State v. Fraction

• Decision Date: 16 December 1985
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James E. FRACTION, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 532

206 N.J.Super. 532

503 A.2d 336

STATE of New Jersey, Plaintiff-Respondent, v. James E. FRACTION, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 20, 1985.

Decided Dec. 16, 1985.

Raymond R. Beam, Jr., Paterson, for defendant-appellant (Thomas S. Smith, Acting Public Defender, attorney; Raymond R. Beam, Jr., Paterson, of counsel and on the brief).

Jeanne M. Andersen, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Jeanne M. Andersen, Deputy Atty. Gen., of counsel and on the letter-brief).

Before Judges BRODY, GAYNOR and BAIME.

The opinion of the Court was delivered by

BAIME, J.A.D.

Following a jury trial, defendant was found guilty of two counts of aggravated sexual assault in violation of N.J.S.A 2C:14-2a(4). The convictions emanated out of a single criminal episode in which defendant forcibly committed acts of vaginal intercourse and cunnilingus while threatening the victim with a knife. The trial judge imposed concurrent custodial terms of 20 years. Pursuant to N.J.S.A. 2C:43-6b, the judge directed that defendant serve eight and one-half years without parole eligibility. As part of the sentence, defendant was ordered to pay the sum of $231.82 as restitution for various expenses incurred by the victim. In addition, the judge assessed penalties totaling $50 payable to the Violent Crimes Compensation Board. This appeal followed.

Defendant seeks a reversal on a variety of grounds. He first contends that the crime of aggravated sexual assault by an act of cunnilingus requires proof of vaginal penetration. Defendant asserts that the judge's refusal to so instruct the jury constitutes reversible error. He also claims that the aggravated sexual assault convictions should merge because the offenses constituted episodic fragments of a single criminal transaction. Defendant's final argument concerns the trial judge's refusal to admit evidence of the results of a polygraph examination. In essence, defendant asks us to reexamine the principles established in State v. McDavitt, 62 N.J. 36, 46, 297 A.2d 849 (1972) which preclude admission of such evidence in the absence of a clearly expressed stipulation between the parties. Our thorough review of the record convinces us that defendant's contentions are wholly devoid of merit. We affirm.

We need not recount the facts at length. The jury could reasonably have found from the evidence that the victim was accosted while leaving her place of employment. According to her testimony, she was threatened with a knife and dragged into nearby woods where she was sexually attacked. Defendant forced her to undress and then attempted to have intercourse. His initial attempt failed, however, because he did not have an erection and was unable to penetrate the victim's vagina. Defendant then engaged in cunnilingus with the victim. She testified that he "licked [her] outer labia" but did not insert his tongue into her vagina. Following this, defendant penetrated the victim's vagina with his penis but withdrew when she told him that she had recently undergone some undisclosed "female operation."

Defendant was arrested shortly after the incident. He admitted that he had threatened the victim with a knife. However, he claimed that his intent was only to rob her of her automobile. According to his testimony, he forced the victim to undress in order to facilitate his escape. He then decided to engage in sexual intercourse, but changed his mind when the victim mentioned that she recently had an operation. Defendant denied engaging in oral sex or vaginal intercourse, but conceded that at some point he had intended to do both.

I

Initially, we reject defendant's argument that the trial judge erred in his instruction to the jury. N.J.S.A. 2C:14-2a(4) provides that one "is guilty of aggravated sexual assault if he commits an act of sexual penetration" and threatens the victim with a weapon. N.J.S.A. 2C:14-1c defines "sexual penetration" in the following terms:

"Sexual penetration" means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime.

By its very terms, therefore, the phrase "sexual penetration" includes the act of cunnilingus. Although the word "cunnilingus" is not defined in the Code of Criminal Justice, we are in accord with the trial judge's determination that it must be given its ordinary and well understood meaning. Service Armament Co. v. Hyland, 70 N.J. 550, 556, 382 A.2d 13 (1976). It is generally defined as "oral stimulation of the vulva or clitoris." Webster's Ninth New Collegiate Dictionary 315 (1985). See also Dorland's Medical Dictionary (Shorter ed. 1980); Schmidt, Attorneys' Dictionary of Medicine (3d ed. 1984). Thus, by definition cunnilingus constitutes a form of "sexual penetration" under the statute notwithstanding the fact that the actor's tongue is not inserted into the vagina.

