STATE OF NEW JERSEY VS. DAVID RICHARDSON(10-10-0860, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5810-12T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID RICHARDSON,
Defendant-Appellant.
_________________________________
Argued December 6, 2016 – Decided July 12, 2017
Before Judges Fisher, Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Indictment No. 10-10-0860.
Al Glimis, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Mr.
Glimis, of counsel and on the brief).
Joseph H. Enos, Jr., Senior Assistant
Prosecutor, argued the cause for respondent
(Sean F. Dalton, Gloucester County Prosecutor,
attorney; Mr. Enos, on the brief).
PER CURIAM
Defendant David Richardson appeals his convictions and
aggregate thirty-one-and-a-half year sentence on various charges
including burglary, sexual assault, criminal restraint, theft and
possession of a weapon for an unlawful purpose. Based on our review
of the record in light of the applicable law, we affirm defendant's
convictions and remand for entry of an amended judgment of
conviction and reconsideration of the penalties imposed in
accordance with this opinion.
On October 13, 2010, defendant was charged in an indictment
with first-degree aggravated sexual assault while armed with a
weapon, N.J.S.A. 2C:14-2(a)(4) (count one); first-degree
aggravated sexual assault during the commission of a crime,
N.J.S.A. 2C:14-2(a)(3) (count two); second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1) (count three); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count four); second-degree
burglary, N.J.S.A. 2C:18-2(a)(1) (count five); third-degree
criminal restraint, N.J.S.A. 2C:13-2(a) (count six); third-degree
theft, N.J.S.A. 2C:20-3 (count seven); fourth-degree contempt of
a judicial order, N.J.S.A. 2C:29-9(a) (count eight); third-degree
possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d)
(count nine); and third-degree criminal mischief, N.J.S.A. 2C:17-
3(a)(1) (count ten).
2 A-5810-12T2
During the fifteen-day bifurcated jury trial,1 defendant's
former girlfriend, B.M.,2 testified concerning a five-hour event
that took place in her apartment from the late evening of June 19,
2010, until approximately 3:30 a.m. on June 20, 2010. During this
time, B.M. alleged she was sexually assaulted, beaten and
threatened by defendant.
B.M. testified that she dated defendant for about three years
and that their relationship ended months before June 2010.
Defendant never lived at B.M.'s apartment and she never gave him
a key to her apartment. According to B.M., defendant did not have
permission to enter her apartment. Prior to June 19, 2010, B.M.
obtained a domestic violence final restraining order (FRO) barring
defendant from her apartment.
B.M. testified that on June 19, 2010, she was alone in her
apartment and not expecting anyone. She locked the doors and
windows and went to sleep in her bedroom. She awoke to the sound
of a door opening and saw defendant standing over her bed.
1
The court severed count eight charging a fourth-degree violation
of a court order from the trial on the remaining charges, and
conducted a second trial on count eight with the same jury
immediately after the jury returned its verdict in the first trial.
2
We employ initials for the victim and her neighbor, J.W., to
protect their privacy.
3 A-5810-12T2
B.M. told defendant to leave and began screaming. Defendant
and B.M. struggled over her cell phone, causing B.M. to kick a
hole in the bedroom wall. Defendant took possession of B.M.'s cell
phone and put his hand over B.M.'s mouth as he examined the phone's
contents until he came across a photograph of a man that caused
defendant to become angry. B.M. never regained possession of the
cell phone during the evening.
Defendant removed B.M.'s clothes, forced her to have sexual
intercourse with him, and told her to stop screaming throughout
the attack. Defendant walked B.M. to the bathroom and made her
take a shower. Following the shower, defendant took B.M. to the
kitchen, lifted her onto the kitchen table, held her down, and
forced her to have sexual intercourse with him a second time.
Defendant took B.M. from the kitchen to her bedroom, where
he head-butted her and punched her in the face with a closed fist.
Defendant brought B.M. from the bedroom to the living room to
obtain access to her computer. Armed with a knife he had taken
from the kitchen, defendant threatened to kill B.M. unless she
provided her computer and Facebook passwords. B.M. complied.
Defendant became enraged upon reviewing B.M.'s emails and
Facebook posts, and he cut holes in B.M.'s furniture with the
knife. Defendant seized B.M.'s purse and took approximately $2000
cash from it. B.M. returned to her bedroom as defendant paced
4 A-5810-12T2
around her apartment. At approximately 3:30 a.m., B.M. heard her
neighbor J.W. return home to the adjoining apartment. B.M. waited
a few minutes, left her bedroom, and saw that defendant had just
departed.
B.M. ran to J.W.'s apartment. J.W. testified she opened her
door and saw B.M. visibly terrified and shaking, and not wearing
pants or underwear. B.M. told J.W. "he raped me" and asked J.W.
to call B.M.'s mother. After several unsuccessful attempts to
contact B.M.'s mother, J.W. called the police.
When the police arrived, J.W. went into B.M.'s apartment to
get B.M. clothing. J.W. observed that B.M.'s apartment was in
disarray. J.W. noticed "the sheets were pulled off the bed," and
there was "a huge hole in the [bedroom] wall."
Within minutes, police arrived at BM's apartment. Although
nothing was found to suggest a forced entry, police observed:
knife slashes in the living room furniture; blood on a pillow,
doorframe, kitchen floor, and kitchen cabinet; and a hole in a
bedroom wall. When arrested, defendant was in possession of his
cellphone, a set of keys, and $1652 in cash. And, that evening,
at a local hospital, medical personnel determined that BM's
injuries included a 'reddened area on [BM's] face,' 'some
swelling,' and a 'reddened area [on] her bottom lip.' Later, a
5 A-5810-12T2
State Police forensic scientist determined that DNA taken from
defendant after his arrest matched DNA from vaginal swabs of B.M.
