State v. D.P.F.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.P.F., Defendant-Appellant.

DOCKET NO. A-5604-15T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 8, 2018

April 13, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Whipple.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-08-1058.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Jennifer M. Eugene, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant D.P.F.¹ appeals from a July 8, 2016 judgment of conviction after a jury convicted him of criminal restraint, terroristic threats, aggravated assault, and four counts of endangering the welfare of a child. We affirm defendant's conviction. However, because of errors and omissions during sentencing, we reverse and remand for a new sentencing hearing.

I.

The following relevant facts appear in the trial record. V.M.E. (Vanessa) was married to defendant, and together had one child, K.A. (Kevin). Additionally, Vanessa had three children from a previous relationship. Vanessa and the four children lived together with defendant.

On August 31, 2012, the family was in their home, when the two youngest children, eleven months old and two years old at the time, began fighting. Defendant disciplined the two-year-old for the fight by striking him on the back with a belt, leaving him with a scrape.

Vanessa confronted defendant, threatening to call the police. When she walked away from defendant, he followed her, cursing, and pushed her, causing her to fall and hit a table. Vanessa thenwent into the kitchen; defendant followed and "grabbed [her] around [her] neck and . . . then he come around towards the front . . . choking [her] against the refrigerator and spanking [her] in [her] face." He choked her with both hands, "[a]round [her] neck . . . digging his nails into [her] skin." Vanessa grabbed a knife, which defendant took from her, and then threw her to the ground.

Next, Vanessa and defendant went into the living room, where defendant told the children to go upstairs. Defendant put the three oldest children in one room, and Vanessa went into her bedroom with her youngest son. The room the three oldest children were in could be locked from the outside, but Vanessa did not know whether defendant locked the door. Further, the front door to the house could be locked so a key would be needed to exit the house, and defendant locked the door, took all keys, and took Vanessa's cell phone.

In the bedroom, Vanessa was sitting in a chair and holding her son when defendant entered the room. Defendant took the child out of her arms, saying "He ain't going to save you," and threw the child onto the bed, from which the child fell onto the floor, was picked up by defendant, and placed back on the bed. Defendant then resumed "smacking [her] in [her] face," "punched [her] on top of [her] head," and "came down . . . on [her] in [her] back." He continued to beat Vanessa for "a little while," and threatenedher, saying "I should kill you if you . . . leave I'm going to kill you, myself and the kids."

At some point, Vanessa urinated on herself, and defendant brought her to the bathroom to shower. She then returned to the bedroom, where he was sitting naked in a chair. Defendant then began to rub and touch her with his hands and his feet, scratching her in the vaginal area. She told him she didn't want to do anything, to which he replied "I'm your husband and you know I didn't want to do this. It's your fault." She did not fight him, and did what he told her to; she was afraid "he was going to kill [her] and the kids in the house . . . [b]ecause he said he would." Defendant then sexually assaulted her. After he was finished, both defendant and Vanessa washed up, and went to sleep. Vanessa testified she couldn't get up and go to wash on her own because her "body was traumatized[,] . . . had a lot of bruises[,] . . . was in a lot of pain[,] been [thrown] on the floor[,] . . . wrestling with him through the house. It just was too much."

The following day, Saturday, in an effort to get out of the house with the kids to get help, Vanessa told defendant she needed to go to the store. Defendant then walked with her and the kids around the corner to the liquor store. They all returned to the house, where defendant again locked the doors and took all of the keys and Vanessa's cell phone.

The next day, Vanessa was able to obtain her cell phone; she called her mother, who called the police. They arrived at the home shortly after.

When the police knocked on the door, defendant unlocked it, and Vanessa opened it and began speaking to the detectives. The police noticed she "had a black eye, she was a little disheveled, meaning her hair was out of place, . . . had scratches about her face, [and] looked relieved to see [the detectives]"; in the police report they stated her injuries appeared "minor." When the police entered the home, defendant was standing behind Vanessa, and the children were nearby. Vanessa informed the police that defendant had assaulted her by "punch[ing] her about the face and body." At this point, the police placed defendant under arrest and transported him to police headquarters.

The police asked Vanessa to come to headquarters to give a statement, but she declined because she had "childcare issues." Instead, she called her mother to come and watch the children so she could go to the hospital. When Joan saw Vanessa at the house, "[h]er eyes was bloody, her back was bruised up and black, her hair was disarray, her lip was swoll[en], and . . . she was limping on her leg." She then went to the hospital with Vanessa and the children.

At the hospital, Vanessa reported to the examining nurse she had been beaten, locked in the house, and abused all weekend. The nurse noted Vanessa presented with: ruptured blood vessels in her eyes, bruising "on her right forearm, left wrist and forearm, right shoulder, left upper back," and left eye area. "She also had scratches to her left neck, right eyebrow, and her right chest, and a lump . . . to the back of her neck." Vanessa reported being in acute but generalized pain all over her body, and was medicated with morphine.

Vanessa next was seen by a physician assistant, to whom she reported being sexually assaulted, as well as physically assaulted. At this point, a Sexual Assault Nurse Examiner (SANE) examined Vanessa. She documented Vanessa's injuries, taking 131 photographs, and taking swabs for DNA testing purposes from her head, and her vaginal, cervical, anal, and buccal areas. The nurse noted Vanessa had bruising on her left eye, neck, head, arms, wrists, and legs, and bruising and scratches on her shoulder. Further, Vanessa had injuries consistent with strangulation, and had "relatively minor" injuries to her vaginal area.

Kevin, who had fallen to the floor in the bedroom, did not receive medical attention because Vanessa "was in disarray [her]self, and . . . thought [Joan] would have took that role and did that."

Vanessa spoke to the police at the hospital, informing them of the assault. The police then transported her to headquarters, where she described the incident to another detective. The police did not take a formal sworn statement because she had just been released from the hospital and was on medications. She was asked to return to give such a statement, but this never transpired.

On August 16, 2013, a Mercer County Grand Jury returned an indictment against defendant for: five counts of first-degree kidnapping in violation of N.J.S.A. 2C:13-1(b)(1), 1(b)(2), and 1(c); one count of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2(a)(3); two counts of third-degree aggravated criminal sexual contact in violation of N.J.S.A. 2C:14-3(a) and 2C:14-2(a)(3); one count of third-degree terroristic threats in violation of N.J.S.A. 2C:12-3(b); one count of second-degree aggravated sexual assault in violation of N.J.S.A. 2C:12-1(b); and four counts of second-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a).

Vanessa, her mother, the SANE nurse, an expert on strangulation injuries, and multiple detectives testified for the State at the jury trial. Defendant did not testified, but presented testimony from two police detectives.

During summation, the defense lawyer argued, "this is going to be an equation between what [Vanessa] is telling you and whatthe objective evidence is telling you. And the objective evidence, it can't lie, it can't embellish, it can't exaggerate. The objective evidence doesn't have a motive to color the truth."

He asserted,

Now, I'm not saying that [Vanessa] came up here and lied. That's for you to decide. No one knows the answer to that except for you. Did she embellish during the facts? Is she somebody who just likes to exaggerate? Is she somebody who is trying to lie? That's your question to answer.

The assistant prosecutor, while summarizing the evidence presented, made the following statements in his own closing:

When people lie, they don't lie in detail. They especially don't lie in detail within that first 48 hours of being assaulted, not having any food because, remember, [Vanessa] tells the hospital staff she's extremely thirsty and extremely hungry. And they certainly don't create elaborate lies after being given the narcotic pain relievers morphine and some other drugs that [Vanessa] was given and there's documentation of those drugs in the hospital records.

. . . .

[U]nless [Vanessa] from the second this assault occurred said I am

...