                             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                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4015-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARLES E. LUCAS,

        Defendant-Appellant.

________________________________

              Argued November 27, 2017 – Decided July 9, 2018

              Before Judges Accurso, O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              No. 15-07-0808.

              Vincent J. Sanzone, Jr. argued the cause for
              appellant.

              Nancy A. Hulett, Assistant Prosecutor,
              argued the cause for respondent (Andrew C.
              Carey, Middlesex County Prosecutor,
              attorney; Nancy A. Hulett, of counsel and on
              the brief).

PER CURIAM
    A jury convicted defendant Charles E. Lucas of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7).     The court

imposed a fifteen-year term of imprisonment, subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2.     Defendant appeals from

his conviction, raising the following points for our

consideration:

         POINT I: THE TRIAL COURT COMMITTED REVERSAL
         [SIC] ERROR BY ALLOWING THE STATE TO CONVICT
         THE DEFENDANT ON A NON-EXISTENT LAW AND
         INSTRUCTING THE JURY WITH ERRONEOUS CHARGES.

         POINT II: THE TRIAL COURT ERRED IN NOT
         GRANTING A NEW TRIAL.

         POINT III: THE PROSECUTOR'S COMMENTS DURING
         HER SUMMATION WERE PREJUDICIAL AND DENIED
         DEFENDANT A FAIR TRIAL.

    Having considered these arguments in light of the record

and applicable legal standards, we affirm defendant's

conviction.

                               I

    N.J.S.A. 2C:14-2(a)(7) provides that one is guilty of

aggravated sexual assault if he commits an act of sexual

penetration with another who he knew or should have known was,

among other things, physically helpless.    N.J.S.A. 2C:14-1(g)

defines "physically helpless" as a condition in which a person

is unconscious or is physically unable to flee or is physically

unable to communicate an unwillingness to act.
                                2
                                                           A-4015-15T2
     In this matter the State's theory throughout trial was

defendant committed an act of aggravated sexual assault upon

K.H.1 because he penetrated her when she was in a state of

intoxication that rendered her physically helpless.   The salient

evidence is as follows.

     K.H. testified that she and her friends went to a club one

evening to celebrate her birthday.   Her friends included N.H.,

who was defendant's girlfriend, and F.H.   K.H., N.H., and F.H.

gathered at N.H.'s apartment before going to the club.

According to K.H., they all had three or four drinks before

leaving for the club.

     K.H, N.H., and F.H. arrived at the club at approximately

11:00 p.m.   N.G., one of K.H.'s friends, joined the group at

12:30 a.m.   While at the club, the group ate and had mixed

drinks.   K.H. testified her drinks were mixed with vodka.    She

stopped counting the number of drinks she had at the club after

her fourth or fifth drink, although she subsequently testified

she had only three drinks.

      After leaving the club for the evening, K.H. returned to

N.H.'s apartment by getting a ride from one of her friends, but

testified she had no recollection of how she got there because

1
  We use initials to maintain the confidentiality of those
involved.

                                3
                                                         A-4015-15T2
she was "too drunk."   She did recall that, after arriving at

N.H.'s apartment, F.H. and N.H. woke her up and, when they

opened the car door, K.H. almost fell out onto the ground.     K.H.

required her friends' assistance to get out of the car and go up

a set of stairs to N.H.'s apartment.

    K.H. testified she has some recollection that, after she

was in the apartment, her friends tried to wake her up because

they wanted her to have some birthday cake.    She also recalled

waking up at one point because she felt someone kiss her lips.

She pushed the person away and turned to lie on her arms.

Otherwise, she could not remember what occurred in the apartment

because she was "extremely drunk", and "couldn't function,

couldn't stand up.   Couldn't do anything for myself or by

myself."

    K.H. testified she woke up the next morning to defendant

and N.H. arguing.    K.H. noticed she was wearing the dress she

had on the night before, but was not wearing any underwear.

N.H. left the apartment briefly to retrieve medicine from her

car and, in her absence, defendant told K.H. he had sex with her

but did not want N.H. to know.     K.H. testified she had no

recollection of having sex with defendant because she was

"passed out drunk on the couch."


                                 4
                                                           A-4015-15T2
    Later that morning, K.H. reported the incident to the

police.   She was transported to a rape crisis center, where she

was physically examined by a nurse and specimens were taken from

her mouth and vagina.     When the police notified defendant they

were looking for him, he turned himself in voluntarily.

Analyses of the specimens taken from K.H.'s vagina and a buccal

swab taken from defendant revealed the presence of defendant's

sperm in K.H.'s vagina.

    F.H. testified that when she, K.H., and N.H. were still in

N.H.'s apartment before leaving for the club, they each had one

drink.    While at the club, F.H. noticed K.H. have three drinks

and, at 12:45 a.m., kept K.H. from having another because K.H.

was "off balance" and "stumbling a little bit" when she danced.

