STATE OF NEW JERSEY v. MARVIN SHERWOOD

NOT FOR PUBLICATION WITHOUT THE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.

MARVIN SHERWOOD,

Defendant-Appellant.

__________________________________

December 16, 2015

Submitted March 17, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-11-2711.

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

JamesP. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant County Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Marvin Sherwood appeals from his conviction of burglary, armed robbery, and aggravated sexual assault of an eighty-nine-year-old woman, and his sentence to an aggregate fifty-seven-year term. Defendant argues the court committed plain error by failing to deliver a jury instruction on accomplice liability. He also contends his sentence was excessive. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We discern the following facts from the record. In the early morning hours of August 3, 2010, defendant entered the Atlantic County home of L.,1 who lived alone. L. awoke to the sound of defendant's entry. She found defendant in her living room and told him to leave. She testified, "[A]ll of a sudden I got clobbered." When she tried to fight back, defendant kicked her in the face.

L. testified that there was only one attacker. She described him as about six feet tall. She was five feet, six inches tall. She said he wore a sleeveless shirt. She was unable to identify defendant at trial.

Defendant demanded money. L. gave him twenty dollars, insisting it was all she had. Defendant told L. to take him to an ATM machine, but she said she did not have an ATM card. Defendant sexually assaulted L. after placing her on the kitchen island. Using a sandwich bag as a makeshift condom, he penetrated her digitally. While L. remained in the kitchen, defendant got a trash bag from the garage, and placed in items he took from her house, including her phone, jewelry and wallet. Defendant sexually assaulted L. again in her bedroom. L. cried out in pain, but defendant told her to "shut the f--- up." Defendant threatened to kill L. with a knife he took from the kitchen, holding it to her neck. L. testified that defendant said, "'I'm going to kill you, I'm going to stab you, I'm going to cut you,' that's what he said, and he also told me that he had buddies in Atlantic City that belonged to such and such a gang . . . [and] they were going to come and get me . . . ." At some point, defendant cut himself on the knife, and wrapped a towel around his hand.

Before he left the house, defendant attempted to remove evidence of his crimes. He took rags and bleach from a closet with bifold doors and attempted to wipe down the areas he had touched. He dumped L. in a bathtub, filled it with water, and left her there. She remained in the tub, unable to get out, until her son arrived at 5:30 a.m., to check on L. as he did every day. L. was taken to a hospital where an examination found physical signs of the sexual and physical assault, including injuries consistent with sexual penetration, and bruising and abrasions on other parts of her head and body, including a mark on her neck left by the knife.

DNA evidence led to defendant's arrest. A few blocks from L.'s home, police found a trash bag containing some of L.'s belongings, a knife, a bottle of bleach and Lysol, and the makeshift condom. Defendant's blood was found on the knife blade, and his skin cells on the handle. His blood was also found elsewhere in the home, including in the garage and hallway, and on the bifold doors and bathtub. Defendant's DNA, as well as L.'s, was found on the makeshift condom. The DNA match to defendant, whose DNA was in the State database as a result of prior convictions, was made on August 18, 2010. Defendant was arrested shortly thereafter.

A surveillance video of a Wawa store showed defendant enter at around 5:00 a.m., apparently nursing a wound to his hand. When he was arrested, a cut on his right index finger was still healing.

In a Mirandized2 statement, defendant admitted that he entered L.'s home, but did so only with the intent to commit a theft. He claimed he was accompanied by a man he identified only as "Streets," who came from Atlantic City, and was about five feet, five inches tall. Defendant denied hitting or sexually assaulting L. He said Streets was "grabbing her and restraining her" and then "hitting her." But defendant appeared to agree that he himself had "put her down" in a chair, so she would not move while they looked for money. He denied holding a knife and claimed he cut his hand during a fall inside the house. He stated that Streets became "real violent" with her. He also said that Streets had an ice pick or other sharp object. Defendant claimed that after twenty minutes, he left the house while Streets remained.

Defendant testified at trial. Contrary to his prior statement, he testified that he did not witness any physical violence against L. He claimed Streets wielded the knife to frighten L., and defendant accidentally cut his hand on Streets's knife. Defendant admitted that he sat L. down in a chair, and put his hands on her, but he claimed it was "not in a physical way."

His statement and testimony were also belied by the forensic evidence. He testified Streets got the trash bag from L.'s garage, although defendant's DNA was found in the garage. He testified he did not try to clean up blood evidence, although his DNA was on the closet containing the cleaning supplies, and bleach was found in the trash bag along with other items with his DNA. He denied sexually assaulting L., although defendant's and L.'s DNA were on the makeshift condom. Defendant claimed he touched the bag when looking for something to store stolen jewelry.

