STATE OF NEW JERSEY v. LUIS A. SANTIAGO, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. SANTIAGO, JR.,

Defendant-Appellant.

_______________________________________________

January 28, 2015

 

Submitted September 16, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-1812.

Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Luis A. Santiago, Jr., was convicted of numerous crimes involving the February 17, 2008 assault of S.P., specifically: two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts one and two); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count three); four counts of first-degree aggravated sexual assault during the commission of a kidnapping (by vaginal penetration, anal penetration, fellatio and cunnilingus), N.J.S.A. 2C:14-2(a)(3) (counts four, five, seven and eight); five counts of first-degree aggravated sexual assault during the commission of an aggravated assault on another (by vaginal penetration, anal penetration, digital penetration, fellatio and cunnilingus), N.J.S.A. 2C:14-2(a)(3) (counts nine, ten, eleven, twelve and thirteen); five counts of first-degree aggravated sexual assault using physical force or coercion (by vaginal penetration, anal penetration, fellatio, cunnilingus and digital penetration), N.J.S.A. 2C:14-2(a)(6) (counts fourteen, fifteen, sixteen, seventeen and eighteen); second-degree aggravated assault by causing or attempting to cause serious bodily injury (SBI), N.J.S.A. 2C:12-1(b)(1) (count twenty-four); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count twenty-five); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count twenty-six).1

After effecting certain mergers, the judge sentenced defendant to an aggregate term of thirty-eight and one-half years imprisonment, thirty-seven of which was subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Before us, defendant raises the following points for our consideration

POINT I

THE CONVICTIONS FOR SEXUAL ASSAULT DURING THE COMMISSION OF AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:14-2a(3) MUST BE VACATED BECAUSE THE STATE FAILED TO INTRODUCE ANY EVIDENCE THAT DEFENDANT COMMITTED THE AGGRAVATED ASSAULT "ON ANOTHER," AS REQUIRED BY STATUTE. (Not Raised Below)

POINT II

THE CONVICTION FOR AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12-1b(1) MUST BE REVERSED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENTS THAT DEFENDANT EITHER CAUSED OR ATTEMPTED TO CAUSE SERIOUS BODILY INJURY. (Not Raised Below)

A. The Conviction Must Be Vacated and Judgment of Acquittal Entered

B. Alternatively, the Conviction Must Be Reversed and the Matter Remanded for a New Trial

POINT III

THE CONVICTION FOR AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12-1b(1) MUST BE REVERSED BECAUSE THE COURT FAILED TO CHARGE LESSER-INCLUDED FORMS OF ASSAULT, DESPITE THE FACT THAT THEY WERE CLEARLY INDICATED. (Not Raised Below)

POINT IV

THE CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT COMMITTED WHILE THE DEFENDANT USED PHYSICAL FORCE OR COERCION UNDER N.J.S.A. 2C:14-2a(6) MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENT THAT THE VICTIM INCURRED "SEVERE PERSONAL INJURY." (Not Raised Below)

POINT V

THE CONVICTIONS FOR KIDNAPPING UNDER N.J.S.A. 2C:13-1b AND AGGRAVATED SEXUAL ASSAULT DURING THE COMMISSION OF KIDNAPPING UNDER N.J.S.A. 2C:14-2a(3) MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENT OF KIDNAPPING THAT THE VICTIM WAS CONFINED FOR "A SUBSTANTIAL PERIOD." (Not Raised Below)

POINT VI

THE SENTENCE IS EXCESSIVE AND IS THE RESULT OF THE TRIAL COURT'S: FAILURE TO FIND A RELEVANT MITIGATING FACTOR; RELIANCE ON AN UNSUPPORTED AGGRAVATING FACTOR; AND FAILURE TO APPLY THE GUIDELINES UNDER STATE V. YARBOUGH . . . FOR CONCURRENT AND CONSECUTIVE SENTENCING.

A. Failure to Find Mitigating Factor (4)

B. The Record Does Not Support a Finding of Aggravating Factor (2)

C. The Record Does Not Support Imposition of Consecutive Terms on the Sexual Assault Committed During the Kidnapping and the Kidnapping.

We have considered these arguments. In light of State v. Rangel, 213 N.J. 500, 502 (2013), decided after the judgment in this case, the State concedes the argument raised in Point I. We therefore vacate the convictions entered on counts nine, ten, eleven, twelve and thirteen. In all other respects, we affirm defendant's conviction. For the reasons that follow, we also remand the matter to the Law Division for resentencing.

I.

