Judge Susswein continued in relevant part: The outcome of this appeal might well be different if, for example, defendant had moved C.M. off the porch and into the interior of the abandoned house. Forcing the victim behind closed doors, even if that entailed moving her only a few feet, would have made her more vulnerable and less likely to be rescued. However, in this instance, defendant did nothing to isolate her by moving her out of public view from the sidewalk or street. Indeed, even as defendant was actively engaged in nonconsensual sexual activity with the victim, she was able to summon aid from her friend who walked by the abandoned house by silently mouthing the words “help me.” This shows that the porch – and thus the criminal conduct committed on the porch – was exposed to public view and was close enough to the street that the passerby could recognize C.M., see that she was engaged in sexual activity, and correctly interpret her silent plea for help.
The State urges us to rely on Arp, 274 N.J. Super. 379. In that case, the victim voluntarily entered the defendant’s vehicle. After a time, the defendant sexually assaulted her and used force on her to prevent her from exiting. The present case thus is similar to Arp in that what started as a consensual encounter eventually transformed into a nonconsensual sexual assault. Arp is distinguishable, however, because the defendant in that case transported the victim in the car “away from her home and help, thereby increasing her vulnerability and the risk of harm.” Id. at 383.
We next consider whether there is any legal significance in the fact that defendant cut off C.M.’s outer clothing, and whether that act exposed her to a greater risk of harm than that inherent in the underlying sex crime. It reasonably appears, however, that this act of force was done as part of and incident to the sexual abuse. We take note that the State’s brief describes this circumstance as follows: “He [defendant] then stripped [C.M.] of her clothing and forced her to perform oral sex on him.” The State has not argued that defendant disrobed her for a purpose independent of the sexual abuse, such as to make it more difficult for her to escape or seek help.
The panel hints that the result of the appeal may have been different if the State advanced a different theory for the defendant’s actions. It will be interesting to see if the State’s theory changes on appeal to the New Jersey Supreme Court.
