STATE OF NEW JERSEY v. M.P.R.
Annotate this CaseRECORD 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NOT FOR PUBLICATION WITHOUT THE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-3604-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.P.R.,
Defendant-Appellant.
__________________________________
Argued February 14, 2017 – Decided March 16, 2018
Before Judges Ostrer, Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 11-02-0097.
John W. Douard, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
John W. Douard, of counsel and on the brief).
Alexis R. Agre, Assistant Prosecutor, argued
the cause for respondent (Robert D. Bernardi,
Burlington County Prosecutor, attorney;
Alexis R. Agre, of counsel and on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant M.P.R. was convicted of committing a series of
sexual assaults and a kidnapping on November 21, 2014. On appeal,
he argues the trial court barred relevant evidence of third-party
guilt. He also challenges the jury instructions on third-party
guilt, and claims his sentence is excessive. We affirm.
I.
At defendant's trial, the victim S.L. testified as follows.
On August 19, 2009, S.L. went to her boyfriend B.R.'s apartment
in Burlington County. She found B.R.'s brother — defendant —
sleeping on the couch. B.R. was not in the apartment, as he was
a landscaper working on a job in Salem County.
S.L. agreed to drive defendant to a 5:00 p.m. appointment.
After the appointment, they went to a bar. While defendant was
driving them back to B.R.'s apartment, a tire fell off S.L.'s van
which broke down in the street. Defendant and S.L. began fighting
over the breakdown. Defendant called a friend, and he and the
friend drove off leaving S.L. with the broken-down van. Defendant
eventually returned to the van, but S.L. had already left the van
and went back to B.R.'s apartment located a few blocks away.
Throughout the course of the evening, S.L. was on the phone with
B.R., arguing about the van breakdown.
Defendant came back to B.R.'s apartment at approximately
midnight, and began drinking vodka and rolling cigarettes. In a
2 A-3604-14T4
call with S.L., B.R. expressed concern that S.L. was in his
apartment by herself with defendant, and was suggesting how she
could get to her own apartment.
S.L. last spoke with B.R. on the phone at approximately 1:45
a.m. on August 20, 2009. Defendant exited the apartment again.
Defendant re-entered at approximately 2:44 a.m., said "I'm not
going to see my kids for a couple of years," then punched and
smashed a chair against a wall. S.L. started texting B.R. that
defendant was breaking furniture.
Defendant grabbed the cell phone out of S.L.'s hand. He told
her "you're getting naked," and ripped her clothes off, tearing
her bra in two. Defendant pushed and hit S.L. on the buttocks to
get her to climb the stairs. S.L. continually yelled at defendant
to think about B.R. and what this would do to him. Defendant
threatened to kill both her and B.R.
When they reached the halfway point on the stairs, defendant
painfully forced her arms "up across in front of her neck with her
hands by her shoulders on each side" in an effort to "use [her]
own arms to choke [her]." S.L. passed out and regained
consciousness at the top of the stairs. Defendant then commenced
a series of sexual assaults on S.L., ranting "he was going to do
things to [S.L.] that were done to him."
3 A-3604-14T4
The first sexual assault occurred in the upstairs bathroom.
Defendant forced S.L. onto her hands and knees and put his penis
into her vagina. He did not ejaculate.
The second sexual assault occurred in the hallway at the top
of the stairs. S.L. testified defendant "put his penis in my
anus, and then – but he took it back out. And then he put his
fingers in my anus, and I'm pretty sure he stuck his fingers in
my vagina at that time too." Defendant once again choked S.L.
with her own arms, causing her to lose consciousness. She awoke
in the hallway in what she believed was urine or some kind of oil.
The third sexual assault occurred after defendant forced S.L.
to take a shower with him. While in the shower, defendant forced
his hand over S.L.'s mouth, and said: "I didn't hurt you . . . I
didn't do anything to you." S.L. told defendant she was going to
lose control of her bowels. Defendant let her out of the shower
to use the toilet.1 While S.L. was using the toilet, defendant
forced his penis into S.L.'s mouth, choking her with it.