The testimony at trial revealed that S.P. rented a room on the third-floor of a house in Newark. Defendant rented another room on the same floor. The occupants all shared a common bathroom, and S.P. had seen defendant on occasion in the common hallway.

S.P. returned home late on the evening of February 16, 2008, and shortly after midnight, she needed to use the communal bathroom. Defendant was exiting the bathroom as she arrived at the door and grabbed her breast. Frightened, S.P. tried to return to her room. As she turned away, defendant grabbed her buttocks, and said, "I wanna f*** you." S.P. pushed defendant away, went back to her room, and locked the door, but defendant tried to open it. She called 9-1-1.

After some delay, police responded, and S.P. told the officers what had happened. They also interviewed defendant. No arrest was made, and the officers told S.P. to call again if there was any further trouble.

S.P. awoke in the morning and went to shower. As she exited the bathroom in a robe and towel, defendant was in the doorway. He was wearing only a black shirt and had no pants or underwear on. He punched S.P. in the face, grabbed her by the neck and began to choke her. S.P. fell to the floor of the bathroom and struggled with defendant, who continued choking her and pulling her hair.

S.P. struggled to get away and down the stairs, but defendant continued the assault in the hall. Defendant told her "'Shut up, don't scream. Don't ask for help.'" Defendant violently threw S.P. to the floor again, and she struck her head. Defendant opened her robe and digitally penetrated S.P.'s vagina. S.P. continued to struggle as defendant dragged her into his room.

Defendant threw S.P. onto the mattress on the floor of his room, told her "to be quiet" and again threatened to kill her. While continuing to choke S.P., defendant performed cunnilingus on her, forced her to perform fellatio on him, sodomized S.P., and vaginally penetrated S.P. with his penis. S.P. yelled for help when she heard someone on the stairs; this startled defendant, and S.P. took that opportunity to hit him with her elbow before running out of his room. She ran outside into the street and eventually to a next-door neighbor, who called police. The recording of the neighbor's 9-1-1 call was played for the jury.

Newark police officer Antonia Rosa responded to the scene and saw S.P.'s injuries. "[H]er lip was swollen . . . her face was red . . . she was . . . shaking." Rosa testified that S.P. immediately identified defendant as her assailant, and he was taken into custody. The officer entered the upstairs hallway, which was "a mess," and, upon entering defendant's room, she saw S.P.'s contact lens on the floor. Officer Jacquineta Moton processed the crime scene and recovered the contact lens, a bath robe, towel and black shirt.

S.P. testified as to the injuries she received as a result of the assault.

I couldn't move my body for the following week. Um, like my neck would not go sideways. My . . . back it was very hard to sit down, get up, and sleep. Everything hurt. . . .

My head had many . . . injuries from the time that he . . . punched my head and my face and . . . when he forced the head to the ground. It hurt a lot, my neck and my . . . head. Um, my lips were sore. Um of course my . . . genital area was sore and um, my legs, my knees,[] were hurting a lot, things like that.

S.P. also testified that the assault aggravated her pre-existing knee problem. She saw a chiropractor, gynecologist, and a psychologist, ending treatment in 2010. S.P. also described her emotional injuries.

I was very scared. I was in shock. I couldn't sleep, I couldn't eat well. . . . I was thinking all the time that he was going to come after me, that he was gonna kill me at some point, um -- or that he would ask somebody to do that or, you know, things like that. And every time I go to sleep I will -- I remembered everything that happened and it was playing over, and over, and over in my head for a very long time. And I couldn't be alone with people or -- people that I didn't know. I couldn't be alone in an elevator with a guy. I couldn't, you know, couldn't stand the fact that I -- I didn't trust being around people that I didn't know anymore. I didn't wanna leave, you know, by myself or I didn't wanna stay by myself, things like that.

Patricia Maroulakos, a registered nurse trained to examine sexual assault victims, conducted a forensic examination of S.P. at Mountainside Hospital. Maroulakos observed injuries on S.P. consistent with her being choked and punched. In Maroulakos' opinion, the injuries to S.P.'s lips and mouth were consistent with being forced to perform fellatio on someone. The jury was shown photographs of S.P. taken at the hospital. Maroulakos also explained that S.P. displayed physical indicia of having been sexually assaulted vaginally and anally, although Maroulakos found no evidence of semen. Samples were taken for further testing.

