On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-09-1464.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2011
Before Judges Carchman, Fisher and Baxter.
Following a jury trial, defendant B.W. was convicted of three counts of second-degree luring, N.J.S.A. 2C:13-6; fourth-degree possession of a stun gun, N.J.S.A. 2C:39-3h, and, as amended, third-degree possession of a destructive device, N.J.S.A. 2C:39-3a. The judge sentenced defendant to an aggregate term of imprisonment of twelve years together with Megan's Law registration, lifetime parole supervision and mandated fines, fees and penalties.
The threshold issue that we must determine is whether the motion judge erred by denying defendant's motion to sever the luring and possessory weapons offenses. The motion judge*fn1 denied the application, and the various charges were tried together.
We conclude that the judge erred, and defendant is entitled to a new trial.
In denying the motion to sever, the judge speculated that at trial, evidence of the possessory offenses would be admissible under N.J.R.E. 404(b), "as evidence of a common plan or scheme in furtherance of the criminal intent vis-[a]-vis the luring statute." In so deciding, the judge did not perform any N.J.R.E. 404(b) analysis to test, even preliminarily, the bona fides of his rationale. However, as the facts developed at trial, the State failed to establish any plausible nexus between the luring and possessory offenses, as a result of which, the rationale for the original motion proved flawed. In addition, defendant pressed the issue of severance at trial, and all of his subsequent applications were denied.
To place our conclusions in context, we provide a brief description of the facts adduced at trial.
In late 2003 and early 2004, the victims, M.T., J.T. and E.T. (collectively "the children"), lived in an apartment on East Main Street, Tuckerton, with their mother J.V. and father G.T. (collectively the "T. family"). The children were ten years old, nine years old, and six years old, respectively. The other apartment in that building was occupied by P.D. and her family, who were friendly with the T. family. At this same time, defendant lived on Center Street, Little Egg Harbor, approximately one-half mile away. Defendant was not a friend of the T. family.
Defendant met the children at the local laundromat, where the T. family did their laundry. Defendant asked the children questions including what their names were, what grades they were in and who their teachers were. After this first encounter, M.T. saw the defendant at the laundromat regularly when the T. family did their laundry; defendant would always arrive shortly after they did.
Over a period of time, defendant insinuated himself into the activities of the children including playing with them behind the laundromat. These encounters were instigated by defendant rather than the children, and J.V. worried that defendant would speak to her children.
On at least one occasion, defendant brought the children gifts. At the time, defendant offered to show M.T. his van by saying, "I have a gift for you, do you want to go and get it at the van[?]" Another time, he gave the children candy; they told their mother about it, and she had them throw it away outside of defendant's presence.
Witnesses observed defendant talking with the children and giving them gifts. Apparently, these were the only children with whom he maintained a relationship. No one in the T. family ever invited defendant to their home or told him where they lived. Nevertheless, defendant appeared at their home ostensibly to play with the children, only to be rebuffed because the children were scared.
On one occasion, defendant approached J.T. while she was playing outside the Tuckerton Emporium with her friend. Defendant asked J.T. and her friend what they were doing; instead of responding, they went into the friend's house because they were scared.
In April 2004, P.D. observed defendant sitting in his cargo van in the parking lot of the Wawa store, located a short distance from the T. home, every afternoon for a period of two weeks. Defendant remained there for about thirty minutes each day, at the time the children came home from school. J.V. and the children also observed defendant parked at the Wawa. Defendant backed his van into a parking space such that the driver's side door was facing the T. family's apartment.
During this two-week period, P.D. also once saw defendant standing near the Emporium yelling out J.T.'s name. P.D. ran out, found J.T. with her two siblings and told them to get upstairs. After this two-week period, P.D. called the police.
During this same time period, defendant went to the Little Egg Harbor branch of the Ocean County Public Library between five and ten times to use the internet. According to a librarian, defendant sought information on kidnapping statutes in New Jersey and other states. The librarian described defendant's demeanor as "very intense" and "very demanding of [her] attention."
In response to P.D.'s call, Sergeant Christopher Anderson responded by speaking with her. On his way to her home, Officer Anderson observed and then stopped defendant's car. The van had a South Dakota license plate, and defendant presented the officer with a South Dakota driver's license. The officer advised defendant that he was investigating a male fitting defendant's description speaking to children inappropriately.
Later that day, after Officer Anderson spoke with P.D., defendant came to the police station because he was upset about being stopped in reference to speaking with the children. The officer advised defendant he should not speak to children without their parents' permission. He also asked defendant if he could look inside defendant's car; defendant consented.
Defendant's vehicle was a white "boxed style" cargo van. Louvers covered the windows. The walls had padding and the back doors had no inside door handles. Defendant claimed that those door handles had broken, and he had been unable to locate new ones. Defendant had devised a method by which he could open the back door from the inside by pulling on a string.*fn2 A metal grate with an opening in the middle separated the front and back parts of the van. The back of the van contained a cooler with candy, as well as a sleeping bag, pillows, a battery pack and some clothing.
During direct examination of Officer Anderson regarding his search of defendant's van, the following exchange occurred:
Q . . . . [D]id you ask anything else of B.W. at that time?
A I believe -- I did ask him I was looking for a weapon. I was told by [P.D.] that her child believed that he had a weapon.
Defendant objected to this testimony and moved for a mistrial. The trial court sustained the objection, denied the request for a mistrial ...