Toward the end of the night, K.H.'s friends made K.H. sit down

because she continued to stumble.     According to F.H., K.H. left

the club at about 1:45. She required a friend to hold each arm

to get her from the club to the car.    K.H. was placed into the

backseat of the car, where she fell asleep.    When they arrived

at N.H.'s apartment, K.H. was unable to balance herself when she

stepped out of the car.    With someone holding each arm, K.H. was

able to climb the steps to N.H.'s apartment, where K.H. fell

asleep on a couch in the living room.


                                  5
                                                           A-4015-15T2
    F.H. testified that, at one point, her friends tried to

rouse K.H. to have cake, but K.H. was "out of it" and wanted to

sleep.   Subsequently, between 2:20 a.m. and 2:45 a.m., K.H.

needed the assistance of two of her friends to use the bathroom.

K.H. then went back to sleep.    F.H. left the apartment between

3:30 and 4:00 a.m.

    N.G. testified she observed K.H. drinking at the club and

by the end of the evening was "extremely intoxicated" and

"incoherent. . . .    [W]e were like slapping her face" and

telling K.H. to "wake up, wake up."    At 2:00 a.m., they all left

the club.     At that time, K.H. needed to be held up by others

because she could barely walk or stand on her own, and just

"fell into the car."    N.G. drove separately to N.H.'s apartment.

When N.G. arrived at the apartment, K.H. was asleep on the

couch.   Thereafter, when N.G. and the others tried to wake K.H.

to have cake, K.H. was "barely coherent."

    N.G. spent the night on the floor next to the couch where

K.H. slept.    Around 6:00 a.m., N.G. was awakened by a "pushing"

against her foot.    She looked over at the couch and it appeared

defendant was having sex with someone on the couch who appeared

to be asleep.    N.G. told defendant to stop.   Eventually he did

so and went into N.H.'s bedroom. At that point, N.G. realized

the person on the couch was K.H.
                                6
                                                           A-4015-15T2
    N.G. testified K.H. was motionless.    Her face was down, her

dress pulled up, and her bare buttocks exposed and in the air.

N.G. pulled K.H.'s dress over her buttocks and positioned her on

her back on the couch.   K.H. continued to be motionless.    N.H.

came out of her bedroom and N.G. told her what she observed.

N.G. then left the apartment.

    As previously stated, the jury found defendant guilty of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7).

This appeal ensued.

                                II

                                A

    Defendant's first contention is the trial court erred by

allowing him to be convicted of a crime that does not exist.

    Five days before trial, the State obtained an indictment

that superseded the previous one.    The original indictment

contained only one count, which charged defendant with

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7).    The first

count of the superseding indictment similarly charged defendant

with violating N.J.S.A. 2C:14-2(a)(7).    The superseding

indictment also added three new counts.   Because defendant did

not have sufficient time to prepare a defense against the three

new counts before trial, the court severed those counts and the

trial proceeded on count one only.
                                7
                                                            A-4015-15T2
    Count one of the superseding indictment states in pertinent

part:

         [Defendant] . . . did commit an act of
         sexual penetration upon K.H. . . . and K.H.
         was one who [defendant] knew or should have
         known was physically helpless[,] rendering
         K.H. temporarily incapable of understanding
         the nature of her conduct including but not
         limited to being incapable of providing
         consent[,] contrary to the provisions of
         N.J.S.A. 2C:14-2a(7).

    N.J.S.A. 2C:14-2(a)(7) states:

         a. An actor is guilty of aggravated sexual
         assault if he commits an act of sexual
         penetration with another person under any
         one of the following circumstances:

                       . . . .

              (7) The victim is one whom the
              actor knew or should have known
              was physically helpless or
              incapacitated, intellectually or
              mentally incapacitated, or had a
              mental disease or defect which
              rendered the victim temporarily or
              permanently incapable of
              understanding the nature of his
              conduct, including, but not
              limited to, being incapable of
              providing consent.

              [emphasis added.]

    Defendant did not object to the first count in the

superseding indictment when before the trial court.    He argues

the language in the indictment conflicts with that in N.J.S.A.

2C:14-2(a)(7) because it omitted the language highlighted in the
                                8
                                                          A-4015-15T2
statute cited above but, more important, defendant contends the

indictment did not charge him with a valid offense.

    The fact the indictment did not include the language

highlighted in the statute cited above is of no moment.

Defendant was not charged with penetrating K.H. when he knew or

should have known she was "incapacitated, intellectually or

mentally incapacitated, or had a mental disease or defect."

More important, there is no indication defendant was charged

with a non-existent crime.   He was charged with penetrating K.H.

while she was "physically helpless," an act expressly prohibited

by N.J.S.A. 2C:14-2(a)(7).   There is no question the first count

of the superseding indictment charged defendant with a valid

offense.