Tavny Kothari, a forensic scientist, testified that she received evidence from the physical exam performed on S.P., as well as the victim's robe and underwear. Kothari detected the presence of sperm on vaginal swabs taken from S.P., and seminal fluid and blood on the crotch panel of S.P.'s panties. Subsequent DNA analysis could not definitively match defendant to any of the specimens, although the State's expert opined that defendant could not be excluded as a contributor to some of the samples.

Against the advice of counsel, defendant testified on his own behalf. His testimony was disjointed and, at times, unresponsive to questioning.2 It suffices to say that defendant denied assaulting S.P.

II.

The Criminal Code defines "[b]odily injury" as "physical pain, illness or any impairment of physical condition[,]" "[s]ignificant bodily injury" as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses[,]" and "[s]erious bodily injury" as that which "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(a), (d) and (b). Pursuant to N.J.S.A. 2C:12-1(b)(1), a person may commit SBI aggravated assault without causing any injury. State v. Mingo, 263 N.J. Super. 296, 305 (App. Div. 1992) (D'Annunzio, J., dissenting), rev'd on dissent 132 N.J. 75 (1993). But, where the offense is based on an attempt, the perpetrator must act with the "purpose or conscious objective" to cause serious bodily injury. State v. Green, 318 N.J. Super. 361, 371-72 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000).

"[Q]uestions about the seriousness of an injury focus on the nature and extent of the injury itself . . . ." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:11-1(b) (2014). Thus, in State v. Williams, 197 N.J. Super. 127, 131-32 (App. Div. 1984), certif. denied, 99 N.J. 233 (1985), we concluded that a "slight scar" caused by handcuffs used during the defendant's sexual assault of his daughter was insufficient to support a conviction for SBI aggravated assault.

In Point II, defendant asserts that the State failed to prove beyond a reasonable doubt that he committed SBI aggravated assault upon S.P. He argues that S.P.'s injuries did not amount to serious bodily injury, and that because the jury verdict sheet did not differentiate between actually causing or attempting to cause SBI, a new trial is warranted. In Point III, defendant alternatively contends that it was plain error for the judge not to charge lesser-included assault offenses that were "clearly indicated" by the evidence. We are unpersuaded by these arguments.

In our opinion, the State proved beyond a reasonable doubt that defendant caused serious bodily injury to S.P. While she did not suffer permanent disfigurement or protracted loss or impairment of an organ, defendant's actions created a substantial risk of death. S.P. testified that defendant threw her to the floor, where she struck her head, and he repeatedly choked her to the point of breathlessness. See State v. Bey, 129 N.J. 557, 579 (1992) ("Strangulation is commonly understood as a form of violence designed and likely to kill a victim . . . ."). Since the evidence was sufficient to prove beyond a reasonable doubt that defendant actually committed SBI aggravated assault, we need not address his corollary argument that reversal is required because the verdict sheet failed to differentiate between causing and attempting to cause SBI.

Defendant next argues that the judge committed plain error by failing to provide the jury with instructions on the lesser-included offenses of SBI aggravated assault that were clearly indicated by the evidence. The Supreme Court has stated

[I]n the absence of a request, . . . a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense. Conversely, a trial court ha[s] no duty to instruct the jury sua sponte on [an included offense charge if] the evidence [does] not clearly indicate or warrant such a charge.

[State v. Thomas, 187 N.J. 119, 132 (2006) (alterations in original) (citations omitted).]

"Only if the record clearly indicates a lesser-included charge -- that is, if the evidence is jumping off the page -- must the court give the required instruction." State v. Denofa, 187 N.J. 24, 42 (2006) (citing State v. Garron, 177 N.J. 147, 180 (2003),

cert. denied, 540 U.S. 1160, 124 S. Ct. 157, L. Ed.2d 1204 (2004)). The court may not sua sponte charge a lesser-included offense where it would "cause complete surprise, or [be] so inconsistent with the defense as to undermine the fairness of the proceedings." Garron, supra, 177 N.J. at 181.

In this case, in his summation, defense counsel briefly addressed the physical injuries S.P. suffered, urging the jury to consider they were minimal in nature or otherwise exaggerated because the victim had filed a civil suit seeking damages. However, the actual defense asserted through defendant's testimony was that he did not assault S.P., sexually or otherwise. Under these circumstances, we cannot conclude that the judge was obligated to sua sponte charge the jury with lesser-included assault offenses.

III.

In Point IV, defendant argues that his conviction for first-degree aggravated sexual assault committed while using physical force or coercion, N.J.S.A. 2C:14-2(a)(6), must be vacated because the State failed to prove S.B. suffered "severe personal injury." We again disagree.

