STATE OF NEW JERSEY v. MARK RAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6701-03T46701-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK A. RAY,

Defendant-Appellant.

_________________________________

 

Submitted January 17, 2006 - Decided February 10, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

02-10-01257.

Yvonne Smith Segars, Public Defender, attorney for appellant (William B. Smith, Acting Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a four-day jury trial, defendant Mark Ray was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Two); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Count Three); second-degree burglary, N.J.S.A. 2C:18-2 (Count Four); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Five).

The trial judge sentenced defendant to a term of fifteen years incarceration with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree aggravated sexual assault conviction. The sexual assault and sexual contact convictions were merged with the first count conviction. The judge imposed a seven-year term with an 85% parole disqualifier on the burglary conviction, which he ran concurrent with the fifteen-year term imposed on the aggravated sexual assault. Defendant was sentenced to a four-year term on the terroristic threats conviction, which was run concurrently with the seven-year burglary term. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.

K.P. gave the following testimony. In June 2002, K.P. was a preceptor, or resident assistant, for Rutgers University in the Frelinghuysen dormitory. She was attending summer classes and residing in Room 402. On the evening of June 22, 2002, K.P. went to a movie around 9:00 p.m. with her friends K.C. and S. After the movie, K.C. returned to his room and S. and K.P. went to K.P.'s room. Shortly thereafter, S. left and K.C. went to K.P.'s room where the two watched a movie. Sometime after 3:00 a.m., K.P. remarked that she had a headache. K.C. said that he would stay in the room until she fell asleep. K.P. fell asleep and K.C. left K.P.'s room around 4:00 a.m. He returned to his room.

When K.P. awoke, lying on her stomach, she found another person on top of her. She initially thought the person was K.C. because he was last in her room. She later identified defendant as the person in the room. K.P. told defendant to get off of her, however, he did not comply. Defendant began pushing pillows over K.P.'s head, making it difficult for her to breathe. He started kissing her on the neck and speaking in a disguised voice that sounded like a harsh whisper. K.P. managed to get the pillow off the right side of her head and observe that defendant had a tattoo on his right shoulder.

Defendant pulled K.P.'s jeans and underwear down and demanded that she "shut the fuck up" and "don't turn your head or I'll fuckin kill you." Defendant then penetrated her vaginally from behind. At some point during the assault, her jeans and underwear were removed completely. While defendant was penetrating her, K.P. complained that her head was hitting the headboard and her legs hurt. Defendant laughed and told her that she was "fucking up his fantasy" and he ceased penetrating her. Defendant stayed on top of her, attempting to penetrate her again. She told him that her leg hurt and to move back. When he did, she grabbed his penis and twisted it. Defendant moved off of her enough that she could get off the bed and run to the door. When she got to the door, defendant had gotten up, and she was able to see him. Defendant was wearing a light blue "do-rag" hair covering, no shirt, shorts, and dark colored sneakers. She attempted to open the door, however, discovered that it had been locked. She unlocked the door, covered the bottom half of her body with a towel that was hanging on the door, and ran upstairs to K.C.'s room on the fifth floor.

She entered K.C.'s room, which was unlocked, woke him up, told him "it hurt," and requested that he accompany her to her dorm room. By the time they arrived at her room, K.C. realized that K.P. had been sexually assaulted. No one was in her room so they returned to K.C.'s room. K.C. asked K.P. if he could call the police. She responded affirmatively and K.C. dialed 911 and reported that K.P. had been sexually assaulted.

The paramedics arrived and asked K.C. to leave while they attended to K.P. The police arrived and took K.P.'s statement. She described her attacker to police as a light-skinned black or Hispanic male with a muscular build. The police showed K.P. a picture driver's license and asked if the individual depicted was her attacker. Although she responded that it looked like her attacker, she told the police she could not be sure because in the photo he was not wearing the hair covering he was wearing when he attacked her. The police then brought her to the sixth floor where defendant was located. She viewed him from his side profile and asked that he expose the tattoo on his right arm, which he did. She then positively identified defendant as her attacker. She also identified him in court.

