STATE OF NEW JERSEY v. J.G

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1943-06T21943-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.G.,

Defendant-Appellant.

________________________________________________________________

 

Argued June 4, 2008 - Decided

Before Judges Lisa, Simonelli and King.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-07-00510.

Claudia Van Wyk argued the cause for appellant (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Lawrence S. Lustberg and Ms. Van Wyk, on the brief).

Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).

PER CURIAM

After his motion to suppress his statement was denied, defendant went to trial on the two charges in the indictment, second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count one), and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count two). The jury acquitted defendant of terroristic threats and the lesser-included offense of harassment. The jury convicted defendant of sexual assault. The judge sentenced defendant to seven years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also ordered parole supervision for life and registration under Megan's Law, N.J.S.A. 2C:7-2. Defendant argues on appeal:

POINT I

THE POST-POLYGRAPH STATEMENTS WERE INADMISSIBLE BECAUSE THE INTERROGATING OFFICERS FAILED TO TAKE REASONABLE STEPS TO MEMORIALIZE THE INTERROGATION AND BECAUSE THE STATE FAILED TO PROVE THEIR VOLUNTARINESS BEYOND A REASONABLE DOUBT.

A. The Detectives' Account of the Interrogation

B. The Interrogating Officers' Failure to Make Reasonable Efforts to Memorialize [J.G.]'s Post-Polygraph Statements Rendered Them Inadmissible

C. The Officers' Failure to Create and Preserve a Record of the Interrogation Prevented the State From Proving Its Voluntariness Beyond a Reasonable Doubt

D. The Admission of the Post-Polygraph Statements Was Not Harmless Error

POINT II

THE COURT ERRONEOUSLY INSTRUCTED THE JURY THAT THE STATE MUST PROVE, IN ORDER TO SECURE A CONVICTION OF SECOND-DEGREE SEXUAL ASSAULT, THAT THE COMPLAINANT DID NOT SUFFER SEVERE PERSONAL INJURY.

POINT III

THE TRIAL COURT'S FAILURE TO SUBMIT HARASSMENT AS A LESSER-INCLUDED OFFENSE OF SEXUAL ASSAULT AND CRIMINAL SEXUAL CONTACT WAS REVERSIBLE ERROR AND DEPRIVED [J.G.] OF DUE PROCESS OF LAW.

POINT IV

THE TRIAL COURT'S IMPROPER FINDINGS ON AGGRAVATING AND MITIGATING FACTORS REQUIRE RESENTENCING.

We reject these arguments and affirm.

This is a case of what is often referred to as "date rape." There is no dispute that the parties engaged in sexual acts. According to K.M., defendant committed the acts upon her by force. According to defendant, they were consensual.

Defendant and K.M. met in January 2004 at a bar and restaurant owned by K.M.'s family. K.M. was the manager and also a bartender. On Monday, May 10, 2004, while at the bar, defendant asked K.M. for a date. She accepted, and they agreed to go out that Friday. That week they talked periodically on the phone.

On Friday, K.M. hosted a birthday party for her son in the early evening, and then drove to defendant's house at about 10:00 p.m. She parked in the driveway, went into the house for about fifteen minutes, and the two left in defendant's car and traveled to a bar. They had a few drinks and socialized there with some friends of defendant until about 12:30 a.m., and then walked to another nearby bar, where they remained until closing time. They then embarked on the drive back to defendant's house.

According to K.M., during the drive defendant began making comments that made her nervous. On a "few" occasions he said, "I'm going to fuck you baby." She responded "No, you're not," but "kind of laughed it off." When they arrived at defendant's house, defendant parked in the driveway. K.M. got out and stood between her car and defendant's. Defendant invited her in. She declined, saying she had a nice time and would call him, but she wanted to go home. He insisted she come in and led her into the house by the arm. She acquiesced, not thinking he would sexually assault her.

Defendant directed K.M. to the couch in the living room, where he began kissing her. She asked him to stop, and again said she had a nice time and would call him, but she wanted to go home. He forced himself on top of her, touching her chest, and continuing to kiss her. She continued telling him to stop. He forcefully removed her pants and underwear. Begging him to stop, K.M. was pushed down to the floor. Defendant followed her to the floor, removed his pants and inserted his penis in her vagina. Scared, crying and trying to squirm away, K.M. continued telling defendant to stop.

