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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3515-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.S.1,
Defendant-Appellant. ________________________________
Submitted May 1, 2018 – Decided July 19, 2018
Before Judges Sumners and Natali.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 14-08-2330, 10-09-2485 and 11-03-0677.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
1 We use fictitious names for the defendant, the victim and a witness to protect the victim's privacy interests. Defendant appeals from his conviction by a jury of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count
two), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7)
(lesser included offense of count five), third-degree aggravated
assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count six),
third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count
seven), third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count eight), and fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count nine).
We affirm.
At the sentencing hearing, the trial court considered
aggravating factors one, two, three, six, and nine and found no
mitigating factors. The trial court granted the State's motion
to sentence defendant to an extended term of imprisonment as a
persistent offender pursuant to N.J.S.A. 2C:44-3(a).
Regarding count two, defendant was sentenced to a thirty-five
year prison term with eighty-five percent of the sentence to be
served without parole eligibility in addition to a five year period
of parole supervision upon release and Megan's Law registration
requirements and parole supervision for life. Under counts five,
six, and eight, defendant was sentenced to five-year concurrent
prison terms. The trial court merged count seven with count two,
and count nine with count eight. Counts one, three, and four were
2 A-3515-15T1 dismissed. Additionally, having found defendant guilty of
violating his probation under counts one and two, the trial court
sentenced defendant to four years imprisonment for each count,
with sentences to run concurrently.
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS [SALLY] ALLEGEDLY MADE TO CATHY AND THE EXAMINING NURSE AS PRIOR CONSISTENT STATEMENTS.
POINT II
THE PROSECUTOR'S BASELESS ARGUMENT IN SUMMATION THAT THE PRESENCE OF TOUCH DNA MATCHING [DEFENDANT] IN [SALLY'S] UNDERWEAR SUPPORTED HER ALLEGATION OF SEXUAL ASSAULT CONSTITUTED PROSECUTORIAL MISCONDUCT THAT DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL.
POINT III
THE MOTION JUDGE ERRED IN DENYING [DEFENDANT'S] MOTION TO DISMISS COUNTS EIGHT AND NINE OF THE INDICTMENT FOR LACK OF SPECIFICITY AS TO THE WEAPON PURPORTEDLY USED, RESULTING IN A JURY CHARGE AND VERDICT SHEET THAT FAILED TO ENSURE UNANIMOUS FINDINGS ON THE WEAPONS CHARGES.
POINT IV
THE TRIAL JUDGE ERRED IN FINDING AGGREGATING FACTORS ONE AND TWO, FAILING TO FIND MITIGATING FACTOR ELEVEN, AND IN DETERMINING THE AUTHORIZED SENTENCING RANGE FOR THE AGGRAVATED SEXUAL ASSAULT CONVICTION,
3 A-3515-15T1 RESULTING IN A MANIFESTLY EXCESSIVE AGGREGATE THIRTY-FIVE-YEAR [sic] SENTENCE.
After a thorough review of the record, we affirm defendant’s
convictions and the sentence imposed by the trial court.
I.
Defendant was convicted of a violent physical and sexual
assault against Sally, with whom he lived and shared a long term
romantic relationship. Sally testified that their relationship
"turned sour" and that they had not been intimate for two months
prior to the underlying incident. One night, while at home with
their two young sleeping children, defendant assaulted and raped
her.
Before the assault, and while on the phone with her friend
Cathy making plans to play an online video game later that night,
Sally overheard defendant state, "he was going to rape [her], and
tonight was going to be the night." Sally told Cathy what
defendant said and asked her to keep her phone by her side as she
would call her back once she put the children to bed.
After the children were asleep, Sally went downstairs to the
kitchen to get a bite to eat when defendant approached her in an
effort to tape her mouth shut. Although unsuccessful, he pushed
Sally into the basement where she saw a futon, blankets, a two by
four, a hammer, two knives, bleach, bags, a phone cord, an electric
4 A-3515-15T1 shock system, and a chainsaw. Defendant threatened Sally and
raped her while brandishing a knife. Defendant specifically held
a knife to Sally's face threatening to kill her, the children, and
himself if she screamed. Sally thwarted defendant's attempts to
stab her resulting in defendant puncturing the futon.
The assault in the basement terminated when Cathy came to the
home and started banging on the front door. Defendant, while still
holding a knife, prevented Sally from answering the door and told
her not to scream. He then brought her to an upstairs bathroom
and, now threatening her with a hammer that Sally stated he brought
from the basement, attempted to rape her for a second time and
stopped only when Sally reminded him that their children were
sleeping directly across the hall.
