On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-0595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2006
Before Judges Coburn, Axelrad and Gilroy.
Defendant, Tyrone Smith, worked as a football coach for the Police Athletic League (PAL), and used that opportunity to sexually molest at least three boys on numerous occasions.
Following a twelve-day jury trial, defendant was found guilty of a variety of charges relating to the sexual molestation of R.C., T.D., and P.D., who were between the ages of eleven and thirteen at the time of the assaults.
As to R.C., the judgment reflects convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) and N.J.S.A. 2C;14-2a(2)(c) (Counts Two and Three, respectively); second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (Count Four) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (lesser included offense) (Count Eight). As to T.D., the judgment reflects convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Count Seventeen); and second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Twenty-One). As to P.D., the judgment reflects convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) and N.J.S.A. 2C:14-2a(2)(c) (Counts Twenty-Five and Twenty-Six, respectively); second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (Count Twenty-Seven); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Count Twenty-Eight); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Twenty-Nine); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (lesser included offense) (Count Thirty). The other counts, some of which concerned three other boys, A.W., R.S., and C.L., were resolved in defendant's favor either by the judge or by the jury.
On July 14, 2003, defendant was sentenced to prison for fifteen years on Count Two; seven years on Court Four; sixteen years on Count Seventeen; seven years on Count Twenty-One; seventeen years on Count Twenty-Five; four years on Count Twenty-Eight; and one year on Count Twenty-Nine. The sentence imposed on Count Four is concurrent to the sentence on Count Two, and the sentence on Count Seven is concurrent to the sentence on Count Twenty-Eight. The five other terms run consecutive to each other, resulting in an aggregate prison term of fifty-nine years. The other convictions were merged. All appropriate fees and penalties were also imposed. Defendant appeals, and except to remand for resentencing on Counts Seventeen and Twenty-Five, we affirm.
Defendant does not contend that the verdicts were against the weight of the evidence. Consequently, we will describe and discuss the relevant facts, as necessary, during our disposition on each of the issues raised on appeal. Defendant raises the following arguments for our consideration:
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON FACTORS RELEVANT TO DETERMINING WHETHER THE DEFENDANT HAD "SUPERVISORY OR DISCIPLINARY" POWER OVER THE VICTIMS AND WHETHER THE DEFENDANT STOOD "IN LOCO PARENTIS" TO THE VICTIMS DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE DEFENDANT FROM PRESENTING EXCULPATORY EVIDENCE PURSUANT TO N.J.R.E. 804(B)(1)(A).
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE [TERMS] VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (NOT RAISED BELOW).
THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 1014 [106 S.CT. 1193, 89 L.ED. 2d 308] (1986).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE FIFTY-NINE YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
Defendant raises the following arguments pro se:
THE TRIAL COURT [ABUSED] ITS [DISCRETION] IN NOT ORDERING INDIVIDUAL VOIR DIRE, AND BY NOT ORDERING A MISTRIAL AND IN FAILING TO APPLY THE PRESUMPTION OF PREJUDICE BECAUSE THE JURY VOIR DIRE, ALTHOUGH REMEDIAL AND PROPH[Y]LACTIC, WAS UNABLE TO CURE THE INHERENT PREJUDICE ASSOCIATED WITH JUROR SIX AND THE JURY AS A WHOLE READING AND [HAVING] THE NEWSPAPER HEADLINE ENTITLE[D] ["]EX-FOOTBALL COACH" AND [CONTAINED A "FULL BLOWN" PICTURE OF DEFENDANT] IN HANDCUFFS DURING TRIAL.
PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL "BY SECURING PERJURED [TESTIMONY]" FROM 404B WITNESS (T.S.).
Defendant, forty-four years old at time of trial, had worked at the PAL for twenty-three years and had coached football and wrestling there from 1980 to 1993, and again in 1997. Between 1989 and 1994, the six boys played football or wrestled for the PAL where they were coached and befriended by defendant. In those years, mostly between 1991 and 1992, the boys were invited to stay overnight at defendant's home on numerous occasions, most of which preceded next-day scheduled sporting events. It was during these overnight stays that defendant sexual assaulted the boys, generally without the knowledge of the others. Defendant instructed the boys not to tell anyone about the assaults and bestowed gifts of cash and clothing upon them. It was not until 2001, when several of the boys read a newspaper article concerning an unrelated child sexual abuse case, that the boys spoke to each other about defendant's assaults and reported the incidents to the police. After defendant was arrested, he admitted that the boys had slept over at his home but denied sexually molesting them.
Defendant first challenges his convictions on Counts Two, Three, Twenty-Five, Twenty-Six, and Twenty-Eight. On Counts Two and Twenty-Five, defendant was charged with aggravated sexual assault under N.J.S.A. 2C:14-2a(2)(b), whereby the "actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status . . . ." On Counts Three and Twenty-Six, defendant was charged with aggravated sexual assault under N.J.S.A. 2C:14-2a(2)(c), whereby the "actor . . . stands in loco parentis within the household . . . ." On Count Twenty-Eight, defendant was charged with aggravated criminal sexual contact under N.J.S.A. 2C:14-3(a), which incorporates the elements of N.J.S.A. 2C:14-2a(2)(b) and (c).
Defendant argues that the trial court erred by failing to "instruct the jury on the elements to consider to determine whether defendant had supervisory or disciplinary power over the victim by virtue of defendant's legal, professional, or occupational status and whether defendant stood in loco parentis within the household," (underscoring added), citing State v. Buscham, 360 N.J. Super. 346, 360-62 (App. Div. 2003), and the model criminal jury charges for the offenses, as revised February 23, 2004. We disagree. We are satisfied that the trial judge correctly instructed the jury on the five charges.
The trial court instructed the jury in accordance with the then-applicable model criminal jury charges. On Counts Two and Twenty-Five, the jury was instructed that it could not convict defendant of first-degree aggravated sexual assault unless it found beyond a reasonable doubt that defendant had "supervisory and disciplinary power over the victim, by virtue of [his] legal, professional, or occupational status." For Counts Three and Twenty-Six, the jury was instructed that it could not convict defendant of first-degree aggravated sexual assault unless it found beyond a reasonable doubt that defendant stood in the place of the victim's parents. For Count Twenty-Eight, the jury was instructed that in order to convict, it had to find beyond a reasonable doubt that defendant had supervisory or disciplinary power over the victim, by virtue of his legal, professional, or occupational status, and/or defendant stood in the place of the victim's parents.
During the initial jury charge, the court did not elaborate on the meaning of "supervisory or disciplinary power over the victim by virtue of defendant's professional or occupational status" or "in place of parents"; only that they were elements the State was required to prove with respect to the charges for aggravated sexual assault and aggravated sexual contact. The jury asked a question about "supervisory versus in place of parents." The trial judge responded, "[t]hey don't give a definition of supervisory or disciplinary. You have to take the facts as you find them and apply it to that charge."
During deliberations, the jury asked for a definition of "supervisory/disciplinary power." The judge responded:
I [can] only give you what Webster's tells us because the law does not provide an exact definition. To supervise, according to Webster's New Collegiate Dictionary, means to superintend or oversee.[ ] Superintend means to have or exercise the charge and oversight of or to direct. See, therefore, supervisory power is the power or the authority to oversee, direct or exercise charge over.
Discipline, according to Webster's, means, A, to punish or penalize for the sake of discipline. B, to train or develop, by instruction and exercise, especially in self-control. C, to bring under control. So, again, disciplinary power is the power of authority to do those things.
The jury also indicated that it was "confused about how to distinguish between supervisory and parental (in place of parents)" and whether one standard was "higher" than the other. The trial judge responded with a definition of in loco parentis as follows: "According to Black's Law Dictionary it means in the place of a parent, instead of a parent, or charge factitiously with a parent's rights, duties and responsibilities." The jury was instructed to "[u]se a common sense application of those terms . . . and [not to] compare the standards in each . . . because they are separate crimes and they do have separate elements." In response to another jury question, the judge explained that in loco parentis was not "from the perspective of the child" but was a factor for the jury to determine.
Defendant did not object during the charge conference, or at the end of the jury charge. Nor did defendant object to the court's responses to any of the jury's questions. Because defendant raises this objection for the first time on appeal, we consider the issue under the plain error rule. R. 2:10-2. Under Rule 1:7-2, "a defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Thus, the court will reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.
"[C]lear and correct jury instructions are essential for a fair trial." State v. Koskovich, 168 N.J. 448, 507 (2001) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "The charge must be read as a whole in determining whether there was any error." Torres, supra, 183 N.J. at 564. Further, "[i]t is firmly established that '[w]hen a jury requests a clarification,' the trial court is 'obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)).
At the time of trial, there was "little reported authority in New Jersey on what constitute[d] 'supervisory or disciplinary power' for purposes of N.J.S.A. 2C:14-2." Buscham, supra, 360 N.J. Super. at 360. As the trial court noted, the model jury charge for N.J.S.A. 2C:14-2a(2) did not provide any guidance for instructing the jury on how to determine if the State had met its burden of proof on that element.
Defendant relies on Buscham as support for his argument that the instructions or responses to the jury's inquiries on this issue were inadequate. In Buscham, decided after the trial in this matter, the defendant was the owner and operator of a gymnastics business. Id. at 353. He was convicted of aggravated sexual assault on two of his students under N.J.S.A. 2C:14-2a(2)(b), whereby the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status. Ibid. After deciding that the defendant was entitled to a new trial based on the improper use of "fresh complaint" evidence, the court addressed the denial of defendant's motion for judgment of acquittal at the end of the State's case where defendant claimed that there was insufficient evidence to support his conviction on aggravated sexual assault.
We had "no quarrel with the general proposition that a coach can, indeed, be in a position to possess significant psychological or emotional power over a team member and that, in appropriate circumstances, a coach can be found to have supervisory or disciplinary power." Id. at 361. However, we were, troubled by the fact that although the jury was told it had to find that defendant did have supervisory or disciplinary power over [the victim] in order to find him guilty of aggravated sexual assault, it was given no guidance in resolving the question whether he did, indeed, have such power. [Ibid.]
To remedy that deficiency, we held that "[t]he jury should examine the entire context of the relationship" between the defendant and the victims, and "[o]n remand, the jury must be told what factors to consider, with particular reference to the evidence presented during the course of the trial." Id. at 362.
In 2004, adopting the factors suggested by Buscham, ibid., the model criminal jury charges were amended to include an instruction pertaining to the supervisory or ...