State v. Thompson

• Decision Date: 18 December 2020
• Docket Number: DOCKET NO. A-0088-18T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRADLEY C. THOMPSON, a/k/a BRAD THOMPSON and BARTON C. THOMPSON, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRADLEY C. THOMPSON,a/k/a BRAD THOMPSON andBARTON C. THOMPSON, Defendant-Appellant.

DOCKET NO. A-0088-18T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted November 18, 2020

December 18, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 17-05-1263.

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

Gurbir S. Grewal, Attorney General, attorney for respondent (Lauren Bonfiglio, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Bradley C. Thompson appeals from a June 5, 2018 judgment of conviction for criminal sexual contact and criminal trespass. We affirm.

I.

The following facts are derived from the record. On July 21, 2001, C.S,¹ a twenty-seven-year-old mother, returned to her home in Lindenwold at 10:30 p.m. after grocery shopping. She resided there with her four-month-old son, her mother, and her sister. C.S.'s mother and sister were out of town on vacation. As C.S. unloaded her car, she heard "whistling" and "talking sounds" coming from the left side of the house. She took care of her child and began eating dinner in front of the television.

Shortly thereafter, C.S. "heard something behind [her]," and someone covered her eyes with one hand and grabbed her by the neck with an arm. The intruder (defendant) pulled C.S. off the chair by her neck and hair and dragged her to the first-floor bathroom. C.S. physically struggled with the intruder and repeatedly said "no," but he was "very, very strong" and she was unable to free herself from his tight grip around her throat.

C.S. was thrown on the floor and a towel was placed over her head to cover her eyes, making it impossible for her to see the intruder because it wasdark. She stopped resisting out of fear and concern what would happen next. While lying on the floor face down on her stomach, the intruder tried to remove C.S.'s bra but did not know how to unhook it. He asked her to unhook it but she refused. Ultimately, he removed her bra by pulling it over her head as she continued to resist him and told him to leave her baby alone. He then removed her clothes and used his hands and mouth to touch and lick her breasts. He then used his fingers and stomach to touch C.S.'s genital area and forced her to perform oral sex on him by placing his penis in her mouth.

During the assault the intruder told C.S., "I really want you," and she testified his voice sounded "very young"—between fifteen and twenty years of age.² The intruder did not ejaculate during the assault. C.S. also estimated his height to be five-feet, six inches, or five-feet, seven inches based upon the feel of his body in comparison to her four-foot, eleven-inch height.

The intruder then asked C.S. where her bedroom was, but she refused to answer. He stated he had to take a shower, leading C.S. to believe he lived nearby. The perpetrator left after telling C.S., "[c]ount to ten. Don't call the cops." C.S. was "terrified" and felt "violated."

C.S. immediately called her mother, and when she did not answer, C.S. called a close family friend who lived five minutes away. The police were called and came to C.S.'s home. Upon entering the home, the first responding officer found C.S. sitting in a chair, "extremely upset," with scissors in her hands, "crying as if something had just occurred." C.S. told the officer the perpetrator's voice sounded like a teenager, and during the assault he said, "I've been wanting you." After C.S. explained to the officer what happened, she and her mother³ were transported to the hospital for C.S. to undergo a Sexual Assault Nurse Examiner (SANE) examination.

The SANE nurse noted C.S. had "an abrasion on one ankle." C.S. did not report having any pain. The SANE nurse also collected samples from C.S., including a swab of dried saliva from her right breast. The samples were given to police officers for transport to the New Jersey State Police Office of Forensic Sciences in accordance with chain of custody protocol.

Thereafter, officers escorted C.S. back to her home and evaluated the area. They noticed a chair that had been moved from the patio area and placed under the bathroom window. C.S. confirmed that neither she nor her mother movedthe chair. Neighborhood canvassing and interviews did not yield any leads. A patrolman spoke to defendant's father, who lived across the street from C.S., but the conversation did not produce any helpful information. Two days after the attack, C.S. gave a tape-recorded statement to police. When asked if she knew any teenagers in the neighborhood, C.S. responded she knew a teenager lived across the street, but her only interaction with him occurred when she was pregnant, and he advised her car lights were still on after she parked her car. C.S. also stated the teenage boy's father's name was "Frank," but she did not know the teenager personally.

