October 15, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEOFFREY WAWRO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-06-00495-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Lihotz and J. N. Harris.
Defendant was indicted by a Gloucester County Grand Jury charging him with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts one and two), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). A jury convicted defendant of only second-degree endangering the welfare of a child. The jury remained deadlocked over the charges in counts one and two, including the lesser-included offenses within each count. Ultimately, without objection, those charges were dismissed. Defendant was sentenced to seven years incarceration subject to Megan's Law, N.J.S.A. 2C:7-1 to -19, including community supervision for life.
On this appeal, defendant argues:
POINT I: THE DEFENSE WAS NOT PROVIDED THE RECORDS FROM THE DIVISION OF YOUTH AND FAMILY SERVICES UNTIL DECEMBER 4, 2008, FULLY TWO MONTHS AFTER THE RETURN OF THE JURY'S "VERDICT," THEREFORE DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHTS.
POINT II: THE TRIAL JUDGE IMPROPERLY ACCEPTED THE "VERDICT" WHEN IN FACT THE JURY WAS STILL AT AN IMPASSE AS TO ALL BUT ONE QUESTION ON THE JURY VERDICT SHEET.
POINT III: THERE WAS NO EVIDENCE THAT DEFENDANT HAD A LEGAL DUTY FOR THE CARE OF THE CHILD OR HAD ASSUMED RESPONSIBILITY FOR THE CARE OF THE CHILD, AND THEREFORE SHOULD NOT HAVE BEEN CONVICTED OF 2ND DEGREE CHILD ENDANGERMENT.
POINT IV: THERE WAS NO EVIDENCE PRESENTED TO THE JURY THAT DEFENDANT "KNEW" THAT SUCH CONDUCT WOULD IMPAIR OR DEBAUCH THE MORALS OF THE CHILD OR THAT SUCH CONDUCT WOULD CAUSE THE CHILD HARM THAT WOULD MAKE THE CHILD ABUSED OR NEGLECTED.
POINT V: THE JURY "VERDICT" WAS INCONSISTENT INSOFAR AS THE JURY COULD NOT REACH A VERDICT AS TO THE FIRST FOUR QUESTIONS BUT STILL FOUND THAT DEFENDANT ENDANGERED THE WELFARE OF THE VICTIM BY KNOWINGLY ENGAGING IN SEXUAL CONDUCT.
We reject these contentions and affirm the conviction.
We have cobbled together the facts to the best of our ability without the benefit of the full trial record. Indeed, we are missing important components of that record, including the direct examination of the victim; the testimony of Franklin Township Detective Crescitelli who interviewed the victim and her mother and presented a videographed statement of defendant to the jury; and the testimony of the State's expert witness, pediatrician Dr. Martin A. Finkel, D.O. In addition, we have never been provided with two files that were compiled by the New Jersey Division of Youth and Family Services that are the centerpiece of defendant's appeal. Nevertheless, from the limited materials that were provided by the parties we conclude that the following are facts that were presented to the jury, and upon which it reached its verdict.
Defendant lived in a trailer with his paramour and her daughter, K.D., for between two and four years. K.D., a ten-year old girl at the time, reportedly told a counselor with whom she was receiving therapy that she wanted to kill herself. After further inquiry, K.D. complained of being sexually assaulted by defendant. The counselor contacted DYFS, which in turn notified the Gloucester County Prosecutor's Office.
On September 22, 2006, K.D. and her mother met with Detectives Crescitelli and Josephine Mendez at the Gloucester County Prosecutor's Office. K.D. told investigators that defendant touched her breasts, put his hands underneath her clothing, and touched her vagina. K.D. also accused defendant of inserting his finger into her anus.
On October 12, 2006, defendant met with Detective Crescitelli at police headquarters. After advising defendant of his Miranda*fn1 rights, Detective Crescitelli informed him of the accusations against him. Defendant denied touching K.D. inappropriately or in a sexual manner, but explained he may have accidentally touched her "in a spot that wasn't right" while playfully "hors[ing] around." However, he admitted to watching pornographic movies and "there's one time I left the tape in [the VCR]." Defendant's statement then suggested that with regard to K.D.'s accusation of him inserting a finger into her anus, there was a "[g]ood possibility she got it off the movie."