Defendant's claim that Streets committed the more serious offenses was also undermined by other evidence at trial. Defendant identified a photograph of a man named Justin Street not Streets as the person who accompanied him. However, Street lived in Essex County, not Atlantic City, as defendant claimed in his custodial statement. Street died in May 2011. He was five feet, five inches tall significantly shorter than the man L. described as her attacker. Also, none of Street's DNA his was also in the State database matched the evidence taken at the scene, and in the trash bag.

Also undermining defendant's claim of a second man, the only footprints police found at the scene matched defendant's shoes. A police canine brought to the house the day of the assault found only one trail of a scent leading away from the house.

Defendant attempted to establish the involvement of a second man by highlighting that fingerprints on the Lysol bottle did not match those of defendant. However, a State expert testified that the fingerprints could have belonged to virtually anyone, including a stocking clerk at the store where it was sold. In the course of its investigation, police found in a dumpster in the vicinity of L.'s home a shirt that could not be traced to defendant. However, the shirt did not match the kind the attacker wore, according to L.

At the request of defendant, the court instructed the jury regarding third-party guilt.

[E]vidence has been introduced that a person other than the defendant committed the crimes charged. Consider all of the evidence bearing on this issue, whether introduced by the prosecution or the defendant. If after careful consideration of all of the circumstances you have a reasonable doubt as to whether the defendant committed the crimes charged, or if they were committed, then you must find the defendant not guilty.

Neither side requested an accomplice liability charge.

The jury found defendant guilty of all fifteen counts presented to them: second-degree armed burglary, N.J.S.A. 2C:18-2 (count one); second-degree bodily injury burglary, N.J.S.A. 2C:18-2 (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); first-degree aggravated sexual assault during a burglary, N.J.S.A. 2C:14-2(a) (count four); first-degree aggravated sexual assault with a weapon, N.J.S.A. 2C:14-2(a) (count five); first-degree aggravated sexual assault of a physically helpless person, N.J.S.A. 2C:14-2(a) (count six); second-degree attempt to commit sexual penetration, N.J.S.A. 2C:5-1 and 2C:14-2(a) (count seven); second-degree attempt to commit sexual penetration while armed, N.J.S.A. 2C:5-1 and 2C:14-2(a) (count eight); second-degree attempt to commit sexual penetration of a physically helpless person, N.J.S.A. 2C:5-1 and 2C:14-2(a) (count nine); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count ten); third-degree significant bodily injury aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count eleven); third-degree terroristic threat, N.J.S.A. 2C:12-3(b) (count twelve); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count thirteen); fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5(d) (count fourteen); and third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count fifteen). Upon defendant's waiver of a jury, the court found defendant guilty of fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count sixteen).

In sentencing defendant, Judge Bernard E. DeLury, Jr., treated as separate and distinct offenses the burglary, robbery, aggravated sexual assault, threat to kill, destruction of evidence, and certain persons offense. After merger, the court sentenced defendant to concurrent terms of ten years on burglary counts one and two; consecutive to twenty years on robbery count three; consecutive to concurrent terms of twenty years on aggravated sexual assault counts four, five and six; consecutive to five years on the threat to kill count twelve; consecutive to one year on the evidence tampering count thirteen; and consecutive to one year on the certain persons count sixteen. Five-year terms on counts ten and eleven were imposed, concurrent to counts three and two, respectively.

The trial court found aggravating factors one, two, three, six, nine, and twelve. N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of offense and role of actor), (2) (gravity and seriousness of harm, including vulnerability and incapacity of resistance due to advanced age), (3) (risk of reoffending), (6) (prior criminal record and seriousness of offenses), (9) (need to deter) and (12) (offense against a person sixty years or older). The court rejected defendant's argument that mitigating factors three, four, six, eight and nine should apply. See N.J.S.A. 2C:44-1(b)(3) (strong provocation), (4) (substantial grounds to excuse or justify), (6) (defendant will make restitution), (8) (conduct resulted from circumstances unlikely to recur) and (9) (defendant's character and attitude indicate he is unlikely to reoffend).

With respect to aggravating factor one, the court noted details of the "horrifying, cruel and depraved physical abuse visited upon this very elderly person. . . ." The court found that factor two applied based on L.'s age and vulnerability, noting defendant's decision to dump L. in a bathtub following the assault, "racked in pain and overcome with the terror that the defendant would come back and finish her off as he had threatened to do." With respect to factors three, six and nine, the court also noted defendant's extensive prior juvenile and adult criminal record, including three convictions for robbery and burglary, and his past incarceration and parole violations. Factor twelve applied because of L.'s age, the court asserting that factor twelve did not constitute double-counting, apparently viewing factor two to pertain to harm, and factor twelve to pertain to age.

