State v. RushState v. Rush
- Reporters:
- ,
- Before:
- Long, A.M. Stein, Levy
After a night of drinking, defendant Dale Stephen Rush sneaked into the house where the victim was sleeping and touched the skin of her buttocks and vagina. He was convicted of fourth degree criminal sexual contact (
Defendant appeals, contending thаt the following trial errors warrant reversal:
POINT I:
ADMISSION OF PRIOR CONVICTIONS FOR SIMILAR OFFENSES BY TRIAL COURT WAS UNDULY PREJUDICIAL SO AS TO AMOUNT TO REVERSIBLE ERROR.
A. The Court Improperly Allowed The Introduction By The State Of Prior Convictions For Similar Offenses.
B. By Preserving The Issue For Aрpellate Review In The Lower Court, The Defendant Is Entitled To The Benefit Of Brunson.
POINT II:
THE TRIAL COURT ERRED IN ITS JURY INSTRUCTION BY ALLOWING THE JURY TO DETERMINE WHETHER A PERSON‘S BEING ASLEEP FALLS WITHIN THE REALM OF WHAT IS CONSIDERED “PHYSICALLY HELPLESS” AS DEFINED BY N.J.S.A. 2C:14-2c(2).
A. Whether A Person Is “Physically Helpless” Is A Question Of Law For The Court, And Not A Question Of Fact For The Jury.
B. Under N.J.S.A. 2C:14-2c(2), A Person Is Not “Physically Helpless” When Sleeping. POINT III:
THE TRIAL COURT ERRED IN IMPOSING SENTENCES IN EXCESS OF THE PRESUMPTIVE TERMS AND ORDERING A PERIOD OF PAROLE INELIGIBILITY.
A. A Proper Consideration Of Aggravating And Mitigating Factors Mandates That The Defendant Be Issued Presumptivе Terms.
B. The Evidence Does Not Support The Imposition Of A Period of Parole Ineligibility.
We have carefully reviewed this record in light of these contеntions and have concluded that our intervention is unwarranted.
I
The trial judge determined under State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978) that for credibility purposes, defendant‘s previous convictions for sexual offensеs were relevant and could be admitted if he took the stand. This ruling was legally unexceptionable. These offenses were properly held admissible for impeachment purposes. State v. L.J.P., 270 N.J. Super. 429, 443, 637 A.2d 532 (App.Div. 1994). State v. Brunson, 132 N.J. 377, 394, 625 A.2d 1085 (1993) was decided after the trial in this case. The fact that defendant raised this point at trial is of no moment to Brunson‘s prospectivity.
II
In charging the jury as to fourth degree criminal sexual contact, the trial judge stated:
A person is guilty of criminal sexual contact if he commits an act of sexual contact with the victim, and the victim is one of whom the person knew or should have known was physically helpless.
....
“Sexual contact” is the intentional touching by the victim or the defendant, either directly or through clothing, of the victim or defendant‘s intimate parts for the purpose of humiliating the viсtim, or sexually arousing or sexually gratifying the defendant.
“Intimate parts” means the following parts: Sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.
....
According to the law, “physically helpless” means that condition in which a person is unconscious, or is physiсally unable to flee or is physically unable to communicate unwillingness to act.
Defendant contends that whether a person is physically helpless is a question of law for the trial judge and not a question of fact for the jury; and, in addition, that the judge should have instructed the jury that one is not physically hеlpless when asleep. Neither of these contentions is correct.
The “physically helpless” standard was properly defined by the trial judge as a matter of law in accordance with the model jury instructions for criminal sexual contact. Model Jury Charge, Criminal Sexual Contact,
Defendant‘s suggestion that, as a matter of law, sleep does not meеt this standard is equally unavailing. First, it makes common sense that a person who is actually asleep is incapable of fleeing or communicating unwillingnеss to act. Indeed, The American Heritage Dictionary defines sleep as a “natural, periodically recurring physiological state of rest, characterized by relative рhysical and nervous inactivity, unconsciousness, and lessened responsiveness to external stimuli.” The American Heritage Dictionary, 1150 (2d College ed. 1982). “Unconscious” is defined as “[n]ot possessed of mind.... [i]nsensible to the reception of any stimuli and incapable of performing or experiencing any controlled functions,” Black‘s Law Dictionary 1525 (6th ed. 1990), or “[h]aving lоst, esp. temporarily, the capacity for sensory perception,” The American Heritage Dictionary, supra, at 1316. Obviously, a person who is lacking sensory perception and is unаble to perform
Othеr jurisdictions faced with this issue have determined that sleep can establish physical helplessness. In State v. Moorman, a North Carolina statute which defined physical hеlplessness as unconsciousness or inability to resist or communicate unwillingness to submit to a sexual act was at issue. State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987) (interpreting
Likewise, a Minnеsota statute imposing liability for third degree criminal sexual conduct upon one who engages in non-consensual sexual penetration while the victim is physically helpless was interpreted to include a victim who is asleep. State v. Griffith, 480 N.W.2d 347, 349 (Minn. Ct. App. 1992) (interpreting
In a rape case, the Court of Appeals of Virginia held
“[T]he jury had to decide the factual issue of whether the victim was asleep, and thereby in a state of physical helplessness, when [defendant] had sexual intercourse with her. The jury determined the victim was asleep at that time and credible evidence in the record supports that determination.... Thus, the jury properly found, based on the evidence, that Woodward had sexual intercourse with the victim through the usе of her physical helplessness and is guilty of rape.”
[Woodward v. Virginia, 12 Va. App. 118, 402 S.E.2d 244, 246 (1991).]
Here the jury heard and accеpted the victim‘s testimony that she was asleep when defendant touched her. From that evidence, it was free to find that the victim was physically helрless within the meaning of the criminal sexual contact statute. See State ex rel. M.T.S., 247 N.J. Super. 254, 258-59, 588 A.2d 1282 (App.Div. 1991) (dictum) (“Had the trial judge accepted the victim‘s story that she was penetrated while sleeping, there might have been a finding that she was `physically helpless’ at the time.“), rev‘d on other grounds, 129 N.J. 422, 609 A.2d 1266 (1992).
III
We turn finally to defendant‘s sentence. We have carefully reviewed this record and have concluded that the aggravating factors relied upon by the trial judge to justify a sentence greater than the presumptivе and to impose a period of parole ineligibility were fully supported by the evidence. (No mitigating factors were found.) The weighing of these factors conformed to the legislative policies underlying our sentencing law and the sentence is not so unreasonable as to shock our conscience. State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984).
Affirmed.