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State v. Perez

July 22, 2003


On certification to the Superior Court, Appellate Division, whose opinion is reported at SYLLABUS BY THE COURT

This case requires the Court to evaluate the sufficiency of the State's evidence in respect of Manuel Perez's convictions for child luring and attempted child endangerment. Perez's convictions stem from two encounters with D.D., who was a thirteen-year-old middle school student, living with her parents in Passaic County. At the time of the encounters, Perez was thirty-four years old and lived three blocks from D.D.

On a rainy February day in 1999, Perez drove up to D.D. in his car while she was walking to school. Perez offered to give her a ride to school, which she declined. Perez then drove away. D.D told her father about the incident. He did not report it, thinking it was an isolated event. About three months later, Perez saw D.D. playing on a public street with her two younger brothers. He stopped his car, singled D.D. out, and motioned for her to come over to his car. D.D. ignored Perez and he drove away. D.D. told her father about this incident and, in response, he called the police. The municipal police interviewed D.D. and then picked up Perez and brought him to the police station. Perez was given his Miranda rights, which he waived. He gave a formal statement wherein he revealed that he often watched D.D., that he thought she was about sixteen, that he liked her looks, that he is obsessed with her, that he would like to make use of how he looks now, and that he fantasizes about her and about asking her on a date. A grand jury charged Perez with fourth-degree stalking (count one); third-degree child luring, (count two); and third-degree attempting to endanger the welfare of a child (count three).

At trial, the State sought to prove that Perez had attempted to lure D.D. into his car to engage in some form of prohibited sexual contact. The prosecution presented testimony from D.D., her brothers, her father, and from the police officer who had taken Perez's statement at the police station. After the State rested, the defense moved for a judgment of acquittal, arguing that there was insufficient evidence to warrant a conviction. The trial court granted Perez's motion with respect to count one, the stalking charge, but allowed the remaining two charges to proceed to the jury. Perez was thereafter found guilty of both child luring and attempted endangering the welfare of a child. Perez was sentenced to an aggregate three-year probationary term conditioned on lifetime community supervision, and assesses the usual monetary fines and penalties.

The Appellate Division reversed on appeal, concluding that there was no reasonable basis on which the jury could have convicted Perez for child luring and attempted child endangerment.

The Supreme Court granted certification.

HELD: The State submitted sufficient evidence to allow a reasonable jury to conclude that Perez was guilty of child luring and attempted child endangerment.

1. The Legislature enacted the child-luring statute to close the gap between criminal charges of attempted kidnapping and the lesser offense of harassment for those times when a person unsuccessfully tries to lure a child into a car with a criminal purpose. The statute is intended to criminalize the early stages of an act that may develop into kidnapping or a sex offense with a child less than eighteen years old, which previously was nearly impossible to prosecute. In addition, the Legislature intended the child-endangerment statute to criminalize a broad array of sexual activity involving children below sixteen years of age. (Pp. 8-10)

2. When evaluating motions to acquit based on insufficient evidence, courts must view the totality of evidence, whether direct or circumstantial, in the light most favorable to the State. The applicable standard is whether such evidence would enable a reasonable jury to find the accused is guilty beyond a reasonable doubt of the crime or crimes charged. (Pp. 10-11)

3. When prosecuting an accused for child luring, the State must prove beyond a reasonable doubt the following elements: 1) that the accused attempted to lure or entice into a motor vehicle, structure, or isolated area, 2) a child under the age of eighteen, 3) with a purpose to commit a criminal offense with or against the child. A defendant's simple attempt to lure or entice a child into the prohibited space is the only act required under the statute. Like eluding or witness tampering, child luring does not involve an attempt to commit another substantive offense. Rather, the criminal act of child luring is complete when a person tries to lure a child into a motor vehicle with criminal purpose. (Pp. 11-13)

4. The record contains sufficient evidence to permit a reasonable jury to find that the State satisfied all three elements of the child-luring statute beyond a reasonable doubt. Perez directly invited D.D. into his car to give her a ride to school. Three months later he singled her out, motioning her to come over to his car. A reasonable jury could have construed the totality of those facts as Perez's trying to get D.D into his car in satisfaction of the first element of the crime. Element two is satisfied as D.D. was under eighteen at the time of the encounters with Perez. It is the third element, with criminal purpose, that is hardest to discern. The jury was entitled to apply its common sense to the statements made by Perez to police: that he was obsessed with D.D.; that he fantasized about her and dating her; and that he was physically attracted to her. These facts would allow a jury to draw a reasonable inference that Perez's purpose in trying to lure D.D. into his car was to engage in sexual conduct. While this is a close case, the trial court did not err in allowing this child-luring charge to go to the jury. (Pp. 13-16)