The defense called Dr. Kathleen Brown, Ph.D., as an expert
in the areas of sexual assault nurse examinations, the actions of
the sexual assault response team, and the detection of injuries
as a clinical nurse. Brown opined that B.M. suffered "very minimal
injuries," explaining that victims who are held down with force
typically have bruises from the restraint, and that B.M. did not
show evidence of such bruises. Brown testified she was "not saying
[B.M.] wasn't sexually assaulted," but that B.M.'s injuries were
not consistent with the violence B.M. described. Brown
acknowledged there does not need to be any physical injury in a
sexual assault case. Brown also testified that DNA evidence is
helpful in cases where the assailant is unknown, but when there
is a relationship between the assailant and victim, it is "a common
strategy" for the accused to allege "the sex was consensual."
The jury acquitted defendant of first-degree aggravated
sexual assault as alleged in count one. Defendant was found guilty
of first-degree aggravated sexual assault during the commission
of a burglary (count two), second-degree sexual assault through
the use of force or coercion (count three), second-degree burglary
(count five), third-degree theft (count seven), third-degree
possession of a weapon (count nine), and criminal mischief (count
6 A-5810-12T2
ten). The jury also found defendant guilty of the lesser-included
offenses of simple assault (count four) and false imprisonment
(count six). At the conclusion of the second phase of the
bifurcated trial, defendant was convicted of fourth-degree
contempt of a court order (count eight).
Defendant was sentenced to a twenty-year custodial term for
first-degree aggravated sexual assault (count two) subject to an
eighty-five percent period of parole ineligibility pursuant to the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a consecutive ten
years for second-degree sexual assault (count three) subject to
the requirements of NERA, and a consecutive eighteen months for
fourth-degree contempt of a court order (count eight). The court
imposed fines and penalties, including a $3000 fine for the Sex
Crime Victim Treatment Fund (SCVTF) under N.J.S.A. 2C:14-10. This
appeal followed.
On appeal, defendant makes the following arguments:
POINT I
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
ON THE APPROPRIATE LESSER-INCLUDED OFFENSE OF
CRIMINAL TRESPASS VIOLATED DEFENDANT'S
FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A
FAIR TRIAL. [U.S. Const., amends. VI, XIV;
N.J. Const., art. I, ¶ 1, 9 and 10]. (Not
Raised Below).
7 A-5810-12T2
POINT II
BECAUSE THE [TRIAL COURT] FAILED TO INSTRUCT
THE JURY THAT IT MUST BE UNANIMOUS WITH
RESPECT TO THE UNLAWFUL ACT ELEMENT OF
BURGLARY, AND THE VERDICT SHEET DID NOT
REQUIRE THE JURY TO SPECIFY WHICH UNLAWFUL ACT
[DEFENDANT] INTENDED TO COMMIT, THE DANGER OF
A PATCHWORK VERDICT REQUIRES REVERSAL. [U.S.
Const., amends. V, VI, XIV; N.J. Const., art.
I, ¶1, 9 and 10]. (Not Raised Below).
POINT III
THE IMPROPER ADMISSION OF B.M.'S HEARSAY TEXT
MESSAGES WITHOUT A LIMITING INSTRUCTION, AND
THE UNNECESSARY ADMISSION OF EVIDENCE OF A
COURT-ISSUED RESTRAINING ORDER PROHIBITING
[DEFENDANT] FROM B.M.'S APARTMENT, DENIED
[DEFENDANT] A FAIR TRIAL. [U.S. Const., amend.
XIV; N.J. Const., art. I, ¶ 1]. (Partially
Raised Below).
A. Evidence of the court-issued
restraining order prohibiting
[defendant] from B.M.'s apartment
should not have been allowed because
it was unnecessary to the State's
proofs and its prejudicial nature
substantially outweighed its
probative value[.]
B. The [trial court] erroneously
admitted B.M.'S testimony regarding
hearsay text messages without a
limiting instruction and without
conducting a [Rule] 403(a)
balancing test. (Partially Raised
Below)[.]
POINT IV
DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE
PROSECUTOR IN SUMMATION SUGGESTED THAT
[DEFENDANT] HAD VIOLENTLY ATTACKED B.M. IN THE
8 A-5810-12T2
PAST, MISREPRESENTED THE PERTINENT LAW AND
SUGGESTED THAT THE DEFENSE WAS CONCOCTED.
[U.S. Const., amend. XIV; N.J. Const., art.
I, ¶ 1]. (Partially Raised Below).
POINT V
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN
IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE
REVERSAL, THE AGGREGATE OF THE ERRORS DENIED
[DEFENDANT] A FAIR TRIAL. (Not Raised Below).
POINT VI
THE COURT ERRED IN FAILING TO MERGE THE
SECOND-DEGREE SEXUAL ASSAULT CONVICTION INTO
THE FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT
CONVICTION. ALTERNATIVELY, THE COURT VIOLATED
THE YARBOUGH STANDARDS IN IMPOSING CONSECUTIVE
SENTENCES ON THOSE CONVICTIONS.
POINT VII
THE COURT ERRED IN IMPOSING $3000[] IN SEX
CRIME VICTIM TREATMENT FUND FINES WITHOUT
CONSIDERING [DEFENDANT'S] ABILITY TO PAY THAT
ASSESSMENT. (Not Raised Below).
POINT VIII
THE TRIAL COURT ERRED BY FAILING TO CREDIT
[DEFENDANT] WITH ACCRUED JAIL CREDITS IN
VIOLATION OF STATE V. HERNANDEZ AND [RULE]
3:21-8.
I.
Defendant first argues the court erred by failing to instruct
the jury on criminal trespass, N.J.S.A. 2C:18-3(a), as a lesser-
included offense of burglary, N.J.S.A. 2C:18-2. Defendant did not
request a criminal trespass instruction at trial but now contends
9 A-5810-12T2
the court was required to sua sponte give the instruction because
the evidence permitted the jury to conclude that defendant entered
B.M.'s apartment without any intent to commit a crime therein.
