On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-01-0035.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Lihotz.
Following a mistrial, defendant Jonathan Hutchinson was convicted of three counts of endangering the welfare of a child.*fn1
The trial court denied defendant's motions for judgment of acquittal n.o.v. and a new trial. The court sentenced defendant to three concurrent five-year terms, Megan's Law conditions, N.J.S.A. 2C:7-1 to -11 and N.J.S.A. 2C:47-5, parole supervision for life, N.J.S.A. 2C:43-6.3(a) and the requisite fines.
Defendant appeals his convictions, raising the following points of argument for our consideration:
POINT I: THE JURY VERDICTS IN THIS CASE WERE IRRATIONALLY INCONSISTENT CONSTITUTING A LOGICAL IMPOSSIBILITY. THE FAILURE OF THE STATE TO INDICT THE DEFENDANT ON THE SECOND PRONG OF THE ENDANGERING STATUTE AND THE COURT'S FAILURE TO CHARGE THE JURY ON THE ALTERNATIVE THEORY OF CULPABILITY RESULTED IN AN UNJUST VERDICT. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICTS.
POINT II: THE PROSECUTOR'S COMMENTS THROUGHOUT THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL. (Partially Raised Below.)
POINT III: VARIOUS COMMENTS BY THE STATE'S EXPERT WITNESS, DR. PRESSMAN, DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below.)
POINT IV: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20-1. THE COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON COUNT FOURTEEN PURSUANT TO R. 3:18-1 & -2. (Partially Raised Below.)
POINT V: THE TRIAL COURT'S ACTIONS WITH REGARD TO THE JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Partially Raised Below.)
A. FURTHER JURY DELIBERATIONS CHARGE ISSUE.
B. SPECIFIC INTERROGATORIES.
POINT VI: THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S PRE-TRIAL MOTIONS CONCERNING STATEMENTS WHEN IN CUSTODY AND THE TAINT HEARING ISSUE.
A. THE DEFENDANT'S CUSTODIAL STATEMENTS.
POINT VII: THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.
We have carefully considered defendant's arguments, and we are convinced that none of the issues raised constitutes reversible error. We affirm.
The record reveals the following facts. In 2001, T.D. lived in defendant's house with defendant, her boyfriend, and her two daughters, C.D. and M.D. and her son, D.D. T.D. worked the night shift, so defendant would awaken the children for school and give them breakfast when he worked the day shift.
In January 2001, the oldest daughter, C.D., awoke to find defendant in her bed with his finger inside her vagina. She immediately told him to stop and threatened to tell her mother. Defendant, who was clothed, "started apologizing and telling [C.D.] that he would go to jail and lose his job and [her] mom would cry," if C.D. told. C.D. did not tell her mother what had happened. Two or three months later, C.D. awoke to find defendant again in her bed. She told defendant that she "didn't want him next to [her]" and defendant responded he was waking her up for school. It was around 1:00 a.m. He left and she fell asleep. Later that same night, C.D. awoke to find defendant touching her vagina with his penis. Defendant proposed vaginal intercourse with C.D., which she refused. "[H]e started apologizing again," and said, "I don't know what's wrong with me." C.D. still did not tell anyone about these incidents, because she "was scared and . . . wanted to go out . . . to preach [her] religion" as a Jehovah's Witness, instead of staying home.
Around November 2001, C.D. awoke to find defendant again in her bed. Defendant's penis was touching her and he was touching her chest. Both defendant and C.D. were clothed. Again, she threatened to tell her mother, and "he just kept apologizing like the other times" and "seemed very scared."
C.D. testified at trial that there were other times when defendant would "lay down and . . . start feeling on [her]," but she could not recall when or what had transpired, and she admittedly never told anyone about them. She "was too scared" to tell anyone. On cross-examination, C.D. testified that defendant sometimes "tickle[d]" her high up on her thigh and close to her vagina, maybe ten times, but she never told anyone, except the prosecutor and the jury.
Although she could not recall exactly when, C.D. told her mother about defendant's actions sometime between the first and last incidents. According to T.D., C.D. told her in 2001 that defendant "was touching on her inappropriately, that he was touching on her vagina." T.D. immediately took her children to her sister's house and returned to confront defendant. They talked for "a few hours," and defendant said that he was sorry, was sick, and needed help, but he never said he had been unaware of what he was doing or that he was sleepwalking. T.D. did not ask defendant about any details and did not contact the police. She returned to defendant's house with the children that same day.
Thereafter, defendant continued to care for the children as before and T.D. was satisfied with their interactions. C.D.'s complaints stopped. However, in March 2002, C.D. told T.D. that defendant "was touching on her again." T.D. immediately took her children and moved in with her aunt and uncle. Her uncle, who was an Elder in her church, urged her to go to the police. Eventually, on March 22, 2002, T.D. took C.D. to the local police station. C.D. spoke first to a patrolman, who took her and T.D. upstairs to be interviewed by Detective, now Lieutenant, Ernest R. Cuff. As a result of the interviews, on March 22, 2002, Detective Cuff and Detective Arnaldo Santos went to apprehend defendant at his work. Defendant told Detective Cuff that he was expecting the police to show up regarding "the thing with [C.D.]" Detective Cuff told defendant that he had spoken with C.D., and defendant replied that "she was a good girl and would not lie." Defendant also told Detective Cuff about problems at his job with rotating shifts, problems with his parents separating and getting a divorce, and his money problems. During the interview in Detective Cuff's office, defendant "remembered three occasions whe[n] something had happened with [C.D.] regarding a sexual nature."
At trial, defendant presented Dr. Gerald Cooke, Ph.D., a licensed psychologist, as an expert in clinical and forensic psychology. Dr. Cooke had been asked to perform a psychological examination of defendant to establish if he suffered from a sleepwalking disorder and if he could have committed the crimes against C.D. "knowingly, purposefully and voluntarily" or while sleepwalking. To come to a conclusion, Dr. Cooke reviewed various records and interviewed defendant's mother. During his testimony, Dr. Cooke explained that sleepwalking occurs in very deep sleep, and two important factors contributing to its cause are stress and irregular sleep patterns. He stated, "[p]eople who have sleepwalking disorder sleepwalk more if they are on rotati[ng] shifts, rather than having a standard time of night that they sleep."
According to Dr. Cooke, a sleepwalking disorder consists of four essential elements: (1) repeated episodes involving simple or complex motor activities while the person is asleep; (2) unresponsiveness during those activities; (3) a brief period, from a couple of seconds to a few minutes, of confusion and disorientation when the person awakens; and (4) partial or complete amnesia of the activities in which the person was engaged while sleepwalking. Also, Dr. Cooke noted that eighty percent of people with a sleepwalking disorder have a history of other family members who are sleepwalkers. He conceded, however, that there is no "definitive test profile that will say . . . this man is a sleepwalker, but the dynamics are consistent."
Dr. Cooke asked defendant about the incidents with C.D., and defendant remembered waking up in C.D.'s bed, but he did not remember going there or what happened. "The first memory he ha[d] . . . [was] she was grabbing his hand and saying his name," and then he was briefly confused and disoriented. He apologized and went to his own bed. The same thing happened the second time. "The third episode was more serious in that he was aware, when he awoke, that his hand was being pulled from her private area." He apologized, and "didn't know what to do about it." He admitted begging C.D. not to tell her mother; he was afraid of losing them, losing his job, and going to jail.
Dr. Cooke learned from defendant's mother that defendant's father had physically abused him. She also revealed that both his father and sister were sleepwalkers, but defendant was the most active. She told Dr. Cooke about significant sleepwalking episodes during defendant's childhood; they started when he was four. According to Dr. Cooke, "literature tells us that the initial episode of sleepwalking in people who develop the disorder is generally between ages four and eight."
