On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Dreier, Newman and Villanueva. The opinion of the Court was delivered by Newman, J.A.D. VILLANUEVA, J.A.D. (retired and temporarily assigned on recall), Concurring and Dissenting.
The opinion of the court was delivered by: Newman
The opinion of the Court was delivered by
Tried to a jury, defendant, Thomas G. Zeidell, was convicted of two counts of sexual assault, of K.B. and E.B. (counts 1 and 4 respectively), N.J.S.A. 2C:14-2b; two counts of endangering the welfare of a child (K.B., count 2, and E.B., count 5), N.J.S.A. 2C:24-4a; and fourth-degree lewdness pertaining to K.B. and E.B. (counts 3 and 6 respectively), N.J.S.A. 2C:14-4(b)(1). The court sentenced defendant on the sexual assault counts to concurrent ten-year terms with five-year parole disqualifiers in the Adult Diagnostic and Treatment Center in Avenel. The other counts were merged. The usual penalties were imposed. Defendant appeals. We reverse and vacate the convictions on counts 1 and 4 and remand for further proceedings on the remaining counts which are now unmerged.
Defendant committed an act of public masturbation on June 18, 1994 on the boardwalk in Asbury Park near the border of Ocean Grove. Carol S. observed defendant from the beach. She was the adult babysitter in charge of K.B., a boy of ten, his sister, E.B., age eight, and their two female cousins, J.F. and C.F. She pointed defendant out to K.B. and E.B. J.F. and C.F. never observed defendant. Carol sent E.B. to summon the police who were patrolling nearby. Both K.B. and E. B. testified that defendant faced the ocean and looked in the direction of their two cousins who were swimming in the ocean. K.B. and E.B. both said that defendant never spoke to them, did not look in their direction and never made any gesture toward them. Carol S. could not be located by police and did not testify at trial. *fn1
At the end of the State's case, defendant moved for a judgment of acquittal on all counts, but his argument focused on the sexual assault charges. Defendant asserted that there was no evidence that defendant knew that K.B. and E.B. were present or that the two youngsters in the water were the object of defendant's view. The motion was denied.
Next, defendant's counsel argued that defendant would testify at trial if his prior bad acts were not used on cross-examination. Defendant had a past lewdness charge based on exposure of his genitals to a nine-year-old girl in 1991 and a public masturbation charge, at an unspecified time in 1991, in front of a rest home in West Long Branch, which resulted in a guilty plea to lewdness. Before trial and on the State's application, the trial Judge denied admissibility of these same prior bad acts as part of the State's direct case. The trial Judge ruled that these prior bad acts could be used for rebuttal purposes only.
Defendant did not testify. Had he testified, defendant proffered that he would have said that he pulled his cut-off jeans down to scratch a rash. He had corroborating medical evidence of a rash which was treated when he was first incarcerated after the arrest for these crimes. It was noted that defendant was within 150 feet of a public rest room where he could have scratched the rash in privacy.
During deliberations, the jury's first request was to see the charges on counts 1, 2, 4 and 5 (the sexual assault and endangering the welfare of children charges). The trial Judge responded to the jury's request by rereading the initial charges on those counts. The jury's second request was contained in the following question: "What does the prosecutor have to prove beyond a reasonable doubt on count 1 and count 4?" Again, the trial Judge reread the instruction pertaining to counts 1 and 4 (sexual assault) and repeated the model reasonable doubt charge. The third jury request was to reread the second request once more. The jury was charged again on sexual assault and reasonable doubt. Guilty verdicts were later returned on all counts.
On appeal, defendant raises the following points:
POINT I DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S ERRONEOUS DECISION ADMITTING PRIOR BAD ACTS IF HE WERE TO TESTIFY DETERRED DEFENDANT FROM TESTIFYING. POINT II DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AS TO THE SEXUAL ASSAULT CONVICTIONS. POINT III DEFENDANT'S MAXIMUM BASE TERMS MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING, BECAUSE THE TRIAL COURT FAILED TO CONSIDER EXISTING MITIGATING FACTORS. (PARTIALLY RAISED BELOW)
Defendant argues in Point I that the trial Judge erred in allowing the admission of evidence of prior bad acts if defendant testified. Defendant was prepared to testify that he did not masturbate on the boardwalk but, rather, pulled his cut-off jeans down to scratch a rash. Defendant asserts that the testimony of a prior lewdness charge and a public masturbation incident should not have been permitted as rebuttal testimony if defendant testified as proffered. We disagree.
Under State v. Cofield, 127 N.J. 328, 605 A.2d 230 (1992), other-crime evidence can be admitted to prove a relevant issue, provided the four prong test of Cofield is satisfied. See N.J.R.E. 404(b). In this case, the State met all four requirements found in the Cofield test. First, the evidence was relevant to defendant's motive. Defendant's testimony would have consisted of denying public masturbation, essentially stating that the witnesses mistook defendant's act of scratching. Thus, the evidence of defendant's prior acts of lewdness and masturbation would be admissible as relevant to the material issue showing past involvement with children for motive. See State v. Cusick, 219 N.J. Super. 452, 464-66, 530 A.2d 806 (App. Div.), certif. denied, 109 N.J. 54 (1987).
Second, the past offenses were similar in kind and sufficiently close in time to the charged offenses to have assisted the jury in understanding defendant's motive or intent. See State v. G. S., 278 N.J. Super. 151, 161-62, 650 A.2d 819(App. Div. 1994), certif. denied, 142 N.J. 517 (1995), rev'd on other grounds, 145 N.J. 460, 678 A.2d 1092(1996).
Third, the evidence was clear and convincing. Defendant did not even argue otherwise before the trial Judge.
Fourth, under Cofield, (supra) , the probative value of the evidence must not be outweighed by its prejudicial impact. 127 N.J. at 338 (citation omitted). The prejudice is substantial in a case of this nature. Despite that, defendant's denial of the public masturbation charge and use of the "rash" defense invited a rebuttal response. Indeed, the trial Judge acted circumspectly in denying the earlier application by the State to use this same evidence in its direct case. Allowing its use in rebuttal, along with a limiting instruction, would have reduced the potential for prejudice and would not have resulted in a mistaken exercise of discretion. Any prejudice would be further diluted upon the introduction of evidence that defendant was in close proximity to a rest room where he could have scratched the "rash" out of public view. We find no error in the trial Judge's ruling.
Defendant argues in Point II that the motion for judgment of acquittal on the second degree sexual assault counts should have been granted. We agree that the second degree sexual assault counts should have been dismissed because the necessary ...