NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

MAVEN, J.A.D.

Defendant appeals from his convictions and sentence for two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), (c) (count two); N.J.S.A. 2C:14-2(a)(6) (count three); and one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3) (count four). The trial court sentenced defendant to two concurrent eighteen-year terms of imprisonment, with a nine-year period of parole ineligibility, on counts two and three; and a consecutive eight-year term of imprisonment, with a four-year parole bar, on count four. The State dismissed count one of the indictment, first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), after the jury failed to reach a verdict.

On appeal, defendant raises the following claims:

Because we determine that the lesser-included offense, sexual assault, should have been additionally charged to that jury on count three, we reverse the conviction on that particular count and remand for a new trial.

I.

The facts adduced from the State's proofs at the first trial are as follows. In 2005, O.M., thirty-two years old, disclosed to her aunt for the first time that defendant, her stepfather, sexually abused her as a child. O.M.'s aunt encouraged her to report the events to the authorities.

Following an investigation, a grand jury issued a four count indictment charging defendant with first-degree aggravated sexual assault, by committing an act of sexual penetration with O.M. while she was less than thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count one); first-degree aggravated sexual assault, by committing an act of sexual penetration with O.M. while she was at least thirteen but less than sixteen years old, and defendant was related to O.M. by affinity, N.J.S.A. 2C:14-2(a)(2)(a), and/or defendant stood in loco parentis within O.M.'s household, N.J.S.A. 2C:14-2(a)(2)(c) (count two); first-degree aggravated sexual assault, by committing an act of sexual penetration with O.M while using physical force or coercion, and O.M. sustained severe personal injury, N.J.S.A. 2C:14-2(a)(6) (count three); and second-degree sexual assault, by committing an act of sexual penetration with O.M while she was at least sixteen but less than eighteen years old, N.J.S.A. 2C:14-2(c)(3) (count four).

At trial, O.M. testified that defendant began touching her when she was twelve years old. She testified that defendant would come into her room every night, and either perform oral sex on her, or digitally penetrate her. He eventually began having sexual intercourse with O.M. against her will and without a condom. O.M. testified that she tried to make him stop by threatening to tell someone, but he persisted. She also tried to physically resist. As she described it:

O.M. recalled that on one occasion, defendant became violent after she tried to rebuff his advances:

The sexual assaults resulted in two pregnancies. Although she could not recall at what age she first became pregnant, O.M. testified that her mother and her aunt took her to a hospital to have an abortion. Defendant had sex with O.M. the weekend after the procedure. She testified she began sleeping on the living room couch to prevent defendant's nightly visits. Despite her efforts, defendant would awaken her from the couch and tell her to go to her room where he would later assault her.

O.M. became pregnant the second time when she was sixteen years old. After she gave birth, the environment in the home changed. O.M. testified the sexual abuse became less frequent. However, defendant would only give O.M. money or permission to leave the house in exchange for sex. Defendant and O.M.'s mother treated the baby as if he was their own child, causing O.M. to feel left out. O.M. became increasingly unhappy and "stressed out." She tried living with a friend, but in 1997 she and her son moved in with her grandmother. O.M. dropped out of high school in the eleventh grade.

II.

We begin by addressing defendant's second contention, that the trial court should have granted his motion for judgment of acquittal at the close of the State's case. He maintains that the State failed to present sufficient evidence, as to counts two and four, from which the jury could find him guilty of aggravated sexual assault and sexual assault. Specifically, he argues there was insufficient evidence presented to prove O.M.'s age when the assaults occurred, or that defendant was O.M.'s stepfather.

The trial judge applied the standard set forth in State v. Reyes, 50 N.J. 454 (1967), and denied the motion. The judge specifically found sufficient evidence had been presented establishing that 1) sexual penetration with O.M. began when she was in the sixth grade; 2) defendant married O.M.'s mother, thereby making O.M. his stepdaughter; and 3) defendant acted as O.M.'s parent and financially supported the household, thus establishing defendant's in loco parentis status.

