State v. E.G.T.

• Decision Date: 07 May 2020
• Docket Number: DOCKET NO. A-4850-17T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.G.T., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.G.T., Defendant-Appellant.

DOCKET NO. A-4850-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically April 20, 2020

May 7, 2020

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 15-09-1712.

Michael J. Confusione, argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael J. Confusione, of counsel and on the brief).

Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief).

PER CURIAM

Defendant E.G.T.,¹ appeals from his conviction for sexual assaulting his first cousin and sentence. We affirm.

I.

We take the following facts from the trial record. J.S. and defendant are first cousins. On August 10, 2014, J.S. traveled to New Jersey to attend another cousin's baby shower; J.S. resides in Baltimore with her husband. That weekend, defendant was staying at his father's home in a nearby town but did not attend the baby shower. Rather than drive back to Baltimore that evening, J.S. accepted her uncle's invitation to spend the night at his home.

After the baby shower, J.S. drove to her uncle's house where she met with her uncle and defendant. Her uncle showed her around his house, including the second-floor bedroom where she would be sleeping. Around 10:30 p.m., J.S. and defendant decided to walk to a nearby bar to "catch up" over drinks. There, they alternated in buying approximately five rounds of drinks. J.S. went to the restroom after finishing her fourth drink. When she arrived back at their table, J.S. noticed defendant had already purchased another round of drinks. J.S. notedher drink tasted "different," describing it as "rail vodka." J.S. and defendant left the bar around 1:30 a.m.; each provided a different version of what transpired afterwards.

J.S. testified that prior to consuming the fifth drink she felt "tipsy" but "[n]ot completely drunk." However, her fifth drink "tasted a little bit different" and "off a little bit." After consuming it, J.S. does not remember how she got back to her uncle's home or getting undressed.

Her next recollection, through "tunnel vision," was laying naked in bed with defendant who "spat" on two of his fingers and "shoved them inside [her] vagina." J.S. attempted to stop defendant by "fl[inging] [her] left leg over him and crouch[ing] on [her] right side in a fetal position" and attempting to say "no," but was unable to because her "body was so weak." She "remember[ed] feeling a tug on [her] hip as if [defendant] was trying to pull [her] back onto [her] back and [she] passed out again." J.S. regained consciousness a second time as defendant "was masturbating himself, and again he took his two fingers and spit on them and shoved them inside of [her] and at that point [she] did say no and [she] rolled over the same way [she] did the first time."

J.S. testified she "was feeling much more conscious, much more alert than the first time," but she felt "groggy, still heavy, still feeling kind of weak." Atthis point, she "covered [herself] up with the covers." In response, defendant got dressed and left the room, asking J.S. if she wanted coffee. After a moment of silence, J.S. responded "Yes, if you're making some." While defendant showered, J.S. got dressed but could not locate her shirt. When defendant was in the kitchen, J.S. asked from the bedroom if he knew where her shirt was; defendant went upstairs and found J.S.'s shirt behind a pillow. J.S. then went downstairs and had coffee while defendant was getting ready for work. Defendant left for work about ten minutes later. Shortly thereafter, J.S. drove back to Baltimore.

J.S. testified she felt "differently" when compared to previous occasions that she consumed similar amounts of alcohol, describing it as a "heavy grogginess that was just unlike anything [she] had felt before." J.S. stated that what she felt was "not the same" as a typical hangover.

J.S. further testified:

I knew that I did not consent to sex. I never actually saw him penetrate me with his penis. I knew that this was my cousin, my blood relative, my family, and I couldn't believe what just happened. I was in shock, traumatized, disgusted, and just I thought that, you know, I was just going to go have some drinks with somebody that I should have been able to trust.

The next morning, J.S. told her friend that defendant had raped her. That same day, J.S. and her friend went to the Greater Baltimore Medical Center, where a Sexual Assault Forensics Examination (SAFE) was performed on J.S. Samples taken during the SAFE exam were compared to DNA profiles developed from known samples from J.S., her husband, and defendant. The State's forensic scientist opined that defendant was the major contributor for the sperm located on J.S.'s vaginal swab.