Defendant commenced the fourth and final sexual assault when
he forced S.L. to go downstairs and made her perform fellatio on
1
In S.L.'s statement to police, she said "[B.R.], I know you —
[defendant], I have to do this. I have to, you know, go to the
bathroom." S.L. testified that she misspoke to the officer, that
she meant defendant, and that B.R. was not there.
4 A-3604-14T4
him in the living room. S.L. did so until defendant punched her
in the face, leaving her unconscious.
After the sexual assaults, when defendant was asleep, S.L.
grabbed some clothing, escaped out of the front door, and took
refuge with a female neighbor. The neighbor called 9-1-1. S.L.
was taken to Lourdes Medical Center and was treated for her
injuries.
At the hospital, biological samples were taken. The specimens
tested negative for any presence of sperm or semen, but the
external genital specimen tested positive for amylase, a
constituent of saliva and "most every body fluid" including "urine,
blood, saliva, semen, and . . . sweat." The amylase was sent to
another lab and tested positive for defendant's DNA.2
Defendant testified to the following. He was driving S.L.'s
van when the tire fell off. His friend came to pick him up, he
and S.L. alternated speaking with B.R., and S.L. left the broken-
down van and went back to B.R.'s apartment. Defendant arrived at
the apartment at approximately 11:30 p.m., rolled and smoked some
cigarettes, and went to sleep on the couch at approximately
midnight. Defendant testified that he awoke in the middle of the
2
However, the DNA expert testified there is a possibility a
transfer of DNA could have occurred without there being sexual
contact.
5 A-3604-14T4
night and saw B.R. standing in the doorway of the apartment. He
went back to sleep and awoke the next morning, when his then-
girlfriend E.H. called and told him the accusations against him.
B.R. testified as follows. On August 19, 2009, he was working
on a job in Salem County. Because the job site was so far from
his home, B.R. and some of the other men on the job site rented a
cabin at Parvin State Park in Salem County. B.R. was on the phone
repeatedly with S.L. for much of the night, until 2:13 a.m.,
arguing with her about the tire falling off the van and expressing
concern that she was alone with defendant in the apartment. During
these conversations, he heard defendant yelling, and he could tell
defendant was getting angry by the "change in his voice." As a
result, B.R. told S.L. to get out of the apartment.
B.R. also testified he was sleeping on the top bunk in a
cabin he was sharing with another worker. Four workers who were
in the cabins testified that B.R. was there when they went to
sleep between midnight and 1:00 a.m., and there when they woke up
from 5:30 to 7:00 a.m. The worker in the same cabin with B.R.
testified that no one left during the night, and that if B.R. had
started his loud truck during the night, he would have heard it.
B.R. testified he awoke the next morning and saw several
missed calls from S.L. and from unknown phone numbers. At 7:40
a.m., B.R. received another call from an unknown phone number, and
6 A-3604-14T4
it was later discovered this number belonged to the neighbor who
helped S.L. The police also called B.R. When B.R. was finally
able to get in contact with S.L., he asked her if defendant was
the one who sexually assaulted her, to which she responded yes.
B.R.'s male next-door neighbor also testified at trial. He
testified that at approximately 2:50 a.m., he was woken up by a
lot of noise coming from B.R.'s apartment. The neighbor testified
he heard a woman shouting "something to the effect, [B.R.], [B.R],
and then she stopped. She said stop. Give me back the phone" and
"get off me."3 He also testified he heard "some thumping down the
steps" and looked out his window, at which point he saw a man
resembling one of the brothers exit the apartment, go down the
stairs and throw something in a landscaping trailer, and then walk
back into the apartment. The neighbor told officers the brother
he saw looked like B.R., but he later realized he confused the
names of the brothers, and he gave a corrected statement that he
saw defendant. The neighbor testified he did not see B.R.'s truck
outside.
3
According to the neighbor's statement to police, the woman said
something like "'[B.R.], [B.R.], . . . look what you've done to
me. You need to think about what you done to me. Are you
nuts? . . . Get off of me, get off of me, [B.R.] Give me back
the phone,'" or similar versions with B.R.'s first name
interspersed throughout. However, the neighbor testified that he
may have missed some words, and that it was "very possible" the
woman was saying "think of [B.R.]"
