On certification to the Superior Court, Appellate Division, whose opinion is reported at 218 N.J. Super. 501 (1987).
For modification and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- None.
[111 NJ Page 472] This appeal arises from the conviction of defendant, Robert J. Schumann, for aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1) (count one); sexual assault, contrary to N.J.S.A. 2C:14-2b (count two); and endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4b(4) and N.J.S.A. 2C:24-4a (counts three and four). The appeal raises three issues: (1) whether the trial court had jurisdiction to hear count three of the indictment, (2) whether the trial court erred in admitting testimony of the victim regarding defendant's statement warning
the victim not to tell his parents about the incident and relating the defendant's conviction for a prior similar offense, and (3) whether the prosecutor erred in commenting on summation on the defendant's election not to testify. The Appellate Division reversed the convictions on counts one, two, and four and remanded them for a new trial, and reversed the conviction on count three and remanded that count for entry of a judgment of acquittal. 218 N.J. Super. 501 (1987). We granted certification, 109 N.J. 484 (1987), and now affirm the judgment of the Appellate Division with respect to counts one, two, and four, but reverse the judgment of acquittal on count three and remand that count, along with the other counts, to the Law Division.
The relevant facts are set forth in detail in the Appellate Division opinion, 218 N.J. Super. at 504-06. For our purposes, the following summary will suffice. On June 14, 1984, defendant and Paul Zimmer drove the victim, D.H., who was then eleven years old, from D.H.'s home in Bryn Mawr, Pennsylvania to New Jersey. They drove D.H. to Sandy Hook, where defendant photographed and sexually assaulted him behind a bush near a nudist beach, which is part of the Gateway National Recreation area. Most of Sandy Hook is subject to concurrent state-federal jurisdiction, but part is subject to exclusive federal jurisdiction. In the course of the day, Schumann committed other sexual offenses on D.H., and "told D.H. not to disclose the sexual activity to anyone because Schumann could 'get into trouble,' and that he had been sent to jail because he had engaged in similar activity with another boy who confided in his parents." Id., 218 N.J. Super. at 505.
After leaving Schumann at his home in Clarksburg, D.H. went with Zimmer to Pennsylvania, where on June 18 D.H.'s parents picked him up at a child abuse center. While driving home from the center on that date, D.H. told his mother, as she
so testified, "that he had been asked to have oral sex with Robert Schumann." Ibid.
Regarding the jurisdictional issue that affects count III, the Appellate Division stated:
Count three charged Schumann with violation of N.J.S.A. 2C:24-4b(4) in that "in diverse locations" in Monmouth County he photographed D.H., age 11, in a prohibited sexual act or in simulation of such an act. The trial judge properly exercised his discretion in denying Schumann's motion to dismiss count three of the indictment. The count is not "palpably defective" because it alleges all essential facts of the crime and sufficiently states the charge. State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). There is, however, a marked difference between a motion which tests whether the necessary elements of an offense have been set forth in the indictment and the burden of the State at trial to prove those elements beyond a reasonable doubt.
Schumann says that the New Jersey Superior Court was without jurisdiction to try him under count three of the indictment because the proof as to the offense charged therein places the activity on Sandy Hook. He says that in 1846 "exclusive" jurisdiction over all of Sandy Hook was ceded to the federal government.
Although it has not been addressed as such, jurisdiction, when placed in issue, is "an element of an offense" which must be proved beyond a reasonable doubt. Consistent with ...