STATE OF NEW JERSEY v. GERARD VERRICO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5046-04T45046-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERARD VERRICO,

Defendant-Appellant.

_______________________________

 

Submitted February 13, 2007 - Decided May 17, 2007

Before Judges S.L. Reisner, Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-12-3976-I.

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).

Kenneth P. Ply, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Mr. Ply, of counsel and on the brief).

PER CURIAM

On December 16, 2003, defendant Gerard Verrico was indicted by an Essex County grand jury in a six-count indictment charging him with first-degree kidnapping, in violation of N.J.S.A. 2C:13-1 (count one); first-degree aggravated sexual assault by fellatio, in violation of N.J.S.A. 2C:14-2(a)(4) (count two); first-degree aggravated sexual assault by vaginal penetration, in violation of N.J.S.A. 2C:14-2(a)(4) (count three); third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3(a) (count four); fourth-degree unlawful possession of a knife, in violation of N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a knife for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count six).

After pretrial hearings where the judge denied defendant's motions to dismiss count one, suppress physical evidence, and suppress statements made by defendant, a six-day trial was held. Defendant was found not guilty of the first-degree kidnapping charge in count one, but guilty of the lesser-included offense of criminal restraint. He was found guilty of the remaining crimes charged in counts two through six.

On March 18, 2005, the judge merged counts four and six with count two. Defendant was sentenced to four years without parole on count one (criminal restraint) concurrent to count two; two concurrent fifteen-year prison terms on counts two (aggravated sexual assault by fellatio) and three (aggravated sexual assault by vaginal penetration) with an 85% period of parole ineligibility; and fifteen months without parole on count five (unlawful possession of a knife), concurrent to count two, for an aggregate term of fifteen years with twelve years and nine months of parole ineligibility. Defendant was also sentenced to five years probation upon release from prison and community supervision for life, pursuant to Megan's Law. Appropriate fines and penalties were imposed.

On May 16, 2005, defendant filed this appeal, which we accepted as timely.

I.

The State offered the following proofs at trial: According to the victim, J.L., in May 2003, the victim, J.L., had been working as a receptionist for a beauty salon for a year and a half and was in school studying cosmetology. Prior to May 2003, J.L. had a "friendly" relationship with defendant and claimed to have seen him about once every two weeks, but only through the salon. Beginning "three to four weeks before May 21st, 2003," J.L. had dozens of telephone conversations with defendant outside the salon, which she testified related to puppies that defendant wanted to show her.

On May 21, 2003, J.L. and defendant met at Clifton Commons Mall at about 3:00 p.m., as previously arranged. J.L. parked her car at Clifton Commons and got into defendant's car. Defendant drove her to his house, about five minutes away. J.L. followed defendant into his house after defendant had J.L. wait at the front door so that he could hold back one of this dogs.

J.L. asked to use the bathroom and ascended a flight of stairs to access the bathroom. Defendant instructed her to exit the bathroom by going through the bedroom where defendant would be waiting because the dog would be free in the rest of the house. When J.L. exited into the bedroom, defendant closed and locked the door to the bathroom. The door leading from the bedroom to the hallway had been blocked by clothes or a dresser. After J.L. asked defendant where the puppies were located, defendant responded that there were no puppies. He told her to give him a kiss and then took out a knife. J.L. refused and tried to use her cell phone to call for help, but defendant knocked her down, grabbed her phone, and hit it against a wall until it broke.

J.L. began hyperventilating and was told by defendant to stop screaming or he would kill her. He attempted to calm J.L. down by offering her a pipe, which she refused, and told her that he just wanted to lie with her. The whole time, defendant still held the knife. J.L. then lay down on the bed, but she grabbed a second knife located on the other side of the bed when defendant was not looking. Defendant asked if she was going to kill him, to which she responded, "[N]o, just put the knife down[.]" Defendant then threw J.L. to the floor and grabbed the second knife. The entire time J.L., in an attempt to leave, kept telling defendant that she had to go see her cousin.

