Before Judges Pressler, Ciancia and Axelrad. On appeal from the
Superior Court of New Jersey, Law Division, Atlantic County, 99- 02-0173c.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 22, 2002
We consider in this appeal whether a person in a somnambulistic state, i.e., sleepwalking, can be criminally culpable for his acts committed in that state.
Defendant, Richard Overton, was indicted for four offenses arising out of a single incident against the same victim, I.T., a seven year-old girl: first-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2a(1) (count one); second- degree sexual assault, N.J.S.A. 2C:14-2b (count two); second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and fourth-degree child abuse, N.J.S.A. 9:6-3 (count four). The jury acquitted defendant of counts one and two, and convicted him of counts three and four. Defendant's motion for acquittal notwithstanding the verdict (n.o.v.) on counts three and four was denied. The court sentenced defendant on count three to a term appropriate for a crime one degree lower than that for which he was convicted, N.J.S. A. 2C:44- 1f(2), of three years imprisonment, and imposed a concurrent nine-month term on count four. Appropriate monetary penalties were imposed, along with Megan's Law community supervision for life. Defendant was admitted to bail pending appeal.
On appeal, defendant argues:
I. THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT ON COUNTS THREE AND FOUR OF THE INDICTMENT, IN THAT NO REASONABLE JURY COULD HAVE CONCLUDED THAT THE DEFENDANT WAS GUILTY OF THE ABOVE- MENTIONED COUNTS.
II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS THREE AND FOUR OF THE INDICTMENT IN THAT THE NOT GUILTY VERDICTS RENDERED WITH REGARD TO COUNTS ONE AND TWO WERE LEGALLY, MORALLY, AND LOGICALLY INCONSISTENT WITH THE GUILTY VERDICTS RENDERED ON COUNTS THREE AND FOUR, IN THAT PREDICATE CRIMINAL ACT FOR COUNTS THREE AND FOUR WAS THE ATTEMPTED SEXUAL ASSAULT PROSECUTED IN COUNTS ONE AND TWO.
III. THE TRIAL COURT ERRED IN CONCLUDING THAT EXISTING CASE LAW "COMPELLED" THE COURT'S DENIAL OF THE DEFENDANT'S APPLICATION FOR A PROBATIONARY SENTENCE.
We are not convinced by defendant's first and second arguments that he is entitled to an acquittal on counts three and four because of insufficiency of the evidence or inconsistency with the verdicts on counts one and two. However, in making these arguments, defendant points to comments by the prosecutor in summation that the jury could believe defendant's testimony that he was sleepwalking and still convict him of child endangerment and child abuse, suggesting those convictions could be based upon a culpability state below "knowing", the mental state required for these offenses. Because defense counsel made no objection to the prosecutor's comments at trial, the standard of review is plain error. R. 1:7-2. We are satisfied these comments, which misstated the law, had the clear capacity to produce an unjust result. R. 2:10-2. Accordingly, we reverse defendant's convictions and remand for a new trial on counts three address defendant's third argument.
I.T. was the granddaughter of defendant's girlfriend, Mrs. Brown. On November 28, 1998, she and her five-year old brother slept over her grandmother's house. I.T. awoke with her pants down around her ankles to find the forty-one year-old defendant, smelling of alcohol, naked on top of her, moving around with his penis pressed against her vagina. When she screamed, he stopped moving around and asked her what she was doing in his bedroom and she explained he was in hers. Defendant then covered himself with the bedspread, and he dashed out of her room, leaving her in tears.
The children slept at Brown's house on numerous occasions during the previous year while their mother worked the night shift. The house was a rancher, containing three bedrooms, one of which was turned into a den where the children would sleep, usually on the floor. The master bedroom, where Brown and defendant slept, was located at the other end of the house. On the night of the incident, after the children were in bed, Brown and defendant shared one or two beers. They went to bed naked. The couple intended to have sexual relations the next morning and Brown reminded defendant they would need to get the baby oil, which was located in the back bedroom or bathroom across from the children's bedroom. Defendant responded he would retrieve the oil at some later time. Brown and defendant went to sleep, and Brown was awakened to defendant crying and yelling while standing in front of their bedroom window naked and covered in baby oil. In response to her repeated demands as to what had happened, defendant stated "he woke up naked next to [I.T]." Brown found I.T. and her brother sitting on the floor in the den playing a video game. I.T. told her "Big Ricky [tried] to put his thing . . . in [her] private parts," pointing in the direction of her genital area. Brown called defendant's sister, Grace Green, who lived nearby. When Green arrived a few minutes later, I.T. told her "Ricky tried to pull her pants down" and she "told him to stop." Based upon this conversation, the women telephoned I.T.'s mother and took the child to the hospital. The examination failed to reveal any evidence of penetration. Defendant testified that earlier in the evening he had a beer with Brown and another one when he went out to buy a pack of cigarettes and a six-pack of beer. Because of work and his father's illness and family commitments he had only had three hours sleep over a two-day period. He and Brown had a discussion in bed about him getting the baby oil if he wanted to have sexual relations. Defendant dozed off next to Brown and his next memory was waking up next to I.T. and asking her "what the hell are you doing in our bedroom[?]" I.T. informed him he was in her bedroom. Realizing he did not have any clothes on, defendant grabbed a blanket and ran out of the room.
His defense, corroborated by Green, Brown, and a former girlfriend, Maria Rodriquez, was that he had a sleep disorder which, on numerous occasions, caused him to wake up in a place other than his bed with no recollection of how he got there. Green testified that while growing up, defendant would occasionally be found sleeping in different areas of the house, such as under the dining room table. According to Rodriguez, during her ten-year relationship with defendant in the l980's, while defendant was sleeping, he would wander into another room and often put food in his mouth and lie back down to sleep. On several occasions she had to wake him so he would not choke on the food. Brown testified she had awakened on several occasions to find defendant "balled up naked and in front of the basement door," lying in the kitchen, lying across ...