K.P. was taken to Roosevelt Hospital and then to the J.F.K. Rape Crisis Center. Nurse Eileen Aiossa, the Clinical Coordinator of the Sexual Assault Nurse Examiner Program (SANE), questioned K.P. about the assault and conducted a physical examination. She collected scrapings from underneath her fingernails, vaginal samples, photographs, and blood samples. Aiossa found three tears, each approximately five millimeters long, in the entrance to K.P.'s vagina. Aiossa testified at trial. She described her interview and examination of K.P. Aiossa characterized the tears that she found as typically the result of a blunt force trauma.

The parties stipulated that the specimens taken from K.P. and sent to New Jersey Laboratories Forensic Science Bureau tested positive for spermatozoa. Laboratory comparison testing established defendant as the source of the spermatozoa.

Defendant related a different version. He obtained a degree in Psychology from Rutgers University in May 2000. According to defendant, he met K.P. about a week and a half before the incident in the student lounge of Frelinghuysen while looking for a friend who resided in the dormitory. At the time, he did not have a place to live. He told K.P. that she looked like somebody he knew named Adrian, and then conversed for fifteen to twenty minutes in a flirtatious manner. After explaining his lack of living quarters, K.P. permitted him to stay in an empty dorm room on the sixth floor, to which she had access as a preceptor, so long as he did not tell anyone.

Several days later, defendant accompanied K.P. to her room where they kissed and he fondled her. He "finger[ed] her" but they did not have intercourse because K.P. felt that they were "going too fast." Defendant was convinced, however, that it would be easy to have sex with her if he wanted to. After attending a party the evening of June 22 at a house on Prosper Street, defendant returned to Frelinghuysen around 3:00 a.m. He did not have an access card, however, was able to enter the building at the same time some residents were either entering or exiting. Defendant went to the sixth floor room he was using, but did not enter because there were people in the hallway. He did not want anyone to know that he was staying in the room in violation of the rules. He tried a friend's room on the second floor, but no one was there. He then went to K.P.'s room where they had consensual sexual intercourse. While they were having intercourse, he told her that he had had unprotected sex with another person. K.P. became angry and told him to get off of her. An argument ensued, so he got dressed and he left the room. Taking the stairs, he returned to the sixth floor room and went to sleep. When the police later awoke him, he thought that he was being arrested for criminal trespass and was not informed of the rape allegations for eight or nine hours.

At approximately 5:15 a.m., Officers Matthew Ganzer and Sergeant James Fisher of the Rutgers University Police were dispatched to Frelinghuysen. After K.P. described the unknown male who raped her, Fisher left the room to assist other units in searching for the suspect. Rutgers University Police Officer Michael Farella was dispatched to Frelinghuysen where he began searching for the suspect. After searching other floors, he arrived on the sixth floor where he encountered a male and female in the lounge. He asked if they had seen anyone. They responded, and he went to room 602. The door was locked. He called for University fire personnel to obtain a key. Less than one hour later, Sergeant Kellerman arrived and they opened the door. They requested backup after observing someone's legs and sneakers lying on the floor behind the desk. Defendant was asleep in the room. He was wearing a light blue shirt, blue do-rag, denim shorts, and dark sneakers. They arrested defendant for trespassing.

Fisher obtained defendant's photo drivers license from his wallet and showed it to K.P on the fifth floor. Fisher then brought K.P. to the sixth floor where she identified defendant.

On appeal, defendant raises the following points:

I. REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR, IN HER SUMMATION, SUGGESTED TO THE JURY THAT THE DEFENDANT WOULD HAVE BEEN REGARDED AS A SUSPICIOUS CHARACTER BECAUSE HE WAS "AN AFRICAN-AMERICAN MALE WITH A TATOO [SIC] ON HIS ARM AND A DO-RAG ON HIS HEAD . . . ." (Not Raised Below)

II. THE PROSECUTOR'S USE OF THE LENGTHY TESTIMONY OF EILEEN AIOSSA, THE "SANE" NURSE, WAS IMPROPER, AND OBVIOUSLY DESIGNED TO ENGENDER SYMPATHY FOR THE ALLEGED VICTIM, AND IT WAS REVERSIBLE ERROR TO ADMIT MOST OF THIS EVIDENCE. (Not Raised Below)

III. DEFENDANT'S CONVICTIONS OF AGGRAVATED SEXUAL ASSAULT, SEXUAL ASSAULT AND AGGRAVATED CRIMINAL SEXUAL CONTACT MUST BE REVERSED BECAUSE, IN INSTRUCTING THE JURY ON HOW IT SHOULD DEAL WITH DEFENDANT'S CLAIM THAT HIS ACTIONS WERE CONSENSUAL, THE COURT SHIFTED THE BURDEN OF PROOF FROM THE STATE TO THE DEFENDANT. (Not Raised Below)

IV. REVERSAL IS REQUIRED BECAUSE THE TRIAL JUDGE DID NOT CHARGE THE JURY ON THE TERRORISTIC THREATS OFFENSE FOR WHICH DEFENDANT WAS INDICTED (N.J.S.A. 2C:12-3b) BUT INSTEAD UPON AN UNINDICTED FORM OF THE CRIME (N.J.S.A. 2C:12-3A). (Not Raised Below)

V. THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I, II, III AND IV, SUPRA, REQUIRE REVERSAL.

Since these contentions are raised for the first time on appeal, we view them from the standpoint of whether they constitute plain error. R. 2:10-2. We address the points seriatim.

Defendant contends that the State engaged in prosecutorial misconduct during summation, depriving defendant of a fair trial and due process of law. When prosecutorial misconduct is being raised for the first time on appeal, we need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the accused of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

During summation, defendant's counsel argued,

I started to talk about what I think is one of the most significant things about this evidence. It's [defendant]'s post-event behavior. Here's a guy that the victim claims, and I use that word victim loosely, she claims she had been subjected to the forcible rape by a stranger . . . . So, here's a guy who, a stranger who breaks in somebody's room, according to her testimony, forcibly rapes her. She runs out of the room screaming and cursing at him and sees him and what does he do? He wanders upstairs and he goes to sleep. Now, this would have to be the stupidest rapist in the world. If this had occurred and this guy just committed a forcible rape of a stranger who went screaming out of the room and saw him, unless I have been watching the wrong TV shows, he would get out of there. He would put as much distance as he could between himself and Frelinghuysen dorm and this person who he knows is now going to point the finger at him and can identify him. But, what does he do? He wanders upstairs. He engages Mr. Blue hair in conversation, so there's another person who knows that he's there and is a potential witness and also the young lady that Mr. Blue hair was with. And then he, in view of these people, goes into Room 602 and falls asleep, apparently in deep sleep because the police have a fairly difficult time waking him up. His post-event behavior is consistent with his innocence and corroborates his story and contradicts her story. Please don't be fooled by believing [K.P.] just because she is so sympathetic. Look carefully at each of the stories. You can't but help to have an honest uncertainty about what happened in room 402 on June 23rd of 2002.

The prosecutor responded, saying,

And counsel told you that it is pretty unbelievable for him just to walk out of the room. You would expect him to run out of the building. Oh, really? Oh, really? And how conspicuous would that look? That at five o'clock in the morning an African-American male with a tatoo [sic] on his arm and a do-rag on his head is running out of the Frelinghuysen dorm when he knows police are on the way. The police department is right up the street. He knows that campus. That is not reasonable. That is not something that you would expect a rapist to do. No. He's going to act inconspicuously. So what does he do? He's not taking the stairs because he knows exactly she went running out of the room with the towel wrapped around her. She had taken those stairs. Gets on the elevator and acts calmly. Don't look conspicuous. So when he gets out on that sixth floor and, oops, there is [sic] two people there, the man with the blue hair that we keep hearing about and the female. Now, wouldn't it look pretty conspicuous if I start running and darting into a room? Hi. How are you doing? Nice morning. And he goes in the room and it's only, and then he locks the door and he goes back to that room, ladies and gentlemen, because he knows [K.P.] doesn't know he's up there because he doesn't know her. Why would he go back to a room where she knows he's living? And he locks the door. There are plenty of locked doors in that building. Why would the police check behind a locked door? Unlucky day for [defendant]. (emphasis added).

Defendant argues that the State "elected to play the race card" by suggesting "that people would regard an African-American male with a tattoo and a do-rag to be suspicious." The State counters, asserting that the prosecutor's description of defendant matched the description given to police by the victim, and her remarks were in response to defense counsel's summation regarding defendant's actions after the offense and the reasons he did not flee from the dormitory.

Generally, a prosecutor is permitted to comment on all reasonable inferences that may be drawn from the facts established at trial. State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). A prosecutor is not "precluded from advancing a vigorous and forceful presentation of the State's case." State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Failure to object suggests that trial counsel did not believe the prosecutor's remark to be out of bounds. State v. Frost, 158 N.J. 76, 84 (1999); State v. Hipplewith, 33 N.J. 300, 314 (1960) (citing Johnson, supra, 31 N.J. at 511).

We do not believe that the prosecutor's comments were inappropriate. The prosecutor's remarks were consistent with the victim's testimony and made in direct response to defendant's argument in an effort to rebut the contention that defendant's subsequent actions were inconsistent with guilt. There was no error, much less plain error.

Defendant next contends that the State elicited prejudicial testimony from the SANE nurse for the purpose of appealing to the jury's emotion. Defendant maintains that the testimony was so prejudicial that it outweighed any probative value that it otherwise might have, N.J.R.E. 403. Again, we note that the failure of defendant to object suggested that defense counsel did not find the testimony to be overly prejudicial, State v. Macon, 57 N.J. 325, 333 (1971). More importantly, it deprived the trial judge of participating in the very "balancing process" that defendant now argues should have been exercised to decide whether the prejudice of specific evidence outweighs its probative value. Ramseur, supra, 106 N.J. at 266 (1987).

To be sure, the SANE nurse's testimony was both lengthy and detailed. It included a recitation of her experience and evidence surrounding her examination of the victim and its purpose. It was relevant to: (1) show the physical and biological evidence both observed and procured by the nurse from the victims body; (2) explain the clinical methods, how and why they were employed; and (3) establish the manner in which physical evidence was documented. Her testimony provided relevant information to establish proof from the physical and medical manifestations that sexual penetration occurred, an essential element of the sexual assault charges.

Concentrating on the length and detail of the nurse's testimony, defendant asserts that it prejudicially caused the jury to sympathize and feel sorry for the victim. We disagree. Our review of the record satisfies us that the SANE nurse's testimony was relevant and was not unduly prejudicial. We are equally convinced that the testimony belatedly challenged on appeal was not clearly capable of producing an unjust result. R. 2:10-2.

