State v. M.C.

• Decision Date: 03 August 2018
• Docket Number: DOCKET NO. A-1148-15T1,DOCKET NO. A-1137-15T1
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.C., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.W., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
M.C., Defendant-Appellant.

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

DOCKET NO. A-1137-15T1
DOCKET NO. A-1148-15T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted May 7, 2018
August 3, 2018

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-08-0888.

Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Brian P. Keenan, Assistant

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Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant E.W. (Richard Sparaco, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah E. Elsasser, Deputy Attorney General, of counsel and on the briefs).

PER CURIAM

These back-to-back appeals are consolidated for this opinion. In A-1148-15, defendant E.W. appeals from his convictions and sentence for kidnapping, sexual assault and two counts of aggravated sexual assault. In A-1137-15, defendant M.C. appeals from his convictions for sexual assault and two counts of aggravated sexual assault. Based on our review of the record and defendants' arguments under the applicable legal principles, we affirm their convictions, vacate the sentences on their convictions for first-degree aggravated sexual assault under N.J.S.A. 2C:14-2(a)(7) and remand for resentencing on those charges.

I.

The charges against defendants arose out of an alleged kidnapping and sexual assault of thirty-year-old S.S. on the evening of January 31, 2011, and early morning hours of February 1, 2011. E.W. was charged in an indictment with first-degree

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kidnapping, N.J.S.A. 2C:13-1(b)(1), first-degree aggravated sexual assault while aided or abetted by another and by using physical force or coercion, N.J.S.A. 2C:14-2(a)(5), first-degree sexual assault upon a victim E.W. knew, or should have known, was mentally defective, N.J.S.A. 2C:14-2(a)(7), second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and third-degree witness tampering, N.J.S.A. 2C:28-5(a). The court dismissed the witness tampering charge prior to trial.

M.C. was charged in the indictment with first-degree aggravated sexual assault while aided or abetted by another and by using physical force or coercion, N.J.S.A. 2C:14-2(a)(5), first-degree sexual assault upon a victim M.C. knew, or should have known, was mentally defective, N.J.S.A. 2C:14-2(a)(7), and second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).

At defendants' joint trial, the evidence showed that in January 2011, S.S., who is in the moderate to severe range of "mental retardation,"¹ resided with her adoptive mother, B.S., and

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another female family member, L.L. B.S. adopted S.S. when S.S. was seven months old and, at age five, S.S. was diagnosed as severely handicapped. S.S. attended a school for special needs children until she was twenty-one.

S.S. cannot read, write, cook or use public transportation on her own, and is not capable of holding a job, does not understand the value of money, and cannot function independently. As a result of her handicap, S.S. considered anyone who was nice to her to be her friend, and believed anything that was told to her. S.S. gave birth to children in 2009 and 2010, both of whom were removed from her care. Prior to January 31, 2011, L.L. assisted S.S. with daily hygiene, bathing, and looked after her while B.S. was at work. After the incident alleged in the indictment, S.S. moved to a group home because she is unable to care for herself.

Shortly before January 31, 2011, S.S. joined a church where she met E.W., who was also a member. B.S. and L.L. did not join or attend this church with her. On January 31, 2011, L.L. overheard telephone calls between S.S. and a man who was identified as E.W. According to L.L., E.W. pressured S.S. to attend Bible

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study at the church during the phone calls. S.S. agreed to go to the Bible study, and provided E.W. with her address.

At approximately 10:00 p.m., E.W. arrived at S.S.'s home in a van driven by another person, and introduced himself to L.L. and B.S. L.L. testified that E.W. looked like he had had "one or two drinks," but did not have difficulty responding to her or B.S.'s questions. E.W. said he was taking S.S. to Bible study classes, and promised to bring her home afterward. B.S. and L.L. acquiesced because church members often transported S.S. to services and classes, and they expected S.S. to return that night. In his statement to police, E.W. acknowledged drinking that day, and picking up S.S. at her home, but claimed he and S.S. planned only to "hang out."

Although there was conflicting evidence concerning the timing and sequence of the events immediately following E.W. and S.S.'s departure from her home, it is undisputed E.W. and S.S. got into a van that had two other men in it. Approximately two hours after the van departed from S.S.'s home, the driver of the van dropped off E.W. and S.S. at E.W.'s home, and left with the other passenger.