The doctor diagnosed defendant with: (1) disthymic disorder (chronic depression), which was not "really severe enough to impair him greatly, though it interferes," and (2) "sleepwalking disorder." He determined,
[Defendant] ha[s] an extensive family history of sleepwalking disorder and that's consistent with what we know about the disorder. Second, [defendant], himself personally, has a significant history of sleepwalking, back to the age of four, into adulthood, as told to me by his mother and there is additional information, I believe, from his ex-wife and his ex-girlfriend.
Third, he reports a prior history of sexual activity while he was sleepwalking. Fourth, when he is awakened by [C.D.], he tells me he is confused and scared. Now I don't think he's in a position to know that there is a brief period of confusion that one expects upon being awakened from sleepwalking. And finally, he's got a personality test profile which, while it's not definitive, is consistent with the kinds of dynamics that can lead individuals -- you know, it's consistent with people who sleepwalk, it's not a manipulative, psychopathic kind of antisocial profile, it is more of a kind of neurotic, underlying anxiety and depression profile.
Dr. Cooke concluded, to a reasonable degree of psychological certainty, that defendant demonstrated "a lot of consistent factors" of sleepwalking during those incidents, and if he was sleepwalking, "he would not have acted in a knowing, purposeful or voluntary manner." He admitted, however, on cross-examination that he would expect a person who wakes up and finds himself in bed with a child one time would do something to keep it from happening again.
Defendant's mother, sisters, an ex-girlfriend, and his ex-wife all testified that they saw him doing things while sleeping that he did not remember when he awoke. His ex-girlfriend and ex-wife both testified that, on a few occasions, he had sex with them or had tried to persuade them to have sex, and then never remembered it the next morning. Defendant who testified on his own behalf, stated that he did not recall anything about the stories that his mother, sisters, ex-wife, or ex-girlfriend had told the jury about his sleepwalking, except their telling him at the time things happened.
Defendant testified that sometime in January 2001, he woke up, not knowing where he was. He could hear "voices in the background," and he "felt something around [his] arm . . . like a hand" pulling on it. He finally realized that he was in C.D.'s bed. She told him to get out, so he apologized, "told her [he] didn't know what was going on," and went back to his bedroom. He was dressed in sweat pants, shirt and socks. He usually slept naked, so he got undressed and went to sleep.
At the time, defendant was having a lot of problems at work. His hours had been cut, and he had been passed over for a promotion. Also, after he met T.D. in December 1999, he began working three rotating shifts, so he sometimes did not even know what day it was. In the fall of 2001, defendant learned of his parents' marital problems and got "highly upset." Later that month, he woke up again in C.D.'s bed. "[P]retty much the same thing" had happened as the last time, but C.D. was more upset. In late 2001, or early 2002, his parents' marital difficulties heated up again, and in late January 2002, he woke up in C.D.'s bed for a third time. He was lying on his side with his arm around someone, and he felt that person grab his arm and heard a faint voice. When he realized where he was, he went back to his bedroom, was "highly embarrassed," and was "really upset this time."
After that incident, defendant decided to stop taking a caffeine pill at work to stay awake during the midnight shift, and "NyQuil to get to sleep at night." Also, he decided to stop waking the children for school, and he put an alarm clock in the hall. He testified that he did not know what else to do. He explained that it had never been easy to get C.D. out of bed in time for school, and he sometimes fell asleep on the edge of her bed for a minute or two if she persisted on not getting up in the morning. In fact, he often acted like her father, and once appeared on her behalf in a truancy matter. He felt close to C.D., and they often went out together, shopping at the mall or other places.
Defendant admitted telling Detective Cuff and Detective Santos that he "was expecting them," as he had been informed they were coming to his work. Also, he admitted saying that C.D. would not lie and was "a good kid." At the police station, he told Detective Cuff everything he recalled about the incidents. However, he could not remember if his hands had been down C.D.'s pants, if he had touched her vagina or buttocks, or if he had ejaculated. Defendant did not discount the possibility, since things happened when he was sleeping. Nevertheless, he denied ever intentionally touching C.D. in a sexual way and inappropriately tickling her. Defendant also testified that, on Dr. Cooke's recommendation, he had been seeing Dr. Dove Hammond for help, and Dr. Hammond had started him on medication and biotherapy.
In rebuttal, the State presented Dr. Mark Richard Pressman, Ph.D., a board-certified "sleep specialist" and Director of Sleep Medicine Services at Lankenau Hospital in Pennsylvania. He disagreed with Dr. Cooke's opinion, because within a reasonable degree of scientific certainty, "all the evidence points to [defendant] being awake . . . and aware" when he was in bed with C.D. He explained that it was not consistent with his experience that sleepwalkers do the same thing on three different occasions. They never repeat the same behavior, and "[e]ach sleepwalking episode is a brand new, spontaneous, random adventure." Also, sleepwalkers usually wake up by themselves and never immediately respond to someone talking to them. "[S]leepwalker[s] [don't] know where they are and they don't know what they're doing, they don't know who's in front of them. So to ask, can I, means that obviously they know where they are[,] they're aware of their surroundings and they know what the situation is." In fact, "[s]leepwalkers are extremely hard to arouse. Almost impossible. . . . [A]nd even more than that[,] if you actually grab a sleepwalker or you block a sleepwalker, chances are pretty high they're going to resist. You may get smacked."
Thus, he opined that defendant's actions were not consistent with sleepwalking, since C.D. had said that he responded to her when she spoke to him. The fact that defendant told C.D. he was sorry, he could go to jail, and not to tell her mother "shows an awareness of the situation. It shows [he] knew what [he] had done and also shows that [he] knew what the potential consequences were." It was "fast thinking" that "even someone who was awake would be hard pressed to do."
Finally, Dr. Pressman asserted that sleep deprivation or shift work does not cause or trigger sleepwalking. Instead, shift workers usually have stomach problems, because they do not eat at regular times. And, sleepwalking "is very easily treated" with medicine, and sleepwalkers can lock doors or install alarms to prevent those episodes.
Defendant contends that the trial court erred by not granting his motion for a judgment of acquittal n.o.v. Specifically, defendant argues that his three convictions of endangering C.D.'s welfare must be vacated, since those crimes were based on the same set of facts, the same sexual conduct, as the related sexual offenses on which he was acquitted. He asserts this is not a matter of inconsistent verdicts under Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), or United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). Instead, he argues either (1) the jury had to have convicted him improperly on a theory of culpability that was not charged in the indictment or presented in the judge's final instructions, or (2) criminal sexual contact is a predicate crime to endangering the welfare of a child.
Defendant's arguments are based on speculation, and they lack merit.
If the jury returns a verdict of guilty . . . a motion for judgment of acquittal may be made . . . . The court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal . . . .
In reviewing such a motion, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. [State v. D.A., 191 N.J. 158, 163 (2007).]
The court should not be concerned "with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). We apply the same standard to decide if the judge should have granted the judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). Thus, a court should grant a motion to acquit if it determines that the evidence fails to establish any of the stated elements of an offense. See, e.g., State v. Zeidell, 299 N.J. Super. 613, 622 (App. Div. 1997) (acquittal on sexual assault because evidence only established lewdness), rev'd on other grounds, 154 N.J. 417 (1998); State v. Smalls, 310 N.J. Super. 285 (App. Div. 1998) (pick-pocketing crime did not support robbery conviction in absence of proof of force or threat).
The indictment accused defendant of inappropriately touching C.D. on
four separate occasions. Three occasions are at issue here.*fn2
A defendant is guilty of "criminal sexual contact" if he or
she commits an act of "sexual contact" under any of the circumstances
set forth in N.J.S.A. 2C:14-2(c)(1) to
(4). N.J.S.A. 2C:14-3(b). "Sexual contact" is defined in N.J.S.A.
2C:14-1(d) as "an 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." N.J.S.A.
2C:14-1(e) defines "intimate parts" as "sexual organs, genital area,
anal area, inner thigh, groin, buttock or breast of a person."