Thereafter, J.L. began screaming, despite threats from defendant that he would kill her if she didn't stop. Defendant used the first knife to cut the sleeve off a shirt and tied it around her mouth. Defendant then removed J.L.'s pants, underpants, and shirt and made J.L. remove defendant's pants. Defendant took a bottle of tanning lotion and squirted it all over J.L. Defendant was still holding the knife and he restrained J.L.'s hands over her head with his free hand. He placed his penis in J.L.'s vaginal area, but could not become aroused. He then forced J.L. to perform oral sex on him to the point of ejaculation and threatened to kill her if she bit him. After ejaculating on J.L.'s torso, defendant got off J.L. She then wiped herself off with a towel, dressed, gathered her belongings, and kept saying that she had to leave. Both the towel and the gag were left at defendant's residence.

J.L. then went downstairs with defendant, got into his car, and was driven back to her car at Clifton Commons Mall. J.L. testified that she had no other way of getting back to her car and that she was in shock. During the ride defendant kept saying that he was going to kill himself. Defendant dropped off J.L. and asked if he could call her later but she did not respond.

After J.L. went to her car and drove off, she tried to use her cell phone, but it would not work. J.L. waved down drivers to ask to use a cell phone to call the police and someone in the second car she was able to wave down contacted the police for her. After the police arrived, J.L. told them what had happened.

Kenneth Watson, a ten-year Nutley Police Detective, investigated J.L.'s complaint. J.L. first directed Watson to the address where the assault occurred, and then they went to police headquarters. Watson observed J.L. to be "visibly upset and shaken." Before taking her to the hospital, he began to question her and took photographs of her, but he did not take a complete formal statement at that time. He observed red marks on the back of J.L.'s neck where defendant placed the gag. He tagged J.L.'s cell phone as evidence and noted that its antenna was missing. The police transported J.L. to the hospital accompanied by her parents, who arrived at the police station after J.L. called them from the station. When at the hospital, the medical staff took J.L.'s clothing and performed certain tests and procedures. Watson took J.L. back from the hospital to the police station and took a formal statement. He did not observe her to be under the influence of any intoxicating substance.

Defendant, meanwhile, went to purchase some cocaine and received a call from the Nutley Police advising him that they were looking for him. He returned home, was arrested, and taken to the Nutley Police Headquarters.

At about 6:30 a.m. on May 22, Watson interviewed defendant in the presence of Narcotics Investigator Agostino Formato and Detective Sergeant Gail Ferrara. Watson read defendant his Miranda rights. Defendant waived those rights and told Watson that he and J.L. were to meet at Clifton Commons on May 21 to purchase cocaine. Defendant said that he was often hanging out with J.L. and thought that she liked him, but they were not dating and had not kissed. He said when they met on May 21, they smoked cocaine together. He then told Watson to "forget it" and said that "she didn't do nothing." He denied inviting J.L. over to see a puppy and stated that he only had a ten-year-old dog.

Formato again raised the question about drugs and defendant responded that he had a cocaine problem and used it for back pain, since he could not get any more prescriptions for Oxycontin. He denied being under the influence of any drugs since May 21 "around 4 or 5 p.m." He admitted that he had sex with J.L., "but she wanted it." After being questioned about the rag with which J.L. claimed to have been gagged, defendant started to cry and said, "okay, I did it. It wasn't me. I mean, it's not that. It's not like me. I became someone else. I did it to her. I'm sorry. I'm sorry." Defendant gave a signed statement which, by and large, corroborated J.L.'s description of the incident, adding that he started smoking cocaine after locking the door.