Defendant's version is much different. Defendant testified he and J.S. walked to a bar where they had five or more rounds of alcoholic drinks. The then walked to a pizzeria at 1:30 a.m. to get food before walking back to his father's house. Defendant stated he and J.S. "were fine" but "both pretty drunk." Defendant went upstairs where he went to the bathroom, got changed, and went to bed. Thereafter, J.S. entered his room and "started kissing [him]." Though shocked and "very surprised," defendant stated they engaged in consensual sexual intercourse after removing each other's clothing, and then fell asleep together.

Defendant further testified he woke up the next morning at around 8:00 a.m. to go to work; he took a shower and went downstairs to the kitchen for coffee. Thereafter, J.S. went downstairs wearing her pants and a bra, and tolddefendant she could not find her shirt. They went upstairs together to look for J.S.'s shirt, which defendant found under the pillow where they slept. Defendant then made J.S. a cup of coffee and they had a brief conversation in the kitchen before defendant left for work.

In September 2015, a Monmouth County Grand Jury returned an indictment charging defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count one); and second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count two).

Prior to trial, defendant moved in limine to exclude all testimony advancing the theory that defendant drugged J.S. Defendant argued such testimony is inappropriate because the State lacked physical evidence or expert testimony that J.S. was drugged, and J.S.'s own lay testimony that she was drugged, or that she took a substance that altered her state of mind, was not admissible. Conversely, the State argued such testimony was appropriate because J.S. "is allowed to testify to her perceptions, to her observations, to how she's feeling."

The trial court granted the motion in part. It barred any testimony asserting that J.S. "had been drugged." The court allowed J.S. to testifyregarding her mental and physical condition as well as her observations and perceptions. The court explained:

Under N.J.S.A. 2C:14-2(a)(7), the State must prove [d]efendant knew or should have known that J.S. "was physically helpless or incapacitated."

As a lay witness, J.S. may testify to her mental and physical condition as well as her observations and perceptions on the morning of the incident. J.S. testifying about her own mental and physical condition is certainly within her rational perception. Similarly, J.S.'s testimony is helpful to determining a fact in issue, specifically whether or not J.S. was physically helpless or incapacitated.

J.S., however, is not an expert witness. The State must not elicit testimony from J.S. that she "had been drugged." Such an opinion is scientific and falls within the realm of expert testimony. What J.S. perceived through one or more of her senses, however, is clearly admissible lay witness testimony.

The court also precluded the State from introducing testimony from the SAFE nurse regarding testing for the presence of specific drugs as part of standard toxicological testing performed on the victim's blood and urine samples and the reasons why those tests were not performed.

During a pretrial conference held the week before trial, the State raised the issue of whether Dr. Safferstein, who had authored a preliminary report on behalf of defendant, would be proffered as a defense toxicological expert. TheState noted Dr. Safferstein was not listed on defendant's witness list and it had not received his final expert report. Defense counsel advised the court that Dr. Safferstein was not being called as a witness.

The case proceeded to trial. In her opening, the prosecutor informed the jury that after J.S. returned from the bar bathroom, "defendant ha[d] brought a fifth round of drinks," and that "the drink tasted different; not horrible, just different." She then stated that J.S. lost consciousness soon after. Later in the trial, defendant did not object to J.S.'s testimony regarding her "self-described" altered state. After the State rested, defense counsel moved for a mistrial contending the State improperly elicited testimony from J.S., through leading questions, that she felt "heavy grogginess that was just unlike anything she had felt before" and "a line of questioning regarding the alcohol that she drank, her history of drinking alcohol, her history of being drunk, [and] her history of being under the influence of alcohol." The court denied the motion, finding it was "satisfied" the State had "scrupulously complied" with its prior ruling.

During the charge conference, defendant requested the court to warn ...