N.J.S.A. 2C:24-4(a) prohibits a defendant, who has a legal duty for, or who has assumed responsibility for, the care of a child, from endangering the welfare of that child by: (1) "engag[ing] in sexual conduct which would impair or debauch the morals of the child" or (2) "caus[ing] the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1, -3, and -8.21]." "Sexual conduct" is not defined by statute. Instead, the definition of "[p]rohibited sexual act" under N.J.S.A. 2C:24-4(b) includes: "Any act of sexual penetration or sexual contact as defined in [N.J.S.A.] 2C:14-1."
Defendant argues that the jury's irrationally inconsistent verdict occurred because it ignored the first prong of N.J.S.A. 2C:24-4(a) and convicted him under the second prong of failing to take protective measures to prevent future incidents with C.D. from occurring. We disagree.
As noted by the trial court, defendant was indicted only under the first prong of N.J.S.A. 2C:24-4(a), that is, he was charged with "having a legal duty for the care of or having assumed the responsibility for the care of [C.D.], . . . knowingly [engaging] in sexual conduct which would impair or debauch the morals of said child." Consistent with the charges in the indictment, the jury was instructed only with that first prong:
To find defendant guilty of this crime, the State must prove beyond a reasonable doubt these elements: (1) that [C.D.] was a child; (2) that defendant knowingly engaged in sexual conduct; (3) that defendant knew such conduct would impair or debauch the morals of the child; and (4) that defendant had a legal duty for the care of the child or had assumed the responsibility for the care of the child.
Furthermore, the verdict sheet only listed the first prong as a basis for conviction. Although we note the prosecutor presented evidence defendant failed to take preventative measures to protect C.D. from his sleepwalking abuses and even argued this in his summation, it "is wasteful of judicial resources to have appellate courts attempting to second-guess what may have transpired during jury deliberations." State v. Wilder, 193 N.J. 398, 416 (2008). "[T]he most basic assumption [is] that a jury follows the charges given to it by the court." Ibid. We decline the defendant's invitation to presume the jury considered an element not contained in the judge's instruction.
Defendant also argues that acquittals should be entered for his convictions of endangering C.D.'s welfare, because he was acquitted of the predicate crimes of criminal sexual contact. We agree with the trial court that "[A] jury can find a defendant guilty of endangering without finding him guilty of criminal sexual contact even if the alleged sexual conduct is the same as the alleged sexual contact." Citing State v. D.R., 109 N.J. 348 (1988), and State v. Miller, 108 N.J. 112 (1987), the court noted that convictions for sexual assault or criminal sexual contact and child endangerment by engaging in sexual conduct do not merge, even if the convictions are based on precisely the same underlying conduct, providing that defendant has the requisite relationship to the victim. The court elaborated:
"[T]he offenses are different because the crime of endangering the welfare of a child is aimed not only at specific conduct but also at the violation of the duty that a parent [or one who assumes responsibility for a child] owes to a child." Miller, supra, 108 N.J. at 118-119. "A conviction for endangerment requires, in addition to evidence of sexual acts, proof of a parental or custodial relationship." Id. at 120. "In addition, the 'consequences of the criminal standards transgressed' were not the same." Id. Endangering the welfare of a child "is also directed at the defendant's violation of his parental duty [or his assumed duty while acting in loco parentis]." Id. at 121. Although both Miller and D.R. involved sexual assault and endangering the welfare of a child, the same reasoning applies with equal force to non-merger of convictions for criminal sexual conduct and endangering the welfare of a child. If convictions for criminal sexual conduct and endangering the welfare of a child do not merge, the converse is also true; jury acquittal of the sexual assault and criminal sexual contact counts does not, in and of itself, require acquittal of the endangering the welfare of a child counts, provided there was sufficient evidence to prove the required elements beyond a reasonable doubt.
For a conviction under N.J.S.A. 2C:24-4(a), there must be proof that the criminal sexual contact goes beyond the mere touching under N.J.S.A. 2C:14-1(d), that is, it must be such as "would impair or ...