Appropriate and proper jury charges, including instructions
on lesser-included offenses, are essential to a fair trial. State
v. Savage, 172 N.J. 374, 387 (2002); see also State v. Gonzalez,
444 N.J. Super. 62, 70 (App. Div.) (explaining that jury
instructions play a critical role in criminal prosecutions),
certif. denied, 226 N.J. 209 (2016). However, where a defendant
fails to request a jury charge or object to instructions that fail
to include it, we review for plain error and "disregard any alleged
error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" State v. Funderburg, 225
N.J. 66, 79 (2016) (quoting R. 2:10-2)); State v. McKinney, 223
N.J. 475, 494 (2015). "The mere possibility of an unjust result
is not enough." Funderburg, supra, 225 N.J. at 79. The "error at
trial must be sufficient to raise 'a reasonable doubt . . . as to
whether the error led the jury to a result it otherwise might not
have reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)).
Although a defendant's failure to object to jury instructions
is generally "considered a waiver to object to the instruction[s]
on appeal," State v. Maloney, 216 N.J. 91, 104 (2013), "a trial
10 A-5810-12T2
court has an independent obligation to instruct on lesser-included
charges when the facts adduced at trial clearly indicate that a
jury could convict on the lesser while acquitting on the greater
offense," Jenkins, supra, 178 N.J. at 361. Unless told it may
convict of a lesser-included offense, a jury may find a defendant
guilty of an uncommitted offense "simply because it prefers to
convict on some crime rather than no crime at all." State v. Short,
131 N.J. 47, 54 (1993).
However, "[a] trial court need not 'scour the statutes to
determine if there are some uncharged offenses of which the
defendant may be guilty,'" Funderburg, supra, 225 N.J. at 81
(quoting State v. Brent, 137 N.J. 107, 118 (1994)), or
"meticulously [] sift through the entire record . . . to see if
some combination of facts and inferences might rationally sustain"
a lesser-included charge. State v. Choice, 98 N.J. 295, 299 (1985).
It is only when "the record clearly indicates a lesser-included
charge – that is, if the evidence is jumping off the page – [that]
the court [must] give the required instruction." State v. Denofa,
187 N.J. 24, 42 (2006); Funderberg, supra, 225 N.J. at 81.
It is well settled that criminal trespass is a lesser-included
offense of burglary. State v. Clarke, 198 N.J. Super. 219, 225-26
(App. Div. 1985). Both criminal trespass and burglary require the
State to establish that a defendant entered a structure without a
11 A-5810-12T2
license or privilege to do so. See N.J.S.A. 2C:18-2; N.J.S.A.
2C:18-3(a). Burglary, however, requires proof of an additional
element: that the defendant enter the structure with the intent
to commit an offense therein. See N.J.S.A. 2C:18-2; State v.
Singleton, 290 N.J. Super. 336, 341 (App. Div. 1996).
Defendant argues the court erred by failing to provide an
instruction on criminal trespass because the evidence clearly
indicated defendant entered B.M.'s apartment without a purpose to
commit an offense therein. Thus, for the court to have had an
obligation to sua sponte charge the lesser-included offense of
criminal trespass there must have been evidence clearly indicating
defendant had an intent upon entering B.M.'s apartment other than
to commit an offense therein. See Funderburg, supra, 225 N.J. at
82.
We have carefully reviewed the record and reject defendant's
argument. Defendant's contention that he entered the apartment
with an intent only to have consensual sex with B.M. is unsupported
by any evidence clearly indicating that was the case. Nor does the
evidence B.M. sent him text messages in the days prior to the
incident show he entered her apartment with an intent other than
to commit a crime therein. No evidence was presented concerning
the substance of the text messages and therefore it is unknown how
or if they relate to defendant's entry into the apartment.
12 A-5810-12T2
We are also not persuaded by defendant's argument that the
court was obligated to provide a sua sponte charge on criminal
trespass based upon the lack of testimony indicating there was a
forced entry into B.M.'s apartment. Defendant's means of entry
into the apartment did not establish his intent upon entry, and
the lack of evidence of a forced entry, when considered in the
context of all of the other evidence, did not present the court
with a clear indication defendant lacked an intent to commit a
crime upon his entry into the apartment. Thus, lack of a forced
entry did not provide the court with evidence "jumping off the
page" sufficient to warrant a sua sponte charge on criminal
trespass. Funderburg, supra, 226 N.J. at 81.
We similarly reject defendant's assertion that Brown's
opinion that B.M.'s physical injuries were inconsistent with a
sexual assault required a lesser-included criminal trespass
charge. Brown did not testify that B.M.'s injuries were
inconsistent with a sexual assault, but rather, she stated only
that the injuries were inconsistent with the type of physical
assault B.M. described. Brown also testified she was not offering
an opinion as to whether a sexual assault occurred. Moreover,
Brown's testimony is wholly unrelated to defendant's intent upon
entering B.M.'s apartment and therefore did not provide a clear
13 A-5810-12T2
indication to the trial court that a criminal trespass charge was
required.
In sum, defendant's attempt to weave the text messages, a
lack of evidence of forced entry, and Brown's testimony into an
obligation for the court to sua sponte charge the jury on criminal
trespass is without merit. The court has no responsibility to sift
through the evidence in search of a basis for a lesser-included
charge that was neither requested nor clearly indicated by the
record. Choice, supra, 98 N.J. at 299; Funderberg, supra, 225 N.J.
at 81.
II.
Defendant next argues the court deprived him of his
constitutional right to a unanimous verdict on the burglary charge.
More particularly, defendant claims the court erred by instructing
the jury it could find defendant guilty of burglary if it
determined defendant entered B.M.'s apartment with the intent to
commit any of the crimes alleged in the other counts of the
indictment.3 Defendant argues the court should have required that
3
The court instructed the jury it could find defendant guilty of
burglary if he entered B.M.'s apartment with an intent to commit
the offenses charged in "[c]ounts 1, 2, 3, 4, 5, 7, 8 and 9." The
court did not reference counts six or ten. Although the court made
reference to count eight, which charged defendant with fourth-
degree violating a court order, that charge was not presented to
the jury during the first phase of the bifurcated trial and the
14 A-5810-12T2
the jury reach a unanimous verdict as to which particular offense
it found defendant intended to commit upon his entry into B.M.'s
apartment. We disagree.
