On appeal from the Superior Court, Appellate Division, whose opinion is reported at 323 N.J. Super. 460 (1999).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The opinion of the court was delivered by: LaVECCHIA, J.
ON APPEAL FROM Appellate Division, Superior Court
Argued September 12, 2000
The issue in this appeal is whether the evidence adduced at the trial of a defendant accused of exposing himself to three minor girls was sufficient to sustain convictions for both fourth-degree lewdness and third-degree endangering the welfare of children. We were informed after oral argument that defendant passed away on September 26, 2000. Citing the significant public importance of addressing the relationship between these two sexual offenses, the State has urged the Court to issue an opinion notwithstanding defendant's death. Defense counsel has not objected to that request. We agree that this case involves important public issues in need of resolution. Accordingly, we elect to decide the issues presented even though the defendant has passed away. See Zirger v. General Accident Ins. Co., 144 N.J. 327, 330 (1996).
After a two-day trial, a jury convicted defendant, Charles Hackett, of fourth-degree lewdness, N.J.S.A. 2C:14-4b(1), and third-degree endangering the welfare of children, N.J.S.A. 2C:24-4a. The victims were three young girls, M.M., A.S., both age eleven, and M.R.K., age thirteen. On several occasions while they were walking to their school bus stop located in front of defendant's residence in Middle Township, the girls witnessed defendant standing nude near the front window in his home. Defendant was sentenced to a four-year term on the endangering conviction and a concurrent eighteen-month term for lewdness.
The majority of the Appellate Division panel below, in reversing defendant's endangering conviction, concluded that while a defendant could be prosecuted for both crimes, the State had failed to present adequate evidence that the lewd conduct here would tend to impair or debauch the morals of a child, a requisite element of an endangering conviction. State v. Hackett, 323 N.J. Super. 460, 478 (1999). The majority also found fault with the jury instruction pertaining to the endangering charge, determining that it lacked sufficient clarity. The dissent, however, concluded that there was sufficient evidence introduced into the record upon which the endangering conviction could have been sustained.
The State appeals as of right due to the dissent below. R. 2:2-1(a)(2). We hold that based on the testimony offered, a jury could conclude beyond a reasonable doubt that Hackett's conduct had the capacity to impair or debauch the morals of a minor.
The evidence introduced by the State indicated the following. On the morning of October 2, 1996, while she was walking to her school bus stop, M.M. saw defendant standing nude in his home at a distance of approximately three or four feet from the unobstructed front window. According to M.M., defendant waved to her. On cross-examination, M.M. conceded that defendant's waving may have simply been a hand gesture made while talking on the telephone. M.M. testified that on prior occasions during that school year, she had observed defendant standing nude near the front window while he was talking on the telephone. In all, M.M. surmised that she had seen defendant standing nude on approximately ten occasions.
A.S. observed defendant standing nude only on October 2, 1996. According to A.S., defendant was facing away from her while he was speaking on the telephone. On that same date, M.R.K., the thirteen-year old, observed defendant standing nude while talking on the telephone. M.R.K. indicated that defendant had been visible, standing naked near a window in his home. According to M.R.K., defendant "posed" for her. When questioned about what she meant by her testimony that defendant posed, M.M. responded, "[h]e was just standing there." According to M.R.K., she later approached defendant and told 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." Defendant responded by stating that he would check his security cameras. Following this confrontation, M.R.K. did not again see defendant in the nude.
Subsequently, A.S.'s mother, T.W., was informed of the October 2 incident. It was T.W.'s recollection that in September and October 1996, defendant's windows were not shielded by either curtains or blinds, but following M.R.K.'s confrontation with him blinds were closed on defendant's front window.
T.W. informed the Middle Township Police Department of the October 2 incident and an investigation ensued. When questioned about the episode, defendant denied any wrongful conduct although he conceded that "he may have answered the phone without any clothes on." Defendant did not testify at trial.
The Appellate Division, sua sponte, raised the issue whether "an actor's conduct that is completely encompassed by the fourth-degree crime as defined by 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:14-4(b)(1)." Answering that question in the affirmative, the Appellate Division majority concluded that the two statutes proscribe independent criminal conduct and require distinct proofs to warrant conviction for each offense. Hackett, supra, 323 N.J. Super. at 475.
The majority also agreed that defendant's exposure of his nudity to the girls could constitute the "sexual conduct" element necessary to sustain an endangering conviction, citing the decision in State v. White, 105 N.J. Super. 234 (App. Div.), certif. denied, 54 N.J. 242 (1969). Hackett, supra, 323 N.J. Super. at 472. In that case, the defendant had shown photographs of nude men and women in various postures to a child. The majority below reasoned that if showing nude photographs to children could equate with "sexual conduct" under the endangering statute, defendant's nudity could as well. Ibid. But, the panel concluded that an act of exposure may constitute the third-degree crime of endangering only if that exposure had "more than a theoretical capacity to have impaired or debauched the child's morals." Ibid. That added requirement did not make it "necessary for the State to prove . . . that the child was not debauched [prior to the act], or his morals more impaired after the act than they were before. The statute forbids the performance of acts which tend to debauch the child or impair his morals–whether they actually did so is immaterial." Id. at 477 (quoting State v. Raymond, 74 N.J. Super. 434, 438 (App. Div. 1962), appeal dismissed, 39 N.J. 241 (1963)). Nevertheless, the majority concluded that there was insufficient evidence to support the State's claim that defendant's sexual conduct would impair or debauch the morals of a child. Id. at 478.
Noting the "absence of any expert opinion or any evidence offered by a representative of the Division of Youth and Family Services," the majority determined that the limited evidence presented at trial did not suggest that defendant's mere nudity "would tend to corrupt, mar, or spoil the morals" of the girls. Ibid. The majority held that that failure necessitated a reversal of the conviction. Ibid. In so holding, the majority also pointed out that the Model Jury Charge's definition of "sexual conduct" was flawed because it used a reference to nudity that was applicable to N.J.S.A. 2C:24-4b(1)(i), the section of the statute prohibiting child pornography. In such a circumstance, the nudity described is the nudity of the child, not, as was the case here, the nudity of the actor.
The dissenting member of the panel below asserted that prior case law established that it is not necessary that defendant's conduct actually be demonstrated to have impaired or debauched the morals of a minor. Id. at 485. It was his view that the victims' testimony that defendant, on numerous occasions, stood nude in his home in full view of the children passing by "was sufficient to present a jury question as to whether defendant's conduct tended to impair or debauch the morals of the child." Ibid. The dissent disagreed that expert testimony would be necessary to prove that endangering had occurred. Id. at 489. Finally, the dissent concluded that although the majority correctly alluded to a flaw in the Model Jury Charge on endangering, that infirmity was not implicated in the present case because the trial court explicitly defined sexual conduct as acts constituting lewdness, the offense charged in count one against defendant. Ibid.
In State v. Zeidell, 154 N.J. 417 (1998), the Court was called upon to determine how the Legislature intended to distinguish second-degree sexual assault from fourth-degree lewdness. In Zeidell, the defendant was witnessed masturbating while standing on a boardwalk in clear view of two children and an adult who were on the beach approximately seventy-five feet from the boardwalk. Id. at 420. Defendant was convicted of tender-years-sexual assault, N.J.S.A. 2C:14-2b, endangering the welfare of children, N.J.S.A. 2C:24-4a, and fourth-degree lewdness, N.J.S.A. 2C:14-4b(1). Id. at 419. The Court distinguished fourth-degree lewdness from second-degree-tender years sexual assault by noting that lewdness requires that the actor's exposure be performed with the actor's knowledge or reasonable expectation that he is likely to be observed by a child less than thirteen years of age. Id. at 430. Moreover, "lewdness is limited to exposing or displaying an actor's intimate parts rather than touching them." Id. at 431.
Tender-years-sexual assault, on the other hand, requires there to be a touching of the actor's intimate parts "in view" of an underage child "whom the actor knows to be present." N.J.S.A. 2C:14-1d. Thus, the Court continued, "unlike lewdness, sexual assault does not require the underage child to actually observe the touching" although it was noted that the children did testify that ...