STATE OF NEW JERSEY v. BRUCE D. STERLING

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3174-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

BRUCE D. STERLING, a/k/a
DARNELL STERLING,

        Defendant-Appellant.


              Submitted December 20, 2017 – Decided April 24, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              05-10-1410.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Richard Sparaco, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Patrick F. Galdieri,
              II, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        Tried by a jury, defendant Bruce D. Sterling was convicted

of the following counts of Middlesex County Indictment No. 05-10-
1410:     second-degree burglary, 
N.J.S.A. 2C:18-2 (count eight);

first-degree aggravated sexual assault, 
N.J.S.A. 2C:14-2(a) (count

nine); second-degree sexual assault, 
N.J.S.A. 2C:14-2(c) (count

ten); fourth-degree unlawful possession of a weapon, 
N.J.S.A.

2C:39-5(d) (count eleven); third-degree possession of a weapon for

an   unlawful     purpose,     
N.J.S.A.    2C:39-4(d)      (count    twelve);       and

third-degree      terroristic     threats,        
N.J.S.A.    2C:12-3(a)       (count

thirteen).

       On March 7, 2016, defendant was sentenced on the second-

degree burglary to ten years imprisonment subject to the No Early

Release Act (NERA), 
N.J.S.A. 2C:43-7.2, twenty years on the first-

degree aggravated sexual assault subject to NERA, and seven years

on the second-degree sexual assault, also subject to NERA.                          The

possession of a weapon for unlawful purpose conviction was merged

with    the    second-degree     burglary        and    first-degree     aggravated

assault.       The terroristic threats offense was merged with the

first-degree aggravated sexual assault and second-degree sexual

assault.

       The sentences on these counts were to be served concurrently

with    each    other,   but   consecutively       to    three   prior   sentences

defendant was serving on severed counts of the indictment tried

earlier,       which   charged    him     with    similar    offenses.          Thus,

defendant's      overall     sentences     on    the    indictment     came    to    an

                                          2                                   A-3174-15T3
aggregate seventy-year prison term subject to NERA.                  Defendant

appeals and we affirm.

      The convictions now appealed resulted from the retrial after

remand ordered by the Supreme Court because of severance issues.

See State v. Sterling, 
215 N.J. 65, 107-08 (2013).

      We glean the following from the trial record.             The victim,

K.G., was twenty-five years old when the assault occurred on June

9, 2003. While asleep in her New Brunswick apartment, she awakened

to   the   sound   of   someone   entering    her   bedroom,   and    saw   the

silhouette of a man in her room.             He was about six feet tall,

husky, and held a knife in his hand.          K.G. began to plead for the

man to leave.

      Over the course of the approximately ten-minute encounter,

the assailant threatened to slit K.G.'s throat and stabbed the

knife into the mattress near her head.          He slapped her forcefully

across the cheek, pressed the knife to her cheek, and threatened

to cut her if she did not "shut up."            K.G. noticed the man was

wearing latex gloves.      He removed her pants, cut her panties with

the knife, kissed her on the mouth, and fondled her body.              He used

a condom when forcing intercourse upon her.          K.G. continued to beg

him to stop, and the assailant responded by saying that he knew

she had always wanted to be "with a black man," and that he had

been watching her for some time.          She noticed that he was wearing

                                      3                                A-3174-15T3
a light colored sweatshirt and that his pants were loose-fitting

and dark.   When the man was finished, he backed out of K.G.'s

bedroom, threatened her again, and told her to be still or that

he would hurt her.   K.G. heard the sound of a screen door closing

in the kitchen, but did not hear the sound of a car.       Within a

minute or two, she called 911.

     When asked at trial, the victim stated that the most memorable

aspect of the encounter was the sound of defendant's voice.      She

found it "really weird" that he was articulate and soft-spoken

while "saying all of these horrible threatening things."

     The police found a knife in the yard, which the victim

identified as having been taken from the kitchen.   Her sister was

in a hospital residency program, and the latex gloves worn by the

assailant reminded her of the type worn by hospital staff, not the

type that would be worn for household chores.

     When the police arrived at K.G.'s apartment after the assault,

they were unable to locate any suspects or witnesses, but found a

lawn chair outside a wide-open kitchen window.   K.G. was taken to

the hospital and examined by a sexual assault nurse.   Her clothes

were taken from her, including her pajama pants.

     Some two years later in June 2005, K.G. viewed a line-up.

Six individuals were asked to make statements similar to the

threats made during the attack. K.G. identified defendant's voice,

                                 4                          A-3174-15T3
and wrote on the form "[n]umber one, similar build, voice, but not

definite."

     K.G. testified that when she went home after the line-up, she

was certain that she had identified the correct man, although her

concern about identifying an innocent person kept her from making

a more definitive statement.    She did not contact the authorities

to advise that she was 100% certain defendant was the assailant.

     K.G. said that it was difficult to explain, but she was "very

familiar with his -- how his voice sounded."     She also remembered

that the second time defendant was asked to speak during the line-

up, he attempted to "disguise his voice."