In State v. Robinson, 289 N.J. Super. 447 (App. Div.), certif.
denied, 146 N.J. 497 (1996), we rejected the identical argument
defendant makes here. To commit a burglary there must be an
unauthorized entry into the premises with a purpose to commit an
offense, N.J.S.A. 2C:18-2(a), which we explained "has been
interpreted broadly to mean 'any offense.'" Robinson, supra, 289
N.J. Super. at 453. We held that
where the circumstances surrounding the
unlawful entry do not give rise to any
ambiguity or uncertainty as to a defendant's
purpose in entering a structure without
privilege to do so, so long as those
circumstances lead inevitably and reasonably
to the conclusion that some unlawful act is
intended to be committed inside the structure,
then specific instructions delineating the
precise unlawful acts intended are
unnecessary.
[Id. at 458.]
court did not instruct the jury on the elements of the offense
until the second phase of the bifurcated trial. As such, the jury
was not instructed that it could convict defendant of burglary if
it found beyond a reasonable doubt that he entered B.M.'s apartment
with the intent to commit the offense of violating a court order
therein. We are therefore not confronted with the issue we
addressed in State v. Marquez, 277 N.J. Super. 162 (App. Div.
1994), certif. denied, 141 N.J. 99 (1995). Defendant does not
argue otherwise.
15 A-5810-12T2
Here, the court tracked the Model Jury Charge on burglary
that is consistent with our holding in Robinson. See Model Jury
Charge (Criminal), "Burglary in the Second Degree," (2016). The
jury was instructed defendant could be found guilty of burglary
if he intended to commit any of the other offenses charged in the
indictment at the time of his unauthorized entry into B.M.'s
apartment. Moreover, the evidentiary record does not permit a
reasonable conclusion that defendant entered the apartment for any
lawful reason other than the commission of an offense.4
We also reject defendant's reliance on Gonzalez, supra, where
we found that a jury charge repeatedly employing the phrase
"and/or" rendered it impossible to determine if the jury
unanimously agreed the defendant was guilty as an accomplice or
co-conspirator in a robbery or an aggravated assault, or both. 444
N.J. Super. at 75-76. Our holding in Robinson establishes that to
prove a defendant committed a burglary in violation of N.J.S.A.
2C:18-2, it is only necessary that the jury unanimously agree a
defendant intended to commit an offense at the time of the
unauthorized entry into a structure, and that unanimity as to the
4
As previously noted, we reject defendant's argument that the
evidence showed he entered B.M.'s apartment to engage in consensual
sex with B.M., as this contention is unsupported and contradicted
by the trial record.
16 A-5810-12T2
specific offense is not required. Robinson, supra, 289 N.J. Super.
at 454-55. Thus, the unanimity issue which required the reversal
in Gonzalez is not extant here.
Because the evidence leads to an inevitable and reasonable
conclusion that defendant entered the apartment with the purpose
to commit an offense therein,5 it was unnecessary for the court to
require that the jury unanimously agree as to the specific offense
he intended to commit. Ibid.III.
Defendant also argues the court made two erroneous
evidentiary rulings. First, defendant asserts the court erred in
admitting evidence of a court-issued restraining order barring
defendant from B.M.'s apartment. Second, he claims the court
improperly admitted two text messages sent by B.M. based on a
misapplication of the "state of mind" exception to the hearsay
rule, N.J.R.E. 803(c)(3), without conducting a N.J.R.E. 403(a)
balancing test or providing a limiting instruction.
5
We are not persuaded by defendant's assertion that there was no
evidence supporting a finding that he entered the apartment with
the purpose to commit the offenses of possession of a weapon for
an unlawful purpose, theft, and criminal mischief. There was
substantial evidence supporting defendant's conviction of those
offenses and permitting the reasonable inference that defendant
entered the apartment with the intent to commit those offenses,
as well as the sexual assault, simple assault, false imprisonment,
and other offenses for which he was convicted.
17 A-5810-12T2
"A trial court's ruling on the admissibility of evidence is
reviewed on appeal for abuse of discretion." State v. Rose, 206
N.J. 141, 157 (2011). Under this standard, the trial court's
decision to admit evidence should not be overturned "unless it can
be shown that the trial court palpably abused its discretion, that
is, that its finding was so wide [of] the mark that a manifest
denial of justice resulted." State v. Lykes, 192 N.J. 519, 534
(2007) (alteration in original) (quoting Verdicchio v. Ricca, 179
N.J. 1, 34 (2004)). If the trial court does not determine the
admissibility of evidence under the correct legal standard,
however, its decision is not afforded any deference and we review
the issue de novo. State v. Reddish, 181 N.J. 553, 609 (2004).
The Restraining Order
Prior to the June 19, 2010 incident, B.M. obtained an FRO
which barred defendant from entering her apartment. Before trial,
defendant moved to preclude the State from introducing any evidence
concerning the FRO and offered to stipulate that defendant was not
permitted to enter the apartment. The State rejected defendant's
proposal and sought to introduce testimony from a court official
that there was an order barring defendant's presence at the
apartment. The court denied defendant's motion based upon our
holding in State v. Silva, 378 N.J. Super. 321 (App. Div. 2005),
finding that evidence of the order was admissible as relevant to
18 A-5810-12T2
whether defendant was authorized to enter B.M.'s apartment.
Defendant argues the court's ruling and the admission of the
evidence during trial constituted error.
