STATE OF NEW JERSEY VS. BRUCE D. STERLING(05-10-1410, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4381-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRUCE D. STERLING,
Defendant-Appellant.
________________________________
Submitted December 19, 2016 – Decided June 19, 2017
Before Judges Sabatino, Nugent and Haas.
On appeal from Superior of New Jersey, Law
Division, Middlesex County, Indictment No. 05-
10-1410.
Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Bruce D. Sterling appeals from a May 5, 2015
judgment of conviction entered after his second jury trial. The
jury found defendant guilty of second-degree burglary, first-
degree aggravated sexual assault, second-degree sexual assault,
third-degree aggravated assault with a deadly weapon, second-
degree possession of a weapon for an unlawful purpose, and third-
degree terroristic threats. For these offenses, a judge sentenced
defendant to an aggregate twenty-year custodial term subject to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues:
POINT I
THE TRIAL COURT'S FAILURE TO FOLLOW THE
APPELLATE DIVISION'S DECISION MANDATES
REVERSAL OF THE DEFENDANT'S CONVICTIONS. (NOT
RAISED BELOW).
POINT II
THE STATE VIOLATED THE DEFENDANT'S
CONFRONTATION RIGHTS. (NOT RAISED BELOW).
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Finding no merit in defendant's arguments, we affirm.
This action's lengthy procedural history is detailed in State
v. Sterling, 215 N.J. 65 (2013), and need not be repeated in its
entirety. Pertinent to this appeal, in 2005, a Middlesex County
grand jury charged defendant in a twenty-four-count indictment
with multiple offenses committed against five women during five
separate incidents that occurred between 2002 and 2005. The first
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seven counts of the indictment stem from the first incident, in
which the victim was sexually assaulted in her residence in July
2002. These seven counts and this incident are the subject of
this appeal.
The first seven counts are: second-degree burglary, N.J.S.A.
2C:18-2; first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-
degree possession of a handgun for an unlawful purpose, N.J.S.A.
2C:39-4(a); and third-degree terroristic threats, N.J.S.A. 2C:12-
3(b). Defendant was tried on all but the unlawful possession of
a handgun offense, and a jury found him guilty on all counts.
Defendant appealed.1
On appeal, a panel of this court reversed and remanded for a
new trial. State v. Sterling, No. A-5579-06 (App. Div. Aug. 15,
2011). The panel held the trial court erred by allowing the State
to present unduly prejudicial other crimes evidence. Id. (slip
op. at 56-57). Although the Supreme Court reversed in part the
panel's decision on charges stemming from some of the other
incidents, the Court affirmed the panel's reversal of defendant's
1
The unlawful possession of a handgun count was dismissed before
the first trial.
3 A-4381-14T4
conviction on the indictment's first seven counts. Sterling,
supra, 215 N.J. at 107-08.
The new trial on the first seven counts took place in 2014.
The State developed the following proofs.
In 2002, the victim, her boyfriend, and three others lived
in a single family home in New Brunswick. The victim's bedroom
was located on the first floor "immediately when you walk in." On
the day of the incident, the victim returned home after running
errands in preparation for a trip to the mountains. She parked
her car in a neighbor's driveway because there was no available
parking, she was running late, and she only needed to grab a few
things from inside the house. She shut the screen door after she
entered the house, but did not lock the front door as she planned
to be inside "less than five minutes."
After packing toiletries from the upstairs bathroom, the
victim went downstairs into her bedroom. She heard the screen
door shut, turned around, and saw defendant standing in her bedroom
doorway. She did not know defendant and had never seen him before.
The victim's boyfriend and roommates were not home, and the
victim asked if she could help defendant. He replied, "[t]ake
your clothes off or I'll shoot you." He held a silver gun in his
left hand. When the victim screamed for help, defendant went
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behind her, put one hand around her waist and one hand over her
mouth, and said "[s]hut up or I'll shoot you."
The victim began to cry. Defendant pushed her onto her bed
face first, repeatedly told her to shut up or he would shoot her,
closed and dead-bolted the bedroom door, and looked out the window.
The victim offered defendant $600 and asked him not to hurt her.
Defendant did not respond, but reached underneath the victim and
removed her pants, underwear and shoes.
When the victim attempted to look at defendant, he hit her
in the jaw with his gun and told her not to look at him. He
proceeded to have vaginal intercourse with the victim while she
laid with her head down and eyes closed. The gun remained in his
hand the entire time.
The victim cannot recall the incident's duration, but
eventually defendant "just stopped," and pulled up his pants, and
the victim "curled up in a ball on the bed." Defendant asked the
victim where her money was and she said it was in her car.
Defendant instructed the victim to wait five minutes before exiting
her house or he would shoot her. The victim waited five minutes
and then drove herself to the hospital.
Hospital staff called the police, who transported the victim
to a rape crisis center where she underwent a sexual assault
examination. The nurse created a "sexual assault kit" with
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evidence collected during the exam and gave it to the police, who
submitted it to their lab.
Senior Forensic Scientist Marlene Strauss conducted an
analysis of the DNA taken from the victim's sexual assault kit and
prepared a report detailing her findings. Chief Forensic Scientist
Joseph Petersack peer reviewed Strauss's report. The report
indicated the presence of male DNA on the victim's cervical swab.
When Strauss prepared the report, however, there was no suspect.
When a separate investigation of defendant began in 2005,
three years later, police searched his apartment and found a silver
gun. Police took a DNA swab from defendant's cheek, and
Investigator Virgil Angelini requested a comparison of defendant's
DNA and the male DNA profile recovered from the victim. Forensic
Scientists Jennifer Banaag and Frank Basile conducted comparisons
and concluded defendant was the source of the DNA recovered from
the victim.
Police asked the victim to participate in a lineup, but she
was unable to make an identification. She explained she did not
"get a good look" at defendant because she was afraid he was going
to shoot her and he wore "big reflective sunglasses" that she
could not see through. When the victim saw defendant at trial,
she testified she did not know him, did not give him permission
6 A-4381-14T4
to enter her home, and did not give him permission to have
intercourse with her.
As previously noted, the jury found defendant guilty as
charged. A judge sentenced defendant to an aggregate custodial
term of twenty years. At sentencing, the judge found the following
aggravating factors: one, the nature and circumstances of the act
and the actor's role therein, including whether it was committed
in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-
1(a)(1); three, the risk defendant will commit another offense,
N.J.S.A. 2C:44-1(a)(3); six, defendant's prior record and the
seriousness of the offense, N.J.S.A. 2C:44-1(a)(6); and nine, the
need for deterring defendant and others from violating the law,
N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors.
The judge found aggravating factor one because:
[s]tranger rape of this type and involving the
violence that was involved in this case,
striking her with the handgun, display of the
handgun, putting her at fear of her life if
she did not submit to what the [Adult
Diagnostic Center] called [defendant's]
"hedonistic tendencies" warrants a finding
that aggravating factor one should apply.
The judge found aggravating factor three because defendant "has a
history of proclivity and inclination to engage in this sort of
crime." The judge based aggravating factor six on defendant's
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extensive and serious criminal record, which includes additional
sexual assaults.
The judge imposed the maximum sentence because he determined
defendant "needs to be locked up for as long as possible in order
for women . . . to be safe. Because if he's out on the street,
women are at risk."
On appeal, defendant first contends the trial court erred by
failing to follow the Appellate Division panel's instructions to
provide the jury with an identification charge at the new trial.
Although the Appellate Division panel reversed defendant's first
conviction based on the wrongful admission of other crimes
evidence, the panel discussed other issues defendant raised. One
issue involved the trial court's refusal to give the identification
instruction defendant expressly requested. The panel explained:
On appeal, defendant argues that the court
should have instructed the jury in accordance
with the introductory paragraph to the model
charge pertaining to in-court and out-of-court
identifications as follows:
(Defendant) as part of [his/her]
general denial of guilt contends
that the State has no[t] presented
sufficient reliable evidence to
establish beyond a reasonable doubt
that [he/she] is the person who
committed the alleged offense. The
burden of proving the identity of
the person who committed the crime
is upon the State. For you to find
this defendant guilty, the State
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must prove beyond a reasonable doubt
that this defendant is the person
who committed the crime. The
defendant has neither the burden nor
the duty to show that the crime, if
committed, was committed by someone
else, or to prove the identity of
that other person. You must
determine, therefore, not only
whether the State has proved each
and every element of the offense
charged beyond a reasonable doubt,
but also whether the State has
proved beyond a reasonable doubt
that this defendant is the person
who committed it.
[Model Jury Charge (Criminal),
"Identification: In-Court and Out-
Of-Court Identifications" (2007).]
We agree with defendant that this would have
been an appropriate instruction in defendant's
second trial. Upon retrial, an instruction
along these lines should be given. This
suggestion is tempered, of course, by the
recognition that the evidence might be
different, counsel may request different
charges, and the trial court retains
discretion in fashioning an appropriate
instruction.
[Sterling, supra, No. A-5579-06 (slip op. at
83-84).]
Defendant did not request this instruction during his second trial,
nor did the court give it. Defendant now claims the trial court's
failure to give the instruction constitutes a reversible error.
Because clear and correct jury charges are essential to a
fair trial, State v. Adams, 194 N.J. 186, 207 (2008), "erroneous
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instructions on material points are presumed to possess the
capacity to unfairly prejudice the defendant." State v. McKinney,
223 N.J. 475, 495 (2015) (citations omitted). However, an error
in the charge that could not have affected the jury's deliberations
does not amount to reversible error. State v. Docaj, 407 N.J.
Super. 352, 366 (App. Div.), certif. denied, 200 N.J. 370 (2009).
In that regard, "[i]f the defendant does not object to the charge
at the time it is given, there is a presumption that the charge
was not error and was unlikely to prejudice the defendant's case."
State v. Singleton, 211 N.J. 157, 182 (2012).
Here, defendant did not object when the court did not give
the identification charge he had requested at his first trial, nor
did he raise the issue he now raises on appeal. Because defendant
did not object at trial, we review the charge for plain error. R.
1:7-2; R. 2:10-2; McKinney, supra, 223 N.J. at 494. Plain error
in this context is "[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 result." Adams, supra, 194 N.J. at 207(alteration in original) (quoting State v. Jordan, 147 N.J. 409,
422 (1997)). When reviewing a charge for plain error, an appellate
court must not examine the "portions of the charge alleged to be
10 A-4381-14T4
erroneous in isolation; rather, 'the charge should be examined as
a whole to determine its overall effect.'" McKinney, supra, 223
N.J. at 494 (quoting Jordan, supra, 147 N.J. at 422).
Applying these principles to the case before us, we conclude
the trial court's omission to give, sua sponte, the charge
defendant had requested seven years earlier at his first trial,
was not plain error. Significantly, the victim never identified
defendant. The State presented neither an in-court nor an out-
of-court identification. Instead, the State established defendant
was the perpetrator through DNA evidence retrieved by personnel
at the hospital following the sexual assault, comparison of this
DNA evidence to DNA swabbed from defendant, and expert testimony
linking the DNA evidence.
In its charge to the jury, as it had done during the trial,
the court instructed the jury on expert testimony. The court
explained that Banaag, Basile, and Petersack had testified as
experts, but the jury was not bound by their opinions. The court
further instructed the jury it should give the expert opinions
"the weight to which you deem it is entitled, whether that be
great or slight. And if you want to reject it, you have the
right." Additionally, the trial court's instruction on each
substantive offense included the requirement that the State prove
beyond a reasonable doubt defendant committed each element.
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Examining the charge as a whole to determine its overall
effect, McKinney, supra, 223 N.J. at 494, we find it inconceivable
the trial court's omission — to give an identification charge
neither required by the facts of the case nor requested by
defendant — either prejudicially affected defendant's substantial
rights or "possessed a clear capacity to bring about an unjust
result." Adams, supra, 194 N.J. at 207. Our conclusion is
fortified not only by defendant's failure to object when the court
charged the jury, but also by his failure now to articulate in his
argument how he was even possibly prejudiced. We thus reject
defendant's argument.
In his second point, defendant argues the trial court erred
by admitting a report prepared by forensic scientist Strauss
without calling Strauss as a witness, thus violating defendant's
right to confront his accusers. Defendant contends the State
instead called Joseph Petersack, "who read Strauss's conclusions
and then told the jury he approved of his absent colleague's work."
We review this issue for plain error because defendant did not
raise it at trial. R. 2:10-2.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004), the United States Supreme Court held "the
admission of an out-of-court 'testimonial' statement permitted by
state hearsay rules" unconstitutional "unless the person who made
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the statement is unavailable to testify at trial and the defendant
had a prior opportunity to cross-examine that person." State ex
rel. J.A., 195 N.J. 324, 328 (2008). Nonetheless, the Sixth
Amendment's confrontation clause does not require that "every
analyst involved in a testing process . . . testify in order to
satisfy confrontation rights." State v. Roach, 219 N.J. 58, 77
(2014), cert. denied, __ U.S. __, 135 S. Ct. 2348, 192 L. Ed. 2d
148 (2015).
[A] defendant's confrontation rights are not
violated if a forensic report is admitted at
trial and only the supervisor/reviewer
testifies and is available for cross-
examination, when the supervisor is
knowledgeable about the testing process,
reviews scientific testing data produced,
[makes conclusions based on the data], and
prepares, certifies, and signs a report
setting forth the results of the testing.
[State v. Michaels, 219 N.J. 1, 6, cert.
denied, __ U.S. __, 135 S. Ct. 761, 190 L. Ed.
2d 635 (2014).]
Here, though the State did not call Strauss to testify at
trial, it presented forensic scientist Petersack to testify about
the conclusions drawn in Strauss's report. Petersack was
responsible for overseeing and directly supervising five forensic
laboratories, had extensive familiarity with the DNA testing
process, and recognized Strauss's report as one he peer reviewed.
In addition, he had initialed the bottom of each page within the
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report, indicating he confirmed the data's accuracy. Because
Petersack testified and subjected himself to cross-examination,
defendant's confrontation rights were not violated simply because
Strauss did not testify too.
Importantly, Petersack's testimony was not the only expert
testimony the State presented. Forensic scientists Banaag and
Basile – who conducted independent comparisons of defendant's DNA
and the DNA recovered from the victim, and concluded the DNA
recovered from the victim belonged to defendant – testified at
trial and were subject to cross-examination. Considering this
testimony, we cannot conclude the admission of Petersack's
testimony had a clear capacity to produce an unjust result. R.
2:10-2.
Lastly, defendant argues that his sentence is excessive. He
contends the trial court's finding of aggravating factor one is
unsupported by the record. In a footnote, he asserts the sexual
assault count should have been merged with aggravated sexual
assault for purposes of sentencing, and the sentence the court
imposed on count four, aggravated assault, appears to violate the
No Early Release Act, N.J.S.A. 2C:43-7.2(d)(4); but he provides
no factual basis or legal analysis for either assertion.
When imposing a sentence, a trial court should "identify the
relevant aggravating and mitigating factors, determine which
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factors are supported by a preponderance of the evidence, balance
the relevant factors, and explain how it arrives at the appropriate
sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citation
omitted). We may not substitute our judgment for that of the
trial court, but are "bound to affirm a sentence, even if [we]
would have arrived at a different result, as long as the trial
court properly identifie[d] and balance[d] aggravating and
mitigating factors that are supported by competent credible
evidence in the record." Ibid. (citation omitted). "Assuming
the trial court follow[ed] the sentencing guidelines," we may
reject the sentence imposed only if it "shocks the judicial
conscience." Id. at 215-16 (citing State v. Roth, 95 N.J. 334,
365 (1984)).
Here, the record amply supports the trial court's findings
of aggravating factors. The trial court's balancing of these
factors against the absence of mitigating factors is unassailable.
As to aggravating factor one, "[i]n appropriate cases, a sentencing
court may justify the application of aggravating factor one,
without double-counting, by reference to the extraordinary
brutality involved in an offense." State v. Fuentes, 217 N.J. 57,
75 (2014) (citing O'Donnell, supra, 117 N.J. at 217). In the case
now before us, defendant's gratuitous infliction of violence on
the victim by striking her with his gun, considered in the context
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of the horrific crime he committed, supports the court's finding
of the first aggravating factor.
We need not consider defendant's remaining assertions
concerning his sentence because he raised them in a footnote and
failed to support them with either facts or a legal analysis. Our
rules require that an appellant identify and fully brief any issue
raised on appeal. R. 2:6-2(a); see also State v. Hild, 148 N.J.
Super. 294, 296 (App. Div. 1977) (reiterating that attorneys are
required to support arguments with appropriate record references
and justify their positions with specific references to legal
authority). "It is, of course, clear that an issue not briefed
is deemed waived." Pressler & Verniero, Current N.J. Court Rules,
comment 5 on R. 2:6-2 (2017).
For the foregoing reasons, we affirm the judgment of
conviction in its entirety.
Affirmed.
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