Defendant next challenges the instructions given by the judge respecting consent, asserting that the judge did not make it clear that lack of consent was an element of the offense that the State had the burden to prove beyond a reasonable doubt. After charging the jury on the offenses of burglary, N.J.S.A. 2C:18-2, and aggravated sexual assault while committing a burglary, N.J.S.A. 2C:14-2a(3), the judge instructed the jury on sexual assault by coercion or force, N.J.S.A. 2C:14-2c(1), during which he gave the following pertinent charge regarding permission:

You must decide whether [defendant's] alleged act of penetration was undertaken in circumstances which led him reasonably to believe that [K.P.] had freely given affirmative permission to that specific act. That is, you must decide whether [K.P.] did or said something which would lead a reasonable person to believe that she agreed to engage in the act of sexual penetration of her own free will. Freely and affirmatively given permission could be indicated through words, through actions or through both. You must determine whether [K.P.'s] words or acts when viewed in the light of all surrounding circumstances would demonstrate to a reasonable person that affirmative and freely given permission for the specific act of sexual penetration, in this case vaginal intercourse, had been given. Persons need not, of course, expressly announce their consent to engage in an act of sexual intercourse for there to be affirmative permission. Permission to engage in any act of sexual penetration can be and indeed often is indicated through any physical acts rather than words. Permission is demonstrated when the evidence in whatever form is sufficient to demonstrate that a reasonable person would have believed that [K.P.] had affirmatively and freely given authorization to the act. Proof that the act of sexual penetration occurred without her permission can be based on evidence of conduct or words, in light of all surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that his was affirmative and freely given permission. There is evidence to suggest that [defendant] reasonably believed that he had permission to engage in the act of sexual penetration. The State must demonstrate either that [defendant] did not actually believe that such permission had been freely given or that such a belief was unreasonable under all of the circumstances. In determining how reasonable [defendant's] belief that [K.P.] had freely given affirmative permission keep in mind that the law places no burden of proof on her . . . . The State is not required to prove that she resisted. If the State has proved beyond a reasonable doubt each of the elements that I have outlined for you [defendant] is guilty of sexual assault. If, on the other hand, the State has failed to prove beyond a reasonable doubt any of these elements, [defendant] must be found not guilty. (emphasis added).

The judge then charged the jury on aggravated sexual contact. N.J.S.A. 2C:14-3a.

After the judge completed his instructions, defense counsel advised the judge that he did not include the charge on permission he used when instructing sexual assault in his charge on sexual contact. The judge then repeated the permission charge that he had previously given as applicable to the three sexual offenses charged.

Under the sexual assault statute, "the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely- given permission of the alleged victim." State in re M.T.S., 129 N.J. 422, 448 (1992). Here, the judge correctly charged the proof and burden required by the State to establish guilt. Moreover, throughout his instructions, the judge repeatedly instructed the jury that the State had the burden to prove each and every element of the offense charged beyond a reasonable doubt. We are satisfied that defendant's contention to the contrary lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Defendant maintains that the trial judge erroneously charged the jury on the unindicted offense of third-degree terroristic threats, N.J.S.A. 2C:12-3a (threatening to commit any crime of violence with the purpose to terrorize), rather than the indicted offense, third-degree terroristic threats, N.J.S.A. 2C:12-3b (threatening to kill with the purpose to put one in imminent fear of death).

The record, however, reveals that the judge instructed the jury on both offenses. The general principle that an indictment must identify the criminal offense sufficiently to afford the accused the information necessary to prepare an adequate defense is not rigidly applied. State v. Talley, 94 N.J. 385, 392 (1983). It is sufficiently flexible to include an uncharged offense where that offense is legally contemplated or embraced in the charged offense. Ibid. Here, defendant did not object to the judge's charge. Both are third-degree offenses. Indeed, the defense was consensual sex, not threat of violence other than the threat to kill. A threat to kill naturally includes violence. The evidence in the record was sufficient to support guilt on both.

An appellate court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result. R. 2:10-2. In the context of a jury charge, plain error is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Under the circumstances here, the judge's recital of the elements of both N.J.S.A. 2C:12-3a and 3b did not, in our view, constitute plain error but was harmless beyond a reasonable doubt.

Because we reject the contentions raised by defendant in Points I, II, III, and IV, we need not discuss his final argument that the cumulative effect of the error asserted in the first four points require reversal. Accordingly, we affirm.

 

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A-6701-03T4

February 10, 2006