In Silva, we reversed a trial court's ruling in a burglary
case that barred the State from introducing evidence concerning a
restraining order. Id. at 323. We found that the evidence was
relevant because it established the defendant was not licensed to
enter the premises, but directed that the order be presented "in
a sanitized fashion, stripped of any connection to any incident
of domestic violence." Id. at 326-27. We instructed that "to avoid
any possibility of mischievous speculation, the trial court should
instruct the jury, using clear and emphatic language, that they
are not to engage in any conjecture as to the legal or factual
basis for the restraints." Id. at 327; see also State v. Castagna,
400 N.J. Super. 164, 186 (App. Div. 2008) (admitting evidence of
a restraining order to prove motive subject to a limiting
instruction advising the jury that the evidence could not be
considered as proof the defendant committed any act of violence,
and could not speculate as to the order's legal or factual basis).
Here, the court properly limited the admission of the evidence
concerning the FRO and provided a detailed limiting instruction
to the jury. The court only permitted testimony of the order's
existence without reference to the circumstances that gave rise
19 A-5810-12T2
to its entry, and provided a limiting instruction in accordance
with the requirements of Silva. We discern no abuse of the court's
discretion in its admission of the testimony, and no error in the
court's careful and comprehensive jury instruction.
B.M.'s Text Messages
During a pretrial motion, defendant objected to the State's
introduction of text messages B.M. sent on July 19, 2010. Defendant
argued the text messages impermissibly suggested he engaged in
prior acts of harassment against B.M. The State argued the messages
were relevant because they refuted defendant's contention that on
June 19, 2010, B.M. had consensual sex with him. On appeal,
defendant argues that the court's admission of two of the text
messages sent by B.M. in the hours preceding the June 19, 2010
incident was erroneous and requires a reversal of his convictions.
The first text message was sent by B.M. to her neighbor,
J.W., stating:
Can you keep an eye on my house? [I will] be
gone all day and he [knows] it and he know[s]
[I will] be at the field all day.
The second text was sent by B.M. to a woman who lived across
the street, stating:
If [you are] home today can you please watch
my house really good[?] [I will] be at the
baseball field all day and my ex know[s] it.
20 A-5810-12T2
The trial court initially reserved decision concerning the
admissibility of the texts, explaining generally that "data
extracted from the victim's phone may be admitted as proof of
defendant's motive, state of mind or intent." The court later
ruled the texts were admissible and evidence concerning these
texts was admitted at trial.6
Defendant argues the court erred in finding the text messages
admissible under N.J.R.E. 803(c)(3), the state of mind exception
to the hearsay rule. For the first time on appeal, defendant argues
the court further erred by not conducting a balancing test under
N.J.R.E. 403 to determine if the probative value of the evidence
was substantially outweighed by its prejudicial effect, and by
failing to provide the jury with a limiting instruction on the
proper and prohibited uses of the evidence.
Hearsay "is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted," N.J.R.E. 801, and "is not
admissible except as provided by [the Rules of Evidence] or by
other law," N.J.R.E. 802. One such exception to the hearsay rule
is the "state of mind" exception, N.J.R.E. 803(c)(3), which permits
6
The court ordered that the two text messages were admissible
subject to the redaction of statements in the messages that
defendant knew B.M. would not be home because he stole B.M.'s
daughter's baseball schedule. The State agreed.
21 A-5810-12T2
an out-of-court "statement made in good faith of the declarant's
then existing state of mind, emotion, sensation or physical
condition (such as intent, plan, motive, design, mental feeling,
pain, or bodily health)." For an out-of-court statement to qualify
for admission under N.J.R.E. 803(c)(3), "the declarant's state of
mind must be 'in issue.'" State v. McLaughlin, 205 N.J. 185, 206
(2011) (citation omitted).
Our Supreme Court recently addressed the state of mind
exception in the context of a victim's expression of fear, noting
the exception "does not broadly allow admission of a victim's
recounting of a defendant's threats." State v. Scharf, 225 N.J.
547, 569 (2016). A victim's hearsay statements of fear that reflect
on the defendant's state of mind are not admissible under the
state of mind exception. State v. Benedetto, 120 N.J. 250, 257
(1990). However, if a victim's statement that she feared the
accused is proffered, for example, to rebut a claim that the
victim's death was the result of an accident or suicide, such
declarations are admissible provided they are relevant. Scharf,
supra, 225 N.J. at 570.
The State proffered B.M.'s text messages to establish she did
not consent to defendant's entry into her apartment on June 19,
2010, and to counter defendant's assertion that what occurred in
the apartment was consensual. The trial court admitted over defense
22 A-5810-12T2
counsel's objection the text messages "as proof of defendant's
motive, state of mind or intent."
The court's determination that B.M.'s texts were admissible
under N.J.R.E. 803(c)(3) to establish defendant's state of mind
was clearly in error. See McLaughlin, supra, 205 N.J. at 206;
Benedetto, supra, 120 N.J. at 257. But we are satisfied that the
texts were otherwise admissible to demonstrate B.M.'s state of
mind on June 19, 2010. The text messages did not make any express
references to any prior bad acts on the part of defendant. Instead,
they showed B.M. did not want defendant at her apartment and that
B.M. was concerned defendant might appear there in her absence.
The messages were highly probative because they rebutted
defendant's claim that his entry into B.M.'s apartment and the
sexual intercourse between them on June 19, 2010, was consensual.
See Scharf, supra, 225 N.J. at 577 (finding murder victim's hearsay
statements about fearing defendant "were directly relevant and
were of assistance to the jury in its assessment of the likelihood"
that the victim would voluntarily accompany the defendant). We are
therefore satisfied that although the court erred in its reasoning
for admitting the text messages, the texts were properly admitted
to show B.M.'s state of mind in order to refute defendant's
contention she consented to his entry into her apartment. See Do-
Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (explaining
23 A-5810-12T2
"appeals are taken from orders and judgments and not from . . .
reasons given for the ultimate conclusion").
