STATE OF NEW JERSEY VS. CHARLES E. LUCAS (15-07-0808, 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NOT FOR PUBLICATION WITHOUT THE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-4015-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES E. LUCAS,
Defendant-Appellant.
________________________________
Argued November 27, 2017 – Decided July 9, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 15-07-0808.
Vincent J. Sanzone, Jr. argued the cause for
appellant.
Nancy A. Hulett, Assistant Prosecutor,
argued the cause for respondent (Andrew C.
Carey, Middlesex County Prosecutor,
attorney; Nancy A. Hulett, of counsel and on
the brief).
PER CURIAM
A jury convicted defendant Charles E. Lucas of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7). The court
imposed a fifteen-year term of imprisonment, subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from
his conviction, raising the following points for our
consideration:
POINT I: THE TRIAL COURT COMMITTED REVERSAL
[SIC] ERROR BY ALLOWING THE STATE TO CONVICT
THE DEFENDANT ON A NON-EXISTENT LAW AND
INSTRUCTING THE JURY WITH ERRONEOUS CHARGES.
POINT II: THE TRIAL COURT ERRED IN NOT
GRANTING A NEW TRIAL.
POINT III: THE PROSECUTOR'S COMMENTS DURING
HER SUMMATION WERE PREJUDICIAL AND DENIED
DEFENDANT A FAIR TRIAL.
Having considered these arguments in light of the record
and applicable legal standards, we affirm defendant's
conviction.
I
N.J.S.A. 2C:14-2(a)(7) provides that one is guilty of
aggravated sexual assault if he commits an act of sexual
penetration with another who he knew or should have known was,
among other things, physically helpless. N.J.S.A. 2C:14-1(g)
defines "physically helpless" as a condition in which a person
is unconscious or is physically unable to flee or is physically
unable to communicate an unwillingness to act.
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In this matter the State's theory throughout trial was
defendant committed an act of aggravated sexual assault upon
K.H.1 because he penetrated her when she was in a state of
intoxication that rendered her physically helpless. The salient
evidence is as follows.
K.H. testified that she and her friends went to a club one
evening to celebrate her birthday. Her friends included N.H.,
who was defendant's girlfriend, and F.H. K.H., N.H., and F.H.
gathered at N.H.'s apartment before going to the club.
According to K.H., they all had three or four drinks before
leaving for the club.
K.H, N.H., and F.H. arrived at the club at approximately
11:00 p.m. N.G., one of K.H.'s friends, joined the group at
12:30 a.m. While at the club, the group ate and had mixed
drinks. K.H. testified her drinks were mixed with vodka. She
stopped counting the number of drinks she had at the club after
her fourth or fifth drink, although she subsequently testified
she had only three drinks.
After leaving the club for the evening, K.H. returned to
N.H.'s apartment by getting a ride from one of her friends, but
testified she had no recollection of how she got there because
1
We use initials to maintain the confidentiality of those
involved.
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she was "too drunk." She did recall that, after arriving at
N.H.'s apartment, F.H. and N.H. woke her up and, when they
opened the car door, K.H. almost fell out onto the ground. K.H.
required her friends' assistance to get out of the car and go up
a set of stairs to N.H.'s apartment.
K.H. testified she has some recollection that, after she
was in the apartment, her friends tried to wake her up because
they wanted her to have some birthday cake. She also recalled
waking up at one point because she felt someone kiss her lips.
She pushed the person away and turned to lie on her arms.
Otherwise, she could not remember what occurred in the apartment
because she was "extremely drunk", and "couldn't function,
couldn't stand up. Couldn't do anything for myself or by
myself."
K.H. testified she woke up the next morning to defendant
and N.H. arguing. K.H. noticed she was wearing the dress she
had on the night before, but was not wearing any underwear.
N.H. left the apartment briefly to retrieve medicine from her
car and, in her absence, defendant told K.H. he had sex with her
but did not want N.H. to know. K.H. testified she had no
recollection of having sex with defendant because she was
"passed out drunk on the couch."
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Later that morning, K.H. reported the incident to the
police. She was transported to a rape crisis center, where she
was physically examined by a nurse and specimens were taken from
her mouth and vagina. When the police notified defendant they
were looking for him, he turned himself in voluntarily.
Analyses of the specimens taken from K.H.'s vagina and a buccal
swab taken from defendant revealed the presence of defendant's
sperm in K.H.'s vagina.