Nutley Police Investigator Chris Cosgrove searched defendant's home with Investigator Robert Flanigan after obtaining a search warrant. He confirmed that there was a lock in the bedroom that prevented someone from entering the bedroom through the bathroom door. He described a number of items from the bedroom that were admitted into evidence: a pair of blue sweatpants with stain marks found in the middle of the bed; a knife and a black cloth that was in a circle with a knot at the foot of the bed; tropical tanning lotions; "a black, long-sleeved tee shirt type material" from the floor that had one sleeve with "jagged edges where they were cut with scissors or a knife of some type"; a cellular phone antenna; a white T-shirt in a laundry basket with possible semen stains; and an unsheathed dagger partially under the bed. Drug paraphernalia (canister of butane, a lighter, and a scorched spoon) were also seized.

At trial, defendant testified that J.L. consented to the sexual activity. He also denied that he gave the police a statement and claimed that he signed it not knowing what it said, blaming it on his bad vision and the fact that he was high on cocaine. He also said that he had asked for an attorney. Formato contradicted him and testified that defendant read and signed his statement, did not appear to be under the influence of drugs, and never asked for an attorney.

Kerry O'Toole, a biochemical analyst, tested the knotted cloth from defendant's apartment, found five stains that were possibly saliva stains, and forwarded the evidence for a DNA analysis. Lynne McBride, a forensic scientist, performed a DNA analysis of the dried fluids found on the T-shirt and testified that they were semen stains made by defendant. She also testified that the stains found on the sleeve used as a gag were made by saliva that contained J.L.'s DNA.

II.

On appeal, defendant presents the following arguments for our consideration:

POINT I - THE JURY INSTRUCTIONS WERE A CONFUSING, SCATTERED HODGEPODGE IN WHICH SOME OFFENSES AND LEGAL CONCEPTS WERE EITHER TOTALLY OMITTED OR WERE INCORRECTLY OR INCOMPLETELY CHARGED TO THE JURY. (Partially Raised Below)

A. The Intoxication Charge.

B. Aggravated Sexual Assault by Oral Penetration And The Lesser Included Offense Of Sexual Assault By Oral Penetration.

C. Aggravated Sexual Assault By Vaginal Penetration And The Lesser Included Offenses Of Sexual Assault By Vaginal Penetration, Aggravated Criminal Sexual Contact and Criminal Sexual Contact.

D. Terroristic Threats.

E. Charge On Statements Of Defendant.

F. Conclusion.

POINT II - IN THE CONTEXT OF THE THEORY OF THE DEFENSE THAT J.L. AND DEFENDANT SHARED A PAST SEXUAL RELATIONSHIP PREMISED UPON THEIR SHARED USE OF ILLICIT DRUGS, THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO PRESENT EVIDENCE CONCERNING THE ALLEGED VICTIM'S PAST ABUSE OF ILLICIT DRUGS VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 1, 10).

POINT III - THE SENTENCE IMPOSED UPON MR. VERRICO IS MANIFESTLY EXCESSIVE.

Defendant's concerns on appeal regarding the jury charge were not raised below and, as a result, we review these concerns "through the prism of plain error." State v. Thomas, 187 N.J. 119, 133 (2006). R. 2:10-2; State v. Chapland, 187 N.J. 275, 289 (2006). Such error "shall be disregarded . . . unless [the error] is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. The plain error standard, as applied to a jury instruction, "requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Chapland, supra, 187 N.J. at 289 (quotations omitted). When reviewing jury instructions, we must examine each "remark in the context of the entire charge". State v. DiFrisco, 137 N.J. 434, 491 (1994). "In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.

III.

Defendant contends that the judge plainly erred when he detached the charge on an intoxication defense from the previously charged offenses. Furthermore, he contends that this charge "was an infirm truncated version of the intoxication charge."

