STATE OF NEW JERSEY v. DONALD ANDREWS

NOT FOR PUBLICATION WITHOUT THE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.

DONALD ANDREWS,

Defendant-Appellant.

_________________________________

March 10, 2016

Submitted September 17, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-11-1102.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Donald Andrews appeals from the Law Division's judgment of conviction, entered after a jury found him guilty of offenses related to his kidnapping and sexually assaulting his victim after posing as a "Good Samaritan," supplying her with transportation when she became stranded in Elizabeth. Defendant also challenges the court's sentence, a fifty-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In his appeal, defendant raises for the first time several arguments regarding the trial court's rulings on the admission of evidence, the prosecutor's comments to the jury, and the insufficiency of the evidence presented to support one of the charges. He also claims his sentence is excessive. The State responds by arguing that there is no merit to any of defendant's contentions.

We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm.

The facts developed at defendant's trial are summarized as follows. On November 5, 2010, a Union County Grand Jury indicted defendant, charging him with first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five); and fourth-degree terroristic threats, N.J.S.A. 2C:12-3 (count six). Although the charges against defendant arose from his contact with his twenty-year-old victim on October 31, 2009, he was not arrested until July 2010, after DNA samples identified him as the perpetrator.

Prior to encountering defendant on the evening of October 31, the victim traveled from her home in New York to attend a party at a friend's house in Elizabeth, a city with which she was not familiar, with the intention of leaving from there with friends to attend another party in Brooklyn. After the party, her friends wanted to go to a local bar rather than travel to Brooklyn, which upset the victim. She left the house with two friends and, after walking to a nearby fast food restaurant, one of her friends called a taxi to take the victim to the train station so she could take a train back to New York. Her friends left and she waited for the taxi alone. While she waited, it grew dark and her cell phone lost power. The taxi never arrived.

The victim felt stranded and was concerned about how she could contact the taxi company because she did not know its name or have a phone to use. She began asking strangers who passed by if they knew the name of the taxi company. The second person to respond was defendant.

The victim described defendant as "tall . . . [and] heavyset," with "no hair[,] . . . like shaven," and "light eyes." He told the victim that he did not know the phone number for a taxi company, but offered to give her a ride to the train station. She turned down his offer and walked away. Shortly thereafter, defendant drove along side of the victim and again offered her a ride. He assured her he was safe because he had a daughter and was a "family man." The victim saw that he had a car seat in the back, which comforted her enough to accept defendant's offer of a ride.

In the car, defendant introduced himself to the victim by his first name, inquired if she had any family locally, and informed her that there were two train stations in the area. Although the victim did not know which train station she had arrived at earlier, she told defendant it was near a college. Defendant drove to one station, not near a college, which the victim did not recognize as the correct station. Defendant began to drive to the other, but the victim soon realized the ride was taking too long and defendant was driving through secluded alleyways.

The victim asked defendant to let her out of his car. He refused and eventually became angry. Though defendant stopped his car for traffic signals, the victim did not try to get out because she "thought it was more dangerous." At one point, the victim saw a sign for the college near the train station, which she recognized from her arrival earlier that day, and again asked defendant to stop to let her out, but he refused under the pretense of taking to her the station's entrance. Eventually defendant stopped, first in the parking lot of a bar that had a security guard outside, then in a dark and deserted "taxi parking lot." The victim got out of the car, saw the college in the distance, and began walking toward that area. Defendant offered to walk her there and, although she refused, began following her.

It was at that point defendant began to physically assault the victim. At first, he placed his arm over her shoulder, but then forcibly grabbed her when she tried to move away. She pleaded with defendant not to hurt her and offered him her purse instead. When he told her he just wanted her money, she quickly agreed to give it to him, but he continued to use force against her. With one arm around the victim's neck and the other hand over her mouth, he dragged her toward the backyard of a darkened house, threatened to kill her if she did not cooperate, and proceeded to forcibly and violently sexually assault her.

