State v. FractionState v. Fraction
Following a jury trial, defendant was found guilty of two counts of aggravated sexual assault in violation of N.J.S.A.
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 proоf 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 (1972) which preclude admission of such evidence in the absence of a clearly expressed stipulation between the parties. Our thоrough 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 evidencе 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. Defеndant 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
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 hеr 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 rеcently 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.
“Sexual penetration” means vаginal 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 deрth 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 оf 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 (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
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 (App.Div. 1958), aff‘d in part, 28 N.J. 188 (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 (App.Div. 1956); State v. Orlando, 119 N.J.L. 175, 183 (Sup.Ct. 1937). We, thus, hold that cunnilingus constitutes a form of “sexual penetration” within the рurview of the statutory definition set forth in N.J.S.A.
II
We next turn to defеndant‘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 pеrceive 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 (1984); State v. Dively, 92 N.J. 573, 579-582 (1983); State v. Mirault, 92 N.J. 492, 501-503 (1983); State v. Best, 70 N.J. 56, 60-63 (1976); State v. Davis, 68 N.J. 69, 77 (1975). Although
With whatever “disarming ease” this thesis may be articulated, “its application is not without difficulties.” State v. Davis, supra 68 N.J. at 77. Because a single criminal еpisode 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 (1983); State v. Midgeley, 15 N.J. 574, 579-580 (1954); State v. Shoopman, 11 N.J. 333, 335 (1953); State v. Pa. R.R. Co., 9 N.J. 194, 197 (1952); State v. Labato, 7 N.J. 137, 144-145 (1951); State v. DiGiosia, 3 N.J. 413, 419 (1950); State v. Di Ventura, 187 N.J. Super. 165, 170-171 (App.Div. 1982) certif. den., 93 N.J. 261 (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; State v. Davis, supra 68 N.J. at 77-78; State v. Ruiz, 68 N.J. 54, 66 (1975) (Pashman, J., dissenting); State v. Cormier, 46 N.J. 494, 500-502 (1966); State v. Stenson, 174 N.J. Super. 402, 406 (Law Div. 1980) aff‘d, 188 N.J. Super. 361 (App.Div. 1982); State v. Bontempo, 170 N.J. Super. 220, 236 (Law Div. 1979), certif. den., 87 N.J. 317 (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; State v. Hoag, 21 N.J. 496, 503 (1956), aff‘d, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913
With certain minor variations,1 the Code of Criminal Justice has adopted the somewhat mechanistic standard established by the United States Supreme Court in Blockburger v. United States, supra, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309, undеr which the offenses are different if each requires proof of a fact not required by the other. See N.J.S.A.
Applying that standаrd here, we are fully convinced that the aggravated sexual assault convictions do not merge. Clearly, the convictions are not for the “same conduct.” Obviously, that term, “when seen in this context, refers to а single act which results in the commission of more than one offense.”
Beyond this, the statutory bar against multiple convictions is not applicable here because the elements of the two aggravated sexual assault offenses are entirely different. Simply stated, we are not concerned with a lesser included offense. Each of the two crimes required proof of facts not required by the other. We, thus, conclude that N.J.S.A.
We recognize that the Blockburger standard codified in N.J.S.A.
Nor would the result be different were we to “focus on the episodic fragments of the evеnts.” State v. Truglia, supra at 521. The same transaction test “was designed to suggest that double jeopardy principles should preclude fractionalization where the charged misconduct” is part of a single overall criminal transaction. State v. Gregory, 66 N.J. 510, 515 (1975). In operation, however, the test “has not been fully acceptable since ... `transaction’ is a shapeless term and its utility depends on the way it is defined and applied.” Id.
III
Defendant‘s final argument pertaining to the trial judge‘s refusal to admit evidence of the results of the polygraph examination is clearly without merit and does not require extended discussion. R. 2:11-3(e)(2). Thеre is nothing in this case which would permit us to depart from the principles adopted by our Supreme Court in State v. McDavitt, supra. See State v. Christopher, 149 N.J. Super. 269, 274-275 (App. Div. 1977) certif. den., 75 N.J. 24 (1977).
In sum, we conclude that defendant‘s arguments are wholly without merit. Accordingly, the judgment of convictions is affirmed in аll respects.