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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...