K.M. was able to reach her purse, from which she removed her cell phone and attempted to dial 911. When defendant saw the phone, he grabbed it and threw it across the room. Becoming more aggressive, he pulled her up by the arms, backed her through the living room, down the hallway and to the stairs. He shoved her up the stairs on her hands and knees while he held her by the arms, ultimately throwing her on the bed in his bedroom. She continued to beg him to stop. Defendant pulled off K.M.'s shirt and bra and straddled her, attempting to place his erect penis in her mouth. She moved her head back and forth, trying to get away, but he got his penis in her mouth "just for a second."

He put his hands on her throat, restricting her ability to speak. She begged him to "please stop," saying that she had two kids at home and just wanted to get home to them. He said he was doing nothing wrong and she wanted it. He grabbed her neck tighter and said that if she "told anyone that he did anything that he would kill [her] and [her] kids."

Defendant continued to have vaginal intercourse with K.M., and then he abruptly stopped and ran into the bathroom. Seizing the opportunity, K.M. ran out of the house into a wooded area. She was completely naked. She hid behind a tree. She heard defendant call her name a couple of times from the back door of the house. She did not respond. After waiting about twenty minutes, hoping defendant would fall asleep, K.M. entered the house to look for her car keys. Her purse, pants, and underwear were not in the living room. She tiptoed up the steps and observed defendant sleeping on his bed. Her purse and shirt were on the floor next to the bed. She grabbed her purse, put on her shirt, and took a blanket to wrap around her waist. She saw her phone on a table and took it.

While still in the house, K.M. called her sister, E.H., who knew K.M. was on a date with defendant. K.M. told her sister defendant was going to kill her and she wanted her sister to know where she was in case she did not make it out of the house alive. K.M. left the house and drove away. K.M. called E.H. again, and drove to a location where she met E.H. and E.H.'s boyfriend. K.M. was naked from the waist down. She collapsed into her sister's arms. They returned to E.H.'s house. K.M. was shaking and crying and told her sister what happened. Despite her sister's urging, K.M. refused to call the police because she was afraid defendant would kill her and her children.

On Saturday, May 15, 2004, K.M. and E.H. attended a family function throughout the day. E.H. continued to urge K.M. to report the incident, which she did on Sunday, May 16, 2004.

A physical examination of K.M. revealed no forensic evidence corroborating her story. The only apparent injury was an abrasion to her right elbow, which she said occurred when defendant was pushing her up the stairs. According to defendant, K.M. said she got the abrasion when she fell while playing a game at her son's birthday party.

That Sunday night, the police obtained a warrant to search defendant's house. Defendant arrived during the course of the search. He had been fishing all day, and claimed he had consumed about eight beers. When defendant arrived, he said "this must be about [K.M.]." The police found K.M.'s pants, bra, underwear and socks folded up in defendant's bedroom closet. The search did not reveal any usable forensic evidence. The police asked defendant if he wanted to come to the station and tell his side of the story. Defendant said he did.

At the station, after being advised of his Miranda rights, defendant described the events in a manner very different than related by K.M. His initial discussion with the police was unrecorded, and then he gave a tape recorded statement. Defendant also testified at trial and related a similarly benign version of the events.

Defendant said on the ride back from the bars to his house, the parties kissed while stopped at traffic lights and, when they arrived at his house, K.M. willingly agreed to come in, and immediately kicked off her shoes and went upstairs to his bedroom. He said he let the dogs out and, while waiting for them to return, he made a drink for K.M. When the dogs came back in, he went up to the bedroom. They sat and talked fully clothed for a while, after which they kissed, undressed each other, and engaged in consensual sexual activities. He performed oral sex on her, and they had intercourse. In his trial testimony, defendant said K.M. asked him to stop so she could go to the bathroom. He stopped, and instead of walking into the bathroom, K.M. walked into a closet next to the bathroom. Believing she was intoxicated and confused, defendant got up and showed her to the bathroom. He testified that she seemed upset and that she told him he was the first person she had been with in some time and she did not want to get hurt. He went back to bed and fell asleep. When he awoke the next morning, she was gone, but her pants, underwear, and bra were in his bedroom.