In declining to find any mitigating factors, the court rejected as incredible defendant's claim that he acted with an accomplice. The court rejected defendant's claim that alcohol use on the night of the offense justified a finding of mitigating factors. The court discounted the likelihood defendant would make restitution. The court also dismissed factors eight and nine, in view of its finding that defendant was likely to reoffend.

The court expressed in detail its reasoning for imposing consecutive terms, citing State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

He perpetrated each crime not in some singular aberrant continuum but as separate and distinct episodes containing escalating acts which were progressively implemented by him. The court has considered the crimes involved . . . separate acts of violence, with threats of violence. The court has considered that the crimes were committed at different times, albeit at the same place. The offenses for which the consecutive sentences will be imposed were not committed so closely in time and places as to indicate a single act of aberrant behavior. The court also considered while there was only one human victim of the burglary, robbery, threats, assaults and sexual assaults, there were also offenses against society in good order, namely, the weapons and tampering offenses. These separate and distinct evils require separate punishment. Finally, having considered the number of convictions for which [the] sentence[s] are to be imposed, I concluded they are not so numerous as to be unfair, unduly punitive or unnecessarily harsh.

On appeal, defendant raises the following points for our consideration

POINT I

IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY. (Not Raised Below).

POINT II

THE SENTENCE IS EXCESSIVE.

II.

A.

We consider first defendant's argument that the court should have, sua sponte, delivered an accomplice liability instruction to the jury. As defendant did not request the instruction, or object to its omission, we review the argument under a plain error standard. See State v. Maloney, 216 N.J. 91, 104 (2013) (applying plain error standard to argument that court failed sua sponte to deliver accomplice liability instruction); State v. Jenkins, 178 N.J. 347, 360 (2004) (applying plain error standard to argument that court failed sua sponte to deliver instruction on lesser-included offense). Consequently, we will disturb the conviction only "if the mistake was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached." Id. at 361 (internal quotation marks and citation omitted).

"An erroneous jury charge when the subject matter is fundamental and essential or is substantially material is almost always considered prejudicial." Maloney, supra, 216 N.J. at 104-05 (internal quotation marks and citation omitted). We apply a presumption that improper instructions are reversible error in criminal cases. Id. at 105. However, that presumption is overcome if the error is "'harmless beyond a reasonable doubt.'" Ibid. (quoting State v. Collier, 90 N.J. 117, 123 (1982)).

"The obligation to provide the jury with instructions regarding accomplice liability arises only in situations where the evidence will support a conviction based on the theory that a defendant acted as an accomplice." State v. Crumb, 307 N.J. Super. 204, 221 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). "When the State's theory of the case only accuses the defendant of being a principal, and a defendant argues that he was not involved in the crime at all, then the judge is not obligated to instruct on accomplice liability." Maloney, supra, 216 N.J. at 106.

Defendant argues his case falls in between these two extremes. He admits he was involved, but not to the extent of his alleged principal. His argument is grounded in the notion that had an accomplice liability charge been given, the jury could have returned a verdict for lesser included offenses instead of the charged crimes of first-degree robbery and second-degree burglary. Defendant relies on the principle that an accomplice may be found guilty of a lesser crime than his principal, if he lacked the mens rea for a greater crime. See, e.g., State v. Weeks, 107 N.J. 396, 405 (1987) (discussing possibility that a jury could find an accomplice guilty of second-degree robbery, while finding principal guilty of first-degree robbery, if accomplice did not share the purpose to commit the robbery while armed).

We are unpersuaded. Adhering to the model charges on first-degree robbery and second-degree burglary, Model Jury Charge (Criminal), "Burglary in the Second Degree"; "Robbery in the First Degree" (2010), the court instructed the jury that it could find defendant guilty of lesser included offenses of second-degree robbery and third-degree burglary.3 Consequently, there was no prejudice from the failure to charge accomplice liability with respect to those offenses. See State v. Crumb, 307 N.J. Super. 204, 222 (App. Div. 1997) (finding no prejudice from failure to give accomplice liability charge "because the jury was given the opportunity . . . to assess [the defendant's] precise culpability . . . ."), certif. denied, 153 N.J. 215 (1998).

Defendant contends he left the house before any form of sexual assault occurred. Therefore, there was no conceivable basis at all to charge accomplice liability with respect to aggravated sexual assault. Defendant committed the sexual offenses by himself according to the State's theory, or he did not commit them at all, whether as principal or accomplice, according to defendant. No accomplice liability charge was warranted. See State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd, 162 N.J. 580 (2000) (questioning necessity of accomplice liability charge where State alleged defendant committed a robbery and assault, and defendant asserted he was not even in the room where the offenses occurred); State v. Rue, 296 N.J. Super. 108, 115 (App. Div. 1996) (stating no accomplice liability charge required where State alleged the defendant viciously beat the victim in street, and defendant asserted he remained in an automobile), certif. denied, 148 N.J. 463 (1997).