    Defendant argues the court erred by failing to grant his

motion to arrest judgment, see Rule 3:21-9, on the ground he was

convicted of a "non-existent law."   As just noted, the crime

with which defendant was indicted and ultimately convicted is

one that is expressly set forth in N.J.S.A. 2C:14-2(a)(7).

    In addition, the motion was filed months after the verdict

was rendered and, for that matter, after defendant filed his

notice of appeal.   The trial court correctly denied the motion

on the ground it was untimely; the motion was not filed within

ten days of the verdict, as mandated by Rule 3:21-9.   Further,
                                9
                                                          A-4015-15T2
the trial court no longer had jurisdiction because a notice of

appeal had been filed, see Rule 2:9-1(a).   We discern no basis

to disturb the court's ruling on this motion.

    In his brief, defendant maintained the jury instructions

were erroneous for various reasons.   At oral argument before us,

defendant retracted all but one argument about the quality of

the instructions.   That argument is as follows.

    The indictment was read to the jury during the charge and

it suggested a physically helpless person was one who was

"incapable of understanding the nature of his conduct,

including, but not limited to, being incapable of providing

consent."   The jury was subsequently instructed, consistent with

N.J.S.A. 2C:14-1(g), that the definition of "physically

helpless" is one who is "unconscious or physically unable to

flee or is physically unable to communicate unwillingness to

act[.]"   Defendant asserts the inconsistency between the

language in the indictment and the charge misled the jury.

    We note that, after reading the indictment to the jury, the

court advised the jury the statute governing the subject offense

"provides in pertinent part, an actor is guilty of aggravated

sexual assault if he commits an act of sexual penetration with

another person whom the actor knew or should have known was

physically helpless."   The court further instructed that, to
                                10
                                                            A-4015-15T2
convict defendant of such offense, the State had to prove

certain elements beyond a reasonable doubt.   The court went

through each element and, as to the subject one, charged:

         The . . . State must prove to you beyond a
         reasonable doubt . . . that at the time of
         the penetration [K.H.] was physically
         helpless. Physically helpless means that
         condition in which a person is unconscious
         or is physically unable to flee or is
         physically unable to communicate an
         unwillingness to act.

    Given the manner in which the court's instructions to the

jury unfolded, we cannot agree the language in the indictment

had the capacity to confuse or mislead the jury.   The court

identified what the indictment stated, but then immediately

enlightened the jury of what the State was required to prove.

The jury was instructed the State had to prove beyond a

reasonable doubt that at the time of the penetration [K.H.] was

physically helpless and defined "physically helpless" consistent

with the definition of this term in N.J.S.A. 2C:14-1(g).

    We have carefully considered the remaining contentions in

defendant's first argument point, and conclude they are without

sufficient merit to warrant discussion in a written opinion.      R.

2:11-3(e)(2).




                               11
                                                           A-4015-15T2
                                  B

    Defendant next argues the trial court erred when it denied

his motion for a new trial on the basis of newly discovered

evidence.    "[A] motion for a new trial is addressed to the sound

discretion of the trial judge, and the exercise of that

discretion will not be interfered with on appeal unless a clear

abuse has been shown."     State v. Armour, 446 N.J. Super. 295,

306 (App. Div.) (quoting State v. Russo, 333 N.J. Super. 119,

137 (App. Div. 2000)), certif. denied, 228 N.J. 239 (2016).

    It is well-settled that newly discovered evidence will

warrant a new trial only if the evidence is:    "(1) material to

the issue and not merely cumulative or impeaching or

contradictory; (2) discovered since the trial and not

discoverable by reasonable diligence beforehand; and (3) of the

sort that would probably change the jury's verdict if the new

trial were granted."     State v. Carter, 85 N.J. 300, 314 (1981).

Our Supreme Court has held that all three prongs of the test

must be met before a defendant will be entitled to a new trial.

Carter, 85 N.J. at 314; State v. Artis, 36 N.J. 538, 541 (1962).

    The alleged newly discovered evidence were three

certifications.    One was signed by K.H.'s estranged husband

(husband).    Among other things, he claimed that, before the

subject incident, K.H. informed him she had been raped by
                               12
                                                           A-4015-15T2
others.    Defendant argued these prior allegations were false

and, thus, he was entitled to a new trial so he could admit

evidence K.H. had falsely accused others in the past of sexual

assault.

    The second certification was signed by the husband's

brother (brother).    In addition to other allegations, the

brother stated he contacted the Division of Child Protection and

Permanency (Division) to report K.H. was abusing her children.

When K.H. discovered what the brother had disclosed to the

Division, she retaliated by making her fifteen-year-old daughter

falsely accuse the brother of sexually molesting her.

    The third certification was from N.H.     Among other things,

she claimed K.H. told her that she had falsely accused her half-

brother of molesting K.H.'s daughter.

