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State v. Breitweiser

November 29, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUSSELL BREITWEISER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. 01-04-00172.

Before Judges Kestin, Lefelt and Fuentes.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 13, 2004

In State v. Zeidell, 154 N.J. 417 (1998), the Supreme Court defined second-degree-tender-years sexual assault as an intentional touching by the actor of his or her intimate parts, for arousal or sexual gratification, in the view of an underage child, whom the actor knows to be present. Id. at 431 (citing N.J.S.A. 2C:14-2b, 14-1d). The central question we must answer in this appeal is: can a defendant be convicted of this offense when it is undisputed that the underage victim did not actually view the allegedly offensive conduct? After consideration of the arguments advanced by the parties and in light of prevailing legal standards, we conclude that the answer is"yes."

An analysis of this issue requires us to demarcate the outer limits of conduct sufficient to constitute"in the view of" the underage victim. Ordinarily,"in the view of" contemplates a scenario where the victim actually witnesses the offensive conduct. We hold, however, that, in order to satisfy this statutory element, the State is not required to prove that the underage child actually observed the offensive touching. To establish that the offensive conduct occurred"in the view of" the underage victim, it is sufficient for the State to prove, beyond a reasonable doubt, that either (1) the underage child actually observed the act; or (2) there was an unreasonable risk that the underage child might view the act. Our holding in this respect is informed by the Court's dictum in Zeidell.

I.

Defendant Russell Breitweiser was tried before a jury and convicted of second-degree-tender-years sexual assault, N.J.S.A. 2C:14-2b. The court granted the State's motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3a, and, thereafter, sentenced defendant to: (1) serve a discretionary extended term of fifteen years, with seven and one-half years to be served without parole eligibility; (2) comply with the registration requirements imposed by"Megan's Law;" (3) submit to community supervision for life; (4) provide a DNA sample for inclusion in a sex offender population database; and (5) serve a five-year term of parole supervision commencing upon his release from prison. N.J.S.A. 2C:7-1 to -19; N.J.S.A. 2C:43-6.4. The court also imposed the mandatory fines and penalties.

Defendant now appeals raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY AND IMPROPERLY INCORPORATED LANGUAGE FROM STATE V. ZEIDELL THAT WAS DICTUM AND NOT LAW AS TO THIS CHARGE.

POINT II

THE MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED IN THIS CASE.

POINT III

APPELLANT'S MOTION TO ENTER A DIRECTED VERDICT OR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S PROOFS SHOULD HAVE BEEN GRANTED.

POINT IV

THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO COMMENT FREELY IN SUMMATION ON THE FAILURE TO PRODUCE THE ALLEGED VICTIM AND FURTHER ERRED IN FAILING TO GIVE THE ADVERSE INFERENCE CLAWANS CHARGE.

POINT V

THE TRIAL COURT ERRED IN REFUSING TO DISBAND THE VENIRE PANEL THAT WAS CALLED INTO TRIAL AFTER TWO OF THE JURORS HAD MADE OBVIOUSLY INTEMPERATE AND INAPPROPRIATE COMMENTS IN FRONT OF FELLOW PANEL MEMBERS.

POINT VI

THE TRIAL COURT OVERRULED CERTAIN DEFENSE OBJECTIONS DURING THE TRIAL THAT SHOULD HAVE BEEN SUSTAINED WHICH LED TO OVERALL UNFAIR PREJUDICE AGAINST THE DEFENSE REQUIRING A REVERSAL OF THE CONVICTION.

POINT VII

PROSECUTORIAL MISCONDUCT OCCURRED DURING THE PROSECUTOR'S SUMMATION REQUIRING REVERSAL OF THE CONVICTION. [RAISED AS PLAIN ERROR UNDER R. 2:10-2] AND THE CUMULATIVE ERROR IN THIS MATTER REQUIRES REVERSAL OF THE CONVICTION.

POINT VIII

THE MOTION FOR AN EXTENDED TERM SENTENCE IN THIS MATTER SHOULD HAVE BEEN DENIED AND/OR THE SENTENCE WAS EXCESSIVE.

We reject these arguments and affirm.

The salient facts are not disputed. On March 6, 2001, Thomas Wolf was working as a loss prevention officer in a Shop Rite supermarket located in Franklin Township. He was stationed in a catwalk located in the rear of the store when he first noticed defendant.

Wolf described the catwalk as"a hallway which overhangs the back of the store, which allows loss prevention personnel and authorized store management to monitor the store [by looking] through vents." These modified heating vents, which were also referred to as viewing ports during the trial, are located at the end of each store aisle. The particular vent that Wolf was looking through when he sighted defendant measured over nineteen inches in length and over four inches in width. A series of slats ran vertically across the vent with each separated from the other by one-half inch of space.

Through the vent, Wolf observed defendant walk past aisle two carrying a rotisserie chicken. Also in aisle two, standing by the eye care section, was an eight-year-old girl whom we will refer to as"Nancy."*fn1 Defendant was thirty-seven years old at the time. From his vantage point Wolf saw defendant walk directly toward Nancy. As defendant got within a few feet of the child, she turned around, looked straight at him and walked around him, going across the aisle to the greeting cards section. Defendant then began walking down the aisle toward the front of the store.

There was one unidentified woman standing near the greeting cards rack when Nancy reached this area. As he walked down the aisle, defendant continued to look back toward the area where the woman and Nancy were standing. When the woman left the area, defendant immediately turned around and headed straight toward Nancy. Wolf gave the following description of what occurred next.

Q: Where was the Defendant looking?

A: Looking directly at [Nancy].

Q: Did he look at any other merchandise in ...


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