After the judge had charged the jury on the various offenses and included offenses, the prosecutor alerted the court that it had not charged the jury on the defense of self-induced intoxication pursuant to N.J.S.A. 2C:2-8(a), as the judge had earlier ruled he would. In addition, the prosecutor pointed out that case law required that the charge on intoxication be given in the context of the charges respecting the substantive offenses. In giving this charge, the judge sought to remedy the prosecutor's concern by charging as follows:

The instruction of whether an individual acted purposely or knowingly, whether those definitions are found, you must decide in each one of these offenses that lists purpose or knowledge, whether or not the instruction I gave you on intoxicating substances applies. So it's not just given for kidnapping. If the defendant had to have done something either purposely or knowingly you would consider that instruction in kidnapping, for criminal restraint, aggravated sexual assault, sexual assault, aggravated sexual contact, sexual contact, terroristic threat, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. In every definition that has purpose and knowledge you must consider whether that's the case.

The following language found in the Model Jury Charge (Criminal), Intoxication Negating an Element of the Offense (Oct. 17, 1988), was omitted, as defendant points out:

Therefore, once the defendant produces some evidence of (his/her) intoxication, the State must prove beyond a reasonable doubt that such intoxication did not render defendant incapable of acting (purposely or knowingly).

. . . .

This distinction is important because, as explained, whether or not the defense of intoxication applies is a factual determination to be made by you.

You may also consider, along with all the other evidence, the degree of intoxication in determining whether or not the defendant was capable of acting with (purpose or knowledge) to commit the crime charged.

You will recall that I explained to you the elements of (crime), one of those elements was that defendant had to act with (purpose or knowledge).

(DEFINE PURPOSELY OR KNOWINGLY)

If after considering all the evidence you have a reasonable doubt whether defendant's intoxication was such as to render (him/her) incapable of acting (purposely or knowingly), then you must acquit (him/her) of (crime).

If, however, the State has proven to you beyond a reasonable doubt that the defense does not apply, and that the State has proven all of the elements of (crime) previously defined for you beyond a reasonable doubt, then you must find the defendant guilty. (Emphasis added to penultimate paragraph.)

At the very least, the charge actually given was plainly erroneous in that it omitted the portions of the charge respecting reasonable doubt and the State's burden to prove that the defense did not apply. Consequently, we must determine whether the "legal impropriety in the charge prejudicially affect[ed] the substantial rights of the defendant and [was] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Chapland, supra, 187 N.J. at 289 (quotations omitted). Therefore, we review the evidence to determine whether there was adequate support for a charge on intoxication.

In State v. Cameron, 104 N.J. 42 (1986), the Court reversed our decision that the trial court erred in not charging the jury respecting voluntary intoxication as negating an element of the offenses of which defendant was convicted. Id. at 46. After reviewing the development of the defense of intoxication, id. at 46-53, the Court turned to the quantum of proof that must be adduced to support the defense. Id. at 53-54. First, the Court articulated the standard of proof:

In order to satisfy the statutory condition that to qualify as a defense intoxication must negative an element of the offense, the intoxication must be of an extremely high level. Therefore, consistency between the definition of intoxication and the effect given it by the legislature require that the standard be "prostration of faculties." Less certain is how that standard is to be satisfied.

[Id. at 54.]

The Court then examined prior cases that found levels of intoxication that would satisfy the proofs required under N.J.S.A. 2C:2-8(a). Id. at 55-56. In formulating a standard to determine whether the proofs were sufficient to raise the defense of intoxication as negating an element of the offense, the Court held:

From all of the above we conclude that some of the factors pertinent to the determination of intoxication sufficient to satisfy the test of "prostration of faculties" -- a shorthand expression used here to indicate a condition of intoxication that renders the actor incapable of purposeful or knowing conduct -- are the following: the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events.

[Id. at 56.]

The State contends that the quantum of proof was insufficient to support giving the charge and, thus, any error was harmless. In support of the charge on intoxication as a defense, the defendant points to evidence adduced at trial that he told the police that he was high on Oxycontin and crack cocaine, that he said he "became someone else," "somebody totally different," and "it was like I was outside myself." He also testified that at the time of his arrest he "was very, very, very under the influence and not coherent to what was going on." Additionally, defendant's father testified that defendant's "face changes" whenever he uses drugs. The father testified that he was present when his son was arrested and that defendant "wasn't himself really." He believed that defendant "had taken something . . . I don't know if it was medication, his pain medication or what." Finally, defendant relies on the testimony of the victim that after the sexual assault was over, defendant's demeanor changed dramatically and that he held a knife to his own stomach and stated, "he was going to kill himself."