Defendant called K.M. and left a message on her voicemail, asking if she was okay and saying her clothes were at his house. He called and left another message later that day, suggesting they might get together again that night. He left a third message on Sunday, saying he would call again. K.M. did not return any of the calls.

When defendant went with the police to the station house, he spoke with Hillsboro Detective John Carney and Somerset County Prosecutor's Office Detective Werner Rodas. His initial unrecorded statement to them and his taped statement were substantially consistent with his later trial testimony, and were not inculpatory. The only differences were that he told the police when he and K.M. returned to his house, they kissed and "worked our way to the bed." At trial, he said K.M. went to his bedroom alone while he let the dogs out. He made no mention in his taped statement about K.M. going into the closet instead of the bathroom, and he added in his taped statement that before they had intercourse, she performed oral sex on him.

After defendant gave the taped statement, Rodas and Carney left him alone in a room while they talked. They returned and told defendant that his story did not match K.M.'s. Defendant insisted that he was telling the truth and offered to take a polygraph exam. The jury was never informed of that fact, or of any of the facts relating to the polygraph exam. The following facts were adduced at the hearing on defendant's motion to suppress statements he made after taking the polygraph exam.

It was about 1:00 a.m. when defendant asked to take the polygraph exam. He had been speaking with the police since about 11:00 p.m. on May 16 after the police finished the search of his house. Carney asked defendant if it was too late to conduct the exam, and defendant said no, he just wanted to get it over with. At about 1:30 a.m., Rodas and Carney drove defendant to the Somerset County Prosecutor's Office.

Somerset County Prosecutor's Office Detective John Fodor was waiting to administer the exam. Fodor read, and defendant signed, a Miranda form tailored to the administration of the exam. Fodor began the exam at about 2:00 a.m., and it lasted one-and-one-half to two hours. After analyzing defendant's responses, Fodor concluded defendant had been deceptive, and he informed Carney and Rodas of this. The three detectives then confronted defendant.

Fodor asked defendant why he failed the exam, and Carney asked him if K.M. ever told him to stop having sex with her. Carney testified that defendant said that when K.M. said she had to go to the bathroom, he did not stop having sex with her right away, but continued for fifteen to twenty seconds. Defendant also said that while he did not remember her saying that she did not want to perform oral sex on him, he did put his penis to her mouth and told her to suck it. Rodas added that defendant said when K.M. went into the closet she said "please don't hurt me" and appeared afraid. He asked defendant why she said that, and defendant just stared without making eye contact or saying anything. Defendant then said he wanted to speak with a lawyer, and the interview was ended.

At trial, Carney testified that after defendant gave his taped statement and the detectives told him his version did not match K.M.'s, defendant said that when K.M. asked him to stop having intercourse so she could go to the bathroom, he continued fifteen to twenty seconds before he stopped. Carney also testified that defendant said he brought his penis to K.M.'s mouth and made her suck it and that when K.M. came out of the bathroom she walked into his bedroom closet. Defendant asked her what she was doing, and she said that she did not want to get hurt. Carney testified that he asked defendant if that really made any sense to him, and, after looking down and pausing, defendant said he no longer wanted to speak to them.

Rodas testified at trial that after the detectives told defendant his story was different from K.M.'s, defendant said K.M. asked him to stop and he continued to have sex with her "for some time." Defendant also said he "forced his penis in her mouth and made her suck it" and "that at one point she appeared to be afraid." When K.M. stood in defendant's closet, she said she did not want to get hurt.

By agreement of the parties, defendant's post-polygraph statements were presented at trial through the testimony of Carney and Rodas in a sanitized manner so it would not be revealed that a polygraph exam was conducted. After testimony about the initial unrecorded statement and the taped statement, the prosecutor asked Rodas and Carney whether they discussed out of defendant's presence differences between defendant's and K.M.'s statements, to which they responded affirmatively. The prosecutor then asked whether the two detectives went back into the room, informed defendant the statements didn't match, and asked defendant why the statements were different. The detectives then testified regarding what were, in actuality, defendant's post-polygraph statements.