More importantly, the utter lack of evidence that there was a second participant convinces us that the omission of the charge was harmless beyond a reasonable doubt. We have set forth the overwhelming evidence of defendant's guilt, and only his guilt, for the offenses charged. All the forensic evidence points to him, except for a single fingerprint on the Lysol bottle that could have been left by anyone. Defendant's claim that Justin Street participated in the crime was implausible; L. stated that only one person entered her home, robbed and raped her, and he was six feet tall. Street was shorter than the five-foot-six victim, and none of his DNA was found. Moreover, defendant's credibility was undermined by the numerous inconsistencies in his own testimony.

Finally, the court's third-party guilt charge acknowledged that "evidence has been introduced that a person other than the defendant committed the crimes charged." The court instructed the jurors that if they had reasonable doubt that defendant committed the crimes charged, they should find him not guilty. The jury's conviction of defendant of all charges, including aggravated sexual assault which defendant admitted was committed when only one intruder was present in the home reflected the jury's rejection of his claim that he was the lesser culpable accomplice of another man.

In sum, we find no basis to disturb defendant's conviction, and reject defendant's argument that it was plain error not to deliver, sua sponte, an accomplice liability instruction.

B.

Defendant argues that his crimes consisted of "one series of linked events which happened over the course of a few hours in a single setting." Therefore, he argues consecutive sentencing was excessive, although he does not identify which sentences should have been concurrent.

We disagree. The trial judge followed the Court's command to separately state his reasons for imposing consecutive or concurrent sentences. See State v. Miller, 205 N.J. 109, 129 (2011); Yarbough, supra, 100 N.J. at 643. "When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal." Miller, supra, 205 N.J. at 129. See also State v. Cassady, 198 N.J. 165, 183-84 (2009) (affirming consecutive maximum sentences, stating, "If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'").

Even when interconnected offenses are committed within a short period of time, concurrent terms are not necessarily mandated. State v. Swint, 328 N.J. Super. 236, 264 (App Div.), certif. denied, 165 N.J. 492 (2000). The court must consider all Yarbough factors

(1) There can be no "free crimes" in a system for which the punishment fits the crime;

. . . .

 
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

 
(b) the crimes involved separate acts of violence or threats of violence;

 
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 
(d) any of the crimes involved multiple victims;
 
(e) the convictions for which the sentences are to be imposed are numerous. . . .

 
[Miller, supra, 205 N.J. at 128 (quoting Yarbough, supra, 100 N.J. at 643-44).]

In Swint, supra, we recognized that the kidnapping and aggravated assault of which defendant was convicted "were not predominately independent of each other and were committed close in time and place. . . ." 328 N.J. Super. at 264. Nonetheless, we did not disturb consecutive sentences "considering the nature of each offense, the purpose for which they were committed, and the manner in which they were committed, including the maiming of the victim by cutting off each of his ears, shooting him, and stabbing him . . . ." Ibid. We stated, "In a civilized society, neither of these crimes should be free, as they would be if concurrent sentences were imposed." Ibid. Similarly, in State v. Mejia, 141 N.J.475, 504 (1995), the Court declined to disturb a twenty-year sentence for robbery consecutive to a sentence for murder. The Court emphasized there can be no free crimes, and "separate crimes deserve separate punishment." Ibid.

Applying these principles, we discern no error in the court's decision to impose consecutive sentences. As Judge DeLury explained, the burglary was separate from the robbery, which was separate from the aggravated sexual assault. Defendant engaged in a series of crimes of escalating violence, depravity, and injury. His threats to kill L., including his threat that gang members would come to kill her, were also independent, and not integral, to the robbery or aggravated sexual assault. Defendant's possession of a weapon as a certain person, and his tampering with evidence, were also separate. The court was guided by the principle that there can be no free crimes in a system in which the punishment fits the crime.

We also find no error in the court's imposition of maximum terms for the most serious crimes of which defendant was convicted. The court appropriately weighed the aggravating and mitigating factors, which were supported by the record. The sentence does not shock the conscience. Therefore, we shall not disturb it. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

1 We use an initial to protect the privacy of the victim.

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

3 Defendant's admissions satisfied the elements of third-degree burglary, as he admitted that he entered the home without permission to commit a theft, see N.J.S.A. 2C:18-2, and second-degree robbery, as he admitted he used force upon L., placing her in a chair, in the course of committing a theft. See N.J.S.A. 2C:15-1(a).