Judges Pressler, Kleiner, and Steinberg.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Cape May County.
Tried to a jury, defendant Charles G. Hackett was convicted of fourth-degree lewdness, N.J.S.A. 2C:14-4b(1) (count one), and third- degree endangering the welfare of children, N.J.S.A. 2C:24-4a (count two). The victims were three girls: two, M.M. and A.S., both age eleven; and M.R.K., age thirteen. The girls observed defendant standing nude in his home located near a school bus stop where the victims waited each morning for the public school bus. The bus stop was actually in front of M.R.K.'s home.
Following defendant's conviction, he was sentenced to a custodial term of four years on count two and to a concurrent term of eighteen months on count one. Appropriate statutory penalties were imposed.
On appeal, defendant raises four points of error:
INSUFFICIENT EVIDENCE WAS SUBMITTED TO SUSTAIN A CONVICTION FOR ENDANGERING WELFARE OF CHILDREN, N.J.S.A. 2C:24-4(a).
THE TRIAL COURT ERRED BY PERMITTING USE OF PRIOR BAD ACT EVIDENCE BY THE STATE.
THE TRIAL COURT ERRED IN PROVIDING AN INSUFFICIENT PRIOR BAD ACT JURY INSTRUCTION.
[DEFENDANT'S TRIAL COUNSEL] PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL TO DEFENDANT CHARLES HACKETT." *fn2
When defendant's appeal was first scheduled for appellate Disposition, we requested counsel to provide supplemental briefs addressing "[w]hether an actor's conduct that is completely encompassed by the fourth-degree crime as defined in N.J.S.A. 2C:14-4b(1) (lewdness observed by a child less than 13 years of age) may also be prosecuted as a third-degree crime as defined by N.J.S.A. 2C:24-4 (endangering the welfare of children) in the absence of any elements not already encompassed by N.J.S.A. 2C:14-4b(1)." We also invited the Attorney General to file an amicus curiae brief addressing our specific inquiry. We conclude that, based on statutory construction, N.J.S.A. 2C:14-4b(1) and N.J.S.A. 2C:24-4a proscribe independent criminal conduct and the defendant may be charged under the same indictment with a violation of each statute. However, the State presented insufficient evidence to convict defendant of violating N.J.S.A. 2C:24-4a. *fn3
Accordingly, we reverse defendant's conviction on count two for endangering the welfare of children. We additionally conclude that under the facts presented, even if defendant's convictions had been proper under both counts, the conviction for lewdness, N.J.S.A. 2C:14- 4b(1), should have merged with the conviction for endangering the welfare of children, N.J.S.A. 2C:24-4a. Lastly, we conclude that defendant's contentions in Points II, III, and IV are without merit. R. 2:11-3(e)2.
On October 2, 1996, M.M. observed defendant standing nude inside his home approximately five feet from his front window. According to M.M., she was able to observe the entire front of defendant's body. She also thought that defendant had waved to her. M.M. testified that she had also observed defendant standing nude near the same window on or about September 4, 1996. M.M. testified that during the earlier incident, defendant was talking on the telephone. At trial, M.M. testified that she had observed defendant standing nude on approximately ten occasions. After her observation on October 2, 1996, M.M. informed A.S.'s mother, T.W. M.M. also testified that prior to the date when defendant moved to his residence, she had visited the former residents of that same home and was familiar with the floor plan. According to M.M., the front window in defendant's home was in the family room which adjoins an interior room used as a dining room and when she observed defendant he was standing in the dining room.
M.R.K. testified that she had observed defendant standing nude and talking on a telephone on October 2, 1996. She indicated that the telephone was approximately three to four feet from the front window. M.R.K. also testified that she had observed defendant naked on other days prior to October 2, 1996. Additionally, on one occasion, she confronted defendant and informed him, "I have been seeing somebody standing nude in your house, and I am getting sick of it because my friends are too young to see this." M.R.K. indicated that following that confrontation she never again saw defendant standing nude in his home.
A.S. testified that she only saw defendant standing naked on one occasion - October 2, 1996. She indicated that on that date defendant's back was facing her and defendant was talking on a telephone a few feet from the window.
T.W. testified that A.S. had informed her of the episode on October 2, 1996. T.W. indicated that in September and October 1996 there were no curtains on defendant's front window, but after M.R.K. confronted defendant, blinds were closed on defendant's front window.
After T.W. reported the October 2, 1996, incident to the Middle Township Police Department, Detective Loefflad interviewed each girl and then interviewed defendant. According to Loefflad, defendant indicated "he may have answered the phone without any clothes on"; he did not know why he had been confronted by M.R.K., but he told her "he would look into it and take care of it." Defendant denied any wrongdoing and indicated that his curtains would be closed in the future.
Prior to defendant's trial, the State informed defendant that it intended to introduce evidence at defendant's trial of two prior convictions of defendant: a 1977 lewdness conviction in Pennsylvania and a conviction following a guilty plea on January 4, 1996, for lewdness as a disorderly person, N.J.S.A. 2C:14-4a, occurring on September 10, 1995, in North Wildwood, New Jersey. On June 13, 1995, Judge Carmen Alvarez ruled that defendant's 1977 conviction was too remote, but the State would be permitted to introduce at trial evidence of defendant's 1996 conviction pursuant to N.J.R.E. 404(b). *fn4
Based on the pre-trial ruling, the State produced two witnesses, Officers McNulty and Porch, both members of the North Wildwood police. McNulty testified he and Officer Porch responded to an anonymous telephone call reporting that a man was masturbating under the North Wildwood boardwalk. The two officers approached the boardwalk area from different directions. Each officer indicated that defendant was masturbating and Officer Porch testified that defendant's genitals were in full view.
At defendant's trial, he presented only two witnesses: his wife and a private detective, James G. Brennenstuhl. Defendant did not testify.
Defendant's wife testified that defendant and their two children moved to their residence on September 19, 1996. She indicated her normal schedule involved: waking at 6:00 a.m., driving her children to school at approximately 7:00 a.m., and returning to the residence at about 7:30 a.m. She also testified that the only telephone in the residence was located in the kitchen.
Detective Brennenstuhl authenticated a series of photographs taken by him at defendant's residence between 6:48 and 7:20 a.m. which included defendant standing either in the living room or the dining room. He also testified that the distance from the street to defendant's home is approximately fifty to sixty feet.
We first address defendant's first point of error. Defendant argues in Point I of his brief that his conviction should be reversed because endangering the welfare of children as a third-degree offense "is targeted at defendants who have assumed a role in a child's life but one that does not rise to the level of parent or guardian." The argument is misplaced. The statute states that when a person who is either the parent or who stands in loco parentis violates the endangering statute, it is a second-degree offense. Defendant completely overlooks the import of the second sentence in N.J.S.A. 2C:24-4a providing, "Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree." (emphasis added). However, the point of error raised permits our Discussion of the question we posed sua sponte: whether a defendant may be prosecuted under both N.J.S.A. 2C:14-4b(1), lewdness as a crime of the fourth degree, and N.J.S.A. 2C:24-4a, endangering the welfare of children as a crime of the third degree.
As originally enacted as part of the Criminal Code, N.J.S.A. 2C:14- 4 classified all acts of lewdness as disorderly persons offenses. The statute then provided that
"A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed. "Lewd acts" shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person."
N.J.S.A. 2C:14-4 was amended by L. 1992, c. 8, § 1, by designating certain acts of lewdness not as disorderly persons offenses but as fourth-degree crimes. Thus, paragraph ...