    The court rejected the motion.    The court noted the

certifications contained hearsay and other flaws, and some of

the evidence was discoverable before trial.   More important, the

court determined whether K.H. falsely accused others of sexual

assault was irrelevant because her credibility in this matter

was immaterial.    The court pointed out the evidence supporting

K.H.'s allegation that defendant sexually assaulted her while

she was physically helpless was primarily based upon evidence


                                 13
                                                            A-4015-15T2
other than K.H.'s testimony, especially N.G.'s testimony.   The

court noted

         Basically, [K.H.] had no memory of what
         happened. She wasn't the one who took the
         witness stand to say that the -- she has a
         memory of the defendant having sex with her
         on the night of this incident.

         [N.G.] testified that she witnessed the
         defendant sexually assaulting the victim who
         was completely unresponsive during and after
         the sexual assault. . . . Afterwards,
         [N.G.] got up to, once the defendant left
         the room, to talk to the victim and the
         victim was not moving. The victim's dress
         was up practically above her head. She was
         naked and she didn't – the victim did
         nothing to pull the dress down. When the
         [N.G.] pulled it down the victim still
         didn't move. She turned the victim over and
         the victim still didn't move.

         So it was [N.G.] who was the eyewitness, the
         one who gave the details and had a
         recollection and saw what occurred, not the
         victim getting on the stand to say what the
         defendant had done to her. In fact, the
         victim's memory was limited to waking up at
         one point with someone . . . touching her
         lips. She remembered trying to push him
         away and that's it.

         It wasn't until after the fact when the
         friend told her what happened that she had
         some awareness, but not based on her own
         recollection. So that's why I say that
         evidence of the victim's untruthfulness or
         history of making false allegations of
         sexual assault would not be material
         evidence in this case, because it wouldn't
         counter the victim's recollection. . . .


                               14
                                                        A-4015-15T2
         [I]t was not the victim who had the ability
         to testify as to what the defendant actually
         did to her, because she was too intoxicated
         to know. . . .

         [T]here was overwhelming proof of the
         victim's intoxication and unresponsive state
         coming from the . . . testimony of others,
         in particular the friend sleeping on the
         floor. So undermining the victim's
         credibility would not be material to the
         issues of evidence in the case.

    For the reasons provided by the trial court, we agree

defendant failed to fulfill the three elements in Carter.      There

is no basis to order a new trial.

                                 C.

    Defendant's final contention is the prosecutor made

prejudicial remarks during her summation.   These alleged

prejudicial remarks were that the prosecutor (1) expressed a

personal belief K.H. was credible; (2) stated N.G. provided

"damning" evidence; (3) characterized K.H. as the "perfect prey"

when she was on the couch, suggesting defendant was an animal;

and (4) asked the jurors to consider what it was like for K.H.

to testify about the incident.

    During defense counsel's summation, she attacked K.H.'s

credibility, arguing she had a selective memory.   Defense

counsel also insinuated the sexual act was consensual.



                                 15
                                                            A-4015-15T2
    While prosecutors are entitled to zealously argue the

merits of the State's case, they occupy a special position in

our system of criminal justice.    State v. Smith, 212 N.J. 365,

403 (2012).   "[A] prosecutor must refrain from improper methods

that result in a wrongful conviction, and is obligated to use

legitimate means to bring about a just conviction."     State v.

Daniels, 182 N.J. 80, 96 (2004) (quoting State v. Smith, 167

N.J. 158, 177 (2001)).

    However, even if the prosecutor exceeds the bounds of

proper conduct, "[a] finding of prosecutorial misconduct does

not end a reviewing court's inquiry because, in order to justify

reversal, the misconduct must have been 'so egregious that it

deprived the defendant of a fair trial.'"    Smith, 167 N.J. at

181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)).    "Our task

is to consider the 'fair import' of the State's summation in its

entirety."    State v. Jackson, 211 N.J. 394, 409 (2012) (quoting

State v. Wakefield, 190 N.J. 397, 457 (2007) (additional

citations omitted).

    We recognize asking the jurors to place themselves in the

shoes of the victim has been soundly discouraged by other courts

that have considered the tactic.    See, e.g., Tyree v. United

States, 942 A.2d 629, 643 (D.C. 2008).    However, having reviewed

the record, we are satisfied the prosecutor's request that the
                               16
                                                           A-4015-15T2
jurors consider how K.H. felt while testifying did not deprive

defendant of a fair trial.   The remark was fleeting and the

prosecutor did not return to this theme.     We also do not find

the prosecutor's comment K.H. was the "perfect prey" an attempt

to portray defendant as an animal, but rather was fair comment

on and made in response to defense counsel's characterization of

the evidence.   None of the prosecutor's comments at issue

provide any basis to overturn the verdict.

    Affirmed.




                                17
                                                           A-4015-15T2