Defendant offered no proof as to the quantity of intoxicant consumed or the period of time involved. See Cameron, supra, 104 N.J. at 56. Although he did offer some evidence respecting his conduct as perceived by his father and the victim (what he said, how he said it, how he appeared, how he acted), see ibid., that evidence did not suggest any prostration of his faculties, only that he may have been under the influence of an intoxicant. Additionally, neither J.L. nor the arresting officers observed any evidence of intoxication on defendant's part, and no drugs were recovered from defendant's car, person, or apartment. There was also no evidence of any tests to determine the quantity of intoxicating substances in his blood. See ibid. Most tellingly, the evidence respecting defendant's ability to recall significant events was inconsistent with intoxication sufficient to satisfy the test of "prostration of faculties." See ibid. We conclude that there was insufficient evidence to support a charge on intoxication. As a consequence, any error in the charge was harmless. Because this was the only error raised with respect to the charge on kidnapping, and the included offense of criminal restraint, we affirm the conviction on the lesser-included offense.

IV.

Defendant next contends that the jury charges regarding the sexual offenses were in error. He asserts errors in the charges given on counts two and three, first-degree aggravated sexual assault by fellatio and vaginal intercourse, respectively, as well as the charges given with respect to the lesser-included offenses to these first-degree crimes. We begin with the charge on count two.

A.

N.J.S.A. 2C:14-2(a)(4) provides that "[a]n actor is guilty of [first-degree] aggravated sexual assault if he commits an act of sexual penetration with another person [when] armed with a weapon . . . and threatens by word or gesture to use the weapon or object." On the other hand, N.J.S.A. 2C:14-2(c)(1) provides that "[a]n actor is guilty of [second-degree] sexual assault if he commits an act of sexual penetration with another person [and] [t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury." Thus, the preeminent distinction between first-degree aggravated sexual assault and second-degree assault by force or coercion is being armed with a weapon.

In giving the charge on these two offenses, the trial judge defined fellatio one way with respect to the count two charge of aggravated sexual assault by fellatio, but then gave a different definition for fellatio when charging on the lesser-included offense of second-degree sexual assault by force or coercion. With respect to the first-degree crime, the trial judge described fellatio as oral stimulation of the male organ. However, when charging the second-degree crime, the judge defined fellatio as oral contact with the male sexual organ. Defendant contends that this divergence was plainly erroneous and was harmful in that it could have led the jury to convict on the first-degree offense merely because the evidence was undisputed that he was stimulated.

We are not persuaded that this definitional divergence had the "clear capacity to bring about an unjust result." Chapland, supra, 187 N.J. at 289 (quotations omitted). This is so because the real distinction between aggravated sexual assault and sexual assault by force or coercion was whether defendant was armed with a weapon at the time of penetration, a disputed issue of fact. The police found an unsheathed dagger at the crime scene, thus corroborating J.L.'s testimony that defendant threatened her with a knife. The jury convicted defendant on both weapons charges. As a consequence, the State proved beyond a reasonable doubt that defendant committed first-degree aggravated sexual assault by fellatio, and the divergence between the two definitions of fellatio was harmless.

B.

However, we are constrained to reverse the conviction of aggravated sexual assault by vaginal penetration for two reasons. First, the judge did not recharge aggravated sexual assault in full with respect to count three, which should have been done after the judge charged on the lesser-included offenses to count two. Rather, immediately after giving the first-degree charge on count two, the judge merely said that the difference between the two counts occurred in the first element of the crime; in count two it was oral penetration, whereas in count three it was vaginal penetration. The judge had earlier explained with respect to count two that "penetration" meant "vaginal intercourse." However, he never defined "vaginal intercourse" for the jury at all.

