April 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VIPULKUMA M. PATEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-00814.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 1, 2012 -
Before Judges Axelrad and Sapp-Peterson.
On April 6, 2010, defendant Vipulkuma Patel was indicted on ten counts of third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4 (counts one, four, seven, nine, eleven, fifteen, seventeen, nineteen, twenty-one, and twenty-seven); ten counts of second-degree attempting to lure or entice a child into a motor vehicle, structure or isolated area, N.J.S.A. 2C:13-6 (counts three, six, ten, twelve, fourteen, sixteen, eighteen, twenty, twenty-three and twenty-four); four counts of third-degree public communication of obscene materials, N.J.S.A. 2C:34-4b and N.J.S.A. 2C:34-3b (counts two, eight, thirteen, and twenty-two); two counts of second-degree attempting to commit sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c (counts five and twenty-five); and one count of fourth-degree attempting to commit an act of sexual contact under a superseding indictment, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3b (count twenty-six).
On June 14, 2010, defendant filed a motion to dismiss the indictment, arguing he could not be convicted because in each count there was no real child but, rather, a "virtual person." Following argument on August 5, 2010, Judge James E. Isman rendered an oral decision, denying defendant's motion.
Defendant then pled guilty to one count of second-degree attempted sexual assault (count five) and one count of second-degree attempted luring (count twenty-four). Pursuant to the negotiated plea, on February 4, 2011, defendant was sentenced to a five-year custodial term for each of the offenses, to run concurrently, and the remaining charges were dismissed. The judge also ordered that defendant would be subject to the provisions of Megan's Law, N.J.S.A. 2C:43-6.4, requiring parole supervision for life, and imposed appropriate fees and fines. Defendant appealed. We affirm.
Defendant was arrested and subsequently named in a twenty-seven count indictment after a sting operation revealed he had inappropriate sexual conversations and attempted to meet a manufactured juvenile female, "Nelly," who was constructed by Sergeant Thomas Finan of the Atlantic County Prosecutor's Office. The officer created a profile to portray Nelly as a fourteen-year-old girl who lived in Mays Landing, entered a chat room with a screen name, and recorded the ensuing online conversations. On March 3, 2009, defendant, age thirty-two, but who claimed to be a twenty-eight-year-old man, contacted Nelly, who immediately identified herself as a fourteen-year-old girl, in the eighth-grade. According to the investigator's report and transcription of the conversation, defendant proceeded to send Nelly a live video-feed of himself masturbating and a hyperlink to a pornography website, and provided graphic details of what sexual acts he would perform on Nelly and what she would perform on him. Nelly reminded defendant that she was only fourteen years old and told him he could get girls his own age, to which he replied, "younger are more fun . . . I will teach u."
Defendant also instructed Nelly not to tell her parents about the conversation and to delete her internet history.
According to defendant's plea allocution, the next day defendant initiated another online sexually explicit chat room conversation with Nelly, who he believed to be a fourteen-year-old girl. He instructed her to digitally penetrate herself via masturbation. In several instant message conversations with Nelly over the ensuing weeks, defendant continued to pursue a meeting for sex.
The message log of March 16, 2009, reflects that defendant finalized the details for his plan to meet Nelly in a parking lot in Mays Landing the following day, after which he would drive her in his car to his home. Defendant described in extremely graphic terms the sexual acts they would engage in and sent Nelly a link to a pornographic website. The following morning, defendant sent Nelly instant messages confirming that he left and arrived at the meeting place. Defendant was placed under arrest in the parking lot.
In the factual allocution for his guilty plea to the attempted luring offense, defendant admitted that he had made arrangements over the internet to meet Nelly, whom he believed to be a fourteen-year-old girl, at the predetermined location, and his intention, as communicated to her, was to drive her to his house to engage in vaginal or oral sexual penetration. He also admitted that he actually drove there to meet Nelly.
Judge Isman rejected defendant's argument that he could not be convicted of the charged offenses which require, as a material element, there be a person or child, because Nelly was only a "virtual" person or child. Relying primarily upon State v. Condon, 391 N.J. Super. 609 (App. Div.), certif. denied, 192 N.J. 74 (2007), and State v. Davis, 390 N.J. Super. 573 (App. Div.), certif. denied, 192 N.J. 599 (2007), the judge concluded there was no requirement the State prove the victim in each of the counts was a "real child." He explained that "when you focus on attempt . . . you are focusing on what is in the mind of the [d]efendant and if the [d]efendant reasonably believes that he's dealing with . . . a child under the age of [sixteen] . . . that is what counts." The judge concluded that our State courts "have found and determined that a real child does not have to be proven, nor used, nor victimized for these statutes to come into [e]ffect and a person to be prosecuted."
On appeal, defendant renews his argument that he could not be found guilty of committing a crime against a virtual child, specifically contending: (1) the statutes under which he was charged, i.e., endangering the welfare of children, N.J.S.A. 2C:24-4, sexual assault, N.J.S.A. 2C:14-2c, and sexual contact, N.J.S.A. 2C:14-3b, require an actual victim in the form of a real person or child; (2) a "person" as defined in N.J.S.A. 2C:1-14g and as used in defendant's indictment means a natural person and the rule of lenity requires "person" be defined as such by the courts; (3) because the use of the term "reasonably believes" in the indictment comes after the use of the word "person," it fails to properly identify "Nelly" as a virtual person; and (4) the courts, in other areas of the law, have drawn clear distinctions between real and virtual people and such distinctions should be drawn here.
Based on our review of the record and applicable law, we are not persuaded by defendant's arguments. The criminal attempt statute, N.J.S.A. 2C:5-1a, provides, in pertinent part, as follows:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
Condon, supra, involved an internet sting operation, in which the defendant conducted graphic sexual internet chats with an investigator posing as a thirteen-year-old girl and arranged to meet her for the purposes of having sex with her. 391 N.J. Super. at 612-13. When the defendant arrived at the meeting place, he was arrested. Id. at 613. He was convicted of attempted sexual assault. Id. at 614. We had affirmed denial of the defendant's motion to dismiss the indictment, rejecting his argument that "the State failed to present evidence to the Grand Jury establishing that the victim was, in fact, a thirteen-year-old girl." Id. at 612. We reversed the conviction and remanded, not because the victim was fictional, but because we held that only the "substantial step in a course of conduct" theory of attempt, N.J.S.A. 2C:5-1a(3), was applicable, not the alternative theory of "impossibility" under subsection (l) as had also been charged by the judge. Condon, supra, 391 N.J. Super. at 617.
Similarly, in Davis, supra, undercover investigators created the persona of a fourteen-year-old girl named Krissy, who entered a chat room and initiated a private chat with the defendant. 390 N.J. Super. at 581. The defendant, believing he was talking to a fourteen-year-old girl, had sexually explicit conversations with Krissy and tried to teach her how to masturbate. Id. at 583-84. We affirmed his conviction for attempting to endanger the welfare of a child, endangering the welfare of a child, and attempted sexual assault. Id. at 580.
Shortly after Judge Isman's ruling, we decided State v. Kuhn, 415 N.J. Super. 89, 98 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), which cited Condon, and similarly held that where the victim is the fictional, underage persona of a police officer, a defendant can be charged with committing attempted crimes against that victim in accordance with N.J.S.A. 2C:5-1. In Kuhn, the defendant had a series of internet and phone conversations with investigators from a prosecutor's office who represented themselves as "Mandi," a thirteen-year-old girl. Id. at 91. They eventually arranged to meet at a specified location for the purpose of engaging in sexual activity, and the defendant was arrested after he arrived and attempted to reach Mandi by phone. Ibid. He was convicted by a jury of "fourteen attempts to commit crimes that prohibit conduct with children who are thirteen years old," consisting of second-degree attempted luring, third-degree attempted endangering, second-degree attempted sexual assault by penetration, and fourth- degree attempted criminal sexual contact, id. at 92, the same offenses with which defendant was charged in this case. We noted that, for the most part, "[a]ll of the crimes were charged as attempted crimes because Mandi [was] fictional and the investigators [were] adults." Ibid.
We rejected the defendant's argument that a person cannot be convicted of attempted sexual assault and attempted criminal sexual contact with a child when no child actually existed, based on well-settled law. Id. at 95-96. We referenced State v. Moretti, 52 N.J. 182, 187-91, cert. denied, 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968), which held the fact that a woman was not pregnant did not preclude liability for conspiracy to unlawfully terminate a pregnancy and did not negate culpability for the crime of attempted unlawful abortion, emphasizing the Court's explanation that "'when the consequences sought by a defendant are forbidden by the law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.'" Kuhn, supra, 415 N.J. Super. at 96-97 (quoting Moretti, supra, 52 N.J. at 190)). We further noted this principle was incorporated in the statute defining the elements of criminal attempt, N.J.S.A. 2C:5-1, and concluded that "[i]f 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 just as the defendant's subjective belief that the woman was pregnant substituted for that condition in Moretti." Kuhn, supra, 415 N.J. Super. at 97-98.
Noting that even though the charged sexual offenses required a victim of a particular age, we held that conviction for the attempted crimes without regard to the actual age of the victim was appropriate "if it was [the] defendant's purpose to engage in the conduct with a person that age," N.J.S.A. 2C:2-2b(1), and a "reasonable person" would believe the victim was that age, N.J.S.A. 2C:5-1a(1), (3). Id. at 98. We thus rejected the defendant's claim that he could not be convicted of the attempted crimes because Mandi was not a thirteen-year-old child. Ibid.
We further held that the age of the victim was not a "result" element of the crimes for which the defendant was convicted, but rather it was an "attendant circumstance" under N.J.S.A. 2C:5-1a(1) and (3). Id. at 99. Accordingly, it was immaterial to the conviction that Mandi was not a child of the requisite age. Id. at 98-99.
We are satisfied these cases have disposed of the bulk of defendant's challenges, particularly Kuhn. We are not persuaded the Legislature's use of the word "child" in the endangering statute, N.J.S.A. 2C:24-4, defined as "any person under l6 years of age," N.J.S.A. 2C:24-4b(l), or "person" in the sexual assault or criminal sexual contact statutes, N.J.S.A. 2C:14-2c and -3b, defined, for the most part, as "any natural person," N.J.S.A. 2C:1-14g, renders this indictment fatal under the rule of lenity. See State v. D.A., 191 N.J. 158, 164 (2007) (holding penal statutes are to be strictly construed, and under the doctrine of lenity, the words are to be given their ordinary meaning and any reasonable doubt should be decided in favor of anyone subjected to a criminal statute). We emphasize that defendant was indicted for attempt to commit these offenses, not for completion of these offenses under the substantive statutes, and thus the focus must be on defendant's state of mind. The record clearly demonstrates defendant's belief that he was having sexually explicit conversations and planning a sexual liaison with a young person, i.e., a fourteen-year-old girl.
Nor is it fatal that, in contrast, in 2001 the Legislature expressly amended the luring statute, N.J.S.A. 2C:13-6, under which defendant was also charged and pled guilty, to expressly address an internet sting operation involving a virtual child victim. The statute added the emphasized language:
A person commits a crime of the second degree if he attempts, via electronic or any other means, to lure or entice a child or one who he reasonably believes to be a child into a motor vehicle, structure, or isolated area, or to meet or appear at any other place, with a purpose to commit a criminal offense with or against the child.
"Electronic means" includes, but is not limited to, the Internet, which shall have the meaning set forth in N.J.S.[A.] 2C:24-4.
[L. 200l, c. 233, § 1, effective August 27, 2001.]
The Legislative history reveals that the "reasonably believes" language was utilized so that the statute would clearly "apply in sting-type situations, where there is no actual child victim, as long as the person reasonably believes that a child is involved." Senate Judiciary Committee, Statement to Assembly, No. 2397 (June 11, 2001). This statute encompasses attempts so it is not necessary to rely upon the similar language of N.J.S.A. 2C:5-1a(1) and (3) regarding "circumstances as a reasonable person would believe them to be."
We are also not persuaded that the rationale of the child pornography cases, Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002) and State v. May, 362 N.J. Super. 572 (App. Div. 2003), that draw a clear distinction between real and virtual people, is applicable here. In Ashcroft, supra, the United States Supreme Court struck down statutory provisions in the Child Pornography Prevention Act of l996 extending federal prohibitions to virtual child pornography, including computer-generated images, observing that in contrast with actual pornography, it was not the product of sexual abuse. 535 U.S. at 239-42, 251, 122 S. Ct. at 1396, 1402, 152 L. Ed. 2d at 414-15, 421. May, supra, adopted Ashcroft with respect to New Jersey child pornography laws and held that the State must prove the images possessed or viewed by the defendant were of real children. 362 N.J. Super. at 587-90.
As previously discussed, the State did not seek to prosecute defendant for having committed the substantive crimes. Instead, defendant was indicted for attempting to commit the offenses. "The criminalization of attempt focuses on the intent of the actor to cause a criminal result . . . rather than on the resulting harm." State v. Robinson, 136 N.J. 476, 483 (1994). The purpose of the statute is to punish a person whose failure to complete the crime is due to a fortuity. Ibid.
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