7 A-3604-14T4
The jury found defendant guilty of counts one through four,
second-degree sexual assault by physical force or coercion by
vaginal, anal, and digital penetration, and by fellatio,
N.J.S.A.
2C:14-2(c)(1); count five, first-degree kidnapping,
N.J.S.A.
2C:13-1(b)(1); and count six, third-degree terroristic threats by
threat to kill,
N.J.S.A. 2C:12-3(b).
At sentencing, on each of counts one through four, the court
imposed a consecutive term of seven years in prison. The court
also sentenced defendant to a concurrent twenty-four-year-term on
count five. On each of the sentences, defendant was required to
serve 85% under the No Early Release Act (NERA),
N.J.S.A. 2C:43-
7.2.
Defendant appeals from his December 15, 2014 amended judgment
of conviction, arguing:
I. THE JUDGE'S IMPROPER EXCLUSION OF
EVIDENCE THAT [DEFENDANT]'S BROTHER
[B.R.] HAD COMMITTED PRIOR ASSAULTS
AGAINST HIS GIRLFRIEND [S.L.] UNDERMINED
[DEFENDANT]'S THIRD-PARTY GUILT DEFENSE.
MOREOVER, THE JUDGE FAILED TO PROVIDE THE
JURY WITH AN ADEQUATE JURY INSTRUCTION
ON THIRD-PARTY GUILT. [DEFENDANT]'S
CONSTITUTIONAL RIGHTS WERE THEREBY
VIOLATED.
A. The Judge's Improper
Exclusion of Testimony
About Evidence That
[Defendant]'s brother Had
Committed Prior Assaults
Against [S.L.] precluded
8 A-3604-14T4
[Defendant]'s Ability To
Present A Complete Third-
Party Guilt Defense.
B. The Judge Failed to
Instruct the Jury
Adequately On the Defense
of Third-Party Guilt.
II. THE AGGREGATE SENTENCE OF TWENTY-EIGHT
YEARS IN PRISON, WITH AN 85% PERIOD OF
PAROLE INELIGIBILITY, IS EXCESSIVE AND
UNDULY PUNITIVE, BECAUSE THE SEX-OFFENSE
COUNTS SHOULD NOT HAVE BEEN IMPOSED
CONSECUTIVELY TO ONE ANOTHER AND THE
FINDING OF AGGRAVATING AND MITIGATING
FACTORS WAS INCOHERENT.
II.
Defendant challenges the trial court's initial exclusion of
alleged evidence of third-party guilt. A criminal defendant has
a "right to introduce evidence of third-party guilt 'if the proof
offered has a rational tendency to engender a reasonable doubt
with respect to an essential feature of the State's case.'" State
v. Perry,
225 N.J. 222, 238 (2016) (quoting State v. Cotto,
182 N.J. 316, 332 (2005)).
"[A] state cannot preclude a defendant from presenting
evidence of third-party guilt simply because the evidence against
him strongly supports a guilty verdict." State v. DeMarco,
387 N.J. Super. 506, 519 (App. Div. 2006) (citing Holmes v. South
Carolina,
547 U.S. 319 (2006)). However, courts "will not upend
a trial court's decision to exclude purported third-party guilt
9 A-3604-14T4
evidence . . . [if] the evidence proffered did no more than 'prove
some hostile event and [left] its connection with the case to mere
conjecture.'" Perry,
225 N.J. at 242 (quoting State v. Koedatich,
112 N.J. 225, 301 (1988)).
"The decision to admit or exclude evidence of third-party
guilt is 'particularly fact sensitive[.]'" Id. at 239. "For this
reason, trial courts retain broad discretion to admit or preclude
evidence of third-party guilt," and appellate courts "will reverse
only if the defendant can establish an abuse of that discretion."