"Severe personal injury" is defined as "severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." N.J.S.A. 2C:14-1(f). The term chosen by the Legislature differs from, and is broader than, SBI. See State v. Mosley, 335 N.J. Super. 144, 153 (App. Div. 2000) (recognizing that legislation defined "severe personal injury" more broadly than "serious bodily injury"), certif. denied, 167 N.J. 633 (2001).

In State v. Walker, 216 N.J. Super. 39, 44 (App. Div.), certif. denied, 108 N.J. 179 (1987), we defined incapacitating mental anguish as

severe emotional distress or suffering which results in a temporary or permanent inability of the victim to function in some significant aspect of her life, such as in her employment, her ability to care for herself or in her capacity as spouse, homemaker or mother. In this context, temporary incapacity means more than a mere fleeting, short-lived or brief incapacity.

[Ibid.]

We recognized that since "most rapes cause the victim to suffer emotional distress[,]" the requirement that it be "incapacitating . . . . provides corroboration that the victim's distress is severe, and it justifies greater punishment." Ibid.

Here, the State proved beyond a reasonable doubt that S.P. suffered "severe personal injury." She testified at length to the lasting emotional injuries which continued to affect her everyday life up until trial. Such emotional distress is "within the common experience and knowledge of the average juror" and need not be the subject of expert testimony. Id. at 45. We affirm defendant's convictions in this regard.

IV.

N.J.S.A. 2C:13-1(b) provides in relevant part

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business . . . or if he unlawfully confines another for a substantial period, with any of the following purposes

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another . . . .3

In Point V, defendant challenges his convictions for first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count three), and aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2(a)(3) (counts four, five, seven and eight), because the State failed to prove that S.P. was confined for "a substantial period." He argues that any confinement was not "criminally significant" because it was incidental to the underlying sexual assault.

The Court addressed the issue of confinement for a "substantial period" in State v. La France, 117 N.J. 583, 591-94 (1990). There, the defendant broke into the victims' home "with the intent to take money[,]" tied up the husband, dragged the wife down a hall and committed an aggravated sexual assault on her. Id. at 591-92. In reinstating the jury's guilty verdict regarding the kidnapping of the husband, the Court said,

[O]ne is confined for a substantial period if that confinement "is criminally significant in the sense of being more than merely incidental to the underlying crime," and that determination is made with reference not only to the duration of the confinement, but also to the "enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial."

[Id. at 594 (quoting State v. Masino, 94 N.J. 436, 447 (1983)).]

In State v. Lyles, 291 N.J. Super. 517, 530 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997), we reversed the defendant's conviction for kidnapping, committed during a so-called date-rape in the victim's apartment, after which the defendant remained in the apartment or refused to leave the hall outside the apartment door. Writing for the panel, Judge Sylvia Pressler said: "The issue . . . is whether there was a kidnapping or whether the restraint, detention, force, and coercion used by defendant was incidental to and constituted only the 'force or coercion' element of second-degree sexual assault." Id. at 525. We held that "reasonable minds could not differ in concluding [] defendant's conduct, while opprobrious and certainly constituting the heinous second-degree crime of sexual assault, cannot be reasonably construed as also constituting an independent crime of first-degree kidnapping by unlawful confinement." Id. at 527.

We reached a similar result in State v. Purnell, 394 N.J. Super. 28 (App. Div. 2007). There, the defendant followed the victim into the staircase of her apartment building, grabbed her from behind, and forced her at knifepoint to a secluded area of the building. Id. at 34. After committing the sexual assault, the defendant "spoke to [the victim] for about one minute, asking her not to cry and directing her to remain there until he left the building." Id. at 54. He then left the building, which took "about thirty seconds," during which the victim was not "bound or locked in the landing area." Ibid. We rejected the State's argument that the victim was "psychologically confined . . . because she knew [the] defendant had a knife and . . . was in fear for her safety." Ibid.

It is very doubtful that the thirty second period can be properly characterized as confinement under these circumstances. Even if it could be so characterized, we fail to see how [the victim's] risk of harm was enhanced during that period. She could not go on the roof because the access door was locked. Defendant ran down the stairs without interruption and exited the building. With each step he took, [the victim's] risk of harm was diminishing, not increasing. Finally, even if [the victim's] brief stay on the fourth floor landing somehow increased her risk of harm, that increased risk was not more than trivial. The safety of her apartment was only one flight down, to which she proceeded as soon as defendant left the building.

[Id. at 54-55.]