The legal definition of vaginal intercourse is broader than the common understanding of that term because it includes not only penetration of the vagina, but also penetration of the space between the labia majora. State v. J.A., 337 N.J. Super. 114, 120-21 (App. Div.), certif. denied, 169 N.J. 606 (2001). The absence of this definition in the charge makes the conviction on the offense charged in count three suspect because it was undisputed that defendant never achieved an erection when he was attempting vaginal intercourse, and the evidence respecting penetration was, at best, ambiguous. Furthermore, actual penetration is not required with fellatio, see, e.g., S.M., supra, 284 N.J. Super. at 617-18, but it is required with vaginal intercourse, N.J.S.A. 2C:14-1(c), yet this distinction was not brought to the attention of the jury. The absence of instructions on these important issues was plainly erroneous, as was the failure to give the full charge on count three after charging the lesser-included offenses to count two; both errors had the clear capacity to lead to an unjust result.

We next address defendant's claim that the jury instructions as a whole were confusing and, thus, plainly erroneous. The manner in which the judge organized the charge was, indeed, confusing. Rather than charge the lesser-included offenses to count two, aggravated sexual assault by fellatio, the judge jumped to count three, aggravated sexual assault by vaginal penetration, and, in an apparent effort to shorten the charge, he only stated that count three related to aggravated sexual assault by vaginal penetration rather than fellatio.

As to the lesser-included offense of second-degree sexual assault, the judge recited the statutory language and then stated: "In order to convict the defendant of this charge, the State must prove the following elements," but failed to state that the proof must be "beyond a reasonable doubt" as the Model Jury Charge (Criminal), Sexual Assault (Feb. 23, 2004), provides. After discussing the three elements of the offense, the judge interrupted the charge to discuss the applicability of the lesser-included offenses to counts two and three. Then he returned to the charge on sexual assault and for the first time, gave the full definition of vaginal intercourse. Thereafter, the judge read the balance of the model charge to the jury. However, in doing so, he conflated the charge on the mens rea element and relied on the instruction he gave earlier in the criminal restraint charge regarding knowing action. With such a welter of charges and lesser-included offenses, it is a poor practice to define the mens rea requirements only once in a lengthy charge.

Thereafter, the judge turned to the lesser-included offense of aggravated sexual contact, which he explained related only to count three, aggravated sexual assault by vaginal penetration, because it was undisputed that there was penetration by fellatio. He then stated:

On count three, there is an allegation that there was no contact vaginally; i.e., no penetration, no contact at all in fact, but certainly no penetration; so you are to consider aggravated sexual contact and sexual contact as it relates to the allegation of vaginal penetration.

The judge then explained that the jury would consider aggravated sexual contact only if it found defendant not guilty of the first- and second-degree crimes.

Defendant urges that the judge misinformed the jury as to the above facts and the relationship of those facts to the sexual contact crimes. It was not defendant's position that there was no contact. Rather, he contended that there was contact but no penetration. It is the absence of vaginal penetration which distinguishes aggravated sexual assault from aggravated sexual contact. Compare N.J.S.A. 2C:14-2(a) with N.J.S.A. 2C:14-3(a). The judge's mischaracterization of the defense position may well have undermined any serious consideration of the contact offenses. The evidence at trial was sufficient to support a conviction on the contact offenses, as the prosecutor and defense counsel recognized in agreeing to these charges.

In giving the charge itself, the judge again chose not to repeat the definition of "purposely," instructing the jury that he had already defined that term. In fact, that term was defined with respect to kidnapping quite some time before this charge. At the conclusion of the charge on this offense, the judge said "What you will notice that I didn't define in sexual contact was penetration." He also did not define purposely, which makes this statement ambiguous. He should have instructed the jury that penetration was not an element of this offense and that the State merely had to prove contact beyond a reasonable doubt.