Cotto,
182 N.J. at 333. We must hew to that standard of review.
At trial, defense counsel argued B.R. committed the sexual
assaults against S.L. Shortly before trial, defendant moved to
admit evidence that B.R. had allegedly committed domestic violence
against S.L. on May 18, 2010 – approximately nine months after the
sexual assaults. Defendant proffered a police report, the criminal
complaint-warrant, and a voluntary statement made by S.L. Defense
counsel argued he should be allowed to ask B.R. about the
incident.4 The trial court denied defendant's request because the
4
Defendant has never contended the documents themselves were
admissible. "[T]o be admissible, evidence of third-party guilt
must 'satisfy the standards of the New Jersey Rules of Evidence.'"
Cotto,
182 N.J. at 334 (citation omitted) (finding "the proffered
evidence consisted entirely of inadmissible hearsay and could not
have been presented at trial").
10 A-3604-14T4
alleged domestic violence "occurred after the events in this case,
and is otherwise not relevant to the case at bar."
The mere fact that the alleged domestic violence occurred
after the charged crimes was not sufficient basis to exclude the
proffered evidence. Evidence of third-party guilt can arise from
events occurring months after the charged crime. See State v.
Weaver,
219 N.J. 131, 157-58 (2014) (holding it was relevant to
the charged June shooting that a third party used the same gun to
commit a shooting in November).
The trial court gave an alternative basis for excluding the
proffered evidence, namely that it was not relevant. However, we
need not determine the appropriateness of the court's alternative
ruling regarding all the proffered evidence, because the court
subsequently admitted much of the proffered evidence.
During B.R.'s direct examination, the prosecutor asked: "Did
you beat [S.L.] on August 20, 2009?" to which B.R. responded: "Not
that day or any other." The trial court found "the door has been
opened to ask [B.R.] about other incidents of assault between
himself and [S.L.]." The court ruled defendant was "permitted to
question [defendant's then-girlfriend E.H.] and [B.R.] regarding
any assaultative behavior that took place between [B.R.] and
[S.L.]," including "the May 18th, 2010 incident."
11 A-3604-14T4
After the trial court's ruling, defendant thoroughly cross-
examined B.R. using the proffered documents about the alleged May
18, 2010 domestic violence. Defense counsel had B.R. identify
S.L.'s signature on her voluntary statement, and then had B.R.
read aloud to the jury her handwritten statement that at 1:00
a.m., B.R. came home from a bar, they argued, and B.R. held her
mouth, picked her up, and threw her on the ground. Defense counsel
had B.R. identify and read the criminal complaint-warrant,
charging that he did "commit assault by attempting to cause bodily
injury to [S.L.], specifically by grabbing the victim around the
mouth and throwing her to the ground and causing the victim pain
in her lower back." Defense counsel had B.R. identify the police
report, and showed him the attached photos of S.L. displaying her
bruises.
B.R. admitted that he and S.L. had argued on May 18, 2010,
that the photos showed S.L. had bruises, that he was arrested and
charged with assault, and that S.L. obtained a temporary
restraining order (TRO) against him. He denied having assaulted
S.L., said her bruises were not from the incident, and related
that subsequently he pled guilty only to a noise violation and
that S.L. dismissed the TRO.
The trial court also allowed defendant to elicit other
evidence of B.R.'s violence against S.L. by cross-examining
12 A-3604-14T4
defendant's girlfriend E.H. E.H. testified that four days before
the sexual assaults B.R. grabbed S.L. by the back of her shirt
with such force that it ripped her bra in half and began to tear
the collar of her shirt, and that he hit her. E.H. further
testified S.L. told E.H. that B.R. and S.L. had other physical
confrontations, and that S.L. was fearful of B.R.
During his summation, defense counsel told the jury during
"I think [B.R.] is the one that assaulted [S.L.]." Defense counsel
argued that after the phone calls B.R. "just had enough and he
[drove home and] went to the same modus operandi he has before —
he's beaten [S.L.] before." Counsel pointed to E.H.'s "testimony
that prior to this incident within the week of the incident that
[S.L.] and [B.R] were arguing coming back from the bar and . . .
intoxicated . . . he smacks her in the face and he rips her bra."
Counsel noted B.R.'s defense, but argued "[w]e know that's a lie
because the records [of the May 18, 2010 assault] prove it."
Counsel told the jury B.R. "has beat her up," and that S.L. was
blaming defendant because "she's afraid of [B.R.], of what he did
in the past."
Thus, the trial court ultimately granted defendant
substantial cross-examination to support his argument on third-
party guilt. Defendant was able to bring before the jury the
facts of the May 18, 2010 incident by having B.R. read S.L.'s
13 A-3604-14T4
statement to police and the resulting criminal complaint.
Defendant concedes he was able to cross-examine B.R. on the
subject, and also to elicit from E.H. that S.L. told her of the
violent relationship she had with B.R. On appeal, defendant
contends the court's initial ruling suppressed that information's
context, but he does not identify any fact he should have been
able to elicit.
Defendant argues he should have been allowed to cross-examine
S.L. about her violent relationship with B.R., in particular about
the statements she made to E.H. However, in his pretrial hearing,
defense counsel mentioned wishing to cross-examine only B.R. about
the May 18, 2010 assault, which defendant was ultimately able to
do. Although defendant attempted to cross-examine S.L. early in
the trial,5 defendant never requested to recall S.L. to cross-
examine her after the trial court ruled that B.R. had opened the
door to cross-examination "regarding any assaultive behavior" by
B.R. against S.L.
5
Defense counsel asked S.L. if B.R. ever assaulted her, but did
not repeat the question after an objection. The next day, defense
counsel unsuccessfully argued he should be able to ask S.L. about
prior assaults, saying: "if she admits it, well, then, fine. If
she doesn't admit it, I have other people that can testify with
regards to what she said about that."
14 A-3604-14T4
Moreover, E.H. testified to S.L.'s statements about B.R.'s
violence against her generally and shortly before the sexual
assaults. Similarly, the jury heard S.L.'s own statement about
the May 18, 2010 incident. Recalling S.L. carried the risk she
would deny the statements the jury had already heard. 6 In any
event, even if S.L. had confirmed the statements, that would not
have added much to the evidence already elicited.
Defendant argues he was harmed by the trial court's initial
ruling barring cross-examination, despite the court's subsequent
ruling permitting it. He contends cognitive science suggests
jurors make up their minds early in the trial. However, the trial
court instructed the jurors before opening statements: "You are
not to form or express an opinion on this case, but are to keep
an open mind until you have heard all the testimony, have heard
the summations, have had the benefit of my instructions as to the
applicable law, and have been instructed to begin your
deliberations." Defendant's contention is consistent with the
precept that "[t]here can be no assumption that the jury did not
faithfully follow the [trial court's] admonition." State v.
Nelson,
173 N.J. 417, 447 (2002) (quoting State v. Manley,
54 N.J.
259, 271 (1969)). "One of the foundations of our jury system is
6
Defense counsel argued in closing that S.L. could not admit to
police or her friends that her own boyfriend beat her up.
15 A-3604-14T4
that the jury is presumed to follow the trial court's
instructions." State v. Burns,
192 N.J. 312, 335 (2007).
Defendant cites State v. Cope,
224 N.J. 530 (2016), but there
the trial judge totally barred testimony from "[a] person who
confesses to the crime of which the defendant is accused[.]" Id.
at 555. By contrast, defendant offered only propensity evidence.
See State v. Harris,
156 N.J. 122, 178 (1998) (finding evidence
that a third party was "violence-prone" has "little probative
value"). Moreover, he does not claim on appeal that any fact was
excluded by the trial court's rulings.
Moreover, defendant's third-party guilt theory was strained.
As the trial court noted in denying defendant's motion for a new
trial, "[t]he jury [simply] did not believe defendant's theory
that [B.R.] in the dead of night drove from his worksite . . . 40
minutes away, beat and raped his girlfriend and then drove back
to the work site undetected by anyone." The court added that
"[t]he jury did not believe defendant's version" that he "slept
through this brutal attack . . . so loud that the neighbor was
awakened by the noise." Given the strength of the State's
evidence, which included defendant's DNA on S.L.'s genitalia, we
cannot say the court's rulings were "clearly capable of producing
an unjust result." R. 2:10-2.