An appellate court applies the same standard of review as the trial court to decide if the defendant should have been acquitted. State v. Moffa, 42 N.J. 258, 263 (1964). A trial judge must grant a defendant's motion for judgment of acquittal "if the evidence is insufficient to warrant a conviction" at the close of the State's case. R. 3:18-1. In deciding the motion, the court must view the State's evidence in its entirety, and "giv[e] the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." Reyes, supra, 50 N.J. at 459. "[T]he trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J.Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978).

Applying the Reyes standard to the State's proofs demonstrates that the judge's rejection of defendant's motion for judgment of acquittal was correct. As to count two, N.J.S.A. 2C:14-2(a)(2)(a) and (c) provide that a person is guilty of aggravated sexual assault if he commits an act of sexual penetration with a person at least thirteen but less than sixteen years old who is either related "by blood or affinity to the third degree," or stands in loco parentis. The State's evidence on that subject was ample.

O.M. testified that defendant repeatedly sexually assaulted her from the time she was in the sixth grade through the tenth grade. From her testimony the jury could appropriately correlate her age to her grades in school.1

Importantly, defendant did not refute the testimony that he married O.M.'s mother, and that they were married when the assaults occurred. Furthermore, by his own admission, defendant referred to O.M.'s mother as his ex-wife at sentencing. Black's Law Dictionary defines "affinity" as "the relation which one spouse because of marriage has to blood relatives of another." State v. Brown, 311 N.J.Super. 273, 276 (Law Div. 1997). Thus, the evidence clearly established that defendant was related to O.M. by affinity as her step-father.

Nor did defendant dispute that he exercised parental control and supervision over O.M. See Hardwicke v. American Boychoir School, 188 N.J. 69, 91 (2006) (characterizing the in loco parentis relationship as reserved for individuals who function as a parent, and who assume the responsibility to maintain, rear, and educate the child, as well as the duties of supervision, care and rehabilitation). It is clear that there was sufficient evidence for a jury to determine that defendant acted as a parent to O.M.

As Reyes makes clear, the State is entitled to the benefit of all favorable inferences that a reasonable jury could draw from the State's proofs. Reyes, supra, 50 N.J. at 458-59. Giving the State here the benefit of those favorable inferences, we conclude that the State presented sufficient evidence from which the jury could find defendant guilty of counts two and four.

Defendant also moved for judgment of acquittal on count three. Aggravated sexual assault in violation of N.J.S.A. 2C:14-2(a)(6) requires proof that defendant used physical force or coercion which resulted in severe personal injury to O.M. In State of New Jersey in the Interest of M.T.S., 129 N.J. 422 (1992), the Supreme Court defined "physical force" under the sexual offense statutes as an "act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim." Id. at 444. See also State v. Lee, 417 N.J.Super. 219, 223-24 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). The Court held that the State was not required to prove physical force "extrinsic to the sexual act." M.T.S., supra, 129 N.J. at 444. The State satisfies its burden if it proves the victim did not affirmatively consent to the sexual conduct. Ibid.

At the close of the State's case, there was ample evidence from which the jury could find that O.M. did not consent to defendant's sexual advances. O.M. testified that defendant forcefully spread her legs to have sex, and on another occasion grabbed and choked her by the neck. That evidence coupled with O.M.'s described attempts to avoid defendant by threatening to disclose the abuse and sleeping on the couch, was sufficient for a jury to find that the acts of sexual penetration occurred by force and coercion, and without O.M.'s consent.

Defendant further contends there was no evidence that O.M. suffered severe personal injury or, more specifically, incapacitating mental anguish. The State argues that severe personal injury was proven by defendant's impregnation of sixteen-year-old O.M. and affirmative proof of paternity.

While "severe personal injury" is defined as "severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain," N.J.S.A. 2C:14-1(f), the Model Jury Charge for Aggravated Assault does not provide an expanded explanation of the term, apparently because "[n]o reported cases have yet construed it." Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:14-1 (2013). The term, however, likely "include[s] `serious' bodily injury as defined by [N.J.S.A.] 2C:11-1b,2 but also goes beyond it." Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:14-1(f) (2013). See also State v. Mosley, 335 N.J.Super. 144, 153 (App. Div. 2000) (recognizing that legislation defined "severe personal injury" more broadly than "serious bodily injury"), certif. denied, 167 N.J. 633 (2001).

In State v. Walker, 216 N.J.Super. 39, 44 (App. Div.), certif. denied, 108 N.J. 179 (1987), this court defined incapacitating mental anguish as:

Here, the evidence could reasonably support a finding that O.M. experienced some degree of mental anguish; however, the critical question is whether her mental anguish was incapacitating. O.M. testified about the impact the abuse had on her life. She stated that after the birth of her son, she "was freaking out" and no longer wanted to stay in the house with her mother and defendant as they raised the baby as their own. She dropped out of school feeling she could not act like an "average girl" while at the same time bearing the weight of her situation. O.M. testified that over time, she experienced anxiety attacks and became depressed. She developed eating disorders and intimacy issues in her relationships. She stated "[I] just felt like [I] was on the verge of a breakdown.... I'm not happy with my life. It's hard for me to deal with my life. It's hard for me to deal with the fact ... my son was conceived."

Our Supreme Court has determined that expert testimony is not necessary to prove that a sexual assault victim suffered incapacitating mental anguish. State v. Hackett, 166 N.J. 66, 83 (2001) (citing Walker, supra, 216 N.J. Super. at 45, "[t]hose findings are within the common experience and knowledge of the average juror as is the ultimate conclusion that the victim suffered mental anguish (severe emotional distress)"). A "victim's own testimony, if accepted by the jury, would support a connection between the rape and [the victim's] subsequent emotional state." Ibid. Applying the Walker principles here, if the jury fully credited O.M's testimony, the jury could have found that she suffered incapacitating mental anguish as a result of defendant's conduct.

Thus, we conclude that, at this stage in the trial, there was sufficient evidence presented with respect to all counts to warrant the judge's denial of defendant's motion for a judgment of acquittal.

III.

We now address defendant's contention that the judge erred on count three for failing to charge the jury on sexual assault as a lesser-included offense of aggravated sexual assault. Because defendant neither requested the lesser-included charge, nor objected when the judge instructed the jury, we review the matter as plain error. R. 2:10-2. That is, we may reverse if we find that a trial court error was "clearly capable of producing an unjust result." Ibid. In a criminal trial, "improper instructions on material issues are presumed to constitute reversible error." State v. Ramsey, 415 N.J.Super. 257, 266 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011).

In general, a court cannot charge the jury on a lesser-included offense "unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). However, when neither party requests a charge on a lesser-included offense, the trial court must sua sponte provide an instruction "when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Thomas, 187 N.J. 119, 132 (App. Div. 2006), rev'd on other grounds, 195 N.J. 431 (2008).

As a threshold matter, we must consider whether, on the facts of this case, sexual assault is a lesser-included offense of aggravated sexual assault. An offense is an included offense of another charge when either the proof required to establish the greater offense is also sufficient to establish every element of the lesser offense, or where two offenses are the same but a less serious injury to the victim is required to be established. N.J.S.A. 2C:1-8(d).

Under N.J.S.A. 2C:14-2(a)(6), a person is guilty of first-degree aggravated sexual assault if he commits an act of sexual penetration with another person using "physical force or coercion and severe personal injury is sustained by the victim." On the other hand, under N.J.S.A. 2C:14-2(c)(1), a person is guilty of second-degree sexual assault if he commits an act of sexual penetration with another person using physical force or coercion, but the victim does not sustain severe personal injury. Except for the less serious extent of the injury sustained by the victim, the essential elements of these offenses are the same. Having compared the statutory elements of these offenses in view of N.J.S.A. 2C:1-8(d), Thomas, supra, 187 N.J. at 130, we are satisfied that in this case sexual assault is a lesser-included offense of aggravated sexual assault.

