On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-03-0039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant was indicted on three counts of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14- 2(c)(4); and third-degree luring, enticing a child, N.J.S.A. 2C:13-6. The charges stemmed from graphically sexual conversations defendant had on the Internet with a person he believed to be a boy between the ages of thirteen and sixteen. In these conversations defendant told the boy how to penetrate himself anally; he also attempted to make arrangements to meet the boy at a motel for the purpose of having sexual relations. The "boy" was an undercover investigator with the Division of Criminal Justice.
On December 16, 2004, defendant pled guilty to one count of attempted sexual assault downgraded to third-degree. On July 15, 2005, defendant was sentenced to a term of three years imprisonment; two-and-a-half years were suspended and defendant was ordered to serve six months at the Adult Diagnostic and Treatment Center at Avenel. The State appealed defendant's sentence and in an order entered on December 14, 2005, we remanded for resentencing. State v. Champagne, No. A-6166-04 (App. Div. December 14, 2005).
On August 11, 2006, defendant filed a motion to dismiss the indictment.*fn1 He contended that "a person [cannot] purposely attempt to commit the strict liability crime of sexual assault of a child between the ages of [thirteen] and [sixteen] when no child was actually involved[.]" After requesting briefs and hearing oral argument, the judge issued a written decision on February 20, 2007, denying defendant's motion.
Relying upon two unpublished opinions cited by the State*fn2 the judge "reject[ed] defendant's arguments to dismiss on the grounds of impossibility and ineffectual attempt." The judge concluded: Although . . . defendant here did not arrange an actual meeting with a fictitious fourteen[-]year-old boy, sufficient evidence has been presented to the grand jury that it was his intent to do so and that he had taken a substantial step in a course of conduct designed to culminate in the commission of the crime. Here, . . . defendant pursued what he believed to be a fourteen[-]year-old boy on the [I]nternet. He engaged in explicit sexual conversation with him, he instructed the fictitious fourteen[-]year-old to masturbate, and he made inquiry concerning motel rooms in Lawrenceville . . . . A jury could well conclude that it was his intent to sexually assault a fourteen[-]year-old boy. The court finds no basis to dismiss the indictment on the ground of insufficient proofs to constitute an attempt.*fn3
On April 30, 2007, defendant pled guilty to one count of second-degree attempted sexual assault, which was to be treated as a third-degree offense for sentencing purposes. Defendant admitted that "on the Internet . . . [he] talk[ed] to [a] person" whom he believed was "at least [thirteen] years old, but less than [sixteen] years old[,]" and "requested him to penetrate himself with his fingers." On July 13, 2007, defendant was sentenced to a term of three years imprisonment, parole supervision for life and registration pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23.
On appeal, defendant raises the following contentions for our consideration: POINT ONE THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.
POINT TWO IN THE ALTERNATIVE, DEFENDANT'S FACTUAL BASIS DID NOT ESTABLISH THE CRIME OF ATTEMPTED SEXUAL ASSAULT. A. Defendant's Conduct Did Not Constitute A Substantial Step Toward The Commission Of Sexual Assault. B. The "Impossibility" Theory Of Attempt Does Not Apply In This Case. During the pendency of defendant's appeal, we issued an opinion in State v. Kuhn, 415 N.J. Super. 89 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), which is factually analogous to this case. There, the defendant had several sexually oriented conversations over the Internet with an individual he believed to be a thirteen-year-old girl named "Mandi," but who was really an investigator from the Atlantic County Prosecutor's Office. Id. at 91. The defendant also arranged to meet "Mandi" at a specified location for the purpose of engaging in sexual activity. Ibid. A jury convicted the defendant of "fourteen attempts to commit crimes that prohibit conduct with children who are thirteen years old," id. at 92, including second-degree attempted sexual assault, the same offense to which defendant pled guilty in this case.
We rejected the defendant's contention that he could not "be guilty of these attempts because Mandi was not a child of the requisite age[,]" id. at 98-99, holding: The law governing the question raised by defendant in [this p]oint . . . is settled. "[W]hen the consequences sought by a defendant are forbidden by law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him." . . . . . . . . . . If a person whom the defendant believes to be a child is an adult, then the defendant's subjective belief that the victim is a child suffices to impose liability for attempt . . . . [Id. at 96-97 (citation omitted).]
Here, defendant acknowledges that Kuhn "decided" the issue he raises in this appeal. He contends, however, "that the Kuhn decision was erroneous" and urges us "not to follow it." The gravamen of his contention is that "sexual assault is a strict liability offense with respect to the victim's age." Therefore, "whether or not 'it was the defendant's purpose to engage in the conduct with a person that age' is not relevant to the question of whether defendant is guilty of an attempt to commit sexual assault of a child." We disagree. The only authority defendant cites in support of this argument is a portion of the Model Jury Charge for N.J.S.A. 2C:14-2(c)(4), which provides that the State must prove . . . beyond a reasonable doubt . . . that at the time of the penetration [the victim] was at least thirteen years ...