STATE OF NEW JERSEY v. TIMOTHY KINLAW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6313-04T46313-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY KINLAW,

Defendant-Appellant.

__________________________________

 

Submitted October 17, 2006 - Decided

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-10-2068.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(7), and sexual assault, in violation of N.J.S.A. 2C:14-2c. A jury acquitted defendant of aggravated sexual assault but found him guilty of sexual assault. The trial court sentenced defendant to an eight-and-a-half year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2.

The sexual assault occurred after the victim, defendant and defendant's girlfriend spent the evening together drinking at a bar. After the threesome returned to the victim's apartment, she became sick and passed out in her bedroom. When the victim awoke the next morning, she felt a wet substance running down her leg and her vagina was sore. Based on these observations, she suspected that defendant had sexually assaulted her. The victim conveyed this suspicion to her friend, who confronted defendant. Defendant denied the allegation, but the victim repeated her suspicions to her mother and other relatives. One of the relatives then also confronted defendant, and a fight ensued. After the police responded to the scene, the victim was brought to the Atlantic City Medical Center and defendant was brought to police headquarters.

The medical examination of the victim revealed sperm in her vaginal area. DNA testing of this fluid indicated that it matched defendant's DNA.

The police questioned defendant around the same time the victim was being examined at the hospital. At first, defendant denied having had sexual intercourse with the victim. However, when the police told him the victim was undergoing a medical examination that would include DNA testing, defendant changed his story and asserted that he had had consensual sex with the victim.

Defendant did not testify at trial, and he presented no witnesses. Defense counsel presented a consent defense to the jury based on defendant's second statement to the police. The jury rejected this defense and found defendant guilty of sexual assault.

On appeal, defendant presents the following arguments:

I. THE INTRODUCTION OF INADMISSIBLE EXPERT TESTIMONY CONTAINING AN OPINION BEYOND THE EXPERT WITNESS' EXPERTISE AND THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY AS TO HOW TO EVALUATE AND ASSESS EXPERT WITNESS TESTIMONY DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Partially Raised Below).

A. The Inadmissible Testimony and Prejudice Resulting to the Defendant Therefrom.

B. The Failure of the Court to Instruct the Jury on the Law Regarding the Evaluation and Assessment of Expert Testimony.

II. THE DEFENDANT'S SENTENCE OF EIGHT AND ONE-HALF YEARS WITH 85% TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. CONST. AMENDS VI AND XIV. (Not Raised Below).

We reject defendant's first argument and affirm his conviction. We agree with defendant's second argument and remand the case for resentencing.

Defendant's first point is based on the redirect examination of Melinda Henry, the nurse who examined and took specimens from the victim's vaginal area upon which DNA testing was performed. On direct examination, Henry only testified concerning her examination of the victim and the process of taking specimens from her. She did not indicate whether she observed any injury in the victim's vaginal area or provide any expert opinion. However, on cross-examination, defense counsel elicited the following testimony from Henry:

Q. Ma'am, using the cudoscope, am I pronouncing that right?

A. Yes.

Q. You did do a very detailed examination of [the victim], right?

A. Yes.

Q. And in doing that examination, among other things you were looking for was specifically injuries, right?

A. Yes.

Q. Specifically in doing that examination, you found actually no evidence of any tears of tissue, right?

A. Correct.

Q. You found no evidence of any abrasions at all?

A. No.

Q. No evidence of any ecchymosis?

A. No.

Q. Which otherwise would mean bruising, basically?

A. There's -- no, I did not.

Q. Okay.

No evidence of any redness?

A. No.

Q. And no evidence of any swelling?

A. Swelling, no.

On redirect examination, over defense counsel's objection, the prosecutor elicited the following testimony:

Q. Is the absence of injury consistent with what the victim reported in terms of being asleep, unconscious or -- or, you know, unaware of what was going on?

A. Yes.

On appeal, defendant argues that the significance of the absence of any physical injury in the area of the victim's vagina is not a subject beyond the knowledge of the average juror and that Henry was not qualified to provide an expert opinion regarding the subject.

Even if Henry would have been precluded from testifying about the significance of the absence of physical injuries because she was not offered as an expert on this subject, defense counsel "opened the door" to such testimony on redirect by eliciting testimony from Henry on cross-examination concerning the absence of physical injury. See State v. James, 144 N.J. 538, 544 (1996). Although Henry's testimony may have simply confirmed what most jurors would have assumed regarding the absence of physical injury to a person who was raped while unconscious, we cannot conclude that this testimony would not assist the jury "in determining a fact in issue." State v. Jamerson, 153 N.J. 318, 339 (1998). Indeed, defense counsel presumably elicited Henry's testimony regarding the absence of physical injury in the hope that some jurors would assume that even an unconscious rape victim would exhibit some physical trauma, and therefore, that the absence of such evidence was supportive of defendant's consent defense. Furthermore, even though the prosecutor did not specifically qualify Henry to give an opinion regarding this subject, the prosecutor established that her qualifications included attendance at the Rutgers School of Nursing sexual assault nurse examiner program and two years experience as a "Sexual Assault Nurse Examiner." During that time, she continued her education by completing surrogate training of reexamination of sexual assault victims, documentation narration training, a legal workshop, and forensic photography training. Therefore, there is a reasonable basis for concluding that she was qualified by education and experience to express an opinion regarding the significance of the absence of any physical injury in the vaginal area of a person who was raped while unconscious. Moreover, even if the court should have excluded this testimony, the error would be harmless because the testimony simply confirmed what most jurors undoubtedly would have assumed anyway, and the jury had to have been aware that the absence of physical trauma also was consistent with defendant's consent defense.

Defendant argues under the second part of his first point that the trial court erred in failing to give the jury a special instruction regarding its consideration of expert testimony. However, defendant did not request or object to the omission of such an instruction at trial, and we are unable to conclude that its omission constituted plain error. Defendant did not dispute the expert opinion evidence regarding the match between the DNA of the sperm specimen extracted from the victim and his DNA. He conceded that he had sexual relations with the victim, and his only defense was that those relations were consensual. As for the opinion Henry gave on redirect regarding the significance of the absence of physical trauma in the victim's vaginal area, this opinion simply confirmed what most jurors would assume anyway and thus the absence of a special instruction regarding the jury's consideration of this evidence could not have prejudiced defendant.

Under State v. Natale, 184 N.J. 458, 494-96 (2005), any defendant sentenced to a term in excess of the presumptive statutory term, based on judicial findings of aggravating factors other than a prior conviction, whose case was on direct appeal when Natale was decided, is entitled to be resentenced without consideration of that presumptive term. Defendant was sentenced to a term in excess of the seven-year presumptive term for sexual assault based on judicial findings of aggravating sentencing factors other than simply prior criminal convictions. See State v. Thomas, 188 N.J. 137, 152-54 (2006). Therefore, he is entitled to be resentenced.

 
Accordingly, defendant's conviction is affirmed. His sentence is vacated, and the case is remanded for resentencing in conformity with Natale.

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A-6313-04T4

RECORD IMPOUNDED

November 3, 2006