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State of New Jersey v. Donald Hertel

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD HERTEL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-05-0706.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 29, 2012 --

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

Defendant appeals from his conviction after a jury trial on a second-degree charge of endangering the welfare of a child. We reverse and remand for a new trial.

I.

Our record reveals the following facts and procedural history. On November 18, 2006, a community organization in Morris and Sussex Counties hosted a "Teen Night" at a local YMCA. Defendant Donald Hertel, forty years old at the time, was in charge of the program. He had a trustworthy reputation and a history of volunteering for youth organizations. At the November 18 "Teen Night," defendant was the chaperone for a dozen middle-school-aged boys.

An eleven-year-old boy attended the event with a friend. The evening's activities lasted from 7:00 to 8:30 and consisted of a pizza dinner, arcade games, basketball, and a swim in the pool. During the pool time, defendant swam and played games with the boys. At some point during the activities, defendant mentioned to the boys "a dare game" that they would play in the shower room. In a subsequent videotaped interview, the eleven-year-old boy said that defendant "thought of" and "organized the game." At trial, however, the boy testified that another boy suggested playing the so-called "shower game," and then defendant explained the rules.

The shower game required a boy to stand under a shower, hold open the front of his swimming trunks, and allow alternating hot and cold water to strike his stomach and genitals. The winner was the boy who held his trunks open and withstood the changing water temperature for the longest time. Defendant offered a prize to the winner, ice cream.

In an open shower room after the swim, the eleven-year-old agreed to play the game. The boy stood under a shower and held open the front of his swimming trunks. Defendant stood near and operated the shower valves, changing the temperature at the call of the boys who were playing the game. In his testimony at trial, the eleven-year-old said he did not believe that defendant looked down his open trunks. In his videotaped statement, the boy answered questions as follows:

BOY: [H]e didn't try to look in my - like I didn't see him like just try to like look in, but he has to look to make sure - he says that you can't close or else you're out. Like in the . . .

INVESTIGATOR: Can't close . . . ?

BOY: Like in the then they'll stop like just close it cause its like too hot or too cold.

INVESTIGATOR: So what did he say to you?

BOY: Uh he said that you can't close your swim suit.

INVESTIGATOR: But did he actually look down your swim suit?

BOY: I don't think so.

Other boys joined in the game by pointing shower heads at the boy and spraying him with hot and cold water as an added challenge. According to the boy, he held his trunks open for "about eight minutes." Although defendant did not say anything that made the boy feel uncomfortable, he decided to close his trunks when he began to feel "weird." In closing argument at the end of the case, the prosecutor highlighted the boy's testimony that defendant only allowed lukewarm water to strike the boy and suggested to the jury that defendant had purposely prolonged the game.

When the boy met his mother in the lobby, he told her he had won the shower game. Defendant was present in the lobby within earshot. The boy and his friend went outside to his mother's car while she returned to the building to retrieve a forgotten item. When the mother returned, she saw that defendant was alongside her car. According to the boy's testimony, defendant approached him in the car and asked him not to mention that defendant had been involved in the shower game.

Later, after being questioned by his mother, the boy thought about the incident and "realized [he] was such an idiot for playing" the game. He sensed that others thought he was a "weirdo." He testified that he initially enjoyed the game and that his bad feelings surfaced only after he began talking about the incident with his mother.

The boy's mother contacted the director of the organization that had hosted the program, and the director contacted the Morris County Prosecutor's Office. Three days after the incident, the boy gave a videotaped interview to a police detective, a redacted version of which was admitted in evidence at defendant's trial.

In May 2007, a Morris County grand jury indicted defendant on two charges: second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant moved pursuant to Rule 1:8-1(a) to waive trial by jury on the ground that he would not have a fair trial before a jury. The court denied the motion, stating that the issues were not too complex for the understanding of jurors and that the gravity of the charges warranted a trial before a jury.

The State presented five witnesses, the eleven-year-old boy, his mother, two other boys who were present during the incident, and an adult witness with information about the organization that had sponsored the event. After the State's case, the defense moved for a judgment of acquittal, arguing there was insufficient evidence to show touching or sexual purpose in the conduct alleged. The court denied the motion, ruling that the jury could find that defendant's control of the water was sexual contact by object and that the totality of the circumstances was sufficient for a jury to infer defendant had engaged in sexual conduct.

The defense case consisted of the testimony of nine character witnesses. Defendant did not testify. The defense also proffered the testimony of another boy who would have stated that the shower game had been played for years at the YMCA by other boys and in defendant's absence. The State objected. The prosecutor argued that the court had previously excluded the State's evidence that defendant himself had participated in the shower game on other occasions and had granted a defense application to redact parts of the eleven-year-old's recorded statement that made reference to the shower game being played previously by other boys. The court ruled that the new witness proffered by the defense would not be permitted to testify because his testimony might implicate defendant's prior participation in the shower game.

After several days of deliberation, the jury was unable to reach a verdict on the sexual assault charge. The jury's communications indicated it had not even discussed the child endangerment charge up to that point. The court instructed the jury to proceed to consideration of the second charge. On the same day, the jury asked three times for reinstruction on the elements of the child endangerment statute. It then returned a verdict of guilty on that charge. The jury was polled and all jurors indicated their agreement. The court declared a mistrial on the sexual assault charge.

Within weeks of the verdict, the judge received a letter from a juror stating that the reason the jury asked repeatedly for the child endangerment instructions was that "the wording was extremely confusing," and that five jurors did not believe defendant's conduct met the statutory requirements for conviction. She stated the jurors who did not think defendant was guilty "compromised" because they believed child endangerment was a "minor charge" that would not result in a prison sentence. A short time later, the judge received a letter from a second juror stating that she voted to find defendant guilty only because of the tense and hostile pressure created by a juror that allegedly bullied the others. She also indicated there was significant confusion about the definition of child endangerment. She stated that the "bully-juror" persuaded the opposing jurors that child endangerment was "a slap on the wrist" and would likely result in probation.

Defendant moved to have the court gather and interview all the jurors based on the contents of the two jurors' letters. In a thorough opinion, the trial judge denied the motion because the circumstances alleged in the letters did not demonstrate extraneous influences on the jury. Subsequently, the judge heard and denied defendant's motion for a judgment of acquittal or a new trial, but at the same time acknowledged that the arguments presented by the defense were legitimate issues of concern.

Proceeding to sentencing in March 2011, the judge noted he had received a number of favorable letters on behalf of defendant. He had also reviewed an official evaluation prepared by the Department of Corrections pursuant to N.J.S.A. 2C:47-1, -2, indicating that defendant's conduct did not exhibit a pattern of repetitive and compulsive sexual behavior and, therefore, defendant was not eligible for sex offender treatment in prison under N.J.S.A. 2C:47-3.

The judge carefully reviewed each side's arguments with respect to aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1. He found one aggravating factor, the need to deter defendant and others from violating criminal laws.

N.J.S.A. 2C:44-1a(9). He found four mitigating factors: that defendant did not contemplate his conduct would cause serious harm, N.J.S.A. 2C:44-1b(2); that he had no prior contacts with the criminal justice system and had led a law-abiding life, N.J.S.A. 2C:44-1b(7); that his conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); and that the character and attitude of defendant indicated he is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9). Finding that the mitigating factors clearly and convincingly outweighed the aggravating factor, the judge sentenced defendant to three years in prison, that is, at the bottom of the third-degree range instead of the second-degree range. See N.J.S.A. 2C:44-1f(2). As he was required to do, the judge also sentenced defendant to lifetime parole supervision, N.J.S.A. 2C:43-6.4, and the notification requirements of Megan's Law, N.J.S.A. 2C:7-2. Defendant was granted bail pending appeal.

II.