The trial was concluded on October 1, 2008. Although DYFS records were supposedly requested -- perhaps even subpoenaed -- by the trial court well in advance of the trial at the request of the State and defendant, they were not produced by DYFS or utilized during the trial. We are told in defendant's brief that the DYFS files became available a few months after the jury returned its verdict. Apparently, the trial judge entered a protective order relating to those files on December 3, 2008, and the materials were made available to defendant's attorney on December 4, 2008. That protective order was not included in either defendant's or the State's appendices; other than the fact of its existence, we know nothing about it. Defendant asserts the proposition that
[t]he contents of these files are under a [p]rotective [o]rder signed by [the trial judge] on December 3rd and therefore are not included in [d]efendant/[a]ppellant's [a]ppendix. However, upon receipt of a [c]court [o]rder permitting the inclusion of these records in the record of the instant matter, counsel for [d]efendant will promptly provide same.
To date, we have not been provided with these materials, and there does not appear to have been a motion filed by either party to supplement the appellate record and impound the DYFS information. See R. 2:5-5(a); R. 1:38-11(a). We are totally unaware of what is contained in these data, whether the files are complete, whether anything contained therein is of evidentiary significance, and whether there is any relevance to any issue that has been raised in this appeal.
Defendant argues that he was deprived of unspecified "due process rights" by receiving the DYFS files over two months following the trial, albeit four months before sentencing. He vaguely asserts discovery violations of Rule 3:13-3, but does not explain exactly how the State was delinquent in its discovery obligations. Moreover, at no time in the Law Division did defendant object to not having the DYFS files. Moreover, defendant never made a motion -- although he had several months between the verdict and sentencing to do so -- for a new trial on the basis of newly-discovered evidence. Finally, defendant's failure to provide copies of the DYFS records to us makes appellate review of this issue nearly impossible.
In determining whether a due process violation has occurred with the suppression, destruction, or loss of evidence, the court considers three factors: (1) whether there was bad faith or connivance on the part of the government, (2) whether the evidence lost was sufficiently material to the defense and (3) whether defendant was prejudiced by the loss of the evidence. State v. Mustaro, 411 N.J. Super. 91, 103 (App. Div. 2009); State v. Greeley, 354 N.J. Super. 432, 437 (App. Div 2002), rev'd on other grounds, 178 N.J. 38 (2003). Here, nothing supports an assertion that evidence was hidden, lost, or withheld in bad faith. Defendant merely asserts that it was not available to him for use at trial.
Defendant's failure to object to the lack of the DYFS files during trial and after the verdict invokes the plain error principle: in such a circumstance the appellate court will not reverse on the ground of such error unless defendant shows that the error was "clearly capable of producing an unjust result."
R. 2:10-2. Such has not been demonstrated on this record. "[N]ot 'any' possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant next argues that the trial court improperly terminated jury deliberations when jurors announced a verdict on count three only, suggesting that the jury reached a compromise verdict because it was deadlocked on the other more serious and provocative charges. For obvious reasons, defendant did not object when the State later moved to dismiss those charges.
We fail to see any prejudice to defendant by the trial judge's exercise of discretion pursuant to Rule 3:19-1(a). It is entirely speculative that the jury improperly settled for a conviction on count three as a result of its failure to achieve unanimity on counts one and two. The jury was properly instructed about the law, it was polled upon receipt of the verdict, and most importantly, defendant objected neither to the process employed by the trial court nor the instructions the court gave to the jury when it was confronted with a possible hung jury.
In another argument, defendant claims that there was no evidence presented that he had a legal duty to care for or assumed responsibility for the care of the victim. Defendant contends he merely cohabited with the victim's mother and never exercised a regular supervisory or caretaker relationship. Defendant cites State v. Galloway, 133 N.J. 631, 661 (1993) in support of this claim. However, Galloway states:
[the] responsibility may be legal and formal or it may arise from informal arrangements. It may be based on a parental relationship, legal custody, or on less-structured relations; or it may arise from cohabitation with the child's parent. The actor, however, must have established a continuing or regular supervisory or caretaker relationship with the child. [Id. at 661.]
Galloway also establishes that any person living with the child at the time the offense was committed is considered a custodian.
"[T]he Legislature intended the crime of [second]-degree child endangerment to apply to a person who has 'assumed the care of a child' or is 'living with the child' or has a 'general right to exercise continuing control and authority over' the child." Id. at 659.
Defendant's statement to Detective Crescitelli indicated that he had lived with the victim for almost four years. He admitted to financially supporting K.D. and her mother and took a role in disciplining the child. Sufficient evidence existed for the jury to find that the State proved beyond a reasonable doubt that defendant assumed a caretaker relationship over the years he lived with the victim, within the meaning of N.J.S.A. 2C:24-4(a).
The balance of defendant's arguments -- one contending that the evidence was insufficient to demonstrate a knowing violation of N.J.S.A. 2C:24-4(a) and the other asserting the existence of an inconsistent verdict -- are wholly without merit and no discussion is warranted in a written opinion. R. 2:11-3(e)(2).