On January 23, 2002, the forensic laboratory issued a report with respect to the samples collected during the SANE examination. A DNA profile was generated from the sample collected from C.S.'s right breast, designated as Specimen 12A, and she was excluded as a possible contributor to that profile. The profile was then entered into the State's CODIS.⁴

On January 29, 2004, the Juvenile Justice Commission obtained a buccal swab from defendant on an unrelated charge. However, defendant's buccal swab was not entered into CODIS until April 2006 due to a significant processing backlog. CODIS did not generate a match of defendant's sample to Specimen 12A obtained from C.S. by the SANE nurse.

In 2014, the New Jersey State Police DNA Laboratory underwent a self-audit of CODIS entries and revised their data entry procedures.⁵ As a result of the audit, the laboratory began inputting exclusionary data from samples previously omitted. The audit remained ongoing in 2016 when an analyst from the laboratory performing a quality control check noticed that only five loci⁶ in the DNA profile of Specimen 12A had been entered into CODIS. Because at least seven loci in the DNA profile were required to generate a match, the analyst entered the exclusionary data from Specimen 12A's profile to see if CODIS would generate an investigative lead.

CODIS did generate an investigative lead implicating defendant, and police obtained a voluntary buccal swab from him. The second buccal swab was sent to the laboratory for comparison, and on August 17, 2016, the laboratory generated a report matching the DNA profile from the second buccal swab to the DNA profile obtained from Specimen 12A. Defendant was arrested on the basis of the DNA match.

In May 2017, a Camden County grand jury returned Indictment Number 17-04-1263, charging defendant with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (counts one through three); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (counts four through six); two counts of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (counts seven and eight); and second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count nine).

On December 15, 2017, defendant moved to dismiss counts one through three and counts seven through nine of the indictment based on statute of limitations grounds. The trial court conducted a testimonial hearing, entertained oral argument, and denied defendant's motion. Defendant moved for leave to appeal the trial court's decision. On January 29, 2018, the trial court denied defendant's motion for leave to appeal.

Defendant was tried before a jury in April and May of 2018. On April 25, 2018, the trial court granted defendant's motion for a judgment of acquittal on counts four, five, six, and eight based on a finding of insufficient evidence of severe personal injury to the victim. On May 3, 2018, the jury rendered a verdict of not guilty on counts one through three but found defendant guilty of fourth-degree criminal sexual contact, a lesser-included offense of count seven, and fourth-degree criminal trespass, a lesser-included offense of count nine.

On May 31, 2018, the court sentenced defendant to eighteen months' imprisonment, with nine months' of parole ineligibility for the lesser-included count seven offense and imposed a consecutive fifteen-month term of imprisonment with no parole eligibility on the lesser-included count nine offense. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

THE COURT IMPROPERLY DENIED THE MOTION TO DISMISS COUNTS SEVEN AND NINE THAT WAS BASED UPON A VIOLATION OF THE STATUTE OF LIMITATIONIS.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

II.

We apply a plenary standard of review to the trial court's decision on a motion to dismiss, and we owe no deference to the trial court's conclusions. Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012). Further, de novo review is also applied because the motion to dismiss involves statutory construction, State v. Ferguson, 238 N.J. 78, 93 (2019) (applying the de novo standard of review where "[t]he outcome of [the] case depends on the meaning of . . . a statute governing territorial jurisdiction - - and on the territorial scope of [a] . . . statute"); Paff v. Galloway Twp., 229 N.J. 340, 351 (2017) (applying de novo review and declining to give deference to the interpretative conclusions of the trial court), and "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty...