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NOT FOR PUBLICATION WITHOUT THE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-5004-16
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS M. CARABALLO,
Defendant-Appellant.
_______________________
Submitted April 26, 2021 – Decided June 30, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Ind. 05-07-1360.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison Gifford, Assistant Deputy Public
Defender, of counsel and on the briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Ian C. Kennedy, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from his jury trial convictions for second-degree sexual
assault by physical force not resulting in severe personal injury, N.J.S.A. 2C:14-
2(c)(1). Defendant was not indicted for that crime; rather, he was charged by
the grand jury with first-degree aggravated sexual assault upon a physically
helpless victim, N.J.S.A. 2C:14-2(a)(7). Defendant contends the trial court
erred by affording the jury the option to convict for second-degree sexual
assault, arguing that N.J.S.A. 2C:14-2(c)(1) is a related offense but not a lesser-
included offense of the first-degree aggravated sexual assault crime for which
he was indicted. Defendant also contends for the first time on appeal that the
Model Jury Charge read to the jury impermissibly shifted the burden of proof,
placing the burden on a defendant to prove that the victim did not consent to
sexual penetration. After carefully reviewing the record in light of the
applicable legal principles, we reject defendant's contentions and affirm.
I.
In July 2005, a grand jury indicted both defendant and co-defendant Elvis
Marmolejos 1 on two counts of first-degree aggravated sexual assault, N.J.S.A.
1
Co-defendant Marmolejos is not a party to this appeal.
2 A-5004-16
2C:14-2(a)(7). 2 In January 2007, defendant and Marmolejos were tried together
at a bench trial. The verdict sheet included charges for first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(7), second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).
The completed verdict sheet signed by the judge on January 17, 2007 included
handwritten notations characterizing the second- and fourth-degree crimes as
lesser-included charges. The judge, sitting as the trier of fact, found defendant
and Marmolejos guilty of the first-degree crimes, and therefore had no occasion
to render a verdict on the lesser-included offenses listed sequentially on the
verdict sheet.
On appeal, we reversed defendant's bench trial convictions and remanded
for a new trial. We concluded the trial court violated defendant's Confrontation
Clause rights by considering statements co-defendant Marmolejos made to
police that incriminated defendant but were not subject to cross examination.
Another trial judge previously ruled that those statements must be redacted from
the transcript of co-defendant's statement to police to comply with the rule
2
One count of the indictment charged defendant with engaging in penile oral
penetration of the victim. The second count charged defendant with engaging
in penile vaginal penetration. Both counts relate to a single episode on July 24,
2004 involving a single victim.
3 A-5004-16
established in Bruton v. United States, 391 U.S. 123 (1968). However, the
statements that inculpated defendant were not completely blacked-out as
ordered; rather, they were merely crossed-out and still legible. State v.
Caraballo, No. A-6259-06 (App. Div. Jan. 6, 2009). The State on appeal agreed
that defendant's confrontation rights were violated, but argued the error was
harmless. We concluded the admission of co-defendant Marmolejos's oral
statement to police through a detective's testimony and the redacted—but
readable—transcript of that statement was not harmless error, prompting our
decision to order a new trial.
The same judge who presided over the bench trial presided at the retrial.
This time, the case was heard by a jury, and defendant was tried alone over the
course of five nonconsecutive days. The trial court considered whether to
instruct the jury as to the crime of second-degree sexual assault by means of
physical force not resulting in severe personal injury, N.J.S.A. 2C:14-2(c)(1),
and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3. 3 Defense counsel
objected, arguing that the evidence adduced by the State did not support the
3
As we have noted, those crimes had been considered as lesser-included
offenses at the first trial. The record before us does not reveal whether defendant
objected at the first trial. That issue was not raised in defendant's appeal from
his bench trial convictions.
4 A-5004-16
second-degree or fourth-degree offenses. Counsel did not argue to the trial court
that second-degree sexual assault under N.J.S.A. 2C:14-2(c)(1) was not a lesser-
included offense of first-degree aggravated sexual assault under N.J.S.A. 2C:14-
2(a)(7). Rather, counsel argued to the trial court that there was no factual basis
to support a conviction for the second- or fourth-degree crimes and thus no
rational basis to charge the jury on these lesser offenses.