Defendant then directed Sally to get dressed, answer the door
and tell Cathy that everything was fine. Sally opened the door
and put one finger up to her mouth to advise Cathy to be quiet,
told Cathy what happened and specifically stated that defendant
"tried to kill me." Sally was shaking, panicked and crying and
had visible injuries to her face and neck.
Cathy, after checking the house phone and noticing that the
phone line was cut, called 911 using Sally's cell phone. Cathy
stayed with Sally until the police arrived approximately ten
minutes later. Upon entering the home and speaking with Sally out
5 A-3515-15T1 of defendant's presence, Sally "kept throwing signs to" her and
"talking with her hands." Further, Cathy stated she told the 911
operator that Sally "was going through it with her kids' father"
and that "he put his hands on her" and that Sally was scared and
wanted defendant out of her home. Cathy also testified that when
she first arrived at the home she peered through the mailbox slot
and observed defendant carrying a hammer with a wooden handle.2
After the police arrived, Sally was taken to the hospital and
met with a sexual assault nurse examiner (nurse) who performed a
sexual abuse evaluation. At trial, the nurse testified she took
swab samples from Sally's mouth, vagina, exterior parts of the
genitalia, and close to her anal area. She also photographed
Sally and found abrasions, bruises, and marks on her backside.
Over objection from defendant, the nurse testified that the "first
thing" Sally said to her was that defendant tried to kill her.
At trial, the State also called a State Police forensic
scientist who was qualified as an expert in DNA analysis. He
testified to performing two tests on samples from Sally's
underwear. The first test excluded defendant from the sperm
fraction found, while the second test demonstrated that defendant
matched the epithelial (skin) fraction found in the underwear.
2 The hammer introduced into evidence at trial had a rubber handle.
6 A-3515-15T1 With respect to the sperm fraction, the results demonstrated a
mixture of DNA profiles from multiple people and defendant "was
excluded as a possible contributor."
After defendant's indictment, Sally recanted her allegations
numerous times including two signed and notarized letters she sent
to the prosecutor and judge. She also visited the prosecutor's
office, claimed that defendant didn't do anything and requested
the charges be dropped. She also continued to communicate with
defendant during his incarceration and told defendant's niece,
"she didn't mean to lie" and "this was all a falsehood."
The letters were signed by Sally but written by defendant
from Sally's perspective. One of the letters read to the jury
stated:
I falsely gave the police a statement that wasn't true in an incident that didn't occur at all. It was a setup to get [defendant] incarcerated and removed from [the] home. . . . I am very sorry I lied . . . on the police report to get him arrested and falsely charged. I write the [affidavit] to say [defendant] did not harm me at all, or any kind of way.
Further, Sally withdrew a restraining order against defendant
stating she was not fearful of him.
At trial, Sally retracted her recantations and maintained
that her original statements were true and that defendant violently
and repeatedly assaulted and raped her.
7 A-3515-15T1 A jury trial took place over the course of seven days. The
State called seven witnesses, including Sally, Cathy, the nurse,
and the DNA expert. Defendant called as witnesses his niece, who
was a friend of Sally's, and his daughter. His niece testified
that any rips or tears in the futon existed prior to the assault
and that defendant was using a hammer in the upstairs bathroom to
put up fixtures the night of the assault.
II.
In defendant's first point, he argues that it was reversible
error for the trial court to admit Sally's out of court statements
to Cathy and the nurse pursuant to N.J.R.E. 803(a)(2). We
disagree. The statements were consistent with Sally's trial
testimony and introduced to rebut an express charge of recent
fabrication and improper motive.3
3 Defendant also asserts the trial court committed reversible error in admitting Cathy's statements to the 911 operator as an excited utterance pursuant to N.J.R.E. 803(c)(2). Sally's statements to Cathy were made immediately after the sexual assault and Cathy's call to 911 was made shortly after observing her friend's physical condition and the severed phone line. Because we have deemed Cathy’s statements admissible pursuant to N.J.R.E. 803(a)(2), we need not independently determine if Cathy had the requisite state of mind for her statements to qualify as excited utterances. See N.J.R.E. 805; see also State v. Hendricks, 759 S.E.2d 434, 437-39 (S.C. Ct. App. 2014) (analyzing "two levels of hearsay" in a 911 recording where the victim made an excited utterance to her mother and the mother repeated the victim's statement, in addition to other statements aimed at incriminating the defendant, to the 911 operator).
8 A-3515-15T1 "[I]n reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse of
discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting
Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). Under that standard,
substantial latitude is afforded to a trial court in deciding
whether to admit evidence, and "an appellate court should not
substitute its own judgment for that of the trial court, unless
'the trial court's ruling "was so wide of the mark that a manifest
denial of justice resulted."'" Id. at 385-86 (quoting State v.
Marrero, 148 N.J. 469, 484 (1997)).
Defendant challenges the introduction of Cathy's statement
on the 911 call that defendant "put his hands on [Sally]" and the
nurse's statements at trial that during her examination, Sally
told her "he tried to kill me" and her conversation with Sally
surrounding what Sally saw in the basement and details of the
assault. Defendant argues that N.J.R.E. 803(a)(2) is inapplicable
because he "never implicitly or explicitly implied that Sally's
allegations were a recent fabrication." Rather, it was defendant's
position that "[Sally] fabricated her story at the outset of this
matter, recanted and then readopted her original fabrication."
N.J.R.E. 803(a)(2) provides,
A statement previously made by a person who is a witness at trial or hearing [is not excluded by the hearsay rule], provided it
9 A-3515-15T1 would have been admissible if made by the declarant while testifying and the statement . . . is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive. . . .
"A 'charge' of recent fabrication can be effected through
implication by the cross-examiner as well as by direct accusation
of the witness. In fact that is the usual way in which the charge
is made." State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.
1989) (quoting State v. King, 115 N.J. Super. 140, 146-47 (App.
Div. 1971)). It is "the impression the cross-examiner makes upon
the jury in the heat of the trial rather than what an appellate
court would discern from a coldly analytical study of the testimony
which must control review of the somewhat discretionary exercise
of judgment made by the trial judge in the matter." State v.
Moorer, 448 N.J. Super. 94, 109 (App. Div. 2016) (quoting Johnson,
235 N.J. Super. at 555-56).
Defendant asserts that the court's ruling was erroneous
because without a legitimate recent fabrication basis, the
admitted hearsay statements improperly bolstered Sally's
testimony. Although "[a]n attack on a party's credibility through
prior inconsistent statements does not necessarily give [the
party] the right to use a prior consistent statement to buttress
the party's credibility," Palmisano v. Pear, 306 N.J. Super. 395,
10 A-3515-15T1 403 (App. Div. 1997), here, defense counsel attacked Sally's
credibility in his opening statement and sought to impeach her
trial testimony with her recantation statements to imply that her
recantations were accurate and that she recently fabricated a
different version of events when testifying at trial. See Johnson,
235 N.J. Super. at 555 (admitting a witness's prior statement
after "defense counsel highlighted several inconsistencies in
details between the prior statement and [the witness's] trial
testimony, thus creating the inference that [he] had not been
truthful at trial"). Also, on cross-examination, defense counsel
implied that Sally recently fabricated her trial testimony as he
questioned Sally about how she left her cell phone upstairs the
night of the assault even though she heard defendant say he was
going to rape her and highlighted the recantation letters,
emphasizing that Sally understood their contents, was not forced
to sign them, and presented them to a notary. Such fabrication
during trial or in preparation for trial is certainly "recent" in
common parlance. See King, 115 N.J. Super. at 146-47 (admitting
a witness's statement to police and grand jury testimony where
defense counsel alluded to the witness's threat a week before
trial that she would lie at trial).
Moreover, Sally's prior consistent statement to Cathy and the
nurse occurred prior to trial. "Where the prior consistent
11 A-3515-15T1 statement was made before the motive to fabricate arose, the
fabrication is 'recent' enough under N.J.R.E. 803(a)(2)." Moorer,
448 N.J. Super. at 110. "The scope of the exception encompasses
prior consistent statements made by the witness before the alleged
'improper influence or motive' to demonstrate that the witness did
not change his or her story." Neno v. Clinton, 167 N.J. 573, 580
(2001). Thus, "fabrication is 'recent' if it post-dates a prior
consistent statement." Moorer, 448 N.J. Super. at 110. A prior
consistent statement may have clear probative value:
Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through introduction of out-of- court consistent statements that predate the alleged fabrication, influence, or motive. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive.
[Id. at 111 (quoting Tome v. United States, 513 U.S. 150, 158 (1995)).]
Accordingly, it was not an abuse of discretion to admit
Sally's consistent statement to Cathy and the nurse to refute the
allegation of recent fabrication.
Second, both witnesses’ statements are admissible under the
alternative basis provided in the Rule to rebut the defendant's
claims that Sally had a motive to lie. That defense counsel
12 A-3515-15T1 challenged her motive for testifying is beyond dispute. Counsel
elicited during cross-examination that Sally was upset that he was
inappropriately speaking to other women, a fact she confirmed by
looking at his Facebook account. During his closing, counsel
stated: "[W]hat's her motive? The motive is clear as day. Get him
out of the house."4
III.
In defendant’s second point he contends for the first time
on appeal that the prosecutor committed misconduct during closing
arguments warranting reversal when he commented on the admitted
DNA evidence. Because there was no objection to the prosecutor's
statements, we review the issue for plain error. R. 2:10-2. In
other words, the alleged misconduct must have been clearly capable
of producing an unjust result. State v. Black, 380 N.J. Super.
581, 592 (App. Div. 2005). We conclude that the prosecutor's
comments were fair argument based on the DNA evidence properly
4 Moreover, the Supreme Court has declined to adopt as a rigid admissibility requirement that previous consistent statements must be made prior to the motive or influence to lie. State v. Chew, 150 N.J. 30, 81 (1997). Where "many things were happening as the different stories unfolded" and "[t]here were shades of difference between the witnesses' motivations at different times," the Court upheld the admission of consistent statements made after some motive to fabricate arose, but before other motives to fabricate arose. Id. at 80.
13 A-3515-15T1 admitted at trial and do not warrant reversal of defendant's
convictions.
Defendant objects to the following comments made during the
prosecution's summation:
We do have the DNA in this case, and yes it was not — it excluded the defendant as a possible contributor to the semen found. He was only inside of her five or six times, for a couple of seconds, only because [Cathy] interrupted him. That's why there's no semen in the defendant. But what is there? Found in the underwear sample taken from [Sally's] underwear are his skin cells. That part was glossed over. DNA matching his profile for his skin cells was found in her underwear that she was wearing that night, even though they hadn't been intimate in months.
The prosecutor continued by stating, "[a]ll of the evidence from
[Cathy], from the police, from the DNA, and doctors matched only
one conclusion that what [Sally] told you on the stand was exactly
what happened."
Prosecutors are afforded wide latitude during summations.
State v. R.B., 183 N.J. 308, 330 (2005). Yet, they must "confine
their comments to evidence revealed during the trial and reasonable
inferences to be drawn from that evidence." State v. Smith, 167
N.J. 158, 178 (2001). When considering claims of prosecutorial
misconduct, we must evaluate "whether a prosecutor committed
misconduct . . . [and, if so,] whether the prosecutor's misconduct
14 A-3515-15T1 constitutes grounds for a new trial." Id. at 181. Therefore,
where a prosecutor's comments may constitute misconduct, reversal
of a defendant's conviction is not justified unless the comments
were "so egregious that [they] deprived the defendant of a fair
trial." State v. McGuire, 419 N.J. Super. 88, 139 (App. Div.
2011) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).
In support of his misconduct claim, defendant relies on
numerous articles and expert testimony in other cases that
allegedly "prove that the presence of skin cells matching
defendant's DNA in Sally's underwear is virtually meaningless
because those cells would be ubiquitous in his home."5 Second,
defendant contends that any comment that epithelial DNA evidence
supported the State's claim that defendant sexually assaulted
Sally was unfounded and highly prejudicial because it was
unsupported by expert testimony to support that precise
proposition.
The prosecutor's comments were fair argument based on the
evidence admitted at trial. Defendant's arguments clearly address
5 Defendant relies on a series of law review articles and expert opinions not presented to the trial court. There are at least two problems with that "evidence." First, the material was not presented to the trial court for consideration and, thus, it is inappropriate for consideration on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014). Second, both trial and appellate courts cannot "fill in missing information on their own." N.J. Div. of Child Prot. & Permanency v. A.L., 213 N.J. 1, 28 (2013).
15 A-3515-15T1 the weight of the evidence, not its admissibility. Even if we
were to accept the proposition that there was an abundance of
defendant's epithelial DNA in the home, fair comment on that
evidence was proper if for no other reason than defendant's skin
cells were found inside Sally's underwear despite the position
taken at trial that he did not sexually assault Sally and that
defendant and Sally had not been intimate in months.
Additionally, the prosecutor's comments were a fair response
to statements made during defense counsel's closing. See State
v. Smith, 212 N.J. 365, 403-04 (2012) (stating that, in determining
if a prosecutor engaged in misconduct, "an appellate court will
consider whether the offending remarks were prompted by comments
in the summation of defense counsel"). Ultimately, "it was for
the jury to decide whether to draw the inferences the prosecutor
urged." R.B., 183 N.J. at 330 (quoting State v. Carter, 91 N.J.
86, 125 (1982)).
In his summation, defense counsel repeatedly challenged
Sally's credibility by emphasizing the lack of physical evidence
corroborating her claim that defendant digitally penetrated her
vagina. He stated, the "State doesn't present to you demonstrative
evidence, firm evidence, clear evidence. They only wish you to
rely on a statement of a former girlfriend of [defendant]" and
that "any demonstrative evidence referenced to penetration or
16 A-3515-15T1 referenced to semen or referenced to anything that alleges a sexual
contact . . . [is] a falsehood." In light of those comments, and
the relevance and non-prejudicial nature of the evidence as it
related to the sexual assault, we conclude that none of the
prosecutor's remarks were "so egregious that [they] deprived the
defendant of a fair trial." McGuire, 419 N.J. Super. at 139.
IV.
In point three, defendant argues that the trial court's denial
of his motion to dismiss counts eight and nine for lack of
specificity as to the weapon purportedly used resulted in a fatally
flawed jury charge and verdict sheet that improperly used the
phrase "and/or," which allowed the jury to reach a non-unanimous
verdict.
The "decision whether to dismiss an indictment lies within
the discretion of the trial court and that exercise of
discretionary authority ordinarily will not be disturbed on appeal
unless it has been clearly abused." State v. Hogan, 144 N.J. 216,
229 (1996) (internal citation omitted). "An indictment should not
be dismissed unless it is manifestly deficient or palpably
defective." State v. Wein, 80 N.J. 491, 501 (1979).
In evaluating the sufficiency of an indictment, the
"fundamental inquiry is whether the indictment substantially
misleads or misinforms the accused as to the crime charged. The
17 A-3515-15T1 key is intelligibility." Id. at 497. The indictment must "charge
the defendant with the commission of a crime in reasonably
understandable language setting forth all of the critical facts
and each of the essential elements which constitute the offense
alleged." State v. Franklin, 184 N.J. 516, 534 (2005) (quoting
Wein, 80 N.J. at 497). The "clarity of expression" in a criminal
indictment is an "indispensable safeguard for the criminally
accused." Wein, 80 N.J. at 497.
We agree with the trial court that the indictment was not
deficient. Defendant knew precisely from that charging document
the factual predicate and legal basis supporting each count. The
language used was reasonably understandable. Defendant was aware
that the State maintained he committed a sexual and physical
assault using both a knife and hammer together or separately.
Although defendant did seek to dismiss counts eight and nine,
he never objected to the use of the phrase "and/or" in the jury
charge or the verdict sheet or asked for a specific unanimity
charge, accordingly, we review this issue for plain error. R.
2:10-2. While we conclude the preferred course would have been
for the trial court to separate the knife and hammer in the
instructions and verdict sheet, see State v. Gonzalez, 444 N.J.
Super. 62 (App. Div. 2016), we find no plain error under the unique
factual circumstances here because the jury made a specific finding
18 A-3515-15T1 in count six that defendant "purposely or knowingly cause[d] bodily
injury to [Sally] with a deadly weapon, specifically, a knife."
"[A]ppropriate and proper charges to a jury are essential for
a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (quoting
State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled
"an adequate instruction of the law." State v. Pleasant, 313 N.J.
Super. 325, 333 (App. Div. 1998).
To preserve an objection to a jury charge on appeal, a
defendant must object to the charge at trial. State v. Noble, 398
N.J. Super. 574, 593 (App. Div. 2008). "When counsel conceives
that a portion of the [jury] charge as given is inadequate or
inconclusive . . . it becomes his duty to alert the court in clear
language to the claimed inadequacy or error, stating his grounds
therefore." Nesta v. Meyer, 100 N.J. Super. 434, 444 (App. Div.
1968).