16 A-3604-14T4
III.
At the charge conference, defendant asked the trial court to
include in the final jury charge an instruction on third party
guilt. The court gave defendant's instruction, with the following
{additions} and deletions:
The defense has introduced evidence that:
[B.R.] had assaulted [S.L.] before and after
the date of August 20, 2009, specifically by
striking her and/or tearing or ripping off a
piece of her clothing on one date and {also}
on May 18,7 2010, by holding her mouth and/or
face, picking her up and throwing her on the
ground causing her to land on her lower back
and buttocks area causing pain and bruising,
as well as dragging her through the house
causing injury to her knees. The evidence has
been offered because Defendant [M.P.R.]
asserts in reason, that it tends,8 alone, or
with other evidence submitted in this case,
to negate Defendant [M.P.R.]'s guilt of the
charges against him. You should consider this
evidence, along with all the other evidence
in the case, in determining whether or not the
State has proven beyond a reasonable doubt
that defendant is the person who committed the
offense of Sexual Assault, Kidnapping,
Terroristic Threats, or the lesser included
offense of criminal restraint, criminal sexual
contact, or false imprisonment.
Defendant argues the trial court erred by leaving out his
suggested factual rendition of the alleged May 18, 2010 assault.
However, "[n]o party is entitled to have the jury charged in his
7
Transcribed as "19th."
8
Transcribed as "has certain reason that attends."
17 A-3604-14T4
or her own words; all that is necessary is that the charge as a
whole be accurate." State v. Jordan,
147 N.J. 409, 422 (1997).
"It is the sole duty of the court to deliver 'accurate instructions
on the law as it pertains to the facts and issues' of the case at
hand." State v. Baum,
224 N.J. 147, 167 (2016). Here, defendant
got "an adequate instruction of the law." State v. Pleasant,
313 N.J. Super. 325, 333 (App. Div. 1998), aff'd o.b.,
158 N.J. 149
(1999). Indeed, the court's statement of the law, was in the
language defendant requested.
Moreover, "[t]rial courts have broad discretion when
commenting on the evidence during jury instruction." State v.
Brims,
168 N.J. 297, 307 (2001). Generally, "summarizing the
strengths and weaknesses of the evidence is more appropriately
left for counsel." State v. Robinson,
165 N.J. 32, 45 (2000); see
State v. Swint,
328 N.J. Super. 236, 259-60 (App. Div. 2000). Of
course, "there are situations in which [courts] do require that
jury instructions be 'molded' or 'tailored' to the facts adduced
at trial. That requirement has been imposed in various contexts
in which the statement of relevant law, when divorced from the
facts, was potentially confusing or misleading to the jury."
Robinson,
165 N.J. at 42. The omission of the details of the May
18, 2010 incident did not make the court's instruction confusing
or misleading.
18 A-3604-14T4
On appeal, defendant argues for the first time the trial
court should have added that the introduction of third-party guilt
evidence did not shift the burden of proof to defendant. However,
the court gave the statement of law in defendant's proposed charge,
which did not contain the language he now seeks. "[I]f defense
counsel asked for a particular charge, if the court relied on
counsel's request, and if defendant has now chosen to challenge
that decision on appeal," that challenge is barred by invited
error. State v. Munafo,
222 N.J. 480, 487 (2015). "[A] party may
not argue that the jury was instructed to apply the wrong legal
standard if that party argued for the application of that standard
at trial." Brett v. Great Am. Rec.,
144 N.J. 479, 504 (1996);
see, e.g., State v. Ramseur,
106 N.J. 123, 282 (1987).
At the very least, defendant must show plain error. Munafo,
222 N.J. at 488. He cannot make that showing. The trial court's
instruction made clear the jury should consider defendant's
evidence of third-party guilt "in determining whether or not the
State has proven beyond a reasonable doubt that defendant is the
person who committed the offense." Moreover, earlier in its
charge, the court instructed the jury "[t]he State has the burden
of proving the defendant guilty beyond a reasonable doubt," "that
burden never shifts to the defendant," and defendant "has no
obligation or duty to prove his innocence or offer any proof."
