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State v. Demarest

Decided: December 11, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL DEMAREST, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Somerset County.

Pressler, Shebell and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

This appeal requires us to determine the culpability requirement for the offense of endangering the welfare of a child.

Defendant was indicted for aggravated assault, in violation of N.J.S.A. 2C:12-1b(1), and two counts of endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. A jury acquitted defendant of aggravated assault but convicted him of the lesser included offense of simple assault, in violation of N.J.S.A. 2C:12-1a(1), and both counts of endangering the welfare of a child. The court sentenced defendant to concurrent three year terms of probation for each offense, subject to the special condition that he submit to psychological and substance abuse evaluations and undertake whatever treatment and care was recommended as a result of those evaluations.

On appeal, defendant argues that (1) the prosecutor made prejudicially improper comments in his summation and (2) the court erred in not instructing the jury that defendant must have acted knowingly in order to be found guilty of endangering the welfare of a child.

Defendant's arguments regarding the prosecutor's summation are clearly without merit and do not require discussion. R. 2:11-3(e)(2). However, we conclude that the trial court incorrectly instructed the jury regarding the state of mind with which the defendant must have acted to be found guilty of endangering the welfare of a child. Therefore, we affirm defendant's conviction for simple assault but reverse his convictions for endangering the welfare of a child and remand those charges for a retrial.

Defendant's convictions arise out of an incident which occurred while he was at home with his four children during the evening of October 1, 1988. Defendant's eldest daughter, then twelve, made dinner for three younger children, including the victims, M.J.D. and M.D., who were then eight and six. While the children were eating in the kitchen, defendant was watching television in an adjoining room. When the younger children became noisy and unruly, defendant went into the kitchen to quiet them down. Defendant then picked up a pot of hot water which had been used to cook hot dogs.

The testimony is conflicting as to what happened next. According to the victims, defendant walked over to M.J.D. and poured some of the scalding hot water on her chest, a little of which splashed on M.D. According to defendant, he tried to show the victims the hot water to impress upon them the dangers of horse-play in the kitchen, but the pot had a loose handle, and as he showed the girls the hot water, the pot tilted and some of the water splashed on them. Thus, the critical factual issue at trial was whether defendant intended to pour the hot water on his daughters.

The court's instructions to the jury conveyed the impression that defendant could be found guilty of endangering the welfare

of a child based on simple negligence, even if he did not intend to pour the hot water on his daughters. Thus, the court advised the jury that one element of the offense is causing injury to a child "by other than accidental means." The court subsequently told the jury that an act which is "accidental . . . is not a criminal offense" and that an accident is "an unforeseen event, misfortune, act or omission, which is not the result of negligence or misconduct." The court also told the jury that defendant could be found guilty for punishment of his children "that is not reasonably called for and is unreasonably severe," unreasonable being defined as "irrational, foolish, unwise, senseless, immoderate, exorbitant." A reasonableness test is of course the classic standard for liability based on negligence. Therefore, the court's jury instructions could be found to correctly state the applicable law only if the required degree of culpability for the offense of endangering the welfare of a child was simple negligence.

The New Jersey Code of Criminal Justice adopted a provision of the Model Penal Code which defines nearly all criminal offenses in terms of four basic states of culpability: purpose, knowledge, recklessness, and negligence. N.J.S.A. 2C:2-2; see generally, State v. Breakiron, 108 N.J. 591, 597-99, 532 A.2d 199 (1987).*fn1 Although most offenses proscribed by the Code of Criminal Justice specifically set forth one of these culpable mental states as an element, a small number of Code offenses are defined without express reference to any culpable state of mind. The gap which this omission creates in the elements of these offenses is filled by N.J.S.A. 2C:2-2c(3), which provides in pertinent part:

Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable

mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining crime with the ...


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