When E.W. and S.S. arrived at the home, they were met by M.C., E.W.'s brother and an individual identified as V.B. The five individuals spent time on the porch drinking and then went

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inside. At approximately 2:30 a.m., E.W., M.C. and V.B. went into the basement with S.S.

S.S. testified that, once in the basement, E.W. took her clothes off, "made [her] go down on him," "stuck his thing in [her]," and "hit [her] from [her] back," meaning E.W. made her perform oral sex on him, and vaginally and anally penetrated her with his penis. She also testified that an individual later identified as M.C. did the same thing to her. S.S. testified she told the men to stop, but they did not.² S.S. explained that when the assaults ended, she slept on a chair in E.W.'s room and, when she awoke the next morning, E.W.'s sister arranged for a cab to take S.S. home.

When S.S. arrived home, L.L. thought S.S. seemed unusually quiet, was very dirty and smelled badly. S.S. initially refused to answer L.L.'s questions, but then told L.L. that E.W. put his penis in her mouth, another man put his penis in her anus and her anus was very sore. S.S. told L.L. that she told the men "no," but they forced her to engage in the sexual activity.

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L.L. called E.W., who acknowledged putting his penis in S.S.'s mouth, denied having sexual intercourse with S.S. and asked L.L. not to call the police. L.L., however, then notified the police.

S.S. subsequently took the police to E.W.'s house and provided a description of E.W., but was unable to identify M.C. Pursuant to police instructions, L.L. brought S.S. to Muhlenberg Hospital for an evaluation. Thelma Kaiser, a trained Sexual Assault Nurse Examiner (SANE), conducted an examination and evaluation in the emergency room on February 1, 2011. She took S.S.'s medical history, observed S.S. to be "very sleepy," and asked S.S. about the incident.

Kaiser examined S.S. and observed injuries to her vaginal and anal areas, including a one-quarter inch anal tear. Kaiser found no other visible injuries such as bites or burns. Kaiser offered S.S. antibiotics and emergency contraceptive medication.

S.S., B.S., and L.L. each gave formal statements to police, but they were not introduced in evidence at trial. As a result of her mental disability, S.S.'s statement was taken at the Child Advocacy Center.

Union County Prosecutor's Office detective Edward Rivera interviewed E.W. on February 3, 2011. The video recording of E.W.'s voluntary statement was admitted in evidence and played for the jury. E.W. said he knew S.S. from church, and she had a crush

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on him and asked to perform oral sex on him and have sexual intercourse with him. He admitted picking up S.S. at her home, and taking her to his family's home to "hang out." E.W. explained that S.S. wanted to kiss him, hug him and "love" him, but he was not attracted to her.

E.W. said S.S. voluntarily performed oral sex on him, but he denied engaging in sexual intercourse with or forcing her to do anything. He also said he "didn't notice she had anything wrong mentally" and claimed he just wanted to "be her friend."

On February 8, 2011, Rivera and Union County Prosecutor's Office detective Brian O'Malley interviewed M.C. A transcript of the interview was read to the jury at trial. M.C. admitted being on the porch of E.W.'s family's home with V.B. and E.W.'s brother late in the evening on January 31, 2011, when E.W. arrived with a woman. He denied entering the house that evening and engaging in any sexual activity with S.S., stating:

Nah. I didn't mess with her. Nothing. I didn't even do nothing with that girl or nothing. You know what I'm saying? That's crazy though they would put my name in it, you know what I'm saying, and say I had something to do with it. I ain't had nothing to do with that chick. If I did have something to do with it, I would say I did though, but I didn't though. You know what I'm saying?

Monica Ghannam, a forensic scientist employed in the Union County Prosecutor's Office's forensic laboratory, analyzed

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vaginal, cervical, and anal swabs taken from S.S. and her underwear during Kaiser's examination, and DNA samples from S.S., E.W., M.C. and V.B. Ghannam testified S.S.'s cervical specimens tested negative for acid phosphatase and sperm, but the anal swab tested positive for acid phosphatase and sperm. Samples taken from the back panel and interior crotch area of S.S.'s underwear, also tested positive for acid phosphatase and sperm.

Ghannam, who was qualified as an expert witness in the field of serology and DNA analysis, opined that "the mixture of...