Furthermore, on our review of the evidence, we conclude the jury could have acquitted defendant of aggravated sexual assault and, alternatively, convicted him of the lesser-included offense of sexual assault. As previously noted, severe personal injury may be proved by establishing incapacitating mental anguish. N.J.S.A. 2C:14-1(f). In Walker, we explained the significance of this particular element of the offense, stating

Although, as noted, the Model Jury Charge does not delineate how a juror is to assess the evidence necessary to prove incapacitating mental anguish, our holding in Walker makes clear that more is needed to be shown than the "emotional distress" one might presume a sexual assault victim would experience. Applying our holding in Walker to the matter at hand, we determine that the jury, in weighing the evidence, could have found that O.M.'s emotional and physical distress was not incapacitating, and hence, did not rise to the level of severe personal injury. In that instance, the jury would have been compelled to find defendant not guilty of aggravating sexual assault. Logically, that same determination would result in satisfying the elements of sexual assault where the victim does not sustain severe personal injury," N.J.S.A. 2C:14-2(c)(1). Because sexual assault would have been established on the same set of facts, N.J.S.A. 2C:1-8(d)(1), the appropriateness of a lesser-included charge on sexual assault is clearly indicated.3

The State, nevertheless, contends that the evidence of the unwanted pregnancy, per se, constitutes a severe personal injury. As previously noted, whether injuries suffered by a sexual assault victim constitute severe personal injury is a fact question for the jury. Walker, supra, 216 N.J. Super. at 45. A jury could reasonably conclude under the facts of a given case that an unwanted pregnancy or abortion constitutes severe personal injury. People v. Cross, 190 P.3d 706, 712 (Cal. 2008).4

The Legislature has not included pregnancy under the aggravated assault statute as a "per se" severe personal injury. But see Mich. Comp. Laws § 750.520(a)(n) (2013) (defining "personal injury" as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ); Wis. Stat. § 940.225(1)(a) (2013) (defining first-degree sexual assault as "sexual contact or sexual intercourse with another person without consent of that person [which] causes pregnancy or great bodily harm to that person"); Neb. Rev. Stat. § 28-318(4) (2013) (defining "serious personal injury" as "great bodily injury or disfigurement, extreme mental anguish or mental trauma, pregnancy, disease, or loss of impairment of a sexual or reproductive organ").

Likewise, no reported case in New Jersey has held that an unwanted pregnancy or abortion constitutes per se severe personal injury. Indeed, absent a clear legislative mandate, determining whether a victim has suffered harm amounting to "severe personal injury" is not a question of law for the court but a factual inquiry to be resolved by the jury. Although a jury following a case-specific review of the facts may reasonably find, given all the circumstances, that an unwanted pregnancy constitutes severe personal injury under N.J.S.A. 2C:14-1(f), that result does not ineluctably follow as a matter of law so as to obviate the need for a jury instruction on the lesser-included sexual assault offense and therefore remove the issue from jury consideration. We reiterate it remains for the jury to decide in each instance where to draw that line.

Recognizing that here there is sufficient evidence for a jury to find sexual assault, we conclude that the trial court's failure to give a lesser-included instruction on count three was plain error "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, we reverse the conviction of first-degree aggravated sexual assault charged in the third count, vacate the sentence imposed thereon, and remand for a new trial.

IV.

Defendant next argues that the sentence is excessive because the court failed to properly assess the aggravating and mitigating factors, or support the imposition of the consecutive term for count four. We find no abuse of the judge's discretion and no basis to second-guess the sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Pierce, 188 N.J. 155, 166-67 (2006). Except as to the sentence on count three, we affirm the sentences on counts two and four substantially for the reasons stated in the trial judge's detailed oral opinion. Defendant's additional arguments on this point do not warrant discussion here. R. 2:11-3(e)(2).

Accordingly, we affirm the convictions and sentences for first-degree aggravated sexual assault (count two) and second-degree sexual assault (count four). We reverse the conviction for first-degree aggravated sexual assault (count three), and remand for a new trial.

Reversed in part and remanded.