     A trace evidence scientist with the New Jersey State Police

Office of Forensic Sciences discovered a body hair on K.G.'s

pajamas.     Although the hair did not contain follicular material

or an actively growing root, and therefore could not be examined

employing nuclear DNA testing, it could be tested for mitochondrial

DNA. It was sent to Mitotyping Technologies, where it was compared

with a buccal swab from defendant and determined to contain the

same mitochondrial DNA sequence.      This meant that defendant could

not be excluded as the source of the hair.

     The State presented Terry Melton, the founder and CEO of

Mitotyping Technologies, as an expert in genetic mitochondrial DNA

analysis and interpretation.   She explained that mitochondrial DNA

                                  5                           A-3174-15T3
sequencing only eliminates persons from a group who could have

produced the test sample.   That finding becomes more significant

when it is determined how common or rare that type of mitochondrial

DNA is in the general population.

     Melton searched the relevant DNA database a second time before

the retrial.   She determined that no more than .03% or 3 in 10,000

Americans would have this type of mitochondrial DNA.

     The State also called defendant's former supervisor at the

Robert Wood Johnson University Hospital, where he had been employed

during the date of the incident as a nurse's aide or clinical care

technician. In order to perform his duties, defendant was required

at times to wear latex gloves.   They were kept in a supply room.

     The hospital is located approximately a half-mile from K.G.'s

apartment; on the night of the rape, defendant punched in to the

night shift. The supervisor testified that employees were entitled

to two breaks, one thirty minutes long and the other fifteen

minutes, which could be combined.         Employees were allowed to

leave the premises during breaks, and were not then required to

punch in and out if they left.

     Investigator Paul Miller of the Middlesex County Prosecutor's

Office also testified that the distance between the hospital and

K.G.'s apartment was about half a mile.    It took him approximately

four minutes to drive the distance, and less than ten and a half

                                 6                           A-3174-15T3
minutes to walk the same route.            When arrested on May 27, 2005,

defendant reported to Miller that he was five feet eleven inches

tall and weighed 220 pounds.

      At the close of the State's proofs, defendant made a motion

for acquittal pursuant to Rule 3:18 and State v. Reyes, 
50 N.J.
 454 (1967). The court denied the motion in an oral opinion, giving

the State the benefit of all favorable testimony.                    The judge

reviewed the victim's statements and identification of defendant

as well as the testimony regarding mitochondrial DNA.                     He also

noted that defendant was within easy walking distance from the

victim's home while working, and that during his breaks, no one

would    know   his   whereabouts.     As     a   result,   he    found   that    a

reasonable jury could convict.

      Defendant called Captain J.T. Miller1 of the New Brunswick

Police    Department    as   his   witness.       Within    two   weeks   of   the

incident, as part of the ongoing investigation, a buccal swab

submitted for DNA testing was taken from a person suspected of

committing burglaries in New Brunswick by gaining entry through a

window.    Miller stated that although he sent the sample on for

testing, he knew nothing about the results.




1
    The officer's full name was not in the record.

                                       7                                  A-3174-15T3
     At the sentence hearing, the judge noted that in her letter

to the court regarding defendant's sentence, the victim described

defendant as "a woman's worst nightmare."                He entered her home in

the middle of the night when she was vulnerable, asleep in her

bed, and degraded her in the most intimate of ways.                    The court

found aggravating factor number three, 
N.J.S.A. 2C:44-1(a)(3),

aggravating      factor   number   six,      N.J.S.A.         2C:44-1(a)(6),     and

aggravating factor number nine, 
N.J.S.A. 2C:44-1(a)(9).                    This was

defendant's eighth Superior Court conviction, and his criminal

record   dated    back    to   1989.       His       convictions   included     drug

distribution,      
N.J.S.A.     2C:35-5A(1),           third-degree    aggravated

assault with serious bodily injury, 
N.J.S.A. 2C:12-1B(1), two

disorderly    persons     offenses,    and       a    petty   disorderly   persons

offense.     Two separate women had obtained temporary restraining

orders against him, which were ultimately dismissed.

     The judge found that aggravating factor number three, the

risk of reoffense, was established by defendant's criminal history

as well as the other convictions for the rapes of other women,

included in the other counts of the indictment.                       Defendant's

substantial criminal history established the evidence necessary

for a finding of aggravating factor six.                 Additionally, the need

to deter defendant and others from committing crimes of this nature

was significant.

                                       8                                    A-3174-15T3
     The judge imposed this sentence consecutive to defendant's

fifty-year aggregate prior sentence on the other counts of the

indictment because, under Yarbough,2 he considered the matters to

warrant    consecutive   sentences    to   avoid     giving   defendant     the

benefit of free crimes.      The other counts of the indictment on

which defendant had previously been convicted involved the rapes

of three other women on separate dates.                He included in his

analysis   rape's   "unspeakable     invasion   of    a   woman's   right    to

privacy" and refused to "diminish and denigrate the harm that this

defendant has caused, a harm that will continue to live in those

victim[s'] minds for the rest of their lives. . . . [t]he jail

sentence should be commensurate with the harm that he has imposed

upon them."

     Now on appeal, defendant raises the following points for

consideration:

            POINT I – THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
            OF ALL CHARGES AT THE END OF THE STATE'S CASE-
            IN-CHIEF.

            POINT II – THE COURT'S SENTENCE OF THE MAXIMUM
            TWENTY YEARS IN PRISON WAS EXCESSIVE.




2
   State v. Yarbough, 
100 N.J. 627 (1985), cert. denied, 
475 U.S. 1014 (1986).

                                     9                                A-3174-15T3
                                       I.

       We review Rule 3:18 motions for judgments of acquittal made

at the close of the State's case employing a de novo standard of

review.     State v. Williams, 
218 N.J. 576, 593-94 (2014) (citing

State v. Bunch, 
180 N.J. 534, 548-49 (2004)).            We decide whether,

"based on the entirety of the evidence and after giving the State

the benefit of all its favorable testimony and all the favorable

inferences drawn from that testimony, a reasonable jury could find

guilt beyond a reasonable doubt."           Id. at 594 (citation omitted).

       K.G. testified unequivocally that she believed defendant was

the person who sexually assaulted her based on the sound of his

voice     and   his   general     appearance.      The   mitochondrial    DNA

statistical evidence described by the State's expert supports the

identification.       Defendant was employed minutes away from the

victim's home and could easily have left his workplace that night,

unnoticed, committed the crime, and returned to the hospital.              He

wore latex gloves, commonplace in a medical setting.

       When deciding a motion of acquittal, "[n]o distinction is

made    between    direct   and   circumstantial    evidence."    State    v.

Tindell, 
417 N.J. Super. 530, 549 (App. Div. 2011) (citations

omitted).       A reasonable inference can be drawn when "it is more

probable than not that the inference is true."            State v. Kitral,


145 N.J. 112, 131 (1996) (citation omitted).

                                      10                            A-3174-15T3
     The victim's testimony identifying defendant's voice was

direct   evidence     testimony   identifying   defendant   as    the

perpetrator.    That she heard him attempt to alter his voice during

the line-up, the only man who did so, is circumstantial evidence

of guilt.     Although the mitochondrial DNA evidence could only be

said to not exclude defendant, the statistical probabilities were

that no more than .03% or 3 in 10,000 North Americans would have

this type of genetic marker.      His employment nearby, the fact he

could leave work undetected and return undetected, as well as his

ready access to latex gloves is additional circumstantial evidence

of guilt.

     As the jury instruction states, circumstantial evidence can

be more certain, satisfying, and persuasive than direct.         Model

Jury Charge (Criminal), "Circumstantial Evidence" (rev. Jan. 11,

1993).   The evidence in this case was limited, but proof beyond a

reasonable doubt.     It exceeded the requisite level of proof that

would withstand a Rule 3:18-1 motion for acquittal.

                                  II.

     Defendant claims the trial judge also erred in imposing an

excessive sentence.    He contends the maximum term for the first-

degree offense was unnecessary in light of the imprisonment imposed

on him for the other aggravated sexual assaults charged in the

indictment.    He bases his contention both on the fact that he was

                                  11                         A-3174-15T3
serving a fifty-year term of imprisonment when sentenced on these

crimes, and his assertion that the court merely stated in a

conclusory fashion, without explanation, that the aggravating

factors preponderated over non-existent mitigating factors.

       We review sentences deferentially.           State v. Lawless, 
214 N.J. 594, 606 (2013).       We ask only if legislative guidelines have

been   followed,   if     competent   credible    evidence   supports     each

finding of fact upon which the sentence was based, and whether

application of the facts to the law is such a clear error of

judgment as to shock the judicial conscience.             State v. Roth, 
95 N.J. 334, 364-65 (1984).         Aggravating and mitigating factors must

be fully supported by the evidence.         State v. Blackmon, 
202 N.J.
 283, 297 (2010).     Appellate review of the length of a sentence is

limited.    State v. Miller, 
205 N.J. 109, 127 (2011).

       Clearly, the record amply supported aggravating factors three

and six.    Defendant's multiple convictions, including convictions

for similar offenses against two other women, mean he is at great

risk to reoffend.       See 
N.J.S.A. 2C:44-1(a)(3).       The extent of his

criminal   history   at    age   forty-four,     after   multiple   terms    of

incarceration, also supports factor six.

       The judge also focused on the emotional harm done to K.G.,

and took that trauma into account when finding that aggravating

factor nine should be given substantial weight in the sentencing

                                      12                              A-3174-15T3
calculus.     Given that the aggravating factors preponderated and

there were no mitigating factors, it was entirely proper for the

judge to sentence defendant to the highest permissible number

within the offense range. The sentence does not shock our judicial

conscience.    Roth, 
95 N.J. at 364.

     Affirmed.




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