January 12, 2009
STATE OF NEW JERSEY, IN THE INTEREST OF B.J.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-2392-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges C.L. Miniman and King.
Appellant was charged with delinquency because of his conduct during an incident that, if committed by an adult, would violate N.J.S.A. 2C:14-3(b), a crime of the fourth degree. The judge concluded that the juvenile used physical force or coercion contrary to N.J.S.A. 2C:14-2(c)(1), but insufficient to cause the victim serious physical injury. Appellant essentially argues that the verdict was against the weight of the evidence, which was insufficient to sustain the verdict. The judge imposed a disposition of eighteen-months probation and Megan's Law obligations.
Judge Morley's findings were precise, clear and unequivocal. He said:
So, the bottom line is I find no reason to discount the testimony of [M.D.]. I find it credible. I had an opportunity to observe her here. [T]here were times when she admitted she didn't remember things. She appeared to be a credible witness. She admitted to a lot of things that . . . certainly she might not want to be eager to admit to, even to . . . ingesting the alcohol and the marijuana that [M.M.] totally incredibly denies knowing anything about.
Now the issue of the . . . element of sexual gratification is raised by . . . the juvenile, the issue of whether intent to sexually gratify has been met. As I read the cases that are cited in the comments to the criminal code it is true that one cannot infer an intent to sexually gratify oneself merely from a touching with nothing else, a touching that . . . might have been accidental. Touching, as in one of the cases, where it was alleged that the touching was motivated by curiosity, in this case there's no confusion about this touching. It was no[t] accidental. One does not accidentally find his hand down someone else's pants, certainly doesn't find it down there accidentally a second time after . . . having been rebuffed. And there is no credible suggestion in the evidence that there was any other purpose.
A young man putting his hands down the pants of a young woman and touching her vagina under these circumstances could only have intended for self-sexual arousal or sexual gratification. Whether . . . either of those was achieved is not . . . the issue.
[W]hat matters is that it was his intent, and I find by beyond a reasonable doubt that that was his . . . intent in this case.
[B]y beyond a reasonable doubt I find that this juvenile did touch [M.D.]'s vagina. He did it for the purpose of self-gratification or self-sexual arousal, that he did it with the use of force. He did it roughly. He jammed his hand down her pants, the pants that were buckled and buttoned. He did it once. He was rebuffed. He came back and he did it again. Therefore, I find that there was force used beyond a reasonable doubt.
For all of those reasons, I conclude that the juvenile did, on the date at issue, commit an act which if committed by an adult would constitute criminal sexual contact and, therefore, is adjudged delinquent.
This amply satisfied the judge's duty under Rule 1:7-4 to make adequate findings of facts and conclusion of law. See State v. Locurto, 157 N.J. 463, 474-75 (1999). We affirm for the reasons given by Judge Morley in his oral opinion of November 29, 2005.
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