May 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-07-1374-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2007
Before Judges Lintner and S.L. Reisner.
Defendant E.M.*fn1 appeals from his conviction for second-degree sexual assault, N.J.S.A. 2C:14-2c(4); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and two counts of third-degree endangering the welfare of a child liability for conduct of another, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:2-6. He also appeals from his sentence of eight years in prison.*fn2
These are the most pertinent facts that emerged from the trial testimony. Following a hearing under N.J.R.E. 104, a school guidance counselor was permitted to testify to a fresh complaint made to her by P.B. The counselor testified very briefly that a student, P.B., came into her office crying and upset and told the counselor that she had been sexually assaulted the past weekend. The counselor brought P.B. to speak with a police officer assigned to the school.
Detective Kot, from the county sex assault victim assistance (SAVA) unit, testified that the police investigation focused on defendant E.M. and a co-defendant, M.G. According to Kot, after waiving his Miranda*fn3 rights, E.M. gave police a statement in which he admitted that he and M.G. invited two teenage sisters out to the movies. However, instead of going to the movies, the group wound up drinking alcohol in M.G.'s car and going to a motel room. E.M. told police that while in the car he saw the two sisters, C.M. and P.B., "kissing each other and doing stuff with each other but he told them to stop." E.M. admitted that he rented the motel room for the group. He admitted sitting on a bed with P.B. and "touch[ing] her waist with his hands. That's all." Kot's testimony also established that E.M. was born in 1975 and thus he was twenty-eight years old at the time of the incident in 2003.
In speaking with E.M., the police also learned that the other adult involved in the incident was M.G., who happened to be one of Kot's co-workers in the SAVA unit. She also testified that M.G.'s step-father was an assistant prosecutor who later became her supervisor. According to Kot and Detective Wagner, the Attorney General's Office participated with Wagner, a SAVA investigator, in interviewing M.G., after which the Attorney General took over the handling of the matter, because of the conflict of interest situation. Wagner was cross-examined at length concerning the propriety of the interview of M.G.
According to R.M., the father of one of the victims and the step-father of the other, E.M. was his co-worker and a family friend. On the night of the incident, E.M. called and "told me that he was taking my kids to the movies." R.M. later learned of his daughter and step-daughter's complaint to the police. R.M. admitted that he discussed with the prosecutor the proposed plea bargain with M.G., and was told that "it was a very weak case against [M.G.]" and a plea deal was needed to obtain his testimony against E.M. The prosecutor did not tell him that M.G. was accused of having one of the girls perform fellatio on him. The point of the cross-examination was to demonstrate that the prosecution extended undue favorable treatment to M.G., because of employment and family connections, and that a concerted attempt was made to give M.G. a lenient plea bargain and to place blame on E.M.
Following another N.J.R.E. 104 hearing, P.B.'s older sister, C.B., was permitted to testify briefly to fresh complaint evidence. She testified that on the morning after the alleged incident, P.B., who appeared to be on the verge of tears, told C.B. that she went out the night before with E.M. and that something of a sexual nature had happened between them.
After C.B. testified, the judge advised the jury to bear in mind that the guidance counselor and C.B. had testified as to what P.B. told them but that this testimony was admitted "for a limited purpose" that would be discussed with them in more detail later in the case.
The State also presented testimony from the manager of the Westview Motel, who testified that all customers who register at the motel must show identification. She testified that E.M. signed a registration card when he rented a motel room on November 15, 2003, at 12:41 a.m. She identified his passport number on the card and testified that it was the same number as that listed on a copy of E.M.'s passport that she was shown at trial.
P.B., who was born on August 20, 1988, and thus was fifteen in November 2003, testified that E.M. had been her father's best friend. According to P.B., on the night of November 14, 2003, she somewhat reluctantly agreed to go out drinking with her step-sister C.M., E.M. and M.G. The girls told their mother they were going to the movies. E.M. and M.G. came to the girls' house and picked up the girls in M.G.'s car. After stopping at a gas station, they drove to a liquor store where E.M. bought some Black Label scotch, which he gave to the girls to drink. They parked outside a movie theatre while C.M. and E.M. checked which movies were playing. After that the foursome drove toward a pool hall. Along the way, as the girls were drinking, E.M. and M.G. "gave us the idea of sort of pleasuring each other, [C.M.] and I." The witness elaborated that by "pleasuring each other" she meant "kissing, fingering me with penetration in the vagina and so on." She testified that she was reluctant at first but then "gave in" and she and C.M. started kissing while E.M. watched. He continued to watch while C.M. pulled down P.B.'s pants and "stuck her finger inside my vagina."
According to P.B., when they arrived at the parking lot of the pool hall, C.M. kissed M.G. and performed fellatio on him. The group were "a little drunk" and drove to the Westview Motel to lie down and "sober up" before going home. E.M. rented the room. In the motel room she observed M.G. and C.M lying on one bed kissing. E.M. came over to the other bed where P.B. was lying watching television and started asking about her sexual activities with C.M. in the car and whether "he could demonstrate it." She explained that E.M. "was basically asking if he could stick his finger in my vagina." P.B. said yes and he penetrated her with his finger. After a minute she told E.M. to stop. He complied, saying that "he was a bad guy and that he shouldn't have done that and that it was all a mistake basically." At this point, P.B. asked to go home. The next morning she felt bad about the incident and talked to her sister C.B. about it. In school, she told two of her best friends about the incident and then told the guidance counselor.
