The opinion of the court was delivered by: Coleman, J.
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 299 N.J. Super. 613 (1997).
The opinion of the Court was delivered by
The issue raised in this appeal is whether a defendant who has criminal sexual contact with himself that is observed by two children of eight and ten years from a distance of approximately seventy-five feet has committed second-degree sexual assault. In a reported opinion, a divided panel of the Appellate Division reversed two convictions for sexual assault. The majority concluded that because no specific victimization and aggressive assaultive conduct had been established, the necessary relational component for sexual assault had not been proven. State v. Zeidell, 299 N.J. Super. 613, 619-20 (1997). The dissenting Judge believed that no specific victimization was required and that all of the statutory elements of sexual assault had been established. Id. at 624-27.
The State appeals as of right because of the Dissent below. R. 2:2-1(a)(2). We reverse and hold that the specific intent to victimize an observer is not an element of sexual assault involving a child who is less than thirteen years old (referred to as a tender-years-sexual assault).
Defendant was convicted of the following offenses: two counts of second-degree sexual assault upon K.B. and E.B., who were ten and eight years old, respectively; two counts of endangering the welfare of those two children; and two counts of fourth-degree lewdness based on exposing his intimate parts to the same children. After merging the endangerment and lewdness counts with the sexual assaults upon each child, the court sentenced defendant to concurrent ten year terms with five years of parole ineligibility to the Adult Diagnostic and Treatment Center.
The evidence presented by the State that tended to establish the elements of the charged offenses consisted of what follows. On June 18, 1994, Carol S., an adult, took her friend's two young children, K.B. and E.B., and their two cousins, J.F. and C.F., to a beach area located on the border of Asbury Park and Ocean Grove. The beach area was approximately fifty yards wide and was situated between buildings located to the north and south. To the west, there was a boardwalk that extended in a northerly direction.
Although the beach was crowded earlier in the day, at the time of the alleged criminal conduct only Carol and the children were present. After the four children had been playing in the water for awhile, K.B. and E.B. exited the water to talk and play with Carol, who was sitting on a towel near the center of the beach. J.F. and C.F. remained in the water. Carol faced the water and K.B. sat facing her as they spoke. E.B. sat to Carol's right side and stared out at the water.
Shortly after 8:00 p.m. while patrolling the beach areas, Officer Frederick Jenkins observed an adult female with two young children playing in the middle of the beach; two other children were swimming in the water. Officer Jenkins also observed defendant and a couple at the beach area. Defendant was standing at the end of the boardwalk nearest the ocean, approximately seventy-five feet from where Carol and the children were playing. According to Officer Jenkins, there were no obstacles blocking defendant's view of the beach. Eventually, both the officer and the couple left the beach, leaving defendant on the boardwalk standing beside a bicycle.
Approximately two minutes later while Carol, K.B. and E.B. were still on the beach, Carol exclaimed "look at that man jerking off over there." K.B. and E.B. looked toward the boardwalk and saw defendant masturbating. Carol dispatched E.B. to alert a police officer. E.B. ran to Officer Jenkins who described her as being frantic, excited, and "kind of scared." When E.B. was unable to tell Officer Jenkins what had happened, or to "put into words what she wanted to say" to inform the officer of what she had observed, Carol arrived with K.B., who was also excited. Carol explained why a police officer was needed.
Defendant was facing the ocean while touching his intimate parts. At no time did he appear to notice anyone in particular or appear to make eye contact with the children even though he was facing them. Officer Jenkins testified that from where defendant was standing on the boardwalk, nothing obstructed his line of vision of Carol and the two children.
The majority below ruled that the trial court should have granted defendant's motions to acquit on the two sexual assault counts because the State's evidence lacked "the necessary relational component" to sustain defendant's convictions under N.J.S.A. 2C:14-2b, i.e., "specific victimization and aggressive assaultive conduct." Zeidell, supra, 299 N.J. Super. at 619-20. The court reasoned that unlike the factual situation in State v. Ridgeway, 256 N.J. Super. 202 (App. Div.), certif. denied, 130 N.J. 18 (1992), where the defendant called an eleven-year- old girl over to his car to watch him masturbate, here, defendant was not in close proximity to the children and never looked in their direction. Zeidell, supra, 299 N.J. Super. at 619. Furthermore, although the panel concluded that the language "with a victim" in the statutory definition of sexual assault does not require physical contact between the actor and the victim, the panel held that it does require that there be a victim. Id. at 620. The court rejected the State's argument that the primary distinction between the sexual assault statute, N.J.S.A. 2C:14-2b, and the lewdness statute, N.J.S.A. 2C:14- 4b(1), is that sexual assault requires more than the mere "exposure" of intimate parts. Id. at 621. Rather, citing John M. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:14-4b (1996-1997), the majority found the primary distinction between the statutes to be the requisite relationship between the actor to the victim. Zeidell, supra, 299 N.J. Super. at 621-22. The majority concluded that to commit sexual assault, the actor must cause, invite, or specifically solicit the underage person to view the conduct, whereas incidental or casual observation is sufficient to constitute lewdness. Ibid.
The Dissenting member of the panel disagreed with the majority's conclusion that N.J.S.A. 2C:14-2b required the State to prove "specific victimization and aggressive assaultive conduct" directed toward a victim. Id. at 625. "All that is necessary is that the sexual act be `in the view of the victim whom the actor knows to be present.'" Ibid. (citation omitted). The Dissenting Judge found that the State presented sufficient evidence to permit the jury to reasonably infer that defendant knew the children, who were only seventy-five feet away, were present on the beach and in a position to observe him. Id. at 625- 26. The Dissent found it unnecessary for the State "to obtain an admission by the defendant that he was aware of the victims' presence or their observation of him. Defendant's awareness may be inferred by the circumstances." Ibid. Finally, the Dissenting Judge was of the view that the fact that the children inadvertently observed defendant, or that he did not target them, is of no legal significance. Id. at 626. Defendant's guilt should not hinge on whether a child fortuitously fails to observe the actor. Ibid. It is sufficient that defendant knew the children were present. Ibid.
The State argues that the majority opinion in the Appellate Division improperly engrafted an additional element onto the tender- years-sexual assault offense by requiring the State to prove that defendant specifically solicited K.B. and E.B. to watch him masturbate on the boardwalk. The State maintains that when the pertinent subsections of the Code are read in conjunction with each other, it becomes ...