After the attack, defendant threatened to kill her if she contacted law enforcement. To reinforce the threat, he grabbed her by her face and mouth, threatened to break her neck, and demanded to see her identification with her address. Defendant then took her cash and let her go. The victim ran toward the lights of the college and eventually reached the train station. Once there, she called her sister and a cousin, and told them she had been raped. Too afraid to call the police, she made her way home.

The next day, the victim's cousin convinced her to go to a hospital to be examined and to contact the police. At the hospital, the victim was examined by a sexual assault nurse examiner (SANE), who took photographs and fluid samples from various areas of the victim's body. The nurse discovered various injuries to the victim's body, including scratches and contusions near her mouth, and found the victim had difficulty opening her jaw. The nurse also found injuries in and around the victim's genitals that were consistent with her being assaulted by a man while lying on her back.

The victim also went to her local police department, but was told she would have to return to Elizabeth to file her report. She contacted the Elizabeth Police Department on November 2, and scheduled an interview for November 16. While being driven to her interview with police, the victim recognized her surroundings as the area she was driven and eventually assaulted by defendant, which assisted her in reporting the events to the police. During her interview with the police, they took additional fluid samples from the victim. These samples eventually led to defendant's arrest after the police were able to match the DNA taken from the victim with that of defendant.

Defendant's trial took place over six days in May 2013. At the trial, the victim, her sister, the prosecutor's forensic chemist, a police detective, and the SANE nurse testified for the State. Defendant did not testify or call any witnesses on his behalf. His counsel argued to the jury that the encounter between his client and the victim was consensual. After considering the testimony, evidence, and both attorneys' arguments, the jury found defendant guilty on all counts.

At the ensuing sentencing, the court observed that defendant committed the instant offense shortly after completing a lengthy sentence for a similar crime, and that defendant had failed to register as a sex offender. It therefore determined, without objection, that defendant was a persistent offender eligible for an extended term of imprisonment, pursuant to N.J.S.A. 2C:44-3(a). The court then stated its findings regarding the applicable aggravating and mitigating factors. As to aggravating factors, the court found factors two, three, six, and nine1 were applicable, relying on the Adult Diagnostic and Treatment Center's finding that defendant was "repetitive and compulsive," his prior criminal record,2 the great need for deterrence, the brutality of his crime, and the victim's youth and inexperience. The court sentenced defendant to an extended term of fifty years on count one, a term of twenty years on count two, and a seven-year term on count three, all to run concurrently and each of which was subject to NERA's eighty-five percent parole ineligibility period. It merged counts four and five into count two, and sentenced defendant to a concurrent five-year term on count six. The court also imposed Megan's Law restrictions, N.J.S.A. 2C:7-1 to -23, parole supervision for life, N.J.S.A. 2C:43-6.4, a sex-offender restraining order, N.J.S.A. 2C:44-8, and mandatory monetary penalties.

The court entered a judgment of conviction. This appeal followed.

On appeal, defendant specifically argues

POINT 1

THE TRIAL COURT ERRED BY PERMITTING IMPROPER TESTIMONY FROM A S.A.N.E. NURSE (PLAIN ERROR).

POINT 2

THE TRIAL COURT ERRED BY PERMITTING IMPROPER FRESH COMPLAINT TESTIMONY (PLAIN ERROR).

POINT 3

THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTOR TO ARGUE IN-COURT IDENTIFICATION WHEN THE WITNESS DID NOT IDENTIFY THE DEFENDANT AT TRIAL (PLAIN ERROR).

POINT 4

THE PROSECUTOR EXCEEDED FAIR COMMENT ON THE EVIDENCE AND THE COMMENTS CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (PLAIN ERROR).

POINT 5

THE PROSECUTION'S PROOFS FAILED TO ESTABLISH THE REQUIRED ELEMENTS OF THE KIDNAPPING CRIME, WARRANTING VACATION (PLAIN ERROR).

POINT 6

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

We begin our review by observing that defendant did not raise any of the arguments regarding the conduct of his trial before the Law Division. Accordingly, we review only for plain error, determining whether the errors alleged were "clearly capable of producing an unjust result." R. 2:10-2. "[T]he ultimate question is whether there was a real possibility of injustice, 'one 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. Melvin, 65 N.J. 1, 18-19 (1974) (quoting State v. Macon, 57 N.J. 325, 335-36 (1971)).