Moreover, during the trial the State never argued the text
messages demonstrated defendant's state of mind. Instead, the
State argued only that the text messages showed B.M. was of such
a state of mind that she would not have consented to his entry
into her apartment. The text messages were "relevant to [an]
assessment[] of [B.M.'s] actions," and thus, "relevant in the
assessment of the truth" of defendant's assertion that he had
consensual interactions with B.M. on June 19, 2010. Scharf, supra,
225 N.J. at 570.
However, during B.M.'s testimony about the texts, she stated
twice that she sent them because she feared defendant would break
into her apartment. In one instance, she said she sent the texts
because she was fearful he would break into her apartment "again."
The testimony went beyond the language of the text messages
themselves, but there was no objection or request to strike the
testimony.
Defendant argues for the first time on appeal that B.M.'s
testimony concerning the texts was improper and that its admission
requires a reversal of his convictions. "Generally, arguments
about the prejudicial nature of individual statements should have
been made to the trial court." Id. at 577. Because defendant did
24 A-5810-12T2
not object to the testimony, we review the admission of the
testimony for plain error. R. 2:10-2; State v. Reeds, 197 N.J.
280, 298 (2009).
B.M.'s testimony concerning her fear that defendant would
break into her apartment, and would do so "again," was unnecessary,
exceeded the permissible use of the text messages to show
plaintiff's state of mind, and impermissibly suggested defendant
committed a prior bad act. See N.J.R.E. 404(b); Rose, supra, 206
N.J. at 159 (explaining that evidence of prior bad acts is
generally inadmissible unless it is "material to a non-propensity
purpose" and "its probative value is not outweighed by the risk
of prejudice"). Based on our review of the record, however, we are
not convinced B.M.'s testimony was clearly capable of producing
an unjust result.
We observe that defendant's failure to object may reflect
that he did not perceive B.M.'s testimony as prejudicial. State
v. Krivacska, 341 N.J. Super. 1, 42-43 (App. Div.) (concluding a
trial judge's failure to provide a limiting instruction was not
plain error in part because defendant's "failure to object
signifie[d] that the error belatedly claimed was actually of no
moment"), certif. denied, 170 N.J. 206 (2001), cert. denied, 535
U.S. 1012, 122 S. Ct. 194, 152 L. Ed. 2d 510 (2002).
25 A-5810-12T2
Further, evidence of defendant's guilt, independent of B.M.'s
testimony as to why she sent the text messages, was overwhelming.
The condition of B.M.'s apartment was consistent with the violent
struggle B.M. described. There was blood found in her bedroom and
kitchen, a hole in her bedroom wall, and knife cuts through her
furniture. J.W. testified that B.M. appeared distraught at her
doorway at 3:30 a.m., naked below the waist, and crying that
defendant had "raped" her. The treating medical personnel observed
that B.M. had physical injuries such as bruising on her face and
defendant's DNA was found inside B.M.'s vagina. In addition,
defendant's counsel conceded at trial that he entered the
apartment, cut the furniture with a knife, and "slapped" B.M.
"around."
The State did not rely on B.M.'s statements about her fear
of defendant breaking into her apartment to suggest defendant was
a bad person or previously committed wrongful acts against her.
The prosecutor did not reference the testimony during her
summation. Instead, the prosecutor argued only that the text
messages demonstrated B.M. did not want defendant to be in her
apartment. The prosecutor argued to the jury that "[B.M.] didn't
want [defendant] there because she texted [J.W.] and another friend
that very day . . . . Why would she do that? She texted . . . to
say, I don't want him there."
26 A-5810-12T2
Based on the circumstances presented and defendant's failure
to object to B.M.'s testimony, we are not convinced B.M's momentary
and singular reference in the course of a lengthy trial to her
fear that defendant might break into her apartment "again" was
capable of producing an unjust result. We have carefully considered
the evidentiary record and are satisfied there was "overwhelming
proof" of defendant's guilt "independent of the other-crimes
evidence" and that admission of B.M.'s testimony was not clearly
capable of producing an unjust result. State v. Gillispie, 208
N.J. 59, 93 (2011).
IV.
Defendant next argues he was denied a fair trial because the
prosecutor made improper comments during summation. Defendant
contends the prosecutor misinformed the jury that, based on Brown's
testimony, it could apply a subjective standard to B.M.'s
perception of defendant's conduct in analyzing the counts on
criminal restraint and sexual assault. Defendant also argues the
prosecutor denigrated the defense of consent by suggesting it was
concocted to overcome the State's DNA evidence showing defendant
and B.M. had sexual intercourse.
"When an appellate court reviews a claim of prosecutorial
misconduct with respect to remarks in summation, the issue
presented is one of law," and the court's "review is plenary and
27 A-5810-12T2
de novo." State v. Smith, 212 N.J. 365, 387 (2012). "[W]hile a
prosecutor's summation is not without bounds, '[s]o long as [it]
stays within the evidence and the legitimate inferences therefrom
the Prosecutor is entitled to wide latitude in [] summation.'"
State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry,
52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct.
673, 21 L. Ed. 2d 593 (1969)).
In determining whether a prosecutor's comments during
summation constitute prosecutorial misconduct, we "must consider
several factors, including whether 'timely and proper objections'
were raised; whether the offending remarks 'were withdrawn
promptly'; and whether the trial court struck the remarks and
provided appropriate instructions to the jury." Smith, supra, 212
N.J. at 403 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). If
prosecutorial misconduct occurred and the comments "were
sufficiently egregious, a new trial is appropriate, even in the
face of overwhelming evidence that a defendant may, in fact, be
guilty." Id. at 404; see also State v. Wakefield, 190 N.J. 397,
446 (2007) ("[T]he issue for resolution is two-fold: whether the
prosecutor committed misconduct, and, if so, 'whether the
prosecutor's conduct constitutes grounds for a new trial.'"
(quoting State v. Smith, 167 N.J. 158, 181 (2001))).
