STATE OF NEW JERSEY v. MARTY D. ROSS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4762-06T44762-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTY D. ROSS,

Defendant-Appellant.

______________________________________

 

Submitted January 13, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

05-10-2303.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Robert Seelenfreund, Assistant

Deputy Public Defender, of counsel and on the

brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Patricia B. Quelch,

Assistant Prosecutor, of counsel; Courtney L.

Darsch, on the brief).

PER CURIAM

Defendant Marty Ross was tried before a jury and convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts two and nine); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts three and ten); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four); third-degree criminal restraint N.J.S.A. 2C:13-2(a) (count five); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3, 4) (counts six and seven); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count eight); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count eleven); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count twelve); third degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3) (count thirteen); and fourth-degree failure to register as a convicted sex offender, N.J.S.A. 2C:7-2(a) (count fourteen).

At sentencing, the court granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a. After merging count two with three, counts four and five with count one, and counts eight through ten with count six, the court sentenced defendant to a term of seventy years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the conviction for first-degree kidnapping; to concurrent terms of twenty years on the two convictions for second-degree sexual assault, counts six and seven, a concurrent term of five years on drug-related convictions, counts twelve and thirteen. Finally, the court granted the State's motion to dismiss count fourteen, fourth-degree failure to register as a convicted sex offender.

Defendant now appeals raising the following arguments.

POINT I

THE INDICTMENT WAS DEFECTIVE BECAUSE IT OMITTED THE THREE ELEMENTS THAT RAISE KIDNAPPING FROM A SECOND TO A FIRST DEGREE CRIME. THE TRIAL COURT'S CHARGE TO THE JURY ON FIRST DEGREE KIDNAPPING WAS DEFECTIVE BECAUSE IT OMITTED THE CULPABILITY REQUIREMENT AS REQUIRED BY THIS COURT'S DECISION IN STATE V. SHERMAN, 367 N.J. Super. 324 (APP. DIV.) CERTIF. DENIED, 180 N.J. 356 (2004). DUE TO THE TWO ERRORS THE PROPER REMEDY IS TO VACATE THE KIDNAPPING CONVICTION AND DISMISS COUNT ONE OF THE INDICTMENT. (Not Raised Below)

POINT II

IN LIGHT OF THE FACT THAT THE COMPLAINANT IMMEDIATELY DIVULGED THAT SHE HAD BEEN SEXUALLY ASSAULTED, THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE PROSECUTOR TO INTRODUCE MULTIPLE INSTANCES OF "FRESH COMPLAINT" EVIDENCE; MOREOVER, THE LIMITING INSTRUCTION WAS INADEQUATE. (Not Raised Below)

POINT III

PERMITTING THE COMPLAINANT TO TESTIFY IN NARRATIVE FORM DURING HER DIRECT EXAMINATION WAS AN ABUSE OF THE COURT'S DISCRETION WHICH GREATLY PREJUDICED THE DEFENDANT AND DENIED HIM A FAIR TRIAL. (Not Raised Below)

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject the arguments raised in Points II and III. We are satisfied that these arguments lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2).

As to Point I, we agree with defendant that the trial court's jury instructions on the charge of first-degree kidnapping did not inform the jury that the State must also prove, beyond a reasonable doubt, that defendant knowingly harmed the victim or that defendant knowingly failed to release the victim in a safe place prior to his apprehension. Under these circumstances, the conviction for first-degree kidnapping cannot stand as a matter of law. State v. Sherman, 367 N.J. Super. 324, 355-56 (App. Div.), certif. denied, 180 N.J. 356 (2004), overruled on other grounds by State v. Dalziel, 182 N.J. 494 (2005).

As a remedy to this error, both sides recommend that we mold the verdict to reflect the evidence presented and the court's instructions to the jury, thereby finding that defendant was convicted of second-degree kidnapping. We agree. We vacate the sentence imposed by the court, and remand the matter for re-sentencing on the conviction of second-degree kidnapping.

We gather the following facts from the evidence presented at trial.

On May 19, 2005, defendant abducted seventeen-year-old L.D. (Lisa) outside of the Adult Learning Center on Springwood Avenue in Asbury Park. At the time, Lisa had an infant son. As she walked to the Learning Center, defendant pulled up in an automobile and offered to pay her $200 to help him retrieve a wallet that had supposedly fallen behind his dresser. Because Lisa did not know defendant, she declined his invitation.

Defendant then got out of the car, took out a razor knife, and ordered Lisa to get into the car with him, threatening to kill her if she did not do so. Fearing for her safety, Lisa complied. Defendant then took Lisa to a room in the Corlies Motel where he forced her to smoke crack cocaine. Lisa testified that this caused her to have heart palpitations and trouble breathing.

Without restating Lisa's graphic account of the harrowing details of what transpired while in the motel room, suffice it to say that defendant sexually assaulted her on multiple occasions, stopping only long enough to smoke cocaine. After an undetermined period of time, defendant called his girlfriend, who was staying at another motel, and asked her to bring the drugs he had stashed in her room. When she arrived with the drugs, defendant forced Lisa to conceal herself in the bathroom. After his girlfriend left, defendant continued to sexually assault Lisa until the effects of his cocaine dissipated. Defendant ordered Lisa to go into the bathroom and wash out her vagina and pubic hair with soap and water to remove any traces of his DNA. Lisa estimated that the ordeal lasted from 8:30 in the morning until 5:00 P.M.