19 A-3604-14T4
Defendant now argues the trial court in 2013 should have
instructed the jury in line with a model jury charge that was not
adopted until 2015. However, the 2015 model charge is
indistinguishable from the trial court's instructions regarding
the burden of proof. The 2015 model charge tells the jury that
evidence of third-party guilt can raise "a reasonable doubt with
respect to the defendant's guilt," merely reminds jury the judge
"previously charged you with regard to the state's burden of proof,
which never shifts to the defense," and states "[t]he defendant
does not have to produce evidence." Model Jury Charge (Criminal),
"Third Party Guilt" (approved Mar. 9, 2015). The trial court's
charge contained all of those instructions.
Defendant cites the 2015 model charge's reminder about the
previous instructions about the burden of proof. Although
defendant's 2013 charge on third-party guilt did not contain such
a reminder, defendant shows no reason to believe the jurors forgot
that instruction which they heard a short time earlier and which
they had copies of in the jury room. Courts "hold in high regard
the capacity and integrity of juries," State v. Mahoney,
168 N.J.
202, 222 (2001), and "act on the belief and expectation that jurors
will follow the instructions given [to] them by the court." State
v. T.J.M.,
220 N.J. 220, 237 (2015).
20 A-3604-14T4
Defendant has not shown a "[l]egal 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." State v. Camacho,
218 N.J. 533, 554 (2014) (citations omitted).
IV.
Defendant next claims his sentence was excessive. "Appellate
courts review sentencing determinations in accordance with a
deferential standard. The reviewing court must not substitute its
judgment for that of the sentencing court." State v. Fuentes,
217 N.J. 57, 70 (2014). We must affirm unless:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.
[Id. at 70 (citation omitted).]
Defendant argues the trial court improperly decided to run
consecutively the seven-year sentences he received for sexually
assaulting S.L. on four occasions.
"Under our sentencing scheme, there is no presumption in
favor of concurrent sentences and therefore the maximum potential
21 A-3604-14T4
sentence authorized by the jury verdict is the aggregate of
sentences for multiple convictions." State v. Abdullah,
184 N.J.
497, 513-14 (2005). Moreover, "there can be no free crimes in a
system for which the punishment shall fit the crime." State v.
Yarbough,
100 N.J. 627, 643 (1985).
"When multiple sentences of imprisonment are imposed on a
defendant for more than one offense," sentencing courts are vested
with the discretion to determine whether the sentences "shall run
concurrently or consecutively."
N.J.S.A. 2C:44-5. "In State v.
Yarbough, the Court articulated the following five factors to
guide a trial court in determining whether to impose consecutive
or concurrent sentences," State v. Spivey,
179 N.J. 229, 244 n.4
(2004):
(1) whether "the crimes and their objectives
were predominately independent of each other";
(2) whether they "involved separate acts of
violence or threats of violence"; (3) whether
they "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"; (4)
whether they "involved multiple victims"; and
(5) whether "the convictions for which the
sentences are to be imposed are numerous."
[Ibid. (quoting Yarbough,
100 N.J. at 643-
44).]
Here, the trial court considered each of these factors. The
court was aware there was only one victim, and acknowledged the
22 A-3604-14T4
convictions were not numerous. The court also found the "crimes
and their objectives were not predominantly independent of each
other," as they were all performed "with the same objective, to
place [S.L.] in fear and to keep her from leaving so defendant
could assault her, embarrass and humiliate her."
However, the trial court found "that the offenses as committed
involved separate acts of violence or threats of violence," which
"were not done so close in time as to constitute one incident of
abhorrent [sic] behavior." The court explained "[t]he victim was
assaulted at different times and in different ways. In addition,
the assaults occurred in different areas within the home. The
assaults took place in the living room, the top of the stairs and
in the bathroom." The court noted the victim "testified she was
assaulted through the night. Each assault and threat was a
separate indignity to the victim."