Recently, in a different context, the Court considered whether the gunpoint robbery of a taxi driver in his cab, followed by the defendant's order that the victim drive approximately eight-tenths of a mile before defendant exited the vehicle, was sufficient to constitute confinement for a substantial period. State v. Jackson, 211 N.J. 394, 398 (2012). The Court concluded it was, noting that the "isolation and vulnerability experienced by the victim . . . was not coextensive with the armed robbery." Id. at 419. The "victim's peril lasted significantly longer, as he was threatened with a gun and compelled to drive through the city of Paterson[,] . . . [and] thus exposed to a substantially extended confinement and a substantially increased risk." Ibid.

Here, S.P. testified that the assault began in the communal bathroom, when defendant struck her in the face, causing her to fall backward to the floor. Although S.P. was able to exit the bathroom, defendant caught her, threw her to the floor in the communal hallway and digitally penetrated her, the first instance of sexual assault. Defendant chose not to continue the assault there, however, and rather dragged S.P. by her feet down the hall into his room and threw her on the bed. We cannot discern from the record how far distance-wise the bedroom was from the bathroom, but the jury was shown photographs of the entire scene. S.P. testified that she fought to stay out of defendant's bedroom, ripping a pole off the hallway wall in a futile attempt to use it as a weapon.

She told the jury, "I didn't want to go in his room. I knew if I went there he was gonna kill me right there." It was in defendant's bedroom that the other sexual assaults occurred. S.P. could not estimate how long these assaults took, although she testified, "it took . . . like forever. Every second was forever."

Under these circumstances, we conclude that defendant's decision to discontinue the sexual assault that occurred in the hallway, and continue other different, sexually assaultive conduct in his bedroom resulted in "criminally significant" confinement that was more than "merely incidental to the underlying crime," and "enhanced [the] risk of harm resulting from the [confinement] and isolation of the victim." La France, supra, 117 N.J. at 594; accord Jackson, supra, 211 N.J. at 419. Although this presents a close question, we affirm defendant's conviction for kidnapping.

V.

At sentencing, the judge noted that defendant was forty-three years old, had no children and no prior indictable convictions or arrests. The judge found mitigating factor seven applied. See N.J.S.A. 2C:44-1(b)(7) (lack of prior delinquency or criminal activity). However, the judge found that aggravating factors two and nine applied, and they substantially outweighed the mitigating factor. See N.J.S.A. 2C:44-1(a)(2) ("the gravity and seriousness of harm inflicted on the victim"); and (a)(9) (the need to deter).

Citing generally State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge found that the two counts of sexual contact occurred during the early morning hours of February 17 and were "separate offenses at a separate and unrelated time." He then stated, without specificity or limitation

It can . . . be reasonably concluded that the crimes and their object[s] were predominantly independent of each other. They involve separate acts of violence, or threats of violence, and . . . they occurred at much different times [] rather than being so closely committed in time.

And lastly, [] according to Yarborough, [sic] there can be no free crimes in a system in which the punishment shall fit the crime.

The judge imposed concurrent eighteen-month sentences on the two counts of sexual contact (counts one and two), to run consecutively with the twenty-two year, NERA sentence he imposed on the kidnapping charge (count three). The judge then imposed concurrent fifteen-year terms on the four charges of aggravated sexual assault during the commission of a kidnapping (counts four, five, seven and eight), and ran those sentences consecutive to the sentence on count three.4 He merged the remaining aggravated sexual assault counts by physical force or coercion (counts fourteen through eighteen) with the convictions for aggravated sexual assault during the commission of an aggravated assault on another (counts nine, ten, eleven, twelve and thirteen), and imposed concurrent fifteen-year sentences. The judge imposed concurrent sentences on the convictions for SBI aggravated assault and terroristic threats. When the judge imposed a consecutive term, he simply stated, "pursuant to [Yarbough]."

Defendant argues that his sentence is excessive because the judge improperly found aggravating factor two; failed to find mitigating factor four, see N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."), and failed to properly consider the Yarbough factors. See Yarbough, supra, 100 N.J. at 643-44.

We begin by noting that "[a]ppellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). As the Court has recently re-iterated

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

The judge's finding of aggravating factor two was justified under the facts of this case. "[A]ggravating factor two . . . compels 'a pragmatic assessment of the totality of harm inflicted by the offender on the victim.'" State v. Lawless, 214 N.J. 594, 610 (2013) (quoting State v. Kromphold, 162 N.J. 345, 358 (2000)). "It focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime." Id. at 611 (citing N.J.S.A. 2C:44-1(a)(2)).