Contrary to defendant's assertion, the last sentence of the statutory definition does not compel a different result. What was meant to be conveyed was that the depth of insertion is irrelevant with respect to those sexual acts which require actual penetration. This sentence was merely intended to serve as a legislative expression of the pre-Code rule that penetration, however slight, is sufficient in cases involving vaginal and anal intercourse. See, e.g., State v. Riley, 49 N.J.Super. 570, 584, 140 A.2d 543 (App.Div.1958), aff'd in part 28 N.J. 188, 145 A.2d 601 (1958) app. dism. and cert. den. 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959); Application of Faas, 42 N.J.Super. 31, 35, 125 A.2d 724 (App.Div.1956); State v. Orlando, 119 N.J.L. 175, 183, 194 A. 879 (Sup.Ct.1937). We, thus, hold that cunnilingus constitutes a form of "sexual penetration" within the purview of the statutory definition set forth in N.J.S.A. 2C:14-1c and that insertion of the tongue into the victim's vagina need not be proved. The trial judge's instructions fully comported with the statute and did not constitute reversible error.

II

We next turn to defendant's argument that the two offenses merge because they constituted parts of a single criminal episode. We disagree. Although the crimes were reasonably proximate in time and place, we perceive no justifiable basis to reward defendant on that account by vacating one of the two convictions. In our view, the victim suffered separate and distinct insults to her dignity and defendant may be punished separately for each of the offenses committed.

The doctrine of merger has been the source of much recent litigation. See, e.g., State v. Truglia, 97 N.J. 513, 518-522, 480 A.2d 912 (1984); State v. Dively, 92 N.J. 573, 579-582, 458 A.2d 502 (1983); State v. Mirault, 92 N.J. 492, 501-503, 457 A.2d 455 (1983); State v. Best, 70 N.J. 56, 60-63, 356 A.2d 385 (1976); State v. Davis, 68 N.J. 69, 77, 342 A.2d 841 (1975). Although there is substantial disagreement with respect to its etiology, see State v. Best, supra 70 N.J. at 61, 356 A.2d 385 and State v. Davis, supra 68 N.J. at 77, 342 A.2d 841, the doctrine is unquestionably rooted in the fundamental prohibition against double punishment for the same offense. State v. Roller, 29 N.J. 339, 344, 149 A.2d 238 (1959).

With whatever "disarming ease" this thesis may be articulated, "its application is not without difficulties." State v. Davis, supra 68 N.J. at 77, 342 A.2d 841. Because a single criminal episode can be dissected into chronologically discrete offenses, different formulations of the rule have evolved over the years to advance its essential purpose. At different times and in varying factual settings, judicial attention has focused upon (1) the identity of the elements of the statute or crimes, see, e.g., Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228, 235 (1980); Brown v. Ohio, 432 U.S. 161, 168-169, 97 S.Ct. 2221, 2226-2227, 53 L.Ed.2d 187, 195-196; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); State v. Goodman, 92 N.J. 43, 55, 455 A.2d 475 (1983); State v. Midgeley, 15 N.J. 574, 579-580, 105 A.2d 844 (1954); State v. Shoopman, 11 N.J. 333, 335, 94 A.2d 493 (1953); State v. Pa.R.R.Co., 9 N.J. 194, 197, 87 A.2d 709 (1952); State v. Labato, 7 N.J. 137, 144-145, 80 A.2d 617 (1951); State v. DiGiosia, 3 N.J. 413, 419, 70 A.2d 756 (1950); State v. Di Ventura, 187 N.J.Super. 165, 170-171, 453 A.2d 1354 (App.Div.1982) certif. den. 93 N.J. 261, 460 A.2d 666 (1983), (2) the legislative design in enacting overlapping laws incriminating the same unlawful conduct, see, e.g., State v. Best, supra 70 N.J. at 61, 356 A.2d 385; State v. Davis, supra 68 N.J. at 77-78, 342 A.2d 841; State v. Ruiz, 68 N.J. 54, 66, 342 A.2d 833 (1975) (Pashman, J., dissenting); State v. Cormier, 46 N.J. 494, 500-502, 218 A.2d 138 (1966); State v. Stenson, 174 N.J.Super. 402, 406, 416 A.2d 944 (Law Div.1980) aff'd 188 N.J.Super. 361, 457 A.2d 841 (App.Div.1982); State v. Bontempo, 170 N.J.Super. 220, 236, 406 A.2d 203 (Law Div.1979), certif. den. 87 N.J. 317, 434 A.2d 70 (1981) and (3) whether multiple offenses emanate from a single criminal transaction or episode, Ashe v. Swenson, 397 U.S. 436, 450, 90 S.Ct. 1189, 1197, 25 L.Ed.2d 469, 479 (1970)State v. Roller, supra 29 N.J. at 345-346, 149 A.2d 238State v. Hoag, 21 N.J. 496, 503, 122 A.2d 628 (1956), aff'd 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958); State v. Greely, 30 N.J.Super. 180, 184-185, 103 A.2d 639 (Cty.Ct.1954), aff'd 31 N.J. 542, 107 A.2d 439 (App.Div.1954). No single test "has achieved universal acceptance." State v. Warren, 186 N.J.Super. 35, 39, 451 A.2d 197 (Law Div.1982). Rather, our courts have eschewed technisms and inflexibility in favor of the paramount considerations...