On cross-examination, P.B. admitted that the morning after the incident, she talked with C.M. about what had happened the night before. She admitted she did not recall "[c]omplete details" of what happened but she did recall "the main parts." On cross-examination she admitted that she did not recall hearing E.M. telling the girls to "do stuff" to each other; rather the next morning C.M. told her that E.M. and M.G. "said that they wanted us to do the stuff." She testified that she and C.M. tried to refresh each other's recollection the next morning as to what had happened the night before. She agreed that E.M. was not in the car when C.M. performed fellatio on M.G. and that E.M. had nothing to do with that episode. E.M. was definitely in the car and watching them when the girls were engaging in sexual activity with each other.
C.M. also testified. She was born on August 27, 1989, and thus was fourteen in November 2003. She had known E.M. "[e]ver since I can remember." She testified that on the night of November 14, 2003, she and E.M. had made plans to see the movie Gothica. E.M. and M.G. arrived to pick up C.M. and P.B. When they got in the car they found that E.M. had already bought little bottles of Black Label whiskey, which he gave to the girls. After they drank the small bottles, E.M. purchased a large bottle of Black Label at a liquor store. He offered this bottle to the girls also. She testified that when they arrived at the movie theatre the movie was not playing at a convenient time, so they left to go to a pool hall.
According to C.M., after they drove away from the pool hall, one of the men "said something like do something with your sister." C.M. asked P.B. if she could kiss her. Defendant was driving but both he and M.G. "kept on looking to the back" watching the girls. She testified that after that she put her finger in P.B.'s vagina, while E.M. kept turning around and watching. E.M. then suggested that they go to a motel. While they were in the car waiting for E.M. to rent the room, C.M. had oral sex with M.G. In the motel, each couple lay down on one of the beds; C.M. saw E.M. on the other bed kissing P.B. The men then took the girls home. On cross-examination she admitted she did not see E.M. penetrate P.B. with his finger but she knew "it happened because she told me." She also admitted she did not know which of the men told the girls to "do something" to each other.
M.G. was the State's final witness. He was twenty-seven in November 2003. He testified that he signed a plea agreement in which he pled guilty to endangerment of a minor, with a recommended sentence of five to ten years, in return for his truthful testimony against E.M. He testified that it was E.M.'s idea to call the girls and ask them to hang out and go to a movie. Before picking up the girls they went to a liquor store where E.M. bought several small bottles of Black Label because that was what the girls liked. He testified that E.M. gave the girls the liquor. When that was gone, E.M. stopped at a liquor store and bought another bottle.
M.G.'s testimony was consistent with that of the girls, that the four of them decided not to attend the movie but instead drove somewhere to park and drink. According to M.G., while they were parked, E.M. told the girls "why don't you . . . fool around, mess around." The girls started kissing each other, and E.M. "said why don't you play with each other." As both men watched, C.M. put her hands inside P.B.'s pants and touched her vaginal area. E.M. then suggested that they go to a motel. E.M. paid for the motel room. M.G. testified, consistent with C.M.'s testimony, that she spontaneously approached him in the front seat and began performing oral sex. When E.M. returned to the car the four of them went to the motel room. M.G. testified that he saw E.M. "manually penetrating [P.B.]." After "about twenty minutes" P.B. said she wanted to go home, and they took the girls home.
On cross-examination, M.G. admitted that he pled guilty to third-degree child endangerment by giving the girls alcohol, as opposed to pleading guilty to a sex crime. He conceded that this was "a great deal" because he would not have to register under Megan's Law and could conceivably avoid jail altogether since a third-degree offense carries with it a presumption of non-incarceration. He admitted that he expected to be sentenced to probation. He was also questioned in detail about his step-father's possible influence in the criminal justice system. After being confronted with assorted contradictions between his trial testimony and his plea allocution, M.G. admitted that he "would lie to get that deal." On redirect he clarified that the plea agreement allowed the prosecutor to "speak up to four years."
On this appeal, defendant raises the following contentions:
POINT I: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS.
POINT II: THE TRIAL COURT'S FAILURE TO DEFINE THE TERM "ABUSED" IN ITS JURY INSTRUCTIONS ON COUNT THREE, AND ITS INCLUSION OF THE TERM "NEGLECTED" IN THE INSTRUCTIONS ON COUNTS THREE AND FOUR CONSTITUTED REVERSIBLE ERROR.
POINT III: THE ADMISSION OF THE DUPLICATIVE "FRESH COMPLAINT" TESTIMONY CONSTITUTED REVERSIBLE ERROR.
POINT IV: THE PROSECUTION OF DEFENDANT WAS GROSSLY UNFAIR AND VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER THE 14TH AMENDMENT TO THE FEDERAL CONSTITUTION AND N.J. CONST. ART. I ¶ 1 AND 5. THE RESULTING SENTENCES WERE DISPARATE AND MANIFESTLY EXCESSIVE.
Having thoroughly reviewed the record, we conclude that defendant's point one is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments. There was sufficient evidence of E.M.'s identity as the perpetrator even if the victims did not specifically identify him as the person sitting in court. The defense conceded his presence at the scene. The issue was whether he committed the offenses charged. Moreover, there was ample evidence to support defendant's conviction for encouraging the girls to engage in sexual activity with each other and for digitally penetrating P.B. Defendant's motion for a judgment of acquittal was properly denied. See R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967). Bearing in mind that it is the jury's function to judge the credibility of the witnesses, we also find no basis in this record to conclude that the conviction was against the weight of the evidence. See R. 3:20-1; R. 2:10-1; State v. Perez, 177 N.J. 540, 555 (2003).
We next address defendant's objections to the jury charge. Since these issues were not raised at the trial, we will not disturb the verdict unless any errors in the charge constituted plain error. R. 1:7-2; R. 2:10-2. Put another way, we will not reverse the conviction unless "'the error possessed a clear capacity to bring about an unjust result.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970); State v. Macon, 57 N.J. 325, 337-38 (1971).
Defendant contends the trial court erred by including the term "neglected" in portions of the charge concerning whether the children were "abused or neglected" and by omitting the definition of "abused" in discussing count three. Defendant admits the judge defined "abused" in charging the jury as to count four.
During the jury charge, the judge instructed the jury as to count three, endangering the welfare of a child, "that is the said [E.M.] and [M.G.] did encourage [P.B.] and [C.M.] to engage in sexual conduct with each other while the said [E.M.] and [M.G.] watched." The judge then defined N.J.S.A. 2C:24-4a as applying to "[a]ny person who engages in sexual conduct which would impair or debauch the morals of a child or who causes the child harm that would make the child an abused or neglected child is guilty of a crime." He defined the offense as requiring the State to prove that the victims were children, that defendant "knowingly" caused the two girls "harm that would make the children abused or neglected" and "that defendant knew that such conduct would impair or debauch the morals of [P.B. and C.M]." Although the judge defined the requisite sexual conduct as that "which tends to corrupt, mar or spoil the morals of a child," he did not define "abused or neglected" in this section of the charge.
However, in charging the jury as to the fourth count concerning plying the girls with liquor, which the judge explained also charged a violation of N.J.S.A. 2C:24-4a, the judge did define the term "abuse" as follows:
Abuse of a child may consist of (1) the performing of any indecent, immoral or unlawful act or deed in the presence of a child that would tend to debauch or endanger or degrade the morals of a child; or (2) permitting or allowing any other person to perform any indecent, immoral or unlawful act in the presence of the child that would tend to debauch or endanger the morals of a child.
Having reviewed the record we conclude that it was error to include the term "neglected" in the charge since all parties agreed that was not relevant to the charges against defendant. However, we perceive no possibility that inclusion of this term could have confused the jurors or otherwise affected the verdict. Moreover, since the judge defined the term "abused" in instructing the jury as to count four, which charged a violation of the same statute as count three, we perceive no likelihood on this factual record that the jurors might have been uncertain of the term's definition when they considered count three.
More to the point, this was not a case where the evidence on count three was ambiguous with respect to "abuse." The issue on count three was whether defendant encouraged the two minors to engage in sexual acts with each other. According to defendant's confession, the girls did engage in sexual acts with each other; he claimed he told them to stop. In fact, in his opening statement, defense counsel told the jury that the girls engaged in sexual conduct with each other. The crucial issue, for purposes of N.J.S.A. 2C:24-4a, was not whether the girls were "abused" in some vaguely-defined fashion. The critical issue in this case was whether defendant encouraged the girls to engage in sexual acts with each other. Defendant has offered no cogent explanation as to how the absence of the definition might have confused the jury. We find no possibility of jury confusion and no reversible error in the charges on counts three or four.
We find no error in the admission of the fresh complaint testimony of the guidance counselor and the girls' older sister.
Their testimony was extremely brief and general and the trial judge correctly instructed the jury as to its proper and limited use. We perceive no possibility that this testimony might have unduly prejudiced or confused the jury as to the quantum of the State's evidence. See State v. Hill, 121 N.J. 150, 169-70 (1990).
Having failed to move to dismiss the indictment, defendant may not claim selective prosecution on this appeal based on M.G.'s connection to the county prosecutor's office. See R. 3:10-2(c). However, even if we consider this issue, defendant's contention finds no support in this record where the indictment and trial were handled by the Attorney General. We find no abuse of discretion or other error in the sentence. R. 2:11-3 (e)(2). Defendant, a trusted family friend of the children and their father, took a fourteen-year-old and a fifteen-year-old out driving, plied them with liquor, encouraged them to commit sexual acts with each other, and then digitally penetrated one of the girls. The sentence was deserved.