We now address defendant's argument that the trial judge erred in denying his motion to suppress his post-polygraph statements. To admit into evidence a defendant's out-of-court statement, the State must prove beyond a reasonable doubt that the defendant made the statement voluntarily. State v. Bey, 112 N.J. 123, 134 (1988). In deciding whether a statement is voluntary,

courts consider the characteristics of the accused, as well as the details of the interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973). Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, length of detention, and the nature of the questioning -- specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion. Id.; State v. Miller, [ 76 N.J. 392, 402 (1978)].

[Id. at 134-35.]

After conducting a full hearing on defendant's motion to suppress his post-polygraph statement, at which Carney, Rodas and Fodor testified, Judge Edward M. Coleman set forth several reasons for finding that the post-polygraph statements were voluntarily made. He first noted that before defendant was asked any questions, he was advised of his Miranda rights, and he initialed and signed the form acknowledging his understanding of them. Fodor again advised defendant of his rights before conducting the polygraph exam, which defendant asked to take. When Fodor began the exam, he asked defendant a series of questions that tested whether defendant understood the Miranda rights. Defendant answered that he understood the rights and was willing to take the exam. Thus, defendant was well aware of his right to remain silent and that anything he said could be used against him.

The judge further found that after defendant made the post-polygraph statements, Carney asked him if his story really made sense to him, defendant paused, stared for a few seconds, and requested an attorney. This demonstrated that defendant was thinking coherently and was alert. Further, Carney, Rodas and Fodor all testified that defendant did not appear tired or intoxicated during the night of May 16 and the morning of May 17. He answered questions appropriately and responsively, did not slur his speech, did not need assistance standing, and he showed no signs of being impaired or fatigued. The tone of defendant's responses in his recorded statement conformed with the detectives' impressions of defendant. Although defendant told Fodor he had consumed eight beers while fishing that day, the judge concluded that even if that were true, there was no evidence that those beers impaired defendant's ability to think.

Finally, Judge Coleman noted that none of the interrogations were particularly long, and defendant appeared to be of at least average intelligence. Based upon all of the circumstances pertaining to defendant and the manner of interrogation, Judge Coleman was "satisfied beyond a reasonable doubt that the Defendant received all of his appropriate warnings, that he was alert, coherent, he understood what was going on and that his statement can be used. His statements both prior to the polygraph and post polygraph, without reference to the polygraph or the result of the polygraph."

Defendant first argues the State failed to prove his statements were voluntarily made because the record was insufficient. Carney, Rodas and Fodor did not make a recording of the events leading up to and including the post-polygraph statements, even though they had equipment available to do so. And, the detectives either destroyed any notes they took or failed to take notes. Defendant relies primarily upon our Supreme Court's decisions in State v. Delgado, 188 N.J. 48 (2006), State v. Branch, 182 N.J. 338 (2005), and State v. Cook, 179 N.J. 533 (2004). He also relies on Rule 3:17, which mandates that, for charges of sexual assault, effective January 1, 2007, "all custodial interrogations conducted in a place of detention must be electronically recorded."

In reviewing factual findings made by a trial judge, we only decide whether the findings made could reasonably have been reached on sufficient credible evidence in the record, considering the proof as a whole, giving due regard to the ability of the judge to assess credibility. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). From our review of the record, we are satisfied that Judge Coleman's finding of voluntariness is well supported, and we have no occasion to interfere with that finding.

We are mindful of the Supreme Court's disapproval of the practice of law enforcement officers destroying their notes. See Cook, supra, 179 N.J. at 542 n.3. We are also, of course, well aware of the procedures instituted for recording station house interrogations that have been instituted in the aftermath of Cook, which was decided on May 10, 2004, several days before the interrogation of defendant. However, although the Court expressed the apparent benefits of recording statements, it declined to find a due process violation for failure to record and declined to require suppression of unrecorded statements. Id. at 559-60. Instead, the Court held that admissibility of unrecorded statements should be assessed under current standards for voluntariness and trustworthiness. Id. at 560.