Where a "defendant did not object to the jury instructions
at trial, we must apply the plain error standard." State v. Burns,
192 N.J. 312, 341 (2007). See also R. 2:10-2. In the context of
a jury charge, plain error demands demonstration of "[l]egal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant 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
19 A-3515-15T1 result." Burns, 192 N.J. at 341 (quoting State v. Jordan, 147
N.J. 409, 422 (1997)).
An "error in a jury instruction that is 'crucial to the jury's
deliberations on the guilt of a criminal defendant' is a 'poor
candidate[] for rehabilitation' under the plain error theory."
Ibid. (quoting Jordan, 147 N.J. at 422). Nevertheless, any such
error is to be considered "in light of 'the totality of the entire
charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187
N.J. 275, 289 (2006)). Moreover, "any alleged error also must be
evaluated in light 'of the overall strength of the State's case.'"
Ibid. (quoting Chapland, 187 N.J. at 289).
As to count eight, the trial court instructed that the "first
element that the State must prove beyond a reasonable doubt is
that there was a weapon." The trial court added that, while a
"knife or a hammer is not normally considered a weapon[,] [i]f,
however, the State establishes beyond a reasonable doubt that the
object is capable of being used to inflict serious bodily injury
or death, it may be considered a weapon." The trial court also
instructed that the State must prove that "the defendant possessed
the weapon alleged." In other words, the State must prove that the
defendant had a "knowing intentional control of that item
accompanied by a knowledge of its character." The verdict sheet
explained that count eight charged that defendant had "in his
20 A-3515-15T1 possession a weapon, specifically, a knife and/or hammer, with the
purpose to use it unlawfully against the person of another."
(emphasis added).
With respect to count nine, the trial court instructed the
jury that the State must prove beyond a reasonable doubt "[t]hat
there was a weapon, that . . . defendant possessed the weapon
knowingly, and that . . . defendant's possession of the weapon was
under circumstances not manifestly appropriate for a lawful use."
The trial court elaborated that a defendant "must know or be aware
that he possesses the item, here a knife and/or hammer, and he
must know what it is that he possesses or controls. In other
words, that it is a knife and/or a hammer. This possession cannot
merely be a passing control that is fleeting. . . ." (emphasis
added). On the verdict sheet, count nine is described as charging
the defendant with "knowingly hav[ing] in his possession a weapon,
specifically, a knife and/or hammer, under circumstances not
manifestly appropriate for such lawful uses it may have."
We conclude that this case represents the rare example where
the use of the phrase "and/or" did not result in an unjust verdict
for the simple reason that the jury convicted defendant on count
six of possessing a knife in connection with the sexual assault.
Consequently, he therefore also possessed that knife with the
21 A-3515-15T1 purpose to use it unlawfully against Sally in violation of N.J.S.A.
2C:39-4(d) (count eight), and had in his possession the knife
under circumstances not manifestly appropriate for its lawful use
in violation of N.J.S.A. 2C:39-5(d) (count nine).
We are mindful that a jury must reach a unanimous verdict in
a criminal case, and here the trial court so instructed the jury.
N.J. Const. art. I, ¶ 9; R. 1:8-9. "The notion of unanimity
requires 'jurors to be in substantial agreement as to just what a
defendant did' before determining his or her guilt or innocence."
State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States
v. Gipson, 553 F.2d 453, 457 (5th Cir. 1997)). Ordinarily, "a
general instruction on the requirement of unanimity suffices to
instruct the jury that it must be unanimous on whatever
specifications it finds to be the predicate of a guilty verdict."
State v. Parker, 124 N.J. 628, 641 (1991). "There may be
circumstances in which it appears that a genuine possibility of
jury confusion exists or that a conviction may occur as a result
of different jurors concluding that a defendant committed
conceptually distinct acts." Ibid.
Unanimity concerns exist even though N.J.S.A. 2C:39-4(d) and
N.J.S.A. 2C:39-5(d) proscribe possession of "any weapon" (except
a firearm) if used for the stated improper purposes. Here,
defendant claims that the jury charge and verdict sheets could
22 A-3515-15T1 have permitted a less than unanimous group of jurors to convict
defendant for possessing a hammer during the second stage of the
assault for an improper purpose while a separate group of jurors
convicted him based on the use of a knife. To resolve the issue,
we return again to the jury's finding on count six. There is but
one, and only one, conclusion to draw from that verdict – that the
jurors unanimously believed defendant possessed a knife for an
improper purpose. That verdict is sufficient to clarify any
ambiguity related to the jury's conviction on counts eight and
nine.
Finally, we disagree with defendant’s claim that his sentence
was excessive and conclude that the trial court did not abuse its
discretion in finding defendant extended term eligible and in
evaluating the aggravating and mitigating factors.
Our review of sentencing determinations is limited and is
governed by the "clear abuse of discretion" standard. State v.
Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial
court's sentence, even if we would have reached a different result,
unless "(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found . . . were not based upon
competent and credible evidence in the record; or (3) 'the
application of the guidelines to the facts . . . makes the sentence
23 A-3515-15T1 clearly unreasonable so as to shock the judicial conscience.'"
State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, 95 N.J.
at 364-65). See also State v. O'Donnell, 117 N.J. 210, 215-16
(1989).
Aggravating factor one requires the judge to consider "[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).
Aggravating factor two requires the judge to assess:
[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.
[N.J.S.A. 2C:44-1(a)(2).]
Defendant contends the sentencing court erred in finding
aggravating factors one and two because the trial court
impermissibly double-counted. We prohibit the use of "evidence
both for sentencing purpose and to establish an element of an
offense." State v. Kromphold, 162 N.J. 345, 353 (2000). In other
words, "sentencing courts must avoid double-counting any element
of an offense as an aggravating factor." State v. Lawless, 214
N.J. 594, 601 (2013). See also Fuentes, 217 N.J. at 75. Double-
24 A-3515-15T1 counting is prohibited based upon the fact that, under the criminal
code, the Legislature has "already considered the elements of an
offense in the gradation of a crime." Kromphold, 162 N.J. at
353. If we were to permit double-counting, "every offense arguably
would implicate aggravating factors merely by its commission,
thereby eroding the basis for the gradation of offenses and the
distinction between elements and aggravating
circumstances." Ibid.
The trial court's detailed oral decision expressly
acknowledged the proscription against double-counting and stated
that to the extent any of the facts relied on for sentencing
"support the elements of the offenses of which the defendant has
been convicted [he was] considering them only to the extent that
they exceed what is necessary to prove each element." Beyond the
use of the knife, the trial judge found that defendant committed
acts beyond those necessary to support the assault convictions and
also noted that defendant threatened Sally and that the children
were in the home during the incident. He concluded the
"circumstances rendered the victim particularly vulnerable and
less capable of resistance because she had to consider the well-
being of her children during the episode." Based on these
findings, which are amply supported by the record, we conclude
25 A-3515-15T1 that the trial court did not double-count and properly evaluated
aggravating factors one and two.
Further, the record supports the inapplicability of
mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), because
defendant's children would not suffer excessive hardship due to
his incarceration. In fact, the record belies defendant's claim,
as his child support arrears were close to $75,000 at the time of
sentencing.
We similarly discern no abuse of the trial court's discretion
in determining that defendant was extended term eligible. The
trial judge reviewed the submissions of counsel and defendant's
presentence report that identified the prior convictions that
qualified him as a persistent offender. See N.J.S.A. 2C:44-3(a);
N.J.S.A. 2C:43-7(a); State v. Case, 220 N.J. 49, 65-66 (2014).
Defendant's final challenge to his sentence is based on the
trial court's reference to N.J.S.A. 2C:43-7(a)(1). When
discussing the appropriate extended term range, the trial judge
stated, "[f]or first degree aggravated sexual assault under 2C:43-
7(a)(1) the extended term range is 30 years to life. So, the
defendant is exposed to a term of incarceration from 10 years to
life." As the State concedes, the citation to N.J.S.A. 2C:43-
7(a)(1) was in error as that provision provides a thirty year to
life extended term for aggravated sexual assault committed upon a
26 A-3515-15T1 victim sixteen years old or younger, a circumstance not presented
here as Sally was over sixteen years old. The correct statutory
provision was N.J.S.A. 2C:43-7(a)(2) which provides for an
extended term of twenty years to life for defendant's conviction
on count two. According to defendant, "this error surely
influenced" the sentence imposed by trial court. We disagree
because as defendant acknowledges the applicable sentencing range
is the bottom of the ordinary term to the top of the extended
term. State v. Pierce, 188 N.J. 155, 171 (2006). Here, the trial
judge correctly stated the sentencing range – ten years to life.
Further, the trial judge's detailed findings, where he evaluated
and weighed the aggravating and mitigating factors, belie
defendant's unsupported speculation regarding any improper
influence on his sentencing decision.
Affirmed.
27 A-3515-15T1