STATE OF NEW JERSEY v. JOSE P. TORRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0664-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE P. TORRES,

Defendant-Appellant.

_____________________________________________________

December 7, 2011

 

Submitted October 18, 2011 - Decided

 

Before Judges Fisher, Baxter and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-02-0511.

 

Joseph E. Krakora, Public Defender, attorney forappellant (AndersonD. Harkov, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

In this appeal, defendant argues his conviction of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), should be reversed because, among other things, the trial judge failed to charge the lesser-included offense of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. We recognize that defendant did not object to the absence of this instruction. We nonetheless conclude that the judge committed plain error in failing to instruct the lesser-included offense, an error exacerbated when the deliberating jury asked about the availability of a lesser-included offense and the judge responded that the jury could only consider second-degree sexual assault. For these reasons, we reverse and remand for a new trial.

Three individuals testified at a one-day trial in this matter. N.A. testified that at around 11:00 a.m., on November 11, 2007, she was doing laundry at the apartment complex where she lived in Gloucester Township when defendant entered the laundry room. N.A. knew defendant because he lived directly across from her and she had seen him around the apartment complex. Defendant approached N.A. and began speaking in Spanish, which N.A. did not understand. As he approached, N.A. stepped back into an area between a washer and dryer and, according to N.A., defendant started kissing and licking her face and pushed her further into a corner. N.A. told him "No," but was unable to get defendant to stop despite telling him she "had a husband to make him go away." N.A. asserted that defendant continued kissing her, touched her breasts and buttocks under her clothing, and put his hand in her pants and inserted his finger into her vagina. She said his hands were "all over [her] like an octopus," and he only stopped upon hearing someone rustling at the top of the laundry room stairs. According to N.A., defendant's demeanor then changed, and he became "friendly" and talkative as Mary Williams entered the laundry room. After defendant left, N.A. told Williams that she "sav[ed] her life" and that defendant was a "creep."

N.A. left the laundry room and returned to her apartment. She told her boyfriend and sixteen-year old daughter what had occurred.1 N.A. testified she was "crying hysterically" and went into the shower and began scrubbing herself while sitting under hot running water.

Around 5:00 p.m., N.A. called the police to report the incident. After police questioned N.A., they went to defendant's apartment. They brought defendant outside, and N.A. identified defendant as the person she said had accosted her in the laundry room.

N.A. was also permitted to testify about previous encounters with defendant. She said she first met defendant in May 2006, and thought he was "friendly" because he was one of the first people from the apartment complex to speak with her. One day, when she said hello to him, he began telling her that she was "in his heart," "he loved [her]," and she was a "momasita" [sic]. N.A. claimed that during the summer of 2006, defendant "was always hanging out" at his apartment window "staring over" at her apartment or "if he would see me, he would climb out [his] first-floor window to follow me." N.A. also testified that on one occasion during that same summer, defendant followed her daughter up the stairs to her apartment and when N.A. closed the door, defendant remained there for about an hour banging on the door seeking to be let inside.

Mary Williams was also called by the State to testify. Williams said that on the day in question she walked down the steps and heard a mumbled voice but could not clearly understand what was said; Williams admitted she has difficulty hearing. Williams testified that she entered the laundry room and saw defendant and N.A. but did not see defendant touch N.A. Williams briefly spoke with defendant and, after he left, N.A. said to Williams, "I'm glad you came down here because I thought he was going to attack me." Williams replied to N.A., that it was "just [defendant;] [h]e won't do anything like that."

On cross-examination, Williams said she knew N.A. from around the apartment complex, and had seen her a few times before and knew where she lived. She testified that while in the laundry room, N.A. was neither upset nor crying, and it did not appear anything had happened between her and defendant.

The State rested and defendant moved for dismissal, which the trial judge denied.

Defendant then testified. According to defendant, he started doing his laundry early that day and when he went back to check on his clothes, he saw N.A. in the laundry room. Defendant asked N.A. if his clothes were finished and claimed he did not bother N.A. but instead merely did his own laundry. Williams then entered, and defendant spoke with Williams briefly before leaving and eventually taking the bus to get a prescription filled. After returning around 4:00 p.m., he went back to the laundry room and finished drying his clothing. Later, defendant returned to his apartment and started hanging his clothes in a closet when the police arrived. Defendant denied touching N.A., and testified he did not touch her breasts or buttocks, nor did he insert his finger into her vagina.

After closing arguments, the trial judge provided counsel with copies of the charge and jury verdict sheet and then, off the record, discussed the charge with counsel. Later on the record, the judge stated:

[THE COURT]: I would indicate for the record that I met with the attorneys in my chambers for the purpose[] of a charge conference. I provided counsel [with] the . . . model charge, [and] the final jury charge in a criminal action, that I will read to the jurors. I also gave each counsel a copy of the charge that I will read with reference to sexual assault. I've deleted those aspects of the charge that are not applicable to the facts as they've developed in this case.

 

Counsel, are there any comments or questions regarding the charge conference or any requests to do anything other than we've discussed?

 

[ASSISTANT PROSECUTOR]: No, your Honor.

 

[DEFENSE COUNSEL]: No, your Honor.

 

[THE COURT]: I would indicate we also discussed briefly the possibility of lesser-included offenses to be charged. It was agreed that based upon the testimony that was brought forth in this case, there candidly would be no basis to charge a lesser-included offense.

Is that correct, counsel?

 

[DEFENSE COUNSEL]: Yes, your Honor.

 

[ASSISTANT PROSECUTOR]: Yes, your Honor.

The charge included a discussion of the elements of second-degree sexual assault but did not contain instructions regarding fourth-degree criminal sexual contact. Following the charge, the judge made inquiry but both attorneys responded they had no objection.

The jury began deliberating at 1:42 p.m. Thirty-nine minutes later, the jury presented the following written question to the court: "Your Honor, is there a lesser charge that we can find without the sexual penetration?" Addressing the parties, the judge stated:

My response to the jury is going to be no, that this is the offense charged and that's the determination -- the determination has to be made on the offense that was charged.

Are there any comments, questions or objections to that?

 

[ASSISTANT PROSECUTOR]: No, Judge. I think that's correct.

 

[THE COURT]: Okay, why don't we bring the jury in.

 

Defense counsel gave no response.

When the jury returned to the courtroom, the judge responded to its question, advising that "no[,] [t]he charge that was charged under the indictment is the charge that must be dealt with by the jury considering the evidence and the facts presented to them." The jury resumed deliberations and delivered a verdict forty minutes later, finding defendant guilty of second-degree sexual assault.

Prior to sentencing, defendant moved to set aside the verdict and for a new trial, arguing that the jury should have been instructed on a lesser-included offense, particularly in light of the jury s question. The judge found that the jury had the opportunity to gauge the credibility of the witnesses and the question by the jury showed it was looking closely at the facts, and denied the motion.

At sentencing, the judge determined that aggravating factor three, N.J.S.A. 2C:44-1a(3) ("the risk that the defendant will commit another offense"), and aggravating factor nine, N.J.S.A. 2C:44-1a(9) ("the need for deterring the defendant and others from violating the law"), were applicable in this matter, as was mitigating factor seven, N.J.S.A. 2C:44-1b(7) ("the defendant has no history of prior delinquency or criminal activity"). The judge concluded that the aggravating factors outweighed the mitigating factor and sentenced defendant to a five-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2.

Defendant appealed, presenting the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY ON THE LESSER[-]INCLUDED OFFENSE OF CRIMINAL SEXUAL CONTACT (PARTIALLY RAISED BELOW).

 

II. THE FAILURE OF THE TRIAL COURT TO PREVENT THE INTRODUCTION OF "OTHER CRIMES, WRONGS, OR ACTS" EVIDENCE, TO IMMEDIATELY CONDUCT A HEARING AS TO ITS ADMISSIBILITY, AND, ONCE IT WAS ERRONEOUSLY ADMITTED, TO INSTRUCT THE JURY ON THE LIMITED USE IT COULD MAKE OF SUCH EVIDENCE, DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

 

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE JURY TO HEAR DOUBLE HEARSAY EVIDENCE THAT DEFENDANT WAS ATTEMPTING TO EVADE ARREST WHEN THE POLICE ARRIVED AT HIS APARTMENT (PARTIALLY RAISED BELOW).

 

IV. THE FAILURE OF TRIAL COUNSEL TO REQUEST A CHARGE ON A LESSER[-]INCLUDED OFFENSE, TO OBJECT TO PREJUDICIAL EVIDENCE THAT WAS CLEARLY INADMISSIBLE, TO COMPETENTLY CROSS EXAMINE THE VICTIM, AND TO ADEQUATELY PREPARE HIS CLIENT TO TESTIFY, RATHER THAN HAVE HIS TESTIMONY BE "SHORT AND SWEET", DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

 

V. DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION; IN ADDITION, THE CONSIDERATION OF A VICTIM IMPACT STATEMENT THAT WAS NOT PART OF THE RECORD AND THE IMPOSITION OF RESTITUTION WITHOUT A HEARING, REQUIRE THE SENTENCE BE VACATED AND THE CASE RETURNED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.

Because we agree with defendant s contention in Point I that the judge committed plain error in failing to charge the lesser-included offense of fourth-degree criminal sexual contact and, for that reason, a new trial is required, we need not reach the arguments urged in Points II, III, IV and V.