However, invoking its supervisory authority over the criminal justice system, the Court established a committee to examine and make recommendations regarding the use of electronic audio and video recording of custodial interrogations. Id. at 539. That committee ultimately issued a report, which led the Court to promulgate Rule 3:17, providing for electronic recording. The provisions of the rule were effective January 1, 2006 for homicides, and January 1, 2007 for other crimes, including sexual assault. See Pressler, Current N.J. Court Rules, comment on R. 3:17 (2008).

The rule provides that failure to electronically record a defendant's custodial interrogation in a place of detention shall be a factor for consideration by the court in determining admissibility of the statement and by the jury in determining whether the statement was made, and if so, what weight, if any, it should be given. R. 3:17(d). Thus, suppression of an unrecorded statement is not the remedy chosen by the Court. And, although the Court has disapproved the practice of destroying notes, no rule has been promulgated and no case has been decided that requires suppression of a statement because of the destruction of notes. Therefore, Cook provides no basis for the relief defendant seeks.

We note that Judge Coleman instructed the jury that in assessing the evidence and witness credibility the jury should consider whether and how defendant's statement was recorded and the testimony that the detectives destroyed their notes. During summation, defense counsel also drew the jury's attention to the lack of notes.

We are also unpersuaded by defendant's reliance on Delgado and Branch. In Delgado, supra, 188 N.J. at 50-51, out-of-court identification procedures were not recorded. The Court found no constitutional violation, concluded that the evidence of the out-of-court identification was properly admitted, and affirmed defendant's murder conviction. Id. at 58-68. However, similar to the approach taken in Cook, the Court invoked its supervisory authority to require recording of out-of-court identification procedures, and referred the matter to the Criminal Practice Committee for recommendation of a rule. Id. at 63-64. Delgado was decided on July 31, 2006, more than two years after defendant's interrogation. And, the Court required the preparation of a "written record detailing the out-of-court identification procedure," which would include, "[w]hen feasible, a verbatim account of any exchange between the law enforcement officer and witness." Id. at 63. The Court made clear that electronic recordation was advisable, but not mandated. Ibid. In the case before us, a written record was made, as contained in the reports of the police officers. For that reason, and because the interrogation occurred long before Delgado was decided, we find no persuasive force for defendant's argument in the Delgado decision.

In Branch, supra, 182 N.J. at 367 n.10, decided February 1, 2005, the Court again expressed its displeasure with the practice of law enforcement officers destroying notes. However, nothing in that case supports defendant's argument for a per se rule suppressing evidence of a statement because notes were destroyed.

Defendant next contends that his post-polygraph statements should have been suppressed because it was improper for the detectives to tell him that he showed signs of deception during the polygraph exam, thus creating a coercive atmosphere that rendered his statement involuntary. He analogizes this case to those in which courts excluded confessions that officers obtained by fabricating evidence and by inaccurately telling the suspect that the results of the polygraph exam would be used against him at trial to prove his guilt. He relies on State v. Patton, 362 N.J. Super. 16, 49 (App. Div.), certif. denied, 178 N.J. 35 (2003) (holding that "the use of police-fabricated evidence to induce a confession that is then used at trial to support the voluntariness of a confession is per se a violation of due process"); United States v. Zhang, No. 98-425, 1 999 U.S. Dist. LEXIS 2904, at *24-27 (D.N.J. Feb. 8, 1999), aff'd, 216 F.3d 1077 (an unpublished decision in which officers coerced a confession by telling the suspect that his failing the polygraph exam would be used at trial to prove his guilt); and Commonwealth v. DiGiambattista, 813 N.E.2d 516, 524-28 (Mass. 2004) (police obtained a confession after they created a false investigative file, lied about evidence against the suspect and suggested leniency in the sentence in exchange for a confession).