F.H. testified that when she, K.H., and N.H. were still in
N.H.'s apartment before leaving for the club, they each had one
drink. While at the club, F.H. noticed K.H. have three drinks
and, at 12:45 a.m., kept K.H. from having another because K.H.
was "off balance" and "stumbling a little bit" when she danced.
Toward the end of the night, K.H.'s friends made K.H. sit down
because she continued to stumble. According to F.H., K.H. left
the club at about 1:45. She required a friend to hold each arm
to get her from the club to the car. K.H. was placed into the
backseat of the car, where she fell asleep. When they arrived
at N.H.'s apartment, K.H. was unable to balance herself when she
stepped out of the car. With someone holding each arm, K.H. was
able to climb the steps to N.H.'s apartment, where K.H. fell
asleep on a couch in the living room.
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F.H. testified that, at one point, her friends tried to
rouse K.H. to have cake, but K.H. was "out of it" and wanted to
sleep. Subsequently, between 2:20 a.m. and 2:45 a.m., K.H.
needed the assistance of two of her friends to use the bathroom.
K.H. then went back to sleep. F.H. left the apartment between
3:30 and 4:00 a.m.
N.G. testified she observed K.H. drinking at the club and
by the end of the evening was "extremely intoxicated" and
"incoherent. . . . [W]e were like slapping her face" and
telling K.H. to "wake up, wake up." At 2:00 a.m., they all left
the club. At that time, K.H. needed to be held up by others
because she could barely walk or stand on her own, and just
"fell into the car." N.G. drove separately to N.H.'s apartment.
When N.G. arrived at the apartment, K.H. was asleep on the
couch. Thereafter, when N.G. and the others tried to wake K.H.
to have cake, K.H. was "barely coherent."
N.G. spent the night on the floor next to the couch where
K.H. slept. Around 6:00 a.m., N.G. was awakened by a "pushing"
against her foot. She looked over at the couch and it appeared
defendant was having sex with someone on the couch who appeared
to be asleep. N.G. told defendant to stop. Eventually he did
so and went into N.H.'s bedroom. At that point, N.G. realized
the person on the couch was K.H.
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N.G. testified K.H. was motionless. Her face was down, her
dress pulled up, and her bare buttocks exposed and in the air.
N.G. pulled K.H.'s dress over her buttocks and positioned her on
her back on the couch. K.H. continued to be motionless. N.H.
came out of her bedroom and N.G. told her what she observed.
N.G. then left the apartment.
As previously stated, the jury found defendant guilty of
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7).
This appeal ensued.
II
A
Defendant's first contention is the trial court erred by
allowing him to be convicted of a crime that does not exist.
Five days before trial, the State obtained an indictment
that superseded the previous one. The original indictment
contained only one count, which charged defendant with
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7). The first
count of the superseding indictment similarly charged defendant
with violating N.J.S.A. 2C:14-2(a)(7). The superseding
indictment also added three new counts. Because defendant did
not have sufficient time to prepare a defense against the three
new counts before trial, the court severed those counts and the
trial proceeded on count one only.
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Count one of the superseding indictment states in pertinent
part:
[Defendant] . . . did commit an act of
sexual penetration upon K.H. . . . and K.H.
was one who [defendant] knew or should have
known was physically helpless[,] rendering
K.H. temporarily incapable of understanding
the nature of her conduct including but not
limited to being incapable of providing
consent[,] contrary to the provisions of
N.J.S.A. 2C:14-2a(7).
N.J.S.A. 2C:14-2(a)(7) states:
a. An actor is guilty of aggravated sexual
assault if he commits an act of sexual
penetration with another person under any
one of the following circumstances:
. . . .
(7) The victim is one whom the
actor knew or should have known
was physically helpless or
incapacitated, intellectually or
mentally incapacitated, or had a
mental disease or defect which
rendered the victim temporarily or
permanently incapable of
understanding the nature of his
conduct, including, but not
limited to, being incapable of
providing consent.
[emphasis added.]
Defendant did not object to the first count in the
superseding indictment when before the trial court. He argues
the language in the indictment conflicts with that in N.J.S.A.
2C:14-2(a)(7) because it omitted the language highlighted in the
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statute cited above but, more important, defendant contends the
indictment did not charge him with a valid offense.
The fact the indictment did not include the language
highlighted in the statute cited above is of no moment.
Defendant was not charged with penetrating K.H. when he knew or
should have known she was "incapacitated, intellectually or
mentally incapacitated, or had a mental disease or defect."