5. Attempted child endangerment must be evaluated in accordance with the Criminal Code's criminal attempt statute. That statute requires proof of a defendant's criminal purpose, as well as evidence that the defendant had taken a "substantial step" toward the commission of the crime. A substantial step is conduct that strongly corroborates the defendant's alleged criminal purpose. Informed by the its analysis of the child-luring conviction, the Court is satisfied that a reasonable jury could have discerned Perez's criminal purpose within the meaning of attempted child endangerment based on the totality of his admissions. Similarly, the jury could have concluded that his actions constituted a substantial step toward realizing those intentions. Thus, the State presented sufficient proof of Perez's actions and purpose to withstand an acquittal motion in respect of those two elements of the crime. (Pp. 16-18)

6. With regard to the age element, the Court concludes that the Legislature intended that Chapter 14 of the Code, dealing with sexual offenses, be the standard for the victim's age, requiring that the State prove that the victim was under the age of sixteen regardless of whether the defendant knew or should have known that fact. Under that standard, the State met its burden of proof. Based on the conclusion that Perez was not entitled to an acquittal at the close of the State's case, there was no manifest denial of justice in the trial court's refusal to set aside the jury's verdict. (Pp. 18-21)

Judgment of the Appellate Division is REVERSED and the trial court's judgment of conviction is REINSTATED.

JUSTICE ZAZZALI, concurring in part and dissenting in part, agrees with the majority's conclusion that the evidence presented by the State supports Perez's conviction for child luring. However, he disagrees that the same evidence supports the conviction for attempted child endangering because the evidence presented does not support a finding that Perez took a "substantial step" towards commission of the object crime of child endangering.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA, and ALBIN join in JUSTICE VERVIERO'S opinion. JUSTICE ZAZZALI filed a separate opinion concurring in part and dissenting in part.

The opinion of the court was delivered by: Verniero, J.

Argued April 28, 2003

We are called on to evaluate the sufficiency of the State's evidence in respect of defendant's convictions for child luring and attempted child endangerment. Both offenses stemmed from two encounters with the same thirteen-year-old victim. The Appellate Division set aside the jury's guilty verdict, concluding that the evidence presented against defendant was insufficient as a matter of law. We disagree and reverse.


We derive our summary of facts largely from evidence adduced at trial. At the time of the two incidents, D.D. was a thirteen-year-old student in the seventh grade of middle school, and she lived with her parents in a municipality in Passaic County. Defendant, who was thirty-four-years old when the encounters occurred, resided about three blocks from D.D. The child testified that she had seen defendant in the neighborhood on three prior occasions, but that before the first incident they never had talked.

That incident took place on a rainy morning in February 1999 when D.D. was walking alone to school. She had neither an umbrella nor other rain gear, and was carrying a backpack. D.D.'s most direct path to school led her past defendant's house. Defendant, driving a few blocks from his home and about one block from the school, pulled beside D.D. on the street and offered her a ride. She declined. He offered again, and she again said no. Defendant then drove away. D.D. told her father what had happened but he did not contact the police, believing it to be an isolated incident.

The second encounter occurred in May 1999, at about 9:00 p.m., when D.D. and her younger brothers, F.D. and K.D., were playing on a neighborhood street. D.D. was riding a mountain bike while her brothers were roller-blading. Defendant drove past them traveling in the same direction, and stopped his car. When D.D. was about even with the car's back seat, defendant turned while remaining in the car and asked her, "do you remember me?" She ignored him. He called out to her again, asking her to come over, motioning with his hand. F.D. asked "what?" to which defendant replied, "not you, her." (There is some inconsistency among the siblings' testimony about the order of defendant's statements and about how many times he called out to D.D.) Eventually, D.D. turned around and led her brothers in the opposite direction, towards their home. Defendant drove off without further contact with the children.

After D.D. had informed her father of the second incident, he called the police. A municipal police officer interviewed D.D., who described her two encounters with defendant and directed the officer to defendant's house. The child then identified defendant's car.

The officer transported defendant to police headquarters and informed him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After waiving those rights, defendant made a formal statement. He volunteered that on prior occasions he had seen D.D. walking to school or pushing a baby carriage. Defendant stated:

I see this girl all the time, all the time. I've only spoken to her twice during the winter and today. Sometimes on weekends or after school hours she's with friends, and tonight I saw her on the bicycle. I know she's younger than me, but I didn't know she's a minor. She's cute, she's nice, but her looks are deceiving. I thought she's a teenager, about 16. Also her height, she's a pretty tall girl.....

I don't want to give up anything like my marriage, but what impressed me about her is her looks, she's attractive and her ...

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