaving.

The prosecutor also never asked the victim the time of the assault.

A State Trooper related that a firefighter's badge was retrieved from defendant. The victim was never requested to identify the badge. The trooper also testified that defendant was stationed on that day in an area proximate to the tunnel leading to the men's and women's locker rooms. As a videotape from the stadium surveillance system was played, the trooper identified defendant as the person depicted at his post and walking into and out of the tunnel leading to the locker rooms. The videotape does not display defendant entering the women's locker room.

At the conclusion of the State's case, defense counsel made a motion for a judgment of acquittal. The motion was denied. Defendant did not testify and presented no witnesses. Based on the evidence, the motion for a judgment of acquittal based on the lack of evidence as to the identity of the victim's assailant should have been granted.

The State must prove each and every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 374 (1970); State v. Ingenito, 87 N.J. 204, 213 (1981). One of the most fundamental elements of any offense is the identity of the person who committed the offense. State v. Green, 86 N.J. 281, 293 (1981).

Rule 3:18-1 governs motions for a judgment of acquittal. The judge must assess the State's evidence and determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted); State v. Sugar, 240 N.J. Super. 148, 152-53 (App. Div. 1990). Measured by that standard, the State produced evidence that at some time during December 17, 2001, Patricia Leone was confronted by a man wearing a yellow Meadowlands security jacket. The man flashed a badge, announced that he was from Immigration and that he intended to search her. This man instructed her to enter a bathroom stall and remove her clothes. When she resisted, he left. Ms. Leone saw the same man later in the day leave the security office. A videotape from the stadium security system depicted defendant at his post and in the tunnel going towards and away from the area of the locker rooms.

Notably, the victim never provided a description of her assailant other than the color of his jacket. She did not inform the jury if her assailant was short or tall, slim or portly. She did not describe his race, hair color or the existence of facial hair. The prosecutor's reference to defendant by name in two questions posed to the victim was not an adequate substitute for a direct identification of defendant as her assailant. We acknowledge that the videotape displays the time of day and the videotape was retrieved based on the time the incident was reported to stadium security. All of this information, however, was presented to the trial judge during the Driver hearing. The jury never heard any of this testimony. The jury could surmise from the victim's testimony that the incident may have occurred at the end of her shift, but the victim never testified about the hours of her shift. Finally, she testified that her assailant flashed a badge and a badge retrieved from defendant was introduced in evidence; however, the victim was never asked to identify the badge. In short, the State's evidence, direct and circumstantial and assessed in the most generous fashion, was insufficient to allow a reasonable jury to find beyond a reasonable doubt that defendant was the person who assaulted Patricia Leone. Accordingly, the attempted sexual assault conviction is reversed.

 
Reversed.

State v. Driver, 38 N.J. 255, 287 (1962).

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A-5432-03T4

January 20, 2006