Defendant ordered Lisa to call her sister and tell her that nothing was wrong. He then forced her to return to his car; the two then drove from the Corlies Motel to the Circle Motel, where they picked up defendant's girlfriend. Although defendant told his girlfriend that Lisa was his cousin, she did not believe him, and accused him of infidelity. At this point, defendant, his girlfriend, and Lisa drove to an apartment in Piscataway where defendant's cousin was staying with several friends. At Lisa's request, defendant agreed to drive her home. Soon after arriving, defendant began to argue with his girlfriend; defendant eventually left the apartment without Lisa.

According to Lisa, it was at this point that she told the other men present in the apartment that defendant had sexually assaulted her. She then borrowed a phone to call her best friend, who called both the police and Lisa's mother; the police transported Lisa to a nearby hospital where she was examined for sexual trauma.

Against this evidential backdrop, we now address defendant's argument attacking the propriety of the trial court's jury instructions with respect to the crime of first-degree kidnapping. As part of his overall kidnapping charge, the trial judge gave the jury the following instructions on the offense of first-degree kidnapping:

A section of our statute provides that kidnapping is a crime of the first degree except that it is a crime of the second degree if the kidnapper releases the victim unharmed and in a safe place prior to apprehension.

In this case the State alleges that the defendant did not release the victim unharmed and in a safe place prior to his apprehension.

The burden of proof is on the State to prove beyond a reasonable doubt that the victim was either harmed or not released in a safe place prior to defendant's apprehension.

Unless you find the State has carried this burden, you must find the defendant not guilty of kidnapping in the first degree.

Therefore, if you find the State has not proven to you beyond a reasonable doubt each and every element of the crime of kidnapping, as I have defined that crime to you, then you must find the defendant not guilty.

If you find the State has proven to you beyond a reasonable doubt that the defendant committed the crime of kidnapping, as I have defined that crime to you, but the State has not convinced you beyond a reasonable doubt that the victim was either harmed or not released in a safe place prior to the defendant's apprehension, then you must find the defendant guilty of kidnapping in the second degree.

If you find beyond a reasonable doubt that the defendant committed the crime of kidnapping and that he harmed the victim or did not release the victim in a safe place prior to the defendant's apprehension, then you must find the defendant guilty of kidnapping in the first degree. (Emphasis added.)

These instructions failed to include the material element of culpability with respect to defendant's state of mind at the time he released Lisa. That is, whether defendant knowingly harmed Lisa, or knowingly failed to release her in a safe place prior to his apprehension. Sherman, supra, 367 N.J. Super. at 355. The following passage from the current model jury charge on first-degree kidnapping illustrates how the court should have instructed the jury here:

If you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of kidnapping, you must go on to determine whether the State has also proven beyond a reasonable doubt that he/she knowingly harmed _____ or knowingly did not release _____ in a safe place prior to his/her apprehension. The "harm" component can include physical, emotional or psychological harm. In this case, the State alleges that defendant [describe conduct allegedly constituting harm or release in an unsafe place]. [INCLUDE WHEN APPROPRIATE: On the other hand, defendant contends that ________.]

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowingly," "with knowledge," or equivalent terms have the same meaning.

Knowledge is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

The charge conference record clearly indicates that defense counsel did not object to the charge given by the court as to first-degree kidnapping. We thus review this issue under the plain error standard. R. 2:10-2. That is, we must be satisfied that the error is clearly capable of producing an unjust result. Ibid. That being said, incorrect jury charges in a criminal trial are poor candidates for the harmless error doctrine. State v. Anderson, 127 N.J. 191, 209 (1992). In a criminal trial, errors on matters material to the jury's fact-finding function are ordinarily grounds for reversing the conviction. State v. Harmon, 104 N.J. 189, 213 (1986).

We are satisfied that this material omission constitutes plain error, and requires the reversal of the conviction for first-degree kidnapping. Sherman supra, 367 N.J. Super. at 355. The State argues that: (1) the judge's instructions defining the term "knowingly," as part of the charge of first-degree aggravated sexual assault; and (2) the jury's finding of "guilty" on that offense, provides a sufficient basis from which to infer that the jury must have found that Lisa had been "harmed" when defendant left her in his cousin's apartment. We reject this argument because the jury is required to make a specific finding that defendant "knowingly" harmed Lisa or "knowingly" left her in an unsafe location, specifically as to the charge of first-degree kidnapping. State v. Casilla, 362 N.J. Super. 554, 567-69 (App. Div. 2003).

Defendant's conviction for first-degree kidnapping is reversed. In this light, the State has elected, in lieu of retrial, that we mold the verdict to the lesser included offense of second-degree kidnapping. State v. Farrad, 164 N.J. 247, 265 (2000) (citing State v. Washington, 60 N.J. 170, 173 (1972)). Defendant joins in this request. We thus remand the matter for the trial court to amend the judgment of conviction to reflect the molded verdict of second-degree kidnapping. The trial court will thereafter re-sentence defendant accordingly.

Reversed and remanded. We do not retain jurisdiction.

 

All custodial terms imposed run concurrent to the seventy-year term for first-degree kidnapping, and concurrent to each other, for an aggregate term of seventy years.

The name "Lisa" is fictitious.

The jury charge given by the trial judge here tracked the model jury charge in existence in December 2006. The model charge was revised on February 5, 2007, to address the holding in Sherman.

(continued)

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11

A-4762-06T4

RECORD IMPOUNDED

July 10, 2009