More important, there is no indication defendant was charged
with a non-existent crime. He was charged with penetrating K.H.
while she was "physically helpless," an act expressly prohibited
by N.J.S.A. 2C:14-2(a)(7). There is no question the first count
of the superseding indictment charged defendant with a valid
offense.
Defendant argues the court erred by failing to grant his
motion to arrest judgment, see Rule 3:21-9, on the ground he was
convicted of a "non-existent law." As just noted, the crime
with which defendant was indicted and ultimately convicted is
one that is expressly set forth in N.J.S.A. 2C:14-2(a)(7).
In addition, the motion was filed months after the verdict
was rendered and, for that matter, after defendant filed his
notice of appeal. The trial court correctly denied the motion
on the ground it was untimely; the motion was not filed within
ten days of the verdict, as mandated by Rule 3:21-9. Further,
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the trial court no longer had jurisdiction because a notice of
appeal had been filed, see Rule 2:9-1(a). We discern no basis
to disturb the court's ruling on this motion.
In his brief, defendant maintained the jury instructions
were erroneous for various reasons. At oral argument before us,
defendant retracted all but one argument about the quality of
the instructions. That argument is as follows.
The indictment was read to the jury during the charge and
it suggested a physically helpless person was one who was
"incapable of understanding the nature of his conduct,
including, but not limited to, being incapable of providing
consent." The jury was subsequently instructed, consistent with
N.J.S.A. 2C:14-1(g), that the definition of "physically
helpless" is one who is "unconscious or physically unable to
flee or is physically unable to communicate unwillingness to
act[.]" Defendant asserts the inconsistency between the
language in the indictment and the charge misled the jury.
We note that, after reading the indictment to the jury, the
court advised the jury the statute governing the subject offense
"provides in pertinent part, an actor is guilty of aggravated
sexual assault if he commits an act of sexual penetration with
another person whom the actor knew or should have known was
physically helpless." The court further instructed that, to
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convict defendant of such offense, the State had to prove
certain elements beyond a reasonable doubt. The court went
through each element and, as to the subject one, charged:
The . . . State must prove to you beyond a
reasonable doubt . . . that at the time of
the penetration [K.H.] was physically
helpless. Physically helpless means that
condition in which a person is unconscious
or is physically unable to flee or is
physically unable to communicate an
unwillingness to act.
Given the manner in which the court's instructions to the
jury unfolded, we cannot agree the language in the indictment
had the capacity to confuse or mislead the jury. The court
identified what the indictment stated, but then immediately
enlightened the jury of what the State was required to prove.
The jury was instructed the State had to prove beyond a
reasonable doubt that at the time of the penetration [K.H.] was
physically helpless and defined "physically helpless" consistent
with the definition of this term in N.J.S.A. 2C:14-1(g).
We have carefully considered the remaining contentions in
defendant's first argument point, and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
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B
Defendant next argues the trial court erred when it denied
his motion for a new trial on the basis of newly discovered
evidence. "[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that
discretion will not be interfered with on appeal unless a clear
abuse has been shown." State v. Armour, 446 N.J. Super. 295,
306 (App. Div.) (quoting State v. Russo, 333 N.J. Super. 119,
137 (App. Div. 2000)), certif. denied, 228 N.J. 239 (2016).
It is well-settled that newly discovered evidence will
warrant a new trial only if the evidence is: "(1) material to
the issue and not merely cumulative or impeaching or
contradictory; (2) discovered since the trial and not
discoverable by reasonable diligence beforehand; and (3) of the
sort that would probably change the jury's verdict if the new
trial were granted." State v. Carter, 85 N.J. 300, 314 (1981).
Our Supreme Court has held that all three prongs of the test
must be met before a defendant will be entitled to a new trial.
Carter, 85 N.J. at 314; State v. Artis, 36 N.J. 538, 541 (1962).
The alleged newly discovered evidence were three
certifications. One was signed by K.H.'s estranged husband
(husband). Among other things, he claimed that, before the
subject incident, K.H. informed him she had been raped by
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others. Defendant argued these prior allegations were false
and, thus, he was entitled to a new trial so he could admit
evidence K.H. had falsely accused others in the past of sexual
assault.
The second certification was signed by the husband's
brother (brother). In addition to other allegations, the
brother stated he contacted the Division of Child Protection and
Permanency (Division) to report K.H. was abusing her children.
When K.H. discovered what the brother had disclosed to the
Division, she retaliated by making her fifteen-year-old daughter
falsely accuse the brother of sexually molesting her.
