STATE OF NEW JERSEY v. DARRYL D. BECKETT

NOT FOR PUBLICATION WITHOUT THE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.

DARRYL D. BECKETT,

Defendant-Appellant.

________________________________________________________________

April 15, 2014

Submitted October 8, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-09-1587.

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

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

PER CURIAM

Defendant appeals from his convictions for second-degree sexual assault and disorderly persons offenses and the sentence imposed. We affirm his convictions and remand for further proceedings regarding his sentence.

Defendant was indicted for nine charges arising from sexual assaults against two separate victims. The charges concerning the assault upon B.M. were alleged in counts one through six and charged him with first-degree kidnapping (count one); first-degree aggravated sexual assault using physical force or coercion in which the victim sustained severe personal injury (count two); first-degree aggravated sexual assault during the commission of a kidnapping or aggravated assault (count three); second-degree aggravated assault (count four); third-degree criminal restraint (count five); and third-degree terroristic threats (count six). Defendant was acquitted on counts one and three and convicted of lesser included offenses on counts two, four, five and six.

The remaining counts alleged crimes against a second victim, J.F., i.e., second-degree sexual assault, third-degree terroristic threats, and third-degree criminal restraint counts seven through nine, respectively. These counts were severed prior to trial and disposed of by a negotiated guilty plea when defendant appeared for sentencing. Defendant entered a guilty plea to third-degree terroristic threats under count eight pursuant to an agreement in which it was agreed his sentence would not exceed a three-year term consecutive to any other sentence imposed.

The trial court sentenced defendant to eight years, 85% without parole, for second-degree sexual assault on count two (erroneously listed as count three on the judgment of conviction); a concurrent six-month term for false imprisonment under count five, and a consecutive term of three years on the terroristic threat count involving J.F. Counts four and six were merged with count two (erroneously identified as count three). In addition to customary monetary penalties, the court imposed a $1000 Sexual Crime Victim Treatment Fund (SCVTF) penalty pursuant to N.J.S.A. 2C:14-10.

In this appeal, defendant presents the following arguments:

POINT I

THE JURY INSTRUCTION ON THE ISSUE OF CONSENT -- THE ONLY CONTESTED LEGAL ELEMENT IN THE SEXUAL-ASSAULT CASE -- WAS ERRONEOUS IN TWO RESPECTS: (1) SHIFTING THE BURDEN OF PROOF TO DEFENDANT TO SHOW CONSENT, THEREBY PRESUMING A LACK OF CONSENT ONCE SEXUAL INTERCOURSE WAS PROVEN, AND (2) FAILING TO ADDRESS THE EFFECT ON THE JURY'S "CONSENT" DELIBERATIONS THAT DEFENDANT'S POTENTIALLY LAWFUL USE OF FORCE AGAINST THE VICTIM AT ONE POINT IN THEIR ENCOUNTER COULD HAVE HAD. (NOT RAISED BELOW).

A. BURDEN-SHIFTING (OR OBFUSCATING) IN THE MODEL INSTRUCTION AS GIVEN.

B. THE JUDGE'S FAILURE TO INSTRUCT THE JURY ON THE LAWFUL USE OF FORCE TO PROTECT PROPERTY.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

After reviewing the arguments in light of the record and applicable legal principles, we conclude that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Because the issues presented are limited to challenges to the jury instruction that were raised as plain error and the sentence, we confine our review of the facts to those necessary to provide a context for our discussion.

Defendant does not dispute that he had vaginal intercourse with B.M., a homeless, unemployed twenty-year-old, in the late evening of June 4, 2009. The only issue was whether the act was consensual.

According to the evidence presented by the State, defendant pulled his car up to B.M. as she was walking, asked her "How much?" and she walked away, saying she was not a prostitute. Defendant then struck B.M., dragged her by her hair into the passenger seat, and said, "you're going to have sex with me whether you like it or not[,]" and "[a]s long as you stop fighting, I'm going to stop hitting you." B.M. stopped fighting him and defendant drove to a secluded area.

Once parked, defendant told B.M. to undress and said, "I'm going to enter you raw and I'm going to cum [sic] inside of you." Defendant penetrated B.M. vaginally and ejaculated. B.M. eventually jumped out of the car and ran away. Later that evening, she was treated at a hospital by a sexual assault nurse examiner and a doctor. Their examinations revealed that B.M. had a freshly broken nose, swelling of her face, and bruising on her cheek and chin. The examinations also found the presence of semen but identified no vaginal injury. Forensic testing confirmed defendant as the source of the semen.

Defendant's version of events was presented to the jury through a videotaped statement he gave to police. He stated B.M. was a prostitute and entered his car willingly. He initially denied hitting her. Later, he admitted he struck B.M. because she attempted to leave his car with his money before performing any sex acts and that she then agreed to the acts for a $50 fee.

I.

Defendant alleges plain error in two aspects of the trial court's jury instructions: that the instruction on sexual assault constituted impermissible burden-shifting; and that the court failed to sua sponte instruct the jury about the use of force to protect property defense under N.J.S.A. 2C:3-6(c). Pursuant to Rule 1:7-2, defendant's failure to object to these charges constitutes a waiver of his right to challenge that instruction on appeal. However, mindful of the principles that "appropriate and proper jury charges are essential to a fair trial," State v. Savage, 172 N.J. 374, 387 (2002), and are even more critical in criminal cases, State v. Jordan, 147 N.J 409, 422 (1997), we review the charge to determine whether there was plain error "clearly capable of producing an unjust result." R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997); State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009).

A.

Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6), which requires proof of four elements:

1. That the defendant committed an act of sexual penetration with another person.

2. That the defendant acted knowingly[.]

3. That the defendant used physical force or coercion.

4. That the victim sustained severe personal injury.

[Model Jury Charge (Criminal), "Aggravated Sexual Assault Physical Force or Coercion with Severe Personal Injury (N.J.S.A. 2C:14-2(a)(6))" (2008).]

Defendant appeals only the trial court's charge as to the third of these elements, specifically arguing that the charge shifted the burden of proving consent to him. The trial court's sexual assault instruction, however, mirrored the Model Charge, which clearly instructs that the State, and the State alone, bears the burden of proving lack of consent. The charge therefore complied with the mandate of State in Interest of M.T.S., 129 N.J. 422 (1992), instructing the jury the State bears the burden of proving sexual penetration "was accomplished without the affirmative and freely-given permission of the alleged victim." Id. at 448.

B.

Defendant also argues the court committed plain error in failing to instruct the jury sua sponte that he was entitled to use force against B.M. if he "reasonably believe[d] it necessary to prevent what he reasonably believe[d] to be an attempt by [B.M.] to commit theft, criminal mischief or other criminal interference with personal property in his possession." N.J.S.A. 2C:3-6(c). We disagree.

When an instruction is not requested, a court is only required to give the instruction sua sponte if the facts in the record "clearly indicate" the appropriateness of and need for it. State v. Robinson, 136 N.J. 476, 489 (1994). A failure to give the instruction sua sponte will only constitute reversible error if the instruction is factually supported by the record. Pressler and Verniero, Current N.J. Court Rules, comment 8.13 on R. 1:8-7 (2014). However, the court "is not obliged to sift meticulously through the record in search of any combination of facts supporting" the need for such a charge. State v. Walker, 203 N.J. 73, 86-87 (2010) (quoting State v. Denofa, 187 N.J. 27, 42 (2006)). "[T]he need for the charge must 'jump off' the proverbial page," State v. R.T., 205 N.J. 493, 510 (2011) (citing Denofa, supra, 187 N.J. at 42); see also State v. Rivera, 205 N.J. 472, 490 (2011).

The sole factual support for the defense now claimed was provided in one of the conflicting versions defendant gave to police. He asserted he had willingly given B.M. fifty dollars to engage her for sexual services which she then declined to perform. He stated, "she had my money[,] she wouldn't give me my money, so then I hit her." Defendant claimed that B.M. then said, "I'll do whatever you want to do."

The scenario depicted by defendant is not one that jumps off the page as that of a victim who used justifiable force in defense of property. Rather, it reflects the use of force resulting in injuries to B.M. for the purpose of enforcing an illegal bargain. We find no error in the trial court's failure to discern, unassisted, that these facts could support a defense under N.J.S.A. 2C:3-6(c).

II.

Finally, defendant challenges his sentence. The State agrees that a limited remand is necessary to correct a technical error on the judgment of conviction and Department of Corrections website; and to recalculate the appropriate SCVTF penalty. Defendant was convicted of second-degree sexual assault, not aggravated sexual assault, as it is incorrectly listed on the judgment of conviction. In addition, the indictment charged defendant with aggravated sexual assault involving physical force, N.J.S.A. 2C:14-2(a), in count two and aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2(a), in count three. On the verdict sheet, these charges were switched so the kidnapping assault was presented as count two and the assault employing physical force was presented as count three. Defendant was acquitted on the kidnapping sexual assault charge and convicted of the sexual assault using physical force charge. To accurately reflect which count of the indictment was the basis of defendant's conviction, it is necessary to remand for a correction of the judgment of conviction to show defendant was convicted on count two. In addition, the sentencing judge referred to all penalties he imposed as "mandatory." Although it is mandatory that an SCVTF penalty be imposed, N.J.S.A. 2C:14-10, the amount of the penalty is not mandatory and so, a remand is necessary to permit the judge to determine whether $1,000, the maximum penalty, or some other amount is appropriate.

Defendant also argues the trial court improperly balanced mitigating and aggravating factors under N.J.S.A. 2C:44-1 and erred in imposing consecutive sentences on his convictions for terroristic threats and sexual assault. We disagree.

The sentencing judge found aggravating factors one, three, and nine, N.J.S.A. 2C:44-1(a)(1), (3) and (9). Defendant argues there was an inadequate basis for the court to find aggravating factor one, N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"). He does not contend that the court failed to find any mitigating factors that were supported by the record.

Defendant was acquitted of first-degree aggravated sexual assault, which required proof of "severe personal injury," and convicted of sexual assault, which did not require such proof. The only "force" required to sustain the charge of sexual assault was that required for the act of sexual penetration. M.T.S., supra, 129 N.J. at 444. The victim here suffered a broken nose, swelling of her face, and bruising on her cheek and chin, all injuries that were not necessary to the act of penetration. There was, then, a sufficient factual basis for the court to find aggravating factor one.

The consecutive sentences imposed on counts two and eight concerned crimes committed against separate victims at separate times. We reject defendant's contention that these crimes were "quite likely part and parcel of the same period of aberrant behavior in defendant's life" and therefore not an appropriate basis for consecutive sentences. See State v. Yarbough, 100 N.J. 627, 643 (1985) (observing that "there can be no free crimes in a system for which the punishment shall fit the crime"), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Defendant's conviction is affirmed. His sentence is remanded for correction as set forth in this opinion and for the trial court to determine what amount is appropriate for the SCVTF penalty. Aside from that remand, defendant's sentence is affirmed in all other respects. We do not retain jurisdiction.