Defendant argues his four sexual assaults should be
considered a single period of aberrant behavior. However, the
court's findings were supported by the evidence. Moreover, we
cannot say its conclusion was an abuse of discretion. In Spivey,
our Supreme Court held an assault on a searching officer was not
part of "a single period of aberrant behavior" with the search and
seizure of a gun and drugs even though they occurred within minutes
in the same apartment.
179 N.J. at 233, 244-45 (quoting Yarbough,
23 A-3604-14T4
100 N.J. at 644). We have upheld consecutive sentences for the
robbery, kidnapping, sexual assault, and murder of the same victim
during a single hour, finding it was not "a short period of
aberrant behavior[.]" State v. Johnson,
309 N.J. Super. 237, 271
(App. Div. 1998). Here, the four sexual assaults occurred over
the course of about four hours.
Even if the four sexual assaults could be considered a single
period of aberrant behavior, that would not prevent consecutive
sentencing. The Yarbough factors "should be applied
qualitatively, not quantitatively." State v. Carey,
168 N.J. 413,
427 (2001). The focus of the analysis is on the gravity of the
offense, and "a sentencing court may impose consecutive sentences
even though a majority of the Yarbough factors support concurrent
sentences." Id. at 422, 427-28 (citing State v. Perry,
124 N.J.
128, 177 (1991) (finding consecutive sentences proper even though
four of Yarbough's five factors favored concurrent sentences)).
As "there should be no free crimes in a system for which the
punishment shall fit the crime," and the four second-degree sexual
assaults "involve[d] separate acts of violence" committed in four
different ways (vaginal, anal, digital, and oral), "our judicial
conscience is not the least bit shocked by the imposition of
consecutive sentences" of seven years each. See Swint, 328 N.J.
24 A-3604-14T
4 Super. at 245-46, 264 (involving two violent crimes against the
same victim in an hour and a half).
Defendant also challenges the trial court's findings on the
aggravating and mitigating factors. The court properly found
aggravating factor one, "[t]he 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."
N.J.S.A. 2C:44-1(a)(1). The trial court could and did
"justify the application of aggravating factor one, without
double-counting, by reference to the extraordinary brutality
involved in [the] offense[s]," as detailed at sentencing. Fuentes,
217 N.J. at 75.
The trial court also properly found aggravating factor three,
"[t]he risk that the defendant will commit another offense,"
N.J.S.A. 2C:44-1(a)(3), aggravating factor six, "[t]he extent of
the defendant’s prior criminal record and the seriousness of the
offenses of which he has been convicted,"
N.J.S.A. 2C:44-1(a)(6),
and aggravating factor nine, "[t]he need for deterring the
defendant and others from violating the law."
N.J.S.A. 2C:44-
1(a)(9). Though these were defendant's first indictable offenses,
he was court martialed and discharged for aggravated assault in
1993, and since then had twenty-five municipal court convictions,
including five convictions for simple assault, as well as six
25 A-3604-14T4
domestic violence offenses. That was ample basis for a finding
of aggravating factor six even ignoring the seriousness of
defendant's current offenses.
The trial court found mitigating factors six and ten,
N.J.S.A.
2C:4-1(b)(6), (10), but did not err in rejecting the other proposed
mitigating factors. The court properly found defendant's payment
of child support did not justify mitigating factor eleven, "[t]he
imprisonment of the defendant would entail excessive hardship to
himself or his dependents." Given defendant's prior record and
dangerousness, the court also properly rejected mitigating factors
seven, eight, and nine. See
N.J.S.A. 2C:44-1(b)(7), (8), (9).
Lastly, defendant argues that "if this [c]ourt agrees that
the sexual assaults should be run concurrently, the sentencing
judge should reconsider the 24-year sentence for kidnapping, which
he ran concurrently with the sex-offense sentence" totaling
twenty-eight years. We need not consider defendant's argument,
as we have held the trial court properly made the sexual assault
sentence consecutive. In any event, it does not appear S.L.'s
"detention was merely incidental to the underlying crimes" as she
made repeated attempts to escape which defendant forcibly
thwarted. See State v. La France,
117 N.J. 583, 594 (1990).
Affirmed.
26 A-3604-14T4
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