Applying that standard, we find defendant's arguments to be without merit, as he has failed to establish any plain error by the trial court.

We first address defendant's argument regarding the SANE nurse's testimony. Specifically, he contends that the nurse's testimony about the injuries she observed to the victim's genitals, and their consistency with sexual assault, constituted an impermissible bolstering of the victim's testimony because the court permitted the witness to essentially confirm the victim's version of the events. Although defendant concedes that "[c]ourts have permitted expert medical witnesses to describe the results of the examination and to offer opinions as to the cause of any injuries, to establish penetration, and to answer questions whether injuries could have been inflicted in a particular way," State v. J.Q., 130 N.J. 554, 563 (1993), he maintains that, in this case, the nurse's testimony "encroached upon the jury's province." We find this argument to be without merit.

At trial, the State qualified the nurse as an expert and the court accepted her qualifications without objection by defendant. When the prosecutor asked her about the injuries she observed to the victim's genitals and what "kind of injury" they were consistent with, defense counsel objected, arguing she was not qualified to testify to that observation. The court asked the prosecutor to establish the witness's qualifications to give that opinion. In response to questioning by the prosecutor and the court, the witness confirmed the specific training she received to qualify her to give testimony about the cause of the injuries. She also made clear that, based on her training and experience, she could only give testimony about "[w]hat could possibly, but not for sure," cause the injuries she observed because she could not "be certain." She then testified

Part of my charge as an examiner is to determine if the history that's given by the patient and my findings are consistent one with another. . . . If a female is on her back, assaulted by a male

. . . .

The most common place for injury to occur would be between 4 and 8 o'clock.[3] That's because the penis is attempting to get into the vagina, and that's where it encounters that part of the female anatomy. If she were in a different position, you would expect there to be injury in a different area. It's called a mounting injury. It's what happens when the female is on the bottom and the male is on top.

We do not view the SANE nurse's testimony as bolstering the victim's credibility. It is well-established that an expert may not vouch for the credibility of a witness. See State v. Jamerson, 153 N.J. 318, 341 (1998); J.Q., supra, 130 N.J. at 573. Particularly, experts may not "offer opinions as to the issue of a []witness's credibility," because this is a matter of fact for the jury to determine. State v. Michaels, 136 N.J. 299, 323 (1994).

Although the nurse testified to her findings that the injuries to the victim's genitals were consistent with a sexual assault occurring while a woman is on her back, she did not testify to anything the victim told her, nor did she mention anything about defendant being guilty of the assault. The witness merely confirmed that she received a history of the assault from the victim as part of her routine examination and that the injuries were consistent with the type of assault described.

Given these circumstances, and, as defendant concedes, the propriety of an expert giving an opinion as to the cause of the injuries, we are satisfied that the SANE nurse's testimony did not improperly bolster the victim's credibility. See State v. Pillar, 359 N.J. Super. 249, 290 (App. Div.) (stating in dicta that a doctor's testimony about the absence of physical findings being "consistent with the abuse testified to by [the victim] was and remains acceptable"), certif. denied, 177 N.J. 572 (2003); see also United States v. Charley, 189 F.3d 1251, 1264 (10th Cir. 1999) ("[T]he court did not abuse its discretion by allowing [a doctor] to 'summarize the medical evidence and express an opinion that the evidence is consistent or inconsistent with a victim's allegations of sexual abuse . . . .'" (quoting United States v. Whitted, 11 F.3d 782, 785 (8th Cir. 1993))), cert. denied, 528 U.S. 1098, 120 S. Ct. 842, 145 L. Ed. 2d 707 (2000). The SANE nurse's testimony about the victim's injuries was a far cry from an expert suggesting to the jury they should believe or disbelieve another witness. Cf. State v. Vandeweaghe, 177 N.J. 229, 239 (2003) (concluding that a doctor's "improper[] suggest[ion] to the jury that it should not believe defendant . . . impermissibly usurped the jury's exclusive role in assessing witness' credibility.").

We turn next to defendant's argument that it was improper for the trial court to permit the victim's sister to provide "fresh-complaint"4 testimony about what the victim said when she called immediately after the assault. He specifically argues that the admission of the testimony violated his constitutional right to confront witnesses5 and impermissibly bolstered the victim's testimony.

We find this argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, both the victim and her sister testified and were subject to cross-examination, and the trial court twice instructed the jury as to the proper use of fresh-complaint evidence. See Model Jury Charge (Criminal), "Fresh Complaint" (2007).

Next, we direct our attention to defendant's argument that the trial court should not have allowed the prosecutor to argue in her summation that the victim identified defendant at trial. He also contends that the court improperly instructed the jury that the victim identified defendant in court when it delivered the in-court identification charge to the jury. See Model Jury Charges (Criminal), "Identification: In-Court Identification Only" (2012). We discern no error.

During her direct examination, the prosecutor asked the victim to describe her perpetrator. The victim stated he "was a dark-skinned person, tall. He was heavyset. . . . [H]e had no hair[,] . . . like shaven[,] [and] had light eyes, I think." She confirmed that she would recognize him if she him saw again. The prosecutor then asked

[PROSECUTOR]: Do you see him anywhere in the courtroom? . . . .

[THE VICTIM]: I already saw him. I don't want to see him again.

[PROSECUTOR]: Do you see him in the courtroom?

[THE VICTIM]: Yes.

[PROSECUTOR]: You don't have to look at him . . . . Is he in the room?

[THE VICTIM]: Yes.

[PROSECUTOR]: Can you describe where he is in the courtroom? Where is he seated?

At that point, according to the prosecutor, the victim "gestured."6 The court directed that the witness needed to respond verbally. The prosecutor continued by asking the victim to describe where defendant was seated in the court room. The victim stated he was seated to her right, "near the judge." The court then questioned the victim further

[THE COURT]: Can you just point to him, please, and describe what he is wearing. Are you able to do that? Just tell me first, yes or no. Are you able to do that?

[THE VICTIM]: I would have to look again to see what he's wearing, and I don't want to look.

The court called counsel to sidebar for a conference and questioned whether there was a problem with the identification. The prosecutor believed there was no problem and would not press the issue further because she was not "interested in victimizing her all over again." Defense counsel offered no comment and did not object.

Before summations, defense counsel raised an objection to the court's intention to charge the jury regarding an in-court identification. The prosecutor argued that from the totality of the circumstances it was clear from both the victim's testimony and her body language that she was identifying defendant in the courtroom. The court indicated that it did not observe exactly what gesture the witness used. After considering counsels' arguments about what occurred and the fact that the transcript referenced the "witness pointing," the court concluded that, while "it [was] not the clearest identification in the world, . . . [it was] at least . . . somewhat of an identification."

Based on our review of this record, we conclude the court did not commit any error by instructing the jury that there was an in-court identification or by allowing the prosecutor to comment on it occurring. Defendant's argument to the contrary is without merit, especially in light of the court's charge to the jury instructing its members that it was for them to determine the strength of the identification and what weight, if any, to attribute it in their deliberations. See Foster v. California, 394 U.S. 440, 442 n.2, 89 S. Ct. 1127, 1128 n.2, 22 L. Ed. 2d 402, 406 n.2 (1969) ("The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury."); State v. Farrow, 61 N.J. 434, 451 (1972) ("The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge."), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973).

Defendant's next contention is that the prosecutor's comments to the jury in her opening and closing statements "exceeded fair comment." Defendant refers specifically to the prosecutor telling the jury in her opening statement that the victim "served a sentence for the last three years of being a victim," and that "the State seeks justice for" the victim and "seek[s] that she be free from what happened to her." He also relies upon the prosecutor's response to defense counsel's comment during closing argument that the "act was, in fact, consensual." The prosecutor stated in her summation

[Defense counsel] would have you believe that this was consent. You didn't hear anything from that [witness] chair about consent. You didn't hear anything, not one word. There is no evidence anywhere that [the victim] wanted to have sex with [defendant].

At trial, defendant objected only to the prosecutor's use of the word "seek" when she stated that "we seek justice" and did not object to the remarks made in summation.

On appeal, defendant argues that the prosecutor's opening statements improperly "invite[d] the jury to reach a verdict in order to subject [defendant] to a particular sentence, or to protect society, or for other extraneous reasons." As to the statements made in summation, defendant contends they violated the prohibition against a prosecutor telling the jury that the State's evidence is uncontradicted, which, if allowed, would be an "impermissible indirect comment on the defendant's decision not to testify." We disagree with defendant's interpretation of the prosecutor's comments.

At the outset, we observe that where, as here, counsel does not object to the alleged offensive remarks at trial, we infer "the error was actually of no moment." Macon, supra, 57 N.J. at 333. Also, we recognize, "[p]rosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447 (1988)).

From that perspective, we conclude from our review of the record that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We simply observe that the comments made in the summation were in direct response to defense counsel's argument regarding the victim having consensual relations with defendant and did not constitute unfair comment regarding defendant's right to not testify at trial. See, e.g., State v. Smith, 212 N.J. 365, 404-06 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); State v. Williams, 317 N.J. Super. 149, 158 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). The prosecutor's comments were directed to the witnesses who testified, not toward defendant choosing to not testify. See State v. Josephs, 174 N.J. 44, 127 (2002) ("A prosecutor's statements on the deficiency of a defendant's defense and the inferences to be drawn therefrom are permissible as long as they are grounded in the record.").

As to the comments made during opening statements, to the extent they were even questionable because they called for the jury to do justice for the victim, we conclude they were not "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999)(citations omitted).

We also find defendant's remaining argument, challenging his conviction for kidnapping, N.J.S.A. 2C:13-1(b)7 to be without sufficient merit to warrant discussion. Suffice it to say, his argument that there was insufficient evidence to sustain his kidnapping conviction was never brought before the trial court and "is [therefore] procedurally barred because defendant failed to move for a new trial based on that ground as required by Rule 2:10-1." State v. Reininger, 430 N.J. Super. 517, 538 (App. Div.), certif. denied, 216 N.J. 367 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014). Even if defendant's claim of error was not procedurally barred, it lacks merit, as we are convinced the facts surrounding defendant's use of deception to lure the victim into his car, and her terror when he would not let her out and when he initially physically restrained her, were sufficient to support the jury's verdict. Cf. State v. Tronchin, 223 N.J. Super. 586, 594 (App. Div. 1988) ("[W]here an offender entices a victim into a car by deception, transports the victim to a remote place without opportunity for the victim's escape and commits sexual assault, all of the elements of kidnapping may be established.").

Defendant also claims his fifty-year sentence is excessive. This argument also has no merit. The findings by the trial court regarding the aggravating and mitigating factors were based on competent and credible evidence in the record; the court correctly applied the sentencing guidelines; and defendant's sentence does not shock the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

1 N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable"); N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law").

2 In 1990, defendant was sentenced to a thirty-year term after pleading guilty to the aggravated assault and aggravated sexual assault of a sixteen-year-old girl. He maxed out on January 16, 2008.

3 The witness explained the clock reference is used to describe the area where an injury is located, imagining the woman being examined is lying on her back, with twelve o'clock being the area of the vagina closest to the abdomen, and six o'clock closest to the buttocks.

4 As recently explain by the Court

[T]he fresh-complaint doctrine . . . allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated. In order to qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support.
 
[State v. R.K., 220 N.J. 444, 455 (2015)(citations omitted).]

5
 
See U.S. Const. amend. VI; N.J. Const. art 1 10; see also Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

6
 
According to the transcript, the victim's action was recorded as "pointing."

7
 
The statute provides in pertinent part

b. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, 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;

. . . .

d. "Unlawful" removal or confinement. A removal or confinement is unlawful within the meaning of this section . . . if it is accomplished by force, threat or deception.

[N.J.S.A. 2C:13-1.]