Defendant says this case is similar to those because polygraph results are not scientifically reliable and are inadmissible as evidence, absent consent by both parties. Defendant underscores that the detectives never informed him of the unreliability of polygraph results and that the results are not admissible as evidence. He contends that the Miranda rights, which Fodor read to defendant just before he took the exam, implied that the results could be used against him at trial. Defendant signed a "POLYGRAPH EXAMINATION PERMISSION/MIRANDA FORM" authorizing Fodor to conduct a polygraph exam and interview defendant afterwards and waiving his rights to privacy regarding the polygraph exam and interviews. The form listed defendant's five Miranda rights, including the admonition that anything defendant would "say to John Fodor (polygraphist) during either the interviews or the polygraph examination can be used against [defendant] in a court of law." (Emphasis added). The form concluded with:

I fully understand the above statement of my rights. I am willing to answer all questions and make any statement I may want to give. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me. I understand that anything I say to John Fodor (polygraphist), whether during the interviews or the polygraph examination, can be used against me in a court of law.

I hereby authorize the Somerset County Prosecutor's Office to disclose both orally and in writing the results and opinions of the polygraph examination and statements made by me to all interested persons. I further understand that such results and opinions may prove unfavorable to me. I request that the interviews and polygraph examination begin at this time.

[Emphasis added.]

Relying on State v. Castagna, 187 N.J. 293 (2006), defendant argues that, "[c]onfronted with what looks like powerful scientific evidence that will be used against him or her, a suspect may yield to pressure to make an inaccurate 'admission' designed to harmonize with the polygraph evidence." In Castagna, the Court said a defendant could cross-examine a State witness on whether she changed her story to conform to answers she had given during a polygraph exam. Id. at 311. Thus, defendant argues that the detectives' telling him he failed the polygraph exam created a coercive environment that prompted his statement.

The State argues that merely because the detectives told defendant his results showed signs of deception and then asked him if his story really made sense to him was not coercive. And because there was no evidence of any other type of coercive behavior, that alone could not have caused defendant's post-polygraph statement to be involuntary.

We agree with the State. This case is materially distinguishable from those upon which defendant relies. The police here did not create false physical evidence as in Patton or DiGiambattista, and did not conduct a long and overbearing interrogation combined with false threats to use the failing results of the polygraph exam at trial as in Zhang. We reject defendant's argument that the Miranda form used prior to the polygraph exam implied that the results, namely the fact that defendant was found deceptive, could be used against him at trial. The form distinguished between defendant's statements, which could be used against him in "a court of law," and the results and opinions, which could be unfavorable to defendant, and which could be "disclose[d]" (along with defendant's statements) to "all interested persons."

Telling a defendant his polygraph results showed signs of deception and asking whether his story made sense, standing alone, does not constitute coercion. Indeed, police may use "psychologically-oriented technique[s] during questioning," and may even lie to suspects during interrogations. State v. Galloway, 133 N.J. 631, 654-55 (1993). Neither is improper so long as the totality of the circumstances shows a lack of coercion. Ibid. And, there is no requirement that officers notify the suspect that polygraph exam results are not scientifically reliable or admissible as evidence absent mutual consent.

Again, deferring to Judge Coleman's factual findings, which included his awareness of the conduct of the detectives before, during and after the polygraph exam, we conclude that his finding of voluntariness, under the totality of the circumstances, was well grounded in the evidence.

We next consider defendant's argument that the judge erred in charging the jury that to find defendant guilty of second-degree sexual assault, it had to find that K.M. did not suffer severe personal injury. Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). As most lay people do not understand legal jargon, the court must give the jury "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." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, an appellate court examines the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).

Defendant was charged with sexual assault pursuant to N.J.S.A. 2C:14-2c(1), which provides: "An actor is guilty of sexual assault if he commits an act of sexual penetration with another person" while using "physical force or coercion," but without the victim's sustaining "severe personal injury."

This form of second-degree sexual assault is distinguished from a corresponding form of first-degree aggravated sexual assault, which involves an act of sexual penetration with another person while using physical force or coercion, and the victim suffers severe personal injury. N.J.S.A. 2C:14-2a(6). Defendant argues that in a case such as this, where there was no allegation that the victim suffered severe personal injury, and defendant was not charged with the corresponding aggravated sexual assault, whether K.M. suffered severe personal injury was a "non-issue" and should not have been submitted to the jury. Defendant argues that the prosecutor highlighted during summation that the State need not prove injury or resistance to demonstrate the lack of consent necessary to establish the force element of sexual assault. He contends that this summation argument coupled with the charge could have confused the jury and induced the jurors to think incorrectly in terms of guilt. More particularly, defendant contends the instruction unfairly impaired his ability to attack K.M.'s credibility because the absence of physical injuries to K.M. was inconsistent with her description of the events.