28 A-5810-12T2
A prosecutor "should not make inaccurate legal or factual
assertions during a trial." State v. Bradshaw, 195 N.J. 493, 510
(2008) (quoting Frost, supra, 158 N.J. at 85). "A prosecutor may
comment on the facts shown by or reasonably to be inferred from
the evidence." R.B., supra, 183 N.J. at 330 (quoting State v.
Carter, 91 N.J. 86, 125 (1982)). "So long as the prosecutor's
comments are based on the evidence in the case and the reasonable
inferences from that evidence, the prosecutor's comments 'will
afford no ground for reversal.'" Bradshaw, supra, 195 N.J. at 510(quoting State v. Johnson, 31 N.J. 489, 510 (1960)).
Defendant argues that the prosecutor inaccurately stated in
summation that Brown testified threats are to be interpreted based
upon a victim's subjective point of view. Defendant claims the
prosecutor's reference to Brown's testimony misstated the elements
of sexual assault which, according to defendant, require the jury
to determine whether the defendant reasonably believed the victim
freely gave permission to the act of penetration.
We find no merit to defendant's claim. The prosecutor
accurately represented Brown's testimony, which was not offered
as a statement of any legal standard. The prosecutor did not
suggest to the jury that Brown's testimony constituted the
appropriate legal standard and, in fact, expressly advised the
jury that Brown's testimony did not establish a legal standard.
29 A-5810-12T2
In addition, the court accurately instructed the jury that it
would define the legal standards to be applied during
deliberations.
Defendant also claims the prosecutor improperly referenced
Brown's testimony that "the mere presence of a person can be a
threat if you have been on the receiving end of violent action
from that person." Defendant argues that statement improperly
suggested B.M. was previously victimized by defendant.
We are not persuaded by defendant's contention for two
reasons. First, the prosecutor's statement precisely described
Brown's trial testimony that was provided without objection.
Secondly, the prosecutor's reference to Brown's testimony is
unencumbered by any suggestion that defendant previously engaged
in violent conduct. In contrast, the prosecutor relied on Brown's
testimony to argue that the violence defendant employed on June
19, 2010, instilled fear in B.M. and constituted an exercise of
control by defendant. The prosecutor repeated Brown's testimony,
stating that if a victim has witnessed "violent action, just the
presence [of the perpetrator] can be a threat and can be
overpowering." In the next sentence, the prosecutor spoke only
about defendant's violent conduct toward B.M. during the incident,
and argued it constituted a threat against her. Contrary to
defendant's contention, we find nothing in the prosecutor's
30 A-5810-12T2
comments suggesting a prior violent relationship between B.M. and
defendant.
Defendant also argues the prosecutor inappropriately
suggested he "concocted" his defense that he and B.M. had
consensual. Defendant challenges the prosecutor's statement:
Remember what [] Brown said? DNA has kind of
changed things and often now the defense has
to be that the act was consensual because the
DNA is there.
We do not find the prosecutor's statement to be improper. It
accurately summarized Brown's trial testimony, which was provided
without objection, and did not impermissibly denigrate the defense
or "imply that defense counsel and defenses witnesses 'concocted'"
the defense of consent. State v. Lazo, 209 N.J. 9, 29 (2012). The
prosecutor argued that defendant first attempted to remove
evidence of his DNA by requiring that B.M. take a shower and,
after that proved unsuccessful, claimed B.M. consented to sexual
intercourse. The prosecutor's comments found support in the
evidence and addressed the credibility of defendant's consent
defense. We are satisfied the comments were within the bounds of
the "considerable leeway" afforded to counsel during closing
arguments. Lazo, supra, 209 N.J. at 29; Smith, supra, 167 N.J. at
177.
31 A-5810-12T2
V.
Defendant claims the court committed three errors in its
imposition of his sentence. He contends the court failed to merge
his conviction for second-degree sexual assault (count three) with
his conviction for first-degree aggravated sexual assault (count
two), improperly imposed a $3000 SCVTF penalty, and did not award
jail credits to which he was entitled. We consider each of the
arguments in turn.
Merger
Defendant argues his conviction for second-degree sexual
assault (count three) should have been merged with his conviction
for first-degree aggravated sexual assault (count two). The State
contends merger was not required because the jury convicted
defendant of two different acts of sexual assault and therefore
separate sentences were appropriate. The State relies on State v.
Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985), certif. denied,
104 N.J. 434 (1986), where we held that the defendant's sexual
assault convictions did not merge because they were based on
separate acts of sexual assault.
"The doctrine of merger is based on the concept that 'an
accused [who] committed only one offense . . . cannot be punished
as if for two.'" State v. Tate, 216 N.J. 300, 302 (2013) (quoting
State v. Davis, 68 N.J. 69, 77 (1975)). This principle has been
32 A-5810-12T2
codified under N.J.S.A. 2C:1-8(a), which provides that when the
same conduct can be used to establish a violation of multiple
criminal offenses, a defendant can only be convicted of more than
one offense in certain circumstances. There is no "single test"
that has been universally accepted to determine when convictions
merge, and "our courts have eschewed technisms and inflexibility
in favor of the paramount considerations of 'fairness and
fulfillment of reasonable expectations in the light of the
constitutional and common law goals.'" Fraction, supra, 206 N.J.
Super. at 538 (quoting State v. Currie, 41 N.J. 531, 539 (1964)).
The record required the merger of defendant's second-degree
sexual assault conviction with his conviction for first-degree
aggravated sexual assault. Unlike Fraction, the indictment here did
not charge separate acts of sexual assault. See Fraction, supra,
206 N.J. Super. at 539. The indictment charged a single criminal
episode during which aggravated sexual assault occurred, and the
jury was not asked to make determinations as to whether defendant
committed a sexual assault in the bedroom separate from its
determination as to whether defendant committed sexual assault in
the kitchen.
In contrast, the defendant in Fraction was charged with, and
convicted of, separate and distinct acts of sexual assault. Ibid.The court found merger was not required because the "convictions
33 A-5810-12T2
[were] not for the 'same conduct.'" Id. at 538 (quoting N.J.S.A.
2C:1-8(a)(1)). Here, they were. Defendant's second-degree sexual
assault conviction, N.J.S.A. 2C:14-2(c)(1)), must merge with his
conviction for first-degree aggravated sexual assault, N.J.S.A.
2C:12-2(a)(3), because they are based on identical conduct.7 See
State v. T.E., 342 N.J. Super. 14, 22 (App. Div.), certif. denied,
170 N.J. 86 (2001); State v. McCauley, 157 N.J. Super. 349, 354-55
(App. Div.) (finding two charges stemming from one ongoing criminal
episode permit only one conviction and sentence), certif. denied,
77 N.J. 500 (1978).
We reject defendant's contention that the court's general
unanimity instruction was inadequate because he was entitled to a
specific unanimity instruction requiring the jury to determine the
particular sexual assault he committed. Defendant did not request
a unanimity instruction on any of the sexual assault charges. In
the absence of such a request, "the failure so to charge does not
necessarily constitute reversible error." State v. Parker, 124 N.J.
628, 637 (1991), cert. denied, Parker v. New Jersey, 503 U.S. 939,
7
Because we conclude the court erred by failing to merge
defendant's conviction on count three with count two, it is
unnecessary to address defendant's argument that the court erred
by imposing consecutive sentences on those offenses. Defendant
does not argue the court erred in imposing a consecutive sentence
on his conviction for fourth-degree violation of a court order
under count eight.
34 A-5810-12T2
112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). To determine if a
specific unanimity charge is required, "[t]he core question is, in
light of the allegations made and the statute charged, whether the
instructions as a whole [posed] a genuine risk that the jury [would
be] confused." State v. Gandhi, 201 N.J. 161, 193 (2010)
(alterations in original) (quoting Parker, supra, 124 N.J. at 638).
On review, we "examine two factors: whether the acts alleged are
conceptually similar or are 'contradictory or only marginally
related to each other,' and whether there is a 'tangible indication
of jury confusion.'" Ibid. (quoting Parker, supra, 124 N.J. at
639).
Defendant does not allege, and the record does not reveal, any
indication of jury confusion concerning the acts of sexual assault
for which it found defendant guilty. Moreover, the State presented
evidence of a "continuing course of conduct" consisting of
conceptually identical acts that occurred in the bedroom and
kitchen. This was not a case where the circumstances presented "a
reasonable possibility that a juror will find one theory proven and
the other not proven but that all of the jurors will not agree on
the same theory." Parker, supra, 124 N.J. at 635 (quoting People
v. Melendez, 274 Cal. Rptr. 599, 608 (Ct. App. 1990)). The court
therefore did not err by failing to sua sponte provide a specific
unanimity instruction on the sexual assault counts.
35 A-5810-12T2
Sexual Crime Victim Treatment Fund Penalty
We agree with defendant's contention that the court erred by
imposing the maximum SCVTF penalty under N.J.S.A. 2C:14-10 without
considering the nature of the offense and defendant's ability to
pay,8 and by failing to make any findings supporting the imposition
of the penalties imposed. See State v. Bolvito, 217 N.J. 221, 233-
35 (2014); R. 1:7-4. We recognize that Bolvito was decided
subsequent to defendant's sentencing, but that is irrelevant
because its interpretation of the statute applies with equal force
here; N.J.S.A. 2C:14-10 permits the imposition of a SCVTF penalty
"up to" certain amounts, depending on the degree of the sexual
offense for which the defendant was committed. The court here
erred by imposing the maximum penalty without considering any
factors relevant to a proper determination of the amount and
without providing any reasons for its imposition of the maximum
penalty.9
8
The presentence investigation report showed that defendant's only
asset was a civil judgment in the amount of $25,000 which he
obtained in 2007 as the result of being the victim of a stabbing.
His debts, which included an outstanding child support obligation
of almost $49,000, exceeded $69,000.
9
Based on our decision that count three must be merged into count
two, on remand the court will be required to consider the
appropriate SCVTF penalty to be imposed on count two only.
36 A-5810-12T2
Jail Credits
The record does not support defendant's contention that the
court erred in denying his request for additional jail credits.
Defendant was arrested on June 20, 2010, and thereafter held in
custody until he was sentenced. During that time, defendant served
sentences on two other matters from July 20, 2010 to February 25,
2011, for a total of 220 days. Defendant asserts he was entitled
to 220 days of jail credit for the time following his arrest on the
charges here and during which he served his sentences on the other
matters.
The award of jail credits presents an issue of law that we
review de novo. State v. Hernandez, 208 N.J. 24, 48-49 (2011).
Rule 3:21-8 provides that a "defendant shall receive credit on the
term of a custodial sentence for any time served in custody in
jail or in a state hospital between arrest and the imposition of
sentence." A defendant is entitled to jail credits for time spent
in presentence custody on multiple charges, but not for time
accrued after the imposition of a custodial sentence. Hernandez,
supra, 208 N.J. at 44-45. "[O]nce the first sentence is imposed,
a defendant awaiting imposition of another sentence accrues no
37 A-5810-12T2
more jail credit." Id. at 50.10 We are therefore satisfied the
court correctly rejected defendant's request for 220 days of jail
credit for the time he spent serving sentences on his other
matters.
Defendant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm defendant's convictions, and remand for amendment
of the judgment of conviction for merger of count three with count
two11 and for reconsideration of the amount of the SCVTF penalty
to be imposed on count two. We do not retain jurisdiction.
10
Defendant does not contend he is entitled to gap-time credit
under N.J.S.A. 2C:44-5(b)(2). See generally State v. Joe, 228 N.J.
125 (2017).
11
We find no basis to direct that the court reconsider its decision
to deny the State's motion for an extended term. The State did
not appeal the court's denial of its extended term motion.
38 A-5810-12T2