Here, the physical and psychological harm the attack caused S.P. is well supported by the record evidence. In finding aggravating factor two, the judge specifically referenced the futility of S.P.'s resistance to defendant's "physical power." We find no mistaken exercise of the judge's broad discretion in this regard.

Although it was not urged at sentencing, defendant argues mitigating factor four applies based upon his mental condition. As noted, defendant's competency was at issue initially, and he was diagnosed as suffering from paranoid schizophrenia. We acknowledge defendant's essential point, i.e., a sentencing court may consider a defendant's mental condition as a mitigating sentencing factor absent an asserted insanity defense. State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998). However, there was no evidence that at the time the crimes were committed, defendant was so "emotionally impaired and mentally [deficient]" that he "acted . . . unintentionally," and "could not comprehend the 'wrongfulness'" of his conduct. State v. Jarbath, 114 N.J. 394, 406 (1989). Mitigating factor four is not supported by the record.

We are, however, concerned about the absence of any explanation by the trial judge, except for a general reference to Yarbough, regarding his decision to impose consecutive sentences on the kidnapping and aggravated sexual assaults during the commission of a kidnapping.

The Yarbough factors are well-known and include

(1) There can be no "free crimes" in a system for which the punishment fits the crime;

. . . .

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous. . . .

[Miller, supra, 205 N.J. at 128 (quoting Yarbough, supra, 100 N.J. at 643-44).]

These factors should be applied "qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). The focus is on the "gravity of the offense." Id. at 422. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28.

When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal. However, if the court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record.

[Miller, supra, 205 N.J. at 129 (citations omitted).]

In this case, the judge explained that the two sexual contact counts merited consecutive sentences because they occurred hours earlier, well before the kidnapping and aggravated sexual assaults, and were separate offenses. Those findings were adequately supported by the record and justify a consecutive sentence.

However, before imposing the balance of his sentence, the judge said in the most general terms that the crimes were "predominately independent of each other," involved "separate acts of violence, or threats of violence" and "occurred at much different times," rather than being "so closely committed in time." Some of these findings are clearly contradicted by the record. For example, all of the remaining crimes were in fact committed in a short period of time and can hardly be deemed "predominantly independent of each other."

We recognize that kidnapping and aggravated sexual assault during the commission of a kidnapping do not merge as a matter of law. State v. Cole, 120 N.J. 321, 332-33 (1990). Further, even when offenses are connected by a "unity of specific purpose," "somewhat interdependent of one another," and "committed within a short period of time," concurrent sentences need not be imposed. State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000).

However, the failure to consider factors that both support and mitigate against consecutive sentences requires us to remand the matter for re-sentencing. See Miller, supra, 205 N.J. at 129 (remanding for re-sentencing because "the record d[id] not reveal that the trial court expressly or implicitly considered the guiding legal principles governing its discretion" in imposing consecutive sentences).

In sum, we affirm defendant's judgment of conviction with the exception of counts nine, ten, eleven, twelve and thirteen, which we vacate. Without expressing any particular opinion about the sentence to be imposed, we remand the matter to the Law Division for resentencing on the remaining counts in light of our comments. We do not retain jurisdiction.

1 In constructing the jury verdict sheet, the court renumbered the specific counts contained in the indictment.

2 The proceedings were delayed several months to determine whether defendant was competent to stand trial. Defendant made repeated outbursts in front of the jury during trial, causing the judge to admonish him. Defendant also interposed numerous objections during trial, and interrupted defense counsel's closing argument. The judge excluded defendant from the courtroom three times after he failed to heed the court's orders. The judge issued an appropriate instruction to the jury on each occasion. Defendant does not raise any issues on appeal regarding his trial conduct or the judge's actions in response. As we discuss below, he does assert issues regarding his mental state in the context of the sentence imposed.

3 The State contended that defendant kidnapped S.P. by confining her for a substantial period of time and did not argue that defendant "remov[ed]" S.P. from her residence by dragging her into his room. Therefore, in defining the elements of the crime, the judge charged the jury that the State must prove beyond a reasonable doubt that S.P. was "confined . . . for a substantial period."

4 The JOC specifically provides that only the sentence on count four was subject to NERA. All the convictions for aggravated sexual assault, as well as the conviction for SBI aggravated assault, are subject to NERA. See N.J.S.A. 2C:43-7.2(d)(4) and (d)(7). Since we are remanding the matter for resentencing, the JOC shall reflect the proper application of NERA to the sentences imposed on all these counts.