We note also that, as the judge progressed through the charge, he made fewer and fewer references to the standard of proof beyond a reasonable doubt. By the time he charged on sexual contact, he never mentioned the State's burden of proof once, although it certainly appears in the model charge. Model Jury Charge (Criminal), Criminal Sexual Contact (Feb. 23, 2004).

Except to note that the mens rea requirement was action knowingly done, the judge chose to rely on previous definitions of that element. He did briefly define the second element, force or coercion, and then referenced his earlier instructions on those two concepts. However, he did not make any reference to the concept of permissive sexual contact. In all, the nine-page charge on criminal sexual contact was reduced to two pages of transcript. The massive truncation of the charge could not have been helpful to the jury.

V.

The final offense of which defendant was convicted was terroristic threats. J.L. testified at trial that defendant threatened to kill her on three separate occasions, first when she began to scream, then when she began to scream a second time, and finally to deter her from biting his penis during fellatio. The State argued that these threats were intended to terrorize J.L. and intimidate her into compliance.

In order to prove that the defendant violated N.J.S.A. 2C:12-3(a), the state must prove beyond a reasonable doubt that (1) the defendant threatened to commit a crime of violence, and (2) the threat was made "with the purpose to terrorize another or . . . in reckless disregard of the risk of causing such terror . . . ." Ibid. In charging the jury the trial judge informed them that the State alleged "that the defendant threatened to commit the violent crime of sexual assault. Now, when I say sexual assault, I'm not referring to one of those, but all of them." Defendant contends that the charge on terroristic threats was plainly erroneous because it misidentified the threatened crime of violence and failed to charge on the elements of the threatened crime, as suggested by the model charge. Model Jury Charge (Criminal), Terroristic Threats (Jan. 26, 2004).

This recommendation in the model charge is based on our holding in State v. MacIlwraith, 344 N.J. Super. 544, 547-48 (App. Div. 2001):

An element of a subsection (a) terroristic threat is a threat "to commit any crime of violence." In order for a jury to be properly guided it must be instructed on the qualities of "any crime of violence" the proofs suggest the defendant may have threatened. That is, the elements and definition of any such crimes must be adequately explained to the jury, so that the jury is not left to speculate as to the crimes that might be supported by the evidence. See Model Jury Charges (Criminal), N.J.S.A. 2C:12-3(a) (1991) (providing that the instruction should "set forth and define appropriate crime of violence alleged"). This approach exem-plifies a well-established principle apply-ing to all matters in which juries are required to determine criminal purpose as an element of the crime charged. See, e.g., State v. Williams, 168 N.J. 323, 339-40 (2001) (holding that, in respect of charges for possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4, the jury must be instructed regarding the unlawful purposes supported by the proofs); State v. Petties, 139 N.J. 310, 319-20 (1995); State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989); State v. Olivera, 344 N.J. Super. 583, 590-595 (App. Div. 2001) (holding the same requirement to apply to the "with a purpose to commit a criminal offense" element of luring or enticing a child, N.J.S.A. 2C:13-6); cf. State v. Wright, 143 N.J. 580, 583 (1996).

Here, the violent crime that defendant threatened was that he would kill J.L. if she screamed or bit his penis. The judge never instructed the jury on the elements of any type of homicide. The charge on terroristic threats was plainly erroneous in misidentifying the facts supporting the indictment and in failing to charge the jury on the elements of a homicide. The State suggests that the error was harmless because the judge merged the conviction on this count of the indictment with the aggravated sexual assault on count two. The unjust result here is the conviction of the offense, not the penalty imposed, and the error in the charge was clearly capable of producing an unjust result because conviction was a virtual certainty once the jury concluded that a sexual offense had been committed rather than determining whether a threat to kill had been made. As a consequence, we reverse defendant's conviction on terroristic threats.

VI.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2); State v. Kinq, 372 N.J. Super. 227, 231 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).

Accordingly, we reverse defendant's convictions on the vaginal sexual-assault and terroristic-threat charges and affirm on all other grounds. In addition, we remand to correct the judgment of conviction to properly show defendant's conviction on criminal restraint, not kidnapping.

 

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

N.J.S.A. 2C:7-1 to -19.

During direct testimony, J.L. testified that she took medication prescribed by a doctor that had no effect on her memory or ability to recall any of the aforementioned events. She also testified to not taking any illegal drugs or alcohol on May 21 and was not tested for such substances at the hospital.

Defendant claims that he objected to the jury instructions. However, this was a response to a jury question and pertained to form, rather than substance.

Defendant does not call our attention to any case law that precludes giving this intoxication charge at the end of the substantive offenses. However, it would be a much better practice to give it in conjunction with the first substantive offense to which it applies, here, purposeful kidnapping; to repeat it in full with respect to the next substantive offense which has a different state of mind, here, knowing criminal restraint; and then to remind the jury of the intoxication defense after each and every offense or included offense charged to the jury and to briefly explain its elements of proof.

We have defined fellatio as "the practice of obtaining sexual satisfaction by oral stimulation of the penis." State in re S.M., 284 N.J. Super. 611, 617 (App. Div. 1995) (quotations omitted). We also concluded that "fellatio constitutes a form of 'sexual penetration' under the statute notwithstanding the fact that the victim's penis does not enter the actor's mouth. Placement of the actor's mouth on the victim's penis is sufficient to prove a violation of N.J.S.A. 2C:14-[2(a)]." Ibid.

We would be remiss at this point not to comment on the mens rea portion of the charge given by the judge respecting counts two and three. In order to convict a defendant of aggravated sexual assault, the State must prove beyond a reasonable doubt that the defendant acted knowingly. State in re C.P. & R.D., 212 N.J. Super. 222, 230-31 (Ch. Div. 1986). See State v. Sewell, 127 N.J. 133, 142 (1992). The Model Jury Charge (Criminal), Aggravated Sexual Assault (Mar. 27, 1989), reflects this mens rea requirement by defining it and including it as the second element of the crime.

Here, the trial judge identified the mens rea requirement as purposely on more than one occasion. The judge first charged the jury by saying, "Element two, that the defendant acted purposely." When summarizing the elements of aggravated sexual assault, the judge again mistakenly charged the jury, "there are four elements in aggravated sexual assault . . . element two, that the defendant acted purposely[.]" We find no plain error respecting this charge as it relates to the conviction on count two; however, the error must not be repeated when the vaginal-penetration sexual offenses are retried.

Defendant contends that the judge failed to instruct the jury that, if it concluded that defendant reasonably believed that permission had been given, the State was required to prove beyond a reasonable doubt that the defendant did not actually believe this or that such belief was not reasonable under the circumstances. However, the model charge at the time did not address the burden of proof in this context. Model Jury Charge Criminal), Sexual Assault (Feb. 23, 2004). We, therefore, find no error here, as defendant does not direct our attention to any case law that rendered the model charge inaccurate.

The judge also did not charge the final paragraph in the model charge, which reads:

In summary, if the State has proven to your satisfaction beyond a reasonable doubt each of the elements as I have explained them, then you should find the defendant guilty, of the crime of aggravated criminal sexual contact. On the other hand, if you find that the State has failed to prove to your satisfaction beyond a reasonable doubt any one or all of these elements, then you must find the defendant not guilty of aggravated criminal sexual contact.

[Model Jury Charge (Criminal), Aggravated Criminal Sexual Contact - While Armed (Nov. 28, 1979).]

The failure to give this final portion of the charge was plainly erroneous because the judge did not make it completely clear that the failure to prove even one element beyond a reasonable doubt was fatal to conviction of the charge.

We also note that the judge did not charge the jury regarding purpose to terrorize and limited the charge to reckless disregard of the risk of causing terror.

(continued)

(continued)

29

A-5046-04T4

May 17, 2007