March 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY OGOE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1521.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2010
Before Judges Fuentes and Simonelli.
A grand jury indicted defendant Jeffrey Ogoe for second-degree sexual assault, N.J.S.A. 2C:14-2c(1) and/or N.J.S.A. 2C:14-2c(4) (count one); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count 3). The charges stemmed from defendant's sexual encounter with a fourteen-year-old female. The young woman testified at trial that she twice performed fellatio on defendant, that he put his hands down her pants and touched her "butt" and vagina, and that he pulled off her shirt and bit her breast. Defendant testified that at the time of the incident, he was twenty years old and he was aware that the victim was fourteen years old.
Defendant moved at the close of the State's case for a judgment of acquittal pursuant to Rule 3:18-1. The trial judge denied the motion, finding that the age of the victim and defendant had been established; coupled with the victim's testimony established a prima facie case.
A jury convicted defendant on counts two and three, and acquitted him on count one. At sentencing, the judge merged count three with count two and imposed a suspended sentence and parole supervision for life. The judge also imposed the appropriate penalties and assessments and ordered defendant to perform 250 hours of community service, comply with Megan's Law and have no contact with the victim.
On appeal, defendant raises the following contention:
Legal Argument Defendant is entitled to a fair trial in [as] much [as] the jury gave speculation in rendering inconsistent verdict[s] therefore counts two and three should be dismissed[.] (Not presented below)
Defendant argues that the inconsistencies within the verdicts are "irreconcilable and the jury should have adopted either the all or nothing belief in the testimony of the victim." We disagree.
There is nothing inherently wrong with inconsistent verdicts. State v. Grey, 147 N.J. 4, 10 (1996). Inconsistent verdicts are accepted in our criminal justice system. Ibid. A claim of inconsistent verdict alone will not suffice to invalidate a conviction unless there were other defects in the trial proceeding. State v. Banko, 182 N.J. 44, 55 (2004). Defendant does not claim any trial defects. Thus, "[t]he only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted." Id. at 56.
Each count in an indictment is treated as a separate offense. Id. at 53. Here, defendant was charged with sexual contact.
An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c(1) through (4). [N.J.S.A. 2C:14-3b.]
Sexual contact is criminalized in circumstances where "[t]he victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim." N.J.S.A. 2C:14-2c(4); N.J.S.A. 2C:14-3b. "Sexual contact" is defined as
[A]n intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present[.] [N.J.S.A. 2C:14-1(d).]
Thus, to prove defendant guilty of sexual contact, the State must prove beyond a reasonable doubt that: (1) defendant committed an act of sexual contact with another person; and (2) the victim is at least 13 but less than 16 and the defendant is at least four years older than the victim. See Model Jury Charge (Criminal), "Criminal Sexual Contact" (March 2008).
Defendant was also charged with endangering the welfare of a child.
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child . . . is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree. [N.J.S.A. 2C:24-4a.]
Although the statute does not define "sexual conduct," sexual contact, as it is used in Chapter 14, is clearly included. See State v. Perez, 349 N.J. Super. 145, 153 (App. Div., 2002), rev'd on other grounds, 177 N.J. 540 (2003).
Thus, to prove defendant guilty of endangering the welfare of a child, the State must prove beyond a reasonable doubt that:
(1) the victim was a child; (2) defendant knowingly engaged in sexual conduct with the victim; and (3) defendant knew that such conduct would impair or debauch the morals of the victim. See Model Jury Charge (Criminal) "Endangering the Welfare of a Child," Third Degree (November 2003).
The record reveals sufficient evidence to support each of defendant's convictions. As to the criminal sexual contact conviction, the State established that the victim was fourteen years old, that defendant was twenty years old and that defendant knew the victim's age. Even if the jury did not believe that the victim performed fellatio on defendant or that defendant touched the victim's buttocks and vagina, it was reasonable for the jury to believe that defendant bit the victim's breast. Contrary to defendant's argument, the jury was not required to adopt an "all or nothing" belief in the victim's testimony. See Model Jury Charge (Criminal), "Criminal Final Charge - Credibility of Witnesses" (February 2003) ("[T]hrough this analysis, as the judges of the facts, you weigh the testimony of each witness and then determine the weight to give to it. Through that process you may accept all of it, a portion of it or none of it.") (emphasis added); See also State v. Brown, 118 N.J. 595, 618 (the truthfulness of and weight to give to a witness' testimony are for the jury to determine; the jury may believe some, all or none of the testimony). We are satisfied that the State presented sufficient evidence to support each of the elements of criminal sexual contact.
As to the endangering the welfare of a child conviction, the State presented sufficient evidence to establish that the victim was a child, that defendant knowingly engaged in sexual conduct with her by pulling down her shirt and biting her breast, and that defendant's knowledge that sexual conduct with the victim would impair or debauch her morals could be inferred from his testimony.
The fact that the jury verdicts are inconsistent is not dispositive; sufficient evidence was adduced to support defendant's convictions. Banko, supra, 182 N.J. at 54-55. Accordingly, defendant's claim that the verdicts are inconsistent is insufficient to invalidate his convictions. Id. at 55.
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