On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2285.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
On August 30 and 31 and September 2 and 7, 2004, defendant Edward C. Kuhn had a series of Internet and phone conversations with investigators from the Atlantic County Prosecutor's Office who represented themselves as "Mandi," a thirteen-year-old girl. They eventually arranged to meet at a bowling alley on September 8, and defendant was arrested after he arrived and called the bowling alley phone to reach Mandi.
The grand jurors for Atlantic County charged defendant with fourteen attempts to commit crimes that prohibit conduct with children who are thirteen years old, N.J.S.A. 2C:5-1: five counts of second-degree attempted luring based on his conduct on August 30 and 31 and September 2 and 7, N.J.S.A. 2C:13-6 (counts one, five, nine, ten and eleven); three counts of third-degree attempted endangering based on his conduct on August 30 and 31 and September 8, N.J.S.A. 2C:24-4 (counts two, six and fourteen); three counts of attempted second-degree sexual assault by penetration based on his conduct on August 30 and 31 and September 8, N.J.S.A. 2C:14-2c (counts three, seven and twelve); and three counts of fourth-degree attempted criminal sexual contact based on his conduct on August 30 and 31 and September 8, N.J.S.A. 2C:14-3b (counts four, eight and thirteen). Defendant was tried to a jury and convicted on every count.
The judge merged defendant's convictions for attempted criminal sexual contact and endangering with his convictions for attempted luring on the same date. Thus, the judge imposed sentences for eight second-degree crimes. Defendant's aggregate sentence is a term of imprisonment for fourteen years. With the exception of a consecutive seven-year term of incarceration imposed for the act of attempted sexual assault on September 8, the sentences are concurrent with the seven-year term imposed for the act of luring on August 30. The judgment of conviction includes defendant's obligation to comply with Megan's Law and pay fines, penalties, assessments and fees and forfeit his computer.
All of the crimes were charged as attempted crimes because Mandi is fictional and the investigators are adults. The crimes committed on September 7 and 8 were attempts for an additional reason; although defendant took steps to complete "a course of conduct planned to culminate in . . . the crime[s]," he had not committed all of the acts that "would constitute the crime."
N.J.S.A. 2C:5-1a(1), (3).
Because the judge did not instruct the jurors on the State's obligation to prove defendant's steps toward commission of the crimes on September 7 and 8 were "substantial" and "strongly corroborative of [defendant's] criminal purpose[s]," N.J.S.A. 2C:5-1a(3) and b, we reverse his convictions on counts ten through fourteen. Finding no other error warranting reversal, we affirm the remaining convictions.
On August 30, 2004, Investigator Thomas Finan of the Atlantic County Prosecutor's Office was working in the Computer Crimes Unit, Child Predator Program. In that role, he portrayed himself as a child using the Internet. He had created an online profile for Mandi, which included a picture of a female investigator that was taken when she was ten years old and had long hair. Mandi's screen name was "sojerzeygrl1991," which Finan intended to suggest a child born that year. In the space designated for hobbies, Mandi wrote, "Boys, Boys, and what else? . . . oh Boyz!"
On August 30, Mandi entered a "chat room" known as "Romance, Regional, New Jersey." Mandi did not contact anyone in the chat room. Defendant, using his screen name "watchmestrokin2003," sent Mandi a message. It said, "hey." Mandi replied saying nothing but "hey." Defendant complimented Mandi's picture and identified himself as Ed. In the exchanges that followed during that session, Mandi disclosed that she lived with her father, who was not home. In response to defendant's questions, she said she was thirteen and had shoulder-length hair. Defendant told Mandi he would love to brush her hair and asked if he could come to her room and brush it. When she said not now, defendant asked when he could, questioned her about her father's work hours and whether she wore a uniform with a skirt when she went to school.
Defendant moved to the present, inquired about what Mandi was wearing at the moment and gave her graphic, step-by-step instructions that ended with an instruction to digitally penetrate herself. As defendant gave instructions, he inquired as to whether Mandi was complying. Next, defendant used a web camera to send Mandi a live feed of himself masturbating.
On August 31, there was a second session. Defendant asked Mandi to call him, and another investigator, posing as Mandi, placed the call. Mandi mentioned her age again, and defendant, transmitting a live feed from his web camera to Mandi, repeated the performance he had given the day before.
Thereafter, they returned to instant messaging and defendant repeated the graphic instructions he had given Mandi the day before. He also asked Mandi to meet him the next day. When she said she could not meet in the morning because she had cheerleading practice, he said he would pick her up after practice and take her to lunch. He described his car and the bandana he would be wearing.
Mandi did not meet defendant the next day. That afternoon defendant sent her a message inquiring about where she was, but Mandi did not respond. On the same day, the investigators learned defendant's identity from his cell phone carrier and the type of car registered in his name from the Division of Motor Vehicles.
On the morning of September 2, Mandi sent defendant a message apologizing for not responding to his message of September 1. She sent a second message that night, and they conversed by instant messaging. Defendant discussed the possibility of meeting the next day, but Mandi declined because of her schedule and the fact that she was getting ready to move to her mother's house. Defendant directed Mandi to remove her clothing, but she declined. She told defendant she would have more freedom when she moved to her mother's home. They talked about meeting on September 7.
On September 3, Mandi responded to a message defendant sent. Throughout that day, however, Mandi made excuses to end the on-line conversations and avoid ...