Defendant was charged with, and found guilty of, second-degree sexual assault, N.J.S.A. 2C:14-2c(1), under which "[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person [if] . . . [t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury" (emphasis added).2 Fourth-degree criminal sexual contact consists of "an act of sexual contact with the victim," N.J.S.A. 2C:14-3b, under certain circumstances3; sexual contact is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1d. Fourth-degree criminal sexual contact does not require proof of penetration. See generally Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:14-2 (2011).

During trial defendant did not appear to have requested a jury charge for the lesser-included offense.4 The record does not disclose that he sought such a charge even after the jury posed a question directly on that point.

In the absence of an objection, we reverse only if the judge committed plain error, State v. Macon, 57 N.J. 325, 336 (1971), i.e., that which is "clearly capable of producing an unjust result." R. 2:10-2. The "unjust result" required by the rule must be that which is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

In considering the significance of the judge's failure to charge fourth-degree criminal sexual contact, we start with the premise that a defendant "is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). The failure to instruct a jury on the elements of a lesser-included offense -- upon the request of the defendant -- constitutes reversible error if the evidence provided "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of [a] lesser." State v. Brent, 137 N.J. 107, 117-18 (1994). The significance of a failure to instruct on a lesser-included offense -- when defendant has failed to make such a request -- is governed by a different standard; a trial judge must sua sponte charge a lesser-included offense "only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002); see also State v. Choice, 98 N.J. 295, 298 (1985); State v. Clarke, 198 N.J. Super. 219, 224 (App. Div. 1985).

As we have noted, the evidence adduced at trial consisted of the testimony of N.A., Williams and defendant. N.A. testified that defendant intentionally touched her breasts and buttocks. She was arguably equivocal about penetration, testifying on that question in the following manner:

I was just thinking how could I allow this thing to happen to me and . . . then . . . he was down the front of my pants and he was trying to, . . . he was touching me and he was trying to, . . . this part is hard . . . but he went down the front of my pants and was trying to . . . well, he was touching my vaginal area and he was attempt . . . he was trying to insert his . . . fingers inside of me.

 

[Prosecutor]: Did he?

 

[N.A.]: Part way. Not all the way.

 

[Emphasis added.]

 

Williams testified that she saw N.A. and defendant together in the laundry room, but she did not see defendant touching N.A. And defendant denied touching N.A. in any manner.

The jury could have convicted defendant of sexual assault, N.J.S.A. 2C:14-2c(1), only if it credited N.A.'s testimony that defendant digitally penetrated her. If, however, the jury did not believe N.A.'s testimony about penetration or found in light of her apparent equivocation that it was insufficient to sustain the State's burden of proving that penetration occurred beyond a reasonable doubt, but accepted N.A.'s other testimony, it could not convict defendant of second-degree sexual assault but could have, if instructed, convicted defendant of fourth-degree criminal sexual contact. The jury's own inquiry about the availability of a lesser-included offense that would not require penetration suggested its uncertainty about the worth or clarity of N.A.'s testimony regarding penetration. In these circumstances, it must be concluded that the standard set forth in Savage, and other similar authorities -- that the lesser-included offense was "clearly indicated" by the evidence -- was met and fourth-degree criminal sexual contact should have been charged regardless of defendant's silence on the point.

In the final analysis, we are guided by the Court's admonition that "correct jury instructions are especially critical in guiding deliberations in criminal matters," as well as the Court's holding that "improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004). Because defendant's view of the evidence "clearly indicated" a rational basis on which the jury could have acquitted defendant of second-degree sexual assault but found him guilty only of the lesser-included offense of fourth-degree criminal sexual contact, the trial judge should have, sua sponte, instructed the jury on the elements of that lesser offense. The failure to instruct on that point was clearly capable of producing an unjust result.

R

eversed and remanded for a new trial.

1N.A.'s boyfriend and daughter were not called to testify.

2Sexual penetration includes the "insertion of the hand, finger or object into the . . . vagina . . . by the actor[,] [and] [t]he depth of insertion shall not be relevant as to the question of commission of the crime." N.J.S.A. 2C:14-1c.

3N.J.S.A. 2C:14-3b refers to the circumstances delineated in N.J.S.A. 2C:14-2c, which include the use of "physical force or coercion, but the victim does not sustain severe personal injury," N.J.S.A. 2C:14-2c(1).

4We are greatly hampered in understanding defendant's position at trial because the judge failed to conduct a charge conference on the record. Rule 1:8-7(b) mandates that in criminal cases, "[p]rior to closing arguments, the court shall hold a charge conference on the record" and that "[a]t the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel."