STATE OF NEW JERSEY v. ALAN J. LOEFFLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1051-04T41051-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALAN J. LOEFFLER,

Defendant-Appellant.

___________________________

 

Submitted November 15, 2006 - Decided June 15, 2007

Before Judges Collester and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, 01-12-1394-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Alan I. Smith, Designated Counsel,

of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Alan Loeffler appeals his conviction for sexual assault, a crime of the second-degree, contrary to N.J.S.A. 2C:14-2(c), and his penal sentence of eight years subject to parole ineligibility pursuant to the No Early Release Act (NERA). We affirm the conviction and remand for sentencing in light of State v. Natale, 184 N.J. 458, 484 (2005).

As of June 2001, J.B. was a seventeen-year-old residing at the Wyoming Girls' School, a correctional facility in the State of Wyoming. While she was participating in a work release program on June 27, 2001, she ran away, stole a car, and headed east toward New York City. She arrived in New Jersey on July 3, and met a homeless person named David Outlaw. She joined up with Outlaw and slept in his tent in a public park in Edison. On July 9, 2001 she was with Outlaw when he got drunk and passed out in front of a 7-Eleven store in Edison.

At 2:45 a.m. on July 10, Sergeant Milton Bridges of the Edison police was on routine patrol when he saw a man lying on the sidewalk in front of the 7-Eleven and a female standing next to him. The man was asleep and had urinated in his pants. He described J.B. as "dressed as though she was homeless, very dirty." When Bridges asked J.B. if she needed assistance, she said she was homeless and had met the man she called Outlaw. She said she was trying to get him to his home nearby. Bridges told her to lead the man to a nearby grassy area until she was able to escort him home. After being assured by J.B. that she and Outlaw would not create a disturbance, Bridges left. Later he recalled that while he was speaking with J.B., a man stepped out of a van with a sign "Express Towing" and was watching. He described the man as a white male, stocky build, blond hair, and wearing a uniform-type tee shirt and blue pants.

Twenty minutes later a second Edison police officer, David Salardino, drove up to the 7-Eleven and saw an obviously intoxicated man sitting alone on a parking block. As he approached, J.B. came out of the store and yelled to him that the man was her boyfriend. Nearby, Salardino saw a man he recognized as a tow truck driver who frequently responded to accidents and disabled vehicles in the area. The man, later identified as defendant, made a general comment to Salardino about Outlaw being intoxicated. Salardino approached J.B. and told her that she had to remove Outlaw from the property or he would be arrested or taken to the hospital. He watched as J.B. helped Outlaw walk away from the building in the direction of Woodbridge. Salardino went inside the 7-Eleven, and when he returned, J.B. and Outlaw had gone.

J.B. testified, as she tried to drag Outlaw behind the 7-Eleven, he "backhanded her." She got angry and told him he "can go to jail." At that moment defendant walked up to her. He said his name was David and told her, "You look like you need a clean up." He asked if she was okay and if she needed a ride. J.B. told him that he could take her to Roosevelt Park to look for Outlaw's dog who was near the tent where they had been living. Defendant agreed. J.B. got into the towing van, and they drove off. During the ride, defendant asked her name and how old she was. J.B. told him her name but did not give her age. At the park they talked for about fifteen minutes. After J.B. asked the defendant if he knew of a homeless shelter, defendant called a friend who told him of one far away.

Defendant then offered to take J.B. to a motel so she could take a shower. She agreed. They went to a cash machine for the defendant to withdraw money. Defendant then drove with J.B. to the Beauty Rest Motel and paid for a room. His signature on the motel registration card indicated his first name was "Alan." The last name was impossible to read. J.B. testified that when they got to the room, defendant slammed the door and grabbed her. She said he punched her in the ribs several times, causing her to loose her breath. He then threw her on the bed and pinned her down. J.B. said defendant had a deformed arm, but was able to restrain her with his good arm. He sat on one of her arms and bound her hands. He pushed up her shirt and fondled her breasts. He removed her pants, fondled her vaginal area, and penetrated her with his penis. J.B. said she asked defendant to stop, but he did not. He rolled her over on her stomach and raped her anally. J.B. struggled throughout, told defendant to stop, and told him he was not going to get away with it.

J.B. testified that after defendant finished sexually assaulting her, he got dressed and told her not to tell anyone or he would kill her. After he left the room, J.B. was afraid to leave because she was afraid he was still outside. She took a shower and walked to a nearby convenience store to purchase a telephone card. She called Gary Kopsa, the supervisor of the Wyoming Girls' School, and told him that she was in New Jersey, had just been raped, and did not know what to do. Kopsa told her to hang up and call the police, which she did.

At 5:30 a.m. Edison Police Officer Michael Muldowney responded to J.B.'s call and found her at a gas station near the motel. He took her back to the motel, secured the room where she had been and took her statement. J.B. admitted that she had run away from the Wyoming correctional facility, and as a result she was placed under arrest. She was taken to a hospital because her ribs were sore and then to a rape crisis center. Adrienne Garber, the nurse at the rape crisis center, examined J.B. and testified that she had bruising in her calf and thigh area, scratches, and a black and blue mark on her abdominal area. She used a rape kit to collect evidence of vaginal penetration. She did not take an anal specimen because J.B. denied any anal contact had occurred. J.B. explained in her testimony that she was embarrassed to acknowledge the anal sex. She also told Garber she had not showered because she knew she was not supposed to shower after such an incident.

On cross-examination J.B. admitted that she had purchased pills on the street to get high and that she had taken them before this incident. She also acknowledged that she was serving a one to four-year term in a state penitentiary in Wyoming after pleading guilty to car theft.

The investigation began to focus on defendant after Bridges, the first officer who had seen J.B. at the 7-Eleven, told Muldowney that he saw a towing vehicle from Express Automotive at the scene. Muldowney later learned defendant's name from the owner of the towing company. On July 11, 2001, investigator Todd Gerba of the Middlesex County Prosecutor's Office, along with Detective Canavera and an Edison patrolman, went to the towing offices. Defendant arrived at 9:15 a.m., and at that time was told he was a suspect. He agreed to go to the Edison police headquarters. During the trip he was handcuffed for security purposes because the officers had arrived in an unmarked police vehicle with no cage equipment.

After he was unhandcuffed, defendant was read his Miranda rights. Defendant agreed to speak to the police. The interview began at 9:35 a.m. and ended at 11:10 a.m. Although defendant admitted he had intercourse with J.B., he maintained it was consensual. Later, however, defendant admitted he had sexually assaulted J.B. He agreed to make a taped statement. In the taped statement played for the jury, defendant said that in the early hours of July 10, he stopped at the 7-Eleven and saw a police officer talking with a girl. He heard her tell the officer that she and the intoxicated man with her were homeless. Defendant said that J.B. came over to him after the officers left and said "can you take me away." They first went to the park, and he made some calls to locate a homeless shelter. J.B. asked him if she could go to his house to take a shower, but instead he offered to give her money for a motel room. Defendant withdrew the money from a cash machine and drove with J.B. to the Beauty Rest Motel.

When they walked into the room, defendant said he "snapped." He grabbed J.B., pushed her on the bed, hit her, and had forceable sexual intercourse with her. He admitted holding J.B. down to restrain her, and said he "blanked everything else out." He did not recall if he ejaculated. He denied that they had any sex other than vaginal intercourse. He said it happened "cause [he] just wanted to have sex and she was there." Defendant said that at first he denied raping J.B. because he "had a hard time dealing with it." He said he felt:

Like a shit, like I was wrong, like I need some help, big time. . . . I want to square this up, I want to apologize to her. I want to, I gotta, it's in my head, I gotta do something to show her it wasn't her fault, it wasn't her, it was me. I mean, right now I feel like, I actually shouldn't be living right now.

Results of the DNA test on the rape kit samples collected from J.B. on the date of the incident confirmed that defendant was the source of DNA on the vaginal swab.

At trial, defendant testified that his sexual encounter with J.B. was consensual. He said when he approached J.B. at the 7-Eleven to ask if she needed assistance, she asked for a ride. When she got into the van, she told him she had no friends and nowhere to go. He testified she made suggestive remarks, saying she was "horny." He offered to drive J.B. to a motel so she could shower and sleep and have sex with him if she wanted. When she agreed, he withdrew $60 from an ATM, drove to the Beauty Rest Motel and registered for a room. He said J.B. went into the bathroom to shower and came out wearing only a towel. She then dropped the towel and said, "You want this" and began to kiss him. He claimed she climbed on top of him and engaged in consensual vaginal intercourse. Defendant added that before he left he gave J.B. $7.00 for bus fare to a shelter in New Brunswick.

When asked about his taped statement, defendant said it was involuntary, and the result of police coercion. He said he was not advised of his rights when the questioning began and then told the interrogator "his side of the story" at least five times. He said Investigator Gerba and Detective Canavera yelled at him that he was lying, grabbed his chair, and threatened to burn him unless he told them "what they needed to know." They added that if he admitted that the sexual encounter was not consensual he could return to work. Defendant said that after he was worn down, he told them what they wanted to hear.

The jury returned its verdict of guilty of count one, sexual assault of J.B., and not guilty of count three, charging terroristic threats. Count two alleging aggravated assault had been dismissed at the conclusion of the State's case. Defendant was sentenced on April 30, 2004. This appeal followed.

Defendant makes the following arguments:

POINT I - THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE FROM IMPEACHING J.B.'S CREDIBILITY WITH PROOF OF PRIOR INSTANCES OF LYING TO THE AUTHORITIES CONSTITUTED A MISAPPLICATION OF N.J.R.E. 608, VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT II - THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE HIS ORAL AND TAPED RECORDED STATEMENTS MADE TO INVESTIGATOR GERBA SHOULD HAVE BEEN SUPPRESSED.

POINT III - ADMISSION OF J.B.'S OUT-OF-COURT STATEMENT TO WARDEN KOPSA UNDER THE "FRESH COMPLAINT" DOCTRINE CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF CRIMINAL SEXUAL CONTACT. (Not Raised Below.)

POINT V - PHILIP BEESLEY'S TESTIMONY THAT J.B. WAS THE "VICTIM" CONSTITUTES PLAIN ERROR. (Not Raised Below.)

POINT VI - THE CUSTODIAL BASE SENTENCE OF EIGHT (8) YEARS WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

A. IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORY AUTHORIZED MINIMUM SENTENCE OF FIVE (5) YEARS ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE SEXUAL ASSAULT ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

B. IMPOSITION OF A SENTENCE IN EXCESS OF THE THEN-PRESUMPTIVE SEVEN (7) YEAR SENTENCE FOR SECOND DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

I

Defendant contends that his oral and tape recorded statements should have been suppressed as the result of "impermissible coercion." In the pre-trial Miranda hearing, Gerba testified that on July 11, 2001, he and Canavera went to defendant's place of employment. They met him when he arrived at 9:15 a.m., and told him that he was a suspect in a sexual assault investigation. He agreed to accompany them to police headquarters for questioning. At the police station, Gerba said he advised defendant of his Miranda rights and, at 9:30 a.m., defendant signed the form waiving his rights. Gerba said at no time thereafter did defendant request an attorney or indicate he did not wish to speak to the detectives. Gerba said defendant was "quite lucid" and did not appear to be under the influence of anything that would have impaired his ability to understand his rights.

Gerba said that at first defendant steadfastly maintained he and J.B. had consensual sexual relations. After they reviewed defendant's version with him five times, defendant was told that the victim was very traumatized which indicated that she had been sexually assaulted. At approximately 10:45 a.m., defendant refuted his earlier statement. He told the detectives that he "snapped," punched J.B. in the ribs, and sexually assaulted her. He then consented to make the tape-recorded statement, which began at 11:13 a.m. and ended at 11:36 a.m.

Defendant did not testify or offer any evidence at the Miranda hearing. He argued the statement should be suppressed because Gerba was not credible. He said the testimony of Gerba showed he was under arrest from the time he left his place of employment and that his statement was the result of "repeated suggestive coercion."

The trial judge found that the State had met its burden of proof under the totality of the circumstances that defendant's statement was knowing, intelligent and voluntary. The court listened to the taped statement and found that "the tenor and tone of the defendant's voice . . . and the manner in which he delivered his responses in no way indicated that such statements were the product of any force [or] coercion." Rather, his responses were provided "in a clear and lucid fashion" with "no hint of undue influence, force, or coercion" and "clearly no mention of promises having been made to him." The judge acknowledged that defendant was in custody from the time he was handcuffed and placed into the police vehicle, but underscored that no statements were extracted from him during the ride to the police station, and no interrogation took place prior to administration of the Miranda warnings. The court therefore denied defendant's motion to suppress the statement.

On appeal, defendant proffers the general proposition that the police engage in unfair conduct when they fail to "scrupulously honor a denial of guilt by the defendant and cease interrogating him." He contends that to continue to question a defendant after he denies guilt, in the absence of administering fresh Miranda warnings, is unfair and grounds to suppress any admissions or statements. However, there is no legal or constitutional basis for defendant's contention that the police must cease questioning after a defendant states his innocence to the charge.

Once the police have notified a suspect of his or her constitutional right against self-incrimination through administration of the Miranda warnings, and that individual "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 1627, 16 L. Ed. 2d 694, 723 (1966). The police must "scrupulously honor" a suspect's invocation of his or her right to remain silent. Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975); State v. Harvey, 151 N.J. 117, 221 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Police questioning may not resume absent the administration of fresh Miranda warnings. State v. Hartley, 103 N.J. 252, 287 (1986).

In this case, however, at no point did defendant assert his right to remain silent; he makes no claim that he did. He asserts an analogous right to have questioning cease once a suspect asserts innocence and cites Hartley as comparative support for his argument. But Hartley provides no legal support for the rule that defendant urges because it involved the admissibility of a defendant's inculpatory statements after he had received Miranda warnings and asserted "in clear and unequivocal terms" his right to remain silent. Hartley, supra, 103 N.J. at 255.

The Fifth Amendment right against self-incrimination confers the right not to offer evidence against oneself. State v. Strong, 110 N.J. 583, 593-94 (1988). It does not provide the right to perjure oneself in the courtroom with impunity or to waive the right to remain silent and then offer lies to the police. We hold that a suspect's right against compelled self-incrimination is not offended by police persistence in questioning a suspect absent an assertion of the right to be silent or a refusal to speak further.

The next inquiry is whether the degree of compulsion employed by the police was such as one to render the statement involuntary. Defendant argues that the record shows that after he asserted five times that he was not guilty of sexual assault, Gerba continued to question him in an "adversarial" manner until he relinquished his defense of consent as a result of the "police enticement, coercion and encouragement." However, there is no evidence of coercion. Gerba testified and the judge found defendant was lucid, and he had submitted no evidence of mental vulnerability due to intellectual deficiencies or the influence of drugs or alcohol during his questioning. The interrogation took place in the morning within a relatively short period of time, one-and-a-quarter hours, before defendant changed his story. There is no evidence that defendant was coerced with promises, or by any means other than an unchallenged description of the victim's traumatic reaction and the persistent expressions of disbelief by the police. Defendant offers no evidence of the "encouragement" and "enticement" that induced him to change his story, and there is no basis in the record to conclude that any inappropriate tactic was employed.

A defendant's confession obtained during a custodial interrogation is admissible if the defendant was provided with a warning of his rights under Miranda v. Arizona, and if the statement resulted from a voluntary, knowing, and intelligent waiver of those rights. State v. Knight, 183 N.J. 449, 461-62 (2005); State v. DiFrisco, 174 N.J. 195, 235 (2002), cert. denied, 537 U.S. 1220, 123 S. Ct. 1323, 154 L. Ed. 2d 1076 (2003); State v. Cooper, 151 N.J. 326, 354 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). At a suppression hearing, the State bears the burden to prove the voluntariness of a confession beyond a reasonable doubt. State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Kelly, 61 N.J. 283, 294 (1972). The State produced evidence accepted by the court that defendant never asserted his right to remain silent or to halt questioning. Therefore, the only issue was whether his waiver was voluntary.

The issue of voluntariness involves judicial examination of the totality of the circumstances. State v. Galloway, 133 N.J. 631, 654 (1993) states that relevant factors in the analysis include "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Ibid. Other relevant factors include the defendant's previous encounters with law enforcement, and the time between the administration of the Miranda warnings and the confession. State v. Knight, supra, 183 N.J. at 463. In this case, the trial judge determined that there was no evidence of coercion. The record supports the conclusion that defendant's waiver of his Miranda rights was knowing, intelligent and voluntary. Accordingly, we uphold the trial judge's denial of defendant's motion to suppress his inculpatory statements.

II

Defendant next argues that the court abused its discretion when it allowed "fresh-complaint" testimony from Kopsa, the superintendent of the Wyoming Girls' School. At a hearing outside the jury's presence, Kopsa testified that he had been superintendent of the correctional school since 1989. The school served approximately eighty-five to ninety-five students. J.B. had been placed at the school twice, arriving the last time on January 21, 2001. Kopsa had known J.B. for three years prior to June 2001, and he indicated he knew her "pretty well" because he frequently interacted with all of the students. He said that when J.B. had questions or problems she would often talk with him. Kopsa said that in the late night phone call on July 10, 2001, J.B. "sounded somewhat pathetic, reluctant to talk, depressed, and fragile." He interpreted her call as a cry for help, and to ask "what do I do now."

The trial judge held the testimony admissible under the fresh-complaint doctrine. He found that although the call was not an "excited utterance," it was made in close proximity to the alleged assault made by J.B. to a person in a position of authority, with whom she had previously discussed her problems and could be considered "a natural confident." Kopsa then testified before the jury that J.B. called him early that morning from New Jersey and "indicated that she had been sexually assaulted or raped and the conversation essentially centered on around what to do and how to address the issue." He offered no testimony as to any details of the assault given by J.B.

Testimony admitted under the common law fresh-complaint rule "is to prove only that the alleged victim complained, not to corroborate the victim's allegations concerning the crime." State v. Bethune, 121 N.J. 137, 146 (1990). The victim's statements must be to a person the victim "would ordinarily turn to for sympathy, protection and advice." State v. R.B., 183 N.J. 308, 318 (2005) (quoting State v. Balles, 47 N.J. 331, 338 (1966)). Only the fact of the complaint, with no details of the alleged incident, is admissible. State v. Hill, 121 N.J. 150, 163 (1990). The decision whether to admit the evidence rests with the sound discretion of the trial court. State v. L.P., 352 N.J. Super. 369, 381 (App. Div.), certif. denied, 174 N.J. 546 (2002).

Defendant argues that the fresh-complaint doctrine does not permit the superintendent or warden of a correctional facility to testify as to a fresh-complaint statement of an inmate or a resident, and also that Kopsa was not a "natural confidante" of J.B. However, the standard for admissibility focuses on the actual circumstances of the individual's relationship with the victim, rather than any legally prescribed role or title. Kopsa's testimony established that as a result of his relationship with J.B., he would be one to whom she would turn to for support and advice. The trial judge properly restricted the use of the testimony to limit its admission to fact of the complaint itself. Defendant's contention that J.B.'s statement to Kopsa was unreliable because, as an escapee she wanted "to engender sympathy" and "compassion," amounts to nothing more than defendant's interpretation of the facts that is left to the jury to consider. We conclude the fresh-complaint evidence was properly admitted.

III

Defendant next argues that the trial judge committed reversible error by precluding him from impeaching J.B.'s credibility by excluding evidence of instances of her lying to authority figures. In a pre-trial motion, defendant sought to admit an unsigned letter by J.B. dated March 8, 2001, entitled "My Life History," in which J.B. allegedly made certain statements regarding her life. The letter, which provided no dates or time period for the events it related, said: "I always lie to get my way. I hate being told what to do and would manipulate to get my way. . . . I would tell lies to my teachers and call them foul names." Defendant argues that the lies J.B. said she told to the teachers is the predicate basis to show she would lie to authority figures such as police to get her way. Defendant also claims that the following contents of the letter were both relevant and admissible:

I would claim I was crazy, request to go to the state hospital. I got my request. When I got there I acted out in several instances. Okay. That's the fourth one. The fifth one is, they send me to St. Joseph's Children's Home where I lie to everyone, action seek [sic] and faked my way out of the program. The sixth one as I perceive it is, they send me to W. B. I., Wyoming Behavioral Institute . . . . There was a twig at first, got into a fight with a girl and was still lying about a lot of the things. So the judge decided that I would come back up here. The seventh one is, while been here I have wasted a lot of people's time by lying to them and action seeking. And the eighth one is telling lies to get them in trouble or to get the action off them.

The court found that the evidence from the "My Life History" document was inadmissible under N.J.R.E. 608 because it involved specific acts of misconduct being used to attack the credibility of the witness, which is disallowed under N.J.R.E. 608. That rule reads as follows:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609, a trait of character cannot be proved by specific instances of conduct.

Defendant argues the trial court misapplied N.J.R.E. 608 and violated his constitutional right to confrontation. He points to N.J.R.E. 404(a)(1) to (3) as establishing exceptions to N.J.R.E. 608. Defendant acknowledges that other than a prior conviction of a crime, evidence of specific instances of conduct to prove the character trait of untruthfulness is precluded by N.J.R.E. 608. However, defendant further asserts that our Supreme Court established an exception in State v. Guenther, 181 N.J. 129, 140-41 (2004) to permit impeachment of a witness-victim's credibility with proof of prior instances of lying.

Defendant overstates the holding of Guenther. There the defendant was convicted of sexual assault of his step-daughter after he was denied the opportunity to present evidence of a prior false accusation of sexual abuse she had made against a neighbor. The Court created a narrow exception to N.J.R.E. 608 to permit a defendant "in limited circumstances and under very strict controls . . . to show that a victim-witness has made a prior false criminal accusation" to impeach that witness's credibility. Id. at 151, 154. The Court directed that the trial court conduct an admissibility hearing pursuant to N.J.R.E. 104 to "determine by a preponderance of the evidence whether the defendant has proven that a prior accusation charging criminal conduct was made by the victim and whether that accusation was false." Id. at 157.

However, the Guenther limited exception does not abrogate the thrust of N.J.R.E. 608 so as to permit impeachment of a victim-witness with evidence of past lying. The Court specifically restricted the impeaching evidence to false assertions of criminal conduct relevant to the charge against the defendant. Moreover, the defendant's contention that J.B.'s admissions of lying to her teachers was the equivalent of lying to "authorities" has no support, for the "authorities" in Guenther were within the criminal justice system, and the lies involved the victim's prior accusations of criminal conduct.

Accepting defendant's interpretation of Guenther would result in innumerable mini-trials. In this case it would require the trial court to determine the falsity or truth of admissions or boasts of in-school misbehavior and manipulation, grounded on nothing more evidential than a teenager's undated letter. The collateral nature of such a hearing would create precisely the issues of confusion and waste of judicial resources that N.J.R.E. 608 was designed to avoid. See Guenther, supra, 181 N.J. at 141-42. Therefore, the decision of the trial judge declining to permit the use of J.B.'s letter for impeachment purposes was proper.

IV

Defendant next argues that it was plain error for the court to accede to his trial counsel's objection to the State's request for a jury instruction on criminal sexual contact as a lesser-included offense of sexual assault. During the charge conference, the State requested the jury be instructed on the lesser-included offense of criminal sexual contact. Defense counsel objected that there was no basis for the charge because the evidence offered two diametrically opposed scenarios as to what took place, one indicating sexual assault and the other, consensual sexual activity. Defendant's trial counsel asserted that the lesser-included charge instruction would be applicable only if the victim had indicated she permitted some sexual contact which was contrary to the trial testimony. The court agreed stating it would not give the charge, "[i]n light of the defense's strong position against such a lesser offense and in light of the proofs." Defendant now reverses course and argues that the State's request shows that he could have been found guilty of the lesser-included offense based on the evidence in the record and, accordingly, contends that omission of the charge resulted in prejudice amounting to plain error.

In circumstances where the facts rationally support the charging of a lesser-included offense, the public interest may require that a jury be instructed on its option to find the defendant guilty of the lesser offense, even if neither side has requested the instruction. State v. Choice, 98 N.J. 295, 298-99 (1985); State v. Powell, 84 N.J. 305, 319 (1980). However, a trial court has no obligation on its own to sift through an entire record to determine if some combination of facts and inferences might rationally sustain a finding of guilt on the lesser-included charge. State v. Choice, supra, 98 N.J. at 299. As recently stated by our Supreme Court, "[C]ourts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted." State v. Denofa, 187 N.J. 24, 42 (2006). The trial court's sua sponte obligation to charge on lesser-included offenses arises "[o]nly 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." Ibid.

Under our proper scope of review, where a defendant has affirmatively objected to an instruction on a lesser-included charge, we consider whether the trial court's decision not to charge the offense resulted from the defendant's invitation or encouragement, or if the court arrived at that decision independent of the defendant's position on the issue. State v. Jenkins, 178 N.J. 347, 359-60 (2004). If the trial court reached its conclusion at the defendant's behest, then the doctrine of invited error precludes relief on appeal. Id. at 358-60. A defendant is not entitled to advocate a particular course of action, gain the trial court's acceptance, and upon an unfavorable outcome, on appeal "condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Id. at 358 (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). However, if the court's decision to forego the instruction was based on its own evaluation of the record rather than the defendant's expressed trial strategy, but the defendant failed to object to the lack of instruction, then the issue is reviewed under a plain error standard. Id. at 360. We then consider if the trial court's decision not to give the charge was erroneous and if such error was clearly capable of leading the jury to an unjust result. Id. at 360-61.

Certainly, any error resulting from omission of a lesser-included charge sub judice was invited by defendant. Even ignoring that, there was an insufficient factual basis for the court sua sponte to give the instruction in the face of the defendant's objection, as well as an insufficient showing that the alleged error could have led to an unjust result.

The crime of sexual assault is defined by N.J.S.A. 2C:14-2(c), which provides that a defendant is guilty of that offense if he commits an act of sexual penetration with another person using physical force or coercion, and the victim does not sustain severe personal injury as a result. In contrast, under N.J.S.A. 2C:14-3, a person is guilty of criminal sexual contact if he commits "an intentional touching . . . 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:14-1(d). In this case, the only evidence that some aspect of the assault involved sexual touching without penetration was J.B.'s testimony that defendant had fondled her breasts. But the jury's only option was to believe defendant's trial testimony that all the sex was consensual, or believe his prior statement to police and J.B.'s trial testimony that he had sexual intercourse with J.B. using physical force. Based on the evidence, the jury could not have acquitted defendant of sexual assault and found him guilty only of criminal sexual contact. Therefore, there was no error in the omission of the lesser-included instruction to the jury.

V

Defendant's argument that he was prejudiced after a State's witness referred to J.B. as the "victim" has some merit. During Kopsa's cross-examination, the prosecutor made an objection during which she referred to J.B. as "the victim," which prompted the following exchange:

[PROSECUTOR]: Your Honor, I'm going to object. This is beyond the scope of the direct and this evidence deals with the victim. Mr. Kopsa is quite obviously not the victim.

THE COURT: I'm going to sustain the objection.

[DEFENSE COUNSEL]: I object to her being called the victim, Judge. That is a conclusion.

[PROSECUTOR]: No, it is not a conclusion. It is in the indictment and it is in the charges.

THE COURT: Overruled.

[DEFENSE COUNSEL]: Judge, again I would reiterate my objection to calling [J.B.] a victim. That is a question for the jury's determination. That is entering the province of the jury. the defense is contending she is not.

THE COURT: I understand. It is a label that is most commonly used in these kinds of matters.

[DEFENSE COUNSEL]: It is unfair.

THE COURT: It's a label. The jury understands their function with respect to the determination of innocence or guilt in this case and the use of that label.

Subsequently, the jury heard testimony from Phillip Beesley, a forensic scientist with the New Jersey State Police, who was qualified as an expert in the area of biochemical analysis. Beesley testified the tests he conducted showed the presence of sperm on vaginal and cervical samples taken from "the victim." At one point he explained that certain receipts were for swabs from the "victim" and others were for the "suspect's" samples. Defendant did not object to this testimony. On cross-examination she questioned Beesley as follows:

[DEFENSE COUNSEL]: S-12 for identification. Okay Number three indicates V for victim?

[BEESLEY]: Mm-hmm.

Q. In this case the alleged victim [J.B.], is that correct?

A. Mmm-hmm.

In most criminal cases the fact that the person was a victim of a crime is unchallenged, and the jury's role is to determine the degree or type of crime and if the defendant was the perpetrator. However, the nature of this case requires the jury to determine whether a crime had been perpetrated. J.B. could properly be termed the victim of a sexual assault only upon the conclusive determination by the jury that the defendant committed a sexual assault upon her using force or coersion. Referring to the complaining witness or alleged victim as "the victim" may be viewed as an expression of opinion that her version of events was credible and defendant's testimony mendacious. It could also cause the jury to misapprehend its role as the sole arbiter of guilt or innocence and the credibility of witnesses. Cf. State v. Landeros, 20 N.J. 69 (1955). Worse still, the designation of a complaining witness as "the victim" possesses the danger of diluting or diminishing the presumption of innocence central to criminal jurisprudence. See In re Yengo, 84 N.J. 111, 120 (1980); State v. Daniels, 182 N.J. 80, 97-98 (2004).

That being said, the reference to J.B. as "the victim" by Beesley is harmless error. He was not an investigating officer or one intimately acquainted with the opposing version of events resulting in the charges against defendant. His pertinent testimony related that he was requested to analyze specimens from one person identified to him as the victim or alleged victim and the other from a suspect. It cannot be reasonably inferred that he was expressing an opinion as to the credibility of either. Furthermore, the fleeting references to J.B. as the victim by the prosecutor and Kopsa are overshadowed by the overwhelming evidence of defendant's guilt. The statements do not call for a reversal of the jury's decision.

VI

The trial judge imposed a sentence of eight years with a NERA parole disqualifier, which was one year above the seven-year presumptive term for second degree sexual assault. N.J.S.A. 2C:44-1(f)(1)(c). As the State concedes, in accord with State v. Natale, 184 N.J. 458 (2005), we must remand for re-sentencing.

Defendant's conviction is affirmed. His sentence is vacated, and the matter is remanded for re-sentencing.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The source of the document is unclear from the record. The prosecutor asserted during oral argument before the trial court that it was written in the course of therapy.

N.J.R.E. 609 permits the introduction of evidence of a criminal conviction "[f]or the purpose of affecting the credibility of any witness."

N.J.R.E. 404 reads:

Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes; Evidence:

(a) Character evidence generally. Evidence of a person's character or character trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion except:

(1) Character of accused. Evidence of a pertinent trait of the accused's character offered by the accused, which shall not be excluded under Rule 403, or by the prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness as provided in Rule 608.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

(c) Character and character trait in issue. Evidence of a person's character or trait of character is admissible when that character or trait is an element of a claim or defense.

(continued)

(continued)

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A-1051-04T4

RECORD IMPOUNDED

June 15, 2007