After considering the arguments made by defendant and the State, the trial
court decided not to instruct the jury on fourth-degree criminal sexual contact,
finding that the facts elicited at the second trial did not support that charge.
However, the court found there was a rational basis to charge the jury on second-
degree sexual assault by physical force not resulting in severe personal injury.
Accordingly, the court read to the jury from the Model Jury Charge for the
second-degree crime set forth in N.J.S.A. 2C:14-2(c)(1).
The jury acquitted defendant of the two first-degree aggravated sexual
assault charges but found him guilty on both counts of second-degree sexual
assault by physical force not resulting in severe personal injury.
On March 19, 2010—the day he was scheduled to be sentenced—
defendant boarded a plane and fled to the Dominican Republic. Defendant was
extradited to the United States in 2016. Following extradition, defense counsel
5 A-5004-16
renewed a motion to dismiss the indictment and for judgment notwithstanding
the verdict. That motion had originally been scheduled to be heard on the March
19, 2010 sentencing date. Defendant argued the trial court erred in charging the
jury on second-degree sexual assault, and that based on the facts "he was either
guilty of first-degree aggravated sexual assault or not guilty." Defendant also
argued that he could not be prosecuted under the extradition order as that order
permitted only prosecution for aggravated sexual assault rather than simple
sexual assault, and the jury had already acquitted him of the former charge. 4
The motion was heard by a different judge than the one who presided over the
2010 jury trial. The motion judge heard oral argument on October 19, 2016, and
on November 30, 2016, rendered a written opinion denying defendant's renewed
motion on both grounds.
On May 12, 2017, defendant was sentenced to two concurrent nine-year
prison terms, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
This appeal follows.
4
Defendant has not renewed this second argument on appeal. See Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on
appeal is deemed waived.").
6 A-5004-16
We briefly summarize the facts elicited at trial relevant to the issues now
raised on appeal. On July 24, 2004, the victim, J.S., 5 visited the home of her
boyfriend in West Paterson. She was accompanied by her female friend, V.B.
There, J.S. consumed a substantial amount of fortified wine. At some point,
V.B. received a call from another friend, J.A., inviting her to come to J.A.'s
house to pick up a bottle of rum that J.A. had purchased as a gift for V.B.
Initially, J.S. drove the vehicle to J.A.'s house, but was so inebriated that V.B.
had to take over. J.S. fell asleep in the car and did not awake until they arrived
at J.A.'s home. J.S. and V.B. went to J.A.'s bedroom. Defendant and
Marmolejos were already in the bedroom, which was dark, partially illuminated
by neon lighting. J.S. fell asleep on the bed. At some point, V.B. left the room.
When J.S. awoke, her pants were off. She was lying on her back with defendant
on top of her, penetrating her with his penis. Marmolejos was sitting in a chair
a few feet away masturbating. As she awoke, J.S. heard defendant say, "Oh shit."
Defendant and Marmolejos then put on their pants and left.
J.S. reported the incident to police the next day. During the ensuing
investigation, defendant gave a statement to police acknowledging that both he
5
We use initials to protect the identity of the sexual assault victim and her
friends. N.J.S.A. 2A:82-46.
7 A-5004-16
and Marmolejos had oral and vaginal sex with J.S. He told police it was
consensual and that he believed J.S. was awake at the time "because she was
moving her head."
Defendant testified at trial in his own defense. He claimed that J.S.
declined alcohol when offered, stating, "[n]o, I don't drink." He claimed that
J.S. eventually laid down on the bed and Marmolejos laid next to her, J.S. then
fell asleep, and when she awoke, she and defendant "kind of like locked eyes"
and they started to kiss. Defendant claimed J.S. voluntarily performed oral sex
on him. He testified he then put on a condom and started to have vaginal sex.
Defendant claimed that J.S. consensually participated and that she "was kind of
like kissing [his] neck and behind [his] ears." Defendant testified that he and
Marmolejos left the room abruptly because defendant suddenly remembered
that he had to return the car soon.
Defendant raises the following arguments for our consideration:
POINT I
THE COURT'S DECISION TO INSTRUCT THE JURY
ON SECOND-DEGREE SEXUAL ASSAULT BY
PHYSICAL FORCE OVER DEFENSE COUNSEL'S
OBJECTION NECESSITATES REVERSAL OF
DEFENDANT'S CONVICTIONS BECAUSE
SECOND-DEGREE SEXUAL ASSAULT BY
PHYSICAL FORCE IS NOT A LESSER[-]INCLUDED
OF THE INDICTED OFFENSE.
8 A-5004-16
POINT II
THE JURY INSTRUCTION ON SECOND-DEGREE
SEXUAL ASSAULT UNCONSTITUTIONALLY
SHIFTED THE BURDEN OF PROOF TO THE
DEFENDANT TO SHOW CONSENT. (Not raised
below)
II.
We first address defendant's contention the trial judge erred in instructing
the jury on second-degree sexual assault by physical force. Although defendant
acknowledges that first-degree aggravated sexual assault of a physically helpless
victim, N.J.S.A. 2C:14-2(a)(7), and second-degree sexual assault by physical
force, N.J.S.A. 2C:14-2(c)(1) are related offenses, the gravamen of defendant's
argument is that the latter crime is not a lesser-included offense of the former.
He thus argues his State constitutional rights were violated when the jury was
instructed to consider an offense for which he had not been charged by
indictment.
We begin our analysis by acknowledging the foundational legal principles
governing this appeal. Article I, paragraph 8 of the New Jersey Constitution
guarantees the right to have a grand jury determine whether a defendant should
stand trial for an alleged crime. That constitutional provision states, "[n]o
person shall be held to answer for a criminal offense unless on the presentment
9 A-5004-16
or indictment of a grand jury." In State v. Brent, our Supreme Court recognized,
however, that a petit jury may consider lesser-included crimes that were not
charged in an indictment without running afoul of Article I, Paragraph 8. 137
N.J. 107, 115–17 (1994).
In State v. Jenkins, the Court reaffirmed the well-established rule that "a
trial court has an independent obligation to instruct on lesser-included charges
when the facts adduced at trial clearly indicate that a jury could convict on the
lesser while acquitting on the greater offense." 178 N.J. 347, 361 (2004) (citing
State v. Garron, 177 N.J. 147, 180 (2003); State v. Choice, 98 N.J. 295, 299
(1985); State v. Powell, 84 N.J. 305, 318–19 (1980)).
Therefore, the critical issue in this case is whether, on the facts adduced
at trial, the second-degree sexual assault crime defined N.J.S.A. 2C:14-2(c)(1)
is a lesser-included offense of the first-degree aggravated sexual assault crime
defined in N.J.S.A. 2C:13-2(a)(7). N.J.S.A. 2C:1-8(d) provides that an offense
is a lesser-included offense when:
(1) It is established by proof of the same or less than all
the facts required to establish the commission of the
offense charged; or
(2) It consists of an attempt or conspiracy to commit the
offense charged or to commit an offense otherwise
included therein; or
(3) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
10 A-5004-16
same person, property[,] or public interest or a lesser
kind of culpability suffices to establish its commission.
In State v. Thomas, our Supreme Court explained that an offense falls
within the statutory definition of a lesser-included offense in several
circumstances. 187 N.J. 119, 129–30 (2006). "One [such circumstance] is
where the proof required to establish a greater offense is also sufficient to
establish every element of a lesser offense. Another [circumstance] is where
two offenses are the same but a lesser degree of culpability is required to
establish the lesser offense." Ibid. (quoting State v. Muniz, 228 N.J. Super. 492,
496 (App. Div. 1988), rev'd on other grounds, 118 N.J. 319 (1990)).
The Court in Thomas highlighted the distinction between lesser-included
offenses and "related" offenses, noting, "[o]n the other hand, whether offenses
are related is not a function of a comparison of statutory elements. Instead, the
focus is whether the offense charged and the related offense share a common
factual nucleus." Id. at 130. The Court further explained the determination
whether an offense is a lesser-included offense or merely a related offense is
"premised on two factors: whether the constitutional right to a grand jury
indictment or presentment . . . has been observed, and whether the defendant is
on fair notice of the crime charged and for which he is in jeopardy." Ibid.
11 A-5004-16
We next apply these general principles by comparing the statutory
elements of the two crimes at issue before us. N.J.S.A. 2C:14-2(a)(7) 6 provides
that a person is guilty of first-degree aggravated sexual assault if he or she
commits an act of sexual penetration [upon a victim]
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
distinctively sexual nature of the conduct, including,
but not limited to, being incapable of providing
consent.
The statute defines "physical helplessness" as "that condition in which a
person is unconscious or is physically unable to flee or is physically unable to
communicate unwillingness to act." N.J.S.A. 2C:14-1(g). Importantly, in State
v. Rush, we held the jury was free to find the victim was physically helpless
within the meaning of the criminal sexual contact statute, N.J.S.A. 2C:14-3, 7
6
N.J.S.A. 2C:14-2(a)(7) was since amended in 2011 and 2013 to include victims
that are not only "physically helpless or incapacitated" but also "intellectually
or mentally incapacitated." See Cannel, N.J. Criminal Code Annotated, cmt. 2
on N.J.S.A. 2C:14-2 (2020).
7
We note the definition of the term "physically helpless" set forth in N.J.S.A.
2C:14-1(g) applies to all offenses in chapter 14 of Title 2C. Accordingly, our
holding in Rush that a jury may find that a victim is physically helpless if he or
she is sleeping at the moment of an act of sexual contact as defined in N.J.S.A.
2C:14-1(d) applies as well to a victim who is sleeping at the moment of an act
of sexual penetration as defined in N.J.S.A. 2C:14-1(c).
12 A-5004-16
based on her testimony that she was asleep when defendant touched her. 278
N.J. Super. 44, 49 (App. Div. 1994). We embraced the reasoning in State v.
Puapuaga, 54 P.2d 170, 172 (Wash. 1989), that "[t]he state of sleep appears to
be universally understood as unconsciousness or physical inability to
communicate unwillingness. Therefore, any rational trier of fact could have
found beyond a reasonable doubt that the victim was physically helpless based
on the evidence she was asleep." Rush, 278 N.J. Super. at 49; see also State ex
rel. M.T.S., 247 N.J. Super. 254, 258–59 (App. Div. 1991), rev'd, State ex rel.
M.T.S., 129 N.J. 422 (1992) ("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."). Accordingly, a victim may be found to
be physically helpless for purposes of N.J.S.A. 2C:14-2(a)(7) if the actor knew
or should have known the victim was asleep at the moment of sexual penetration.
N.J.S.A. 2C:14-2(c)(1) provides that a defendant is guilty of second-
degree sexual assault if he or she "commits an act of sexual penetration with
another person [by using] physical force or coercion, but the victim does not
sustain severe personal injury."
In State ex rel. M.T.S., our Supreme Court held:
[A]ny act of sexual penetration engaged in by the
defendant without the affirmative and freely-given
13 A-5004-16
permission of the victim to the specific act of
penetration constitutes the offense of sexual assault.
Therefore, physical force in excess of that inherent in
the act of sexual penetration is not required for such
penetration to be unlawful. The definition of "physical
force" is satisfied under N.J.S.A. 2C:14-2(c)(1) if the
defendant applies any amount of force against another
person in the absence of what a reasonable person
would believe to be affirmative and freely-given
permission to the act of sexual penetration.
[129 N.J. at 444.]
The Court in M.T.S. further explained that when the State "does not allege
violence or force extrinsic to the act of penetration, the factfinder must decide
whether the defendant's act of penetration was undertaken in circumstances that
led the defendant reasonably to believe that the alleged victim had freely given
affirmative permission to the specific act of sexual penetration." Id. at 447–48.
In other words, as the Supreme Court later confirmed in Garron, "the act of
sexual penetration itself, without [the victim's] consent, would be sufficient to
establish the physical force or coercion required to support a sexual assault
conviction." 177 N.J. at 182.
Based on our comparison of the statutory elements of the two crimes at
issue, we conclude the proof adduced at trial that was required to establish the
first-degree crime of aggravated sexual assault of a physically helpless victim
was also sufficient to establish every element of the second-degree crime of
14 A-5004-16
sexual assault by physical force not resulting in severe personal injury. Thomas,
187 N.J. at 129. The proof required under the first-degree crime that the victim
was physically helpless—in this instance by virtue of being asleep—also
established that she did not consent to sexual penetration. Furthermore, the
second-degree crime does not require the use of greater physical force against
the victim than required under the first-degree crime because the act of
penetration alone establishes the physical force element of the second-degree
crime. Rush, 278 N.J. Super. at 49. The lesser offense, in other words, did not
require proof that was not also required to convict on the greater offense.
Accordingly, we hold that in the factual circumstances presented in this case,
the second-degree crime was a lesser-included offense of the first-degree crime
charged in the indictment, and not merely a related offense within the meaning
of Thomas, 187 N.J. at 129.
We add that defendant was on fair notice that he was being tried for the
lesser-included crime consistent with notions of due process and fairness. See
Graham, 223 N.J. Super. at 577 ("[T]he New Jersey Constitution bars conviction
of the lesser included offense unless the grand jury intended that result and the
defendant had fair notice that he was being tried for that offense."). As we have
already noted, at the first bench trial, the verdict sheet included the second-
15 A-5004-16
degree sexual assault charge as a lesser-included offense. In these
circumstances, the State's request for the lesser-included charge at the second
trial could not have been "so unanticipated" by defendant "as to cause complete
surprise." Thomas, 187 N.J. at 132 ("[I]n a case in which instructing a jury on
a lesser-included offense would be so unanticipated by either party as to cause
complete surprise, or so inconsistent with the defense as to undermine the
fairness of the proceedings, the trial court may depart from this general rule
[requiring the jury to be instructed on a lesser-included charge for which there
is a rational basis], . . . but must place its reasons for doing so on the record.")
(quoting Garron, 177 N.J. at 180–81).
We reject defendant's contrary contention that "there was no way for
defendant to know that the State would again improperly request the second-
degree sexual assault charge as [a] lesser-included offense." We stress under
both N.J.S.A. 2C:14-2(a)(7) and N.J.S.A. 2C:14-2(c)(1), the critical fact-
sensitive question for the jury to decide was whether defendant knew or should
have known J.S. was asleep when she was sexually penetrated. That condition
would both make her helpless for purposes of N.J.S.A. 2C:14-2(a)(7), see Rush,
278 N.J. Super. at 49 and render her unable to give affirmative consent for
purposes of N.J.S.A. 2C:14-2(c)(1), see Garron, 177 N.J. at 182. We are
16 A-5004-16
satisfied defendant had fair notice and in fact mounted a defense to both charges
by presenting evidence that the victim was awake and consensually participated
in the sexual acts. Accordingly, instructing the jury on N.J.S.A. 2C:14-2(c)(1)
was in no way inconsistent with the defense strategy. See Thomas, 187 N.J. at
132.
III.
Defendant does not dispute that he had intercourse with J.S. The critical
issue at trial was whether the sexual penetration was consensual. The trial court
read verbatim the model jury instructions concerning consent to sexual acts. See
Model Jury Charges (Criminal), "Sexual Assault (Force/Coercion) (N.J.S.A.
2C:14-2(c)(1))" (rev. Jan. 24, 2005). Defendant argues for the first time on
appeal the Model Jury Charge on sexual assault is unconstitutional,
impermissibly shifting the burden of proof with respect to consent. We disagree.
The model charge does not require a defendant to prove consent and is clear in
instructing the jury that the State bears the burden of proof on every element.
We begin our analysis by recognizing that defendant did not object to the
jury instructions as given. As our Supreme Court made clear in State v.
Montalvo, when a defendant does not object to the charge, "there is a
presumption that the charge was not error and was unlikely to prejudice . . .
17 A-5004-16
defendant's case." 229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211
N.J. 157, 182 (2012)). Relatedly, in State v. Whitaker, we held that reading
verbatim from a Model Jury Charge "is a persuasive argument in favor of the
charge as delivered." 402 N.J. Super. 495, 513–14 (App. Div. 2008) (quoting
State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000)).
We have carefully reviewed the Model Jury Charge at issue and conclude
it mirrors the Supreme Court's landmark decision in M.T.S. The Court in that
case held the State must prove beyond a reasonable doubt that a defendant could
not reasonably have believed the victim freely consented to sex but does so
without placing the onus on the victim to show that he or she resisted. 129 N.J.
at 444–49.
The trial court in this case instructed the jury,
The third element that the State must prove beyond a
reasonable doubt is that defendant used physical force
or coercion. Physical force is defined as the
commission of the act of sexual penetration without the
victim’s freely and affirmatively given permission to
the specific act of penetration alleged to have occurred.
You must decide whether the defendant's alleged act of
penetration was undertaken in circumstances that led
the defendant reasonably to believe that the victim had
freely given affirmative permission to the specific act
of sexual penetration.
18 A-5004-16
That portion of the Model Jury Charge closely tracks the Supreme Court's
explanation that "the factfinder must decide whether the defendant's act of
penetration was undertaken in circumstances that led the defendant reasonably
to believe that the alleged victim had freely given affirmative permission to the
specific act of sexual penetration." Id. at 447–48.
The trial court further instructed the jury,
Persons need not, of course, expressly announce their
consent to engage in an act of sexual intercourse for
there to be affirmative permission. Permission to
engage in an act of sexual penetration can be and indeed
often is indicated through physical actions rather than
words. Permission is demonstrated when the evidence,
in whatever form, is sufficient to demonstrate that a
reasonable person would have believed that the alleged
victim had affirmatively and freely given authorization
to the act.
That portion of the Model Jury Charge closely tracks the Supreme Court's
explanation that, "[p]ermission is demonstrated when the evidence, in whatever
form, is sufficient to demonstrate that a reasonable person would have believed
that the alleged victim had affirmatively and freely given authorization to the
act." Id. at 445.
Finally, the trial court instructed the jury,
Proof that the act of sexual penetration occurred
without the victim's permission can be based on
evidence of conduct or words in light of surrounding
19 A-5004-16
circumstances and must demonstrate beyond a
reasonable doubt that a reasonable person would not
have believed that there was affirmative and freely
given permission. If there is evidence to suggest that
the defendant reasonably believed that such permission
had been given, the State must demonstrate beyond a
reasonable doubt either that the defendant did not
actually believe that such permission had been freely
given, or that such a belief was unreasonable under all
of the circumstances.
[(emphasis added).]
That portion of the Model Jury Charge closely tracks the Supreme Court's
explanation:
If there is evidence to suggest that the defendant
reasonably believed that such permission had been
given, the State must demonstrate either that defendant
did not actually believe that affirmative permission had
been freely-given or that such a belief was
unreasonable under all of the circumstances. Thus, the
State bears the burden of proof throughout the case.
[Id. at 449.]
We add that the Model Jury Charge on consent in sexual assault cases
must be read in context with the more general instruction on the presumption of
innocence and the requirement that the State prove all elements beyond a
reasonable doubt. In Zappasodi v. State, we held that "[t]he trial judge's
instructions must be read as a whole. So long as the charges adequately convey
the law to the jury and do not mislead or confuse, we should not interfere." 335
20 A-5004-16
N.J. Super. 83, 89 (App. Div. 2000) (citing Sons of Thunder, Inc. v. Borden,
Inc., 148 N.J. 396, 418 (1997)).
In sum, we conclude the model jury instructions on consent do not, as
defendant contends, place the burden on him to prove the victim consented to
sexual penetration. Rather, these instructions create no greater burden than that
which is placed upon any defendant who attempts to negate evidence supporting
a necessary element of the offense charged—in this instance, the State's
evidence that J.S. was asleep when the sexual penetration occurred. The jury
instructions, read in their entirety, made clear that the prosecution bears the
burden of proving every element beyond a reasonable doubt. We therefore are
satisfied that the Model Jury Charge accurately reflects the Supreme Court's
holding in M.T.S.
Affirmed.
21 A-5004-16