The third certification was from N.H. Among other things,
she claimed K.H. told her that she had falsely accused her half-
brother of molesting K.H.'s daughter.
The court rejected the motion. The court noted the
certifications contained hearsay and other flaws, and some of
the evidence was discoverable before trial. More important, the
court determined whether K.H. falsely accused others of sexual
assault was irrelevant because her credibility in this matter
was immaterial. The court pointed out the evidence supporting
K.H.'s allegation that defendant sexually assaulted her while
she was physically helpless was primarily based upon evidence
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other than K.H.'s testimony, especially N.G.'s testimony. The
court noted
Basically, [K.H.] had no memory of what
happened. She wasn't the one who took the
witness stand to say that the -- she has a
memory of the defendant having sex with her
on the night of this incident.
[N.G.] testified that she witnessed the
defendant sexually assaulting the victim who
was completely unresponsive during and after
the sexual assault. . . . Afterwards,
[N.G.] got up to, once the defendant left
the room, to talk to the victim and the
victim was not moving. The victim's dress
was up practically above her head. She was
naked and she didn't – the victim did
nothing to pull the dress down. When the
[N.G.] pulled it down the victim still
didn't move. She turned the victim over and
the victim still didn't move.
So it was [N.G.] who was the eyewitness, the
one who gave the details and had a
recollection and saw what occurred, not the
victim getting on the stand to say what the
defendant had done to her. In fact, the
victim's memory was limited to waking up at
one point with someone . . . touching her
lips. She remembered trying to push him
away and that's it.
It wasn't until after the fact when the
friend told her what happened that she had
some awareness, but not based on her own
recollection. So that's why I say that
evidence of the victim's untruthfulness or
history of making false allegations of
sexual assault would not be material
evidence in this case, because it wouldn't
counter the victim's recollection. . . .
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[I]t was not the victim who had the ability
to testify as to what the defendant actually
did to her, because she was too intoxicated
to know. . . .
[T]here was overwhelming proof of the
victim's intoxication and unresponsive state
coming from the . . . testimony of others,
in particular the friend sleeping on the
floor. So undermining the victim's
credibility would not be material to the
issues of evidence in the case.
For the reasons provided by the trial court, we agree
defendant failed to fulfill the three elements in Carter. There
is no basis to order a new trial.
C.
Defendant's final contention is the prosecutor made
prejudicial remarks during her summation. These alleged
prejudicial remarks were that the prosecutor (1) expressed a
personal belief K.H. was credible; (2) stated N.G. provided
"damning" evidence; (3) characterized K.H. as the "perfect prey"
when she was on the couch, suggesting defendant was an animal;
and (4) asked the jurors to consider what it was like for K.H.
to testify about the incident.
During defense counsel's summation, she attacked K.H.'s
credibility, arguing she had a selective memory. Defense
counsel also insinuated the sexual act was consensual.
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While prosecutors are entitled to zealously argue the
merits of the State's case, they occupy a special position in
our system of criminal justice. State v. Smith, 212 N.J. 365,
403 (2012). "[A] prosecutor must refrain from improper methods
that result in a wrongful conviction, and is obligated to use
legitimate means to bring about a just conviction." State v.
Daniels, 182 N.J. 80, 96 (2004) (quoting State v. Smith, 167
N.J. 158, 177 (2001)).
However, even if the prosecutor exceeds the bounds of
proper conduct, "[a] finding of prosecutorial misconduct does
not end a reviewing court's inquiry because, in order to justify
reversal, the misconduct must have been 'so egregious that it
deprived the defendant of a fair trial.'" Smith, 167 N.J. at
181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). "Our task
is to consider the 'fair import' of the State's summation in its
entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting
State v. Wakefield, 190 N.J. 397, 457 (2007) (additional
citations omitted).
We recognize asking the jurors to place themselves in the
shoes of the victim has been soundly discouraged by other courts
that have considered the tactic. See, e.g., Tyree v. United
States, 942 A.2d 629, 643 (D.C. 2008). However, having reviewed
the record, we are satisfied the prosecutor's request that the
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jurors consider how K.H. felt while testifying did not deprive
defendant of a fair trial. The remark was fleeting and the
prosecutor did not return to this theme. We also do not find
the prosecutor's comment K.H. was the "perfect prey" an attempt
to portray defendant as an animal, but rather was fair comment
on and made in response to defense counsel's characterization of
the evidence. None of the prosecutor's comments at issue
provide any basis to overturn the verdict.
Affirmed.
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