The judge followed the model jury charge on sexual assault, which includes the absence of severe personal injury by the victim as an element and simply informs the jury that "the State must prove beyond a reasonable doubt . . . that the victim did not sustain severe personal injury [which is then defined]." See Model Jury Charge (Criminal), "Sexual Assault (Force/Coercion)" (2005).

It is also important to note that defendant's counsel, although initially objecting to inclusion of the absence of severe personal injury in the charge, withdrew his objection. Therefore, we evaluate this issue under the plain error standard, and we will not reverse unless any error was clearly capable of producing an unjust result. R. 2:10-2. Not just any possibility of an unjust result will suffice, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

The State argues that the charge was appropriate in order to alleviate any misconception jurors might have that severe personal injury to the victim must be demonstrated to convict of sexual assault. See In re M.T.S., 129 N.J. 422, 448-49 (1992).

The judge's instruction on this point was minimal, and did not highlight any aspect of the case to defendant's detriment. The absence of severe personal injury is included in the statutory description of the offense. In the face of defendant's proper arguments reflecting on K.M.'s lack of injuries, the State had the right to respond by pointing out that it did not have to prove she was injured, and that indeed the law expressly states to the contrary. The State also had the right to have the judge include those legal principles in the charge, so the jury was properly and adequately informed of the controlling legal principles. We find no error, let alone plain error, on this point.

Defendant next contends that the judge erred in refusing to charge the jury on harassment as a lesser-included offense of sexual assault. The judge did charge as a lesser-included offense criminal sexual contact, by committing an act of sexual contact with K.M. by the use of physical force. See N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1). The distinction between this lesser offense and the charged offense is that it requires proof of sexual contact, as statutorily defined, rather than penetration. Sexual contact requires an intentional touching of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or gratifying the actor. N.J.S.A. 2C:14-1d.

The Code of Criminal Justice contains the following provision regarding lesser-included offenses:

d. Conviction of included offense permitted. 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; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

e. Submission of included offense to jury. The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.

[N.J.S.A. 2C:1-8.]

Defendant sought a charge of harassment as a lesser-included offense under both counts one and two. Judge Coleman agreed (and the prosecutor did not dispute) that harassment was a proper lesser-included charge under count two, terroristic threats. However, the judge rejected defendant's argument that harassment by offensive touching, N.J.S.A. 2C:33-4b, or engaging in a course of alarming conduct, N.J.S.A. 2C:33-4c, is a lesser included offense of sexual assault. The evidence could support findings of both harassment and sexual assault. The requested charge was for an alternative unrelated offense, not a lesser-included offense. See State v. Queen, 221 N.J. Super. 601, 606 (App. Div.), certif. denied, 110 N.J. 506 (1988) (holding that simple assault is not a lesser-included offense of sexual assault because the physical force or coercion required for a sexual assault need not amount to bodily injury or attempted bodily injury, which is a requirement of simple assault). We said in Queen, "Unlike homicide or theft, sexual offenses and assault involve distinct injuries, not the same injury, and are separately classified as crimes under the Code of Criminal Justice, sexual offenses in Chapter 14 and assault in Chapter 12." Id. at 608.

Thus, unlike criminal sexual contact, which was properly submitted as a lesser-included offense to sexual assault, harassment is not a lesser-included offense of sexual assault because the two offenses involve different conduct. It does not involve a less serious form of injury or kind of culpability. The judge did not err in denying defendant's request to charge harassment as a lesser-included offense of sexual assault.

Finally, defendant argues that his sentence is excessive. We are satisfied from our review of the record that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, that the judge did not apply incorrectly the sentencing guidelines in the Code of Criminal Justice, and that the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984).

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We have been informed by the Administrative Office of the Courts' staff representative to the Criminal Practice Committee that the issue is presently pending before the Committee, and to date, no rule recommendation has been made.

(continued)

(continued)

29

A-1943-06T2

RECORD IMPOUNDED

July 3, 2008