Defendant raises the following arguments on appeal:

POINT I

THERE WAS INSUFFICIENT EVIDENCE OF DEFENDANT'S GUILT; THUS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. POINT II

MISLEADING AND CONTRADICTORY JURY INSTRUCTIONS IMPERMISSIBLY SHIFTED THE BURDEN AND LED TO A MANIFESTLY UNJUST VERDICT.

A. THE MISLEADING AND CONFUSING JURY INSTRUCTIONS.

B. LETTERS FROM JURORS NOTING CONFUSION. POINT III

COMMON SENSE DICTATES THAT THE ALLEGED INCIDENT WAS NOT CRIMINAL, BUT WAS NOTHING MORE THAN INAPPROPRIATE HORSEPLAY.

POINT IV

BOTH CHARGES WERE BASED ON THE SAME FACTS THEREFORE THE GUILTY VERDICT ON THE ENDANGERING CHARGE DEMONSTRATES THAT THE STATE FAILED TO ESTABLISH THE ESSENTIAL ELEMENTS.

POINT V

THE PROHIBITION OF DEFENSE WITNESS TESTIMONY VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND THUS THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI

THE JURY WAS TAINTED BY IMPROPER INFLUENCES; THUS THE GUILTY VERDICT MUST BE DISMISSED. POINT VII

THE COURT'S FAILURE TO POLL THE JURORS WAS REVERSIBLE ERROR.

A. Improper Influences Inconsistent With the Jury Instructions Tainted the Jury.

B. Evidence of Improper Influences Mandates a Voir Dire of the Jurors.

C. Failure to Investigate Allegations of Juror Misconduct is Reversible Error.

POINT VIII

THE TRIAL JUDGE ERRED BY DENYING MR. HERTEL'S RIGHT TO WAIVE A JURY TRIAL, WHICH DEMONSTRABLY LED TO AN UNJUST OUTCOME.*fn1

We reject defendant's arguments grounded upon the post-verdict letters from two jurors, but we find merit in the arguments raised in Points IIA and V based on the trial record alone. In a close case such as this, an inadvertent failure of precision in the jury instructions and the denial of the defense proffer of another boy's fact testimony may have affected the verdict.

A.

We begin by rejecting defendant's reliance on the letters of the two jurors. In Points VI and VII, defendant contends that the trial court was required after receiving the jurors' letters to recall the jurors to the court and conduct a voir dire examination*fn2 to determine whether the jury's partial verdict was tainted by improper influences and incorrect instructions on the law. We agree with the trial judge that the jurors' letters did not mandate such a post-trial inquiry.

The federal and state constitutions guarantee a criminal defendant the right to trial by an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "[A] defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983) (citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558, 51 L. Ed. 879, 881 (1907)). At the same time, a defendant's right to trial by an impartial jury must be balanced against competing rights and interests. See Williams, supra, 93 N.J. at 62. One such interest is the privilege given to jury deliberations, secrecy of which ensures free communication and independence in the jury room. State v. Athorn, 46 N.J. 247, 250-51, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966); State v. LaFera, 42 N.J. 97, 106 (1964); see State v. Harris, 181 N.J. 391, 509-10 (2004) (affirming constitutionality of the privilege), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Our Supreme Court has "long held that '[c]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.'" State v. Koedatich, 112 N.J. 225, 288 (1988) (quoting Athorn, supra, 46 N.J. at 250), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). In LaFera, supra, 42 N.J. at 106, Chief Justice Weintraub stated:

A jury deliberates in secrecy to encourage each juror to state his thoughts, good and bad, so that they may be talked out.

"Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." [quoting Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1932).]

To protect the confidentiality of jury deliberations, our rules of procedure prohibit the parties and any attorney from interviewing jurors about a case, "[e]xcept by leave of court granted on good cause . . . ." R. 1:16-1. "More than a mere possibility of a tainted verdict must exist to satisfy the good cause requirement." State v. Young, 181 N.J. Super. 463, 469 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982); accord State v. LaRocca, 81 N.J. Super. 40, 44-45 (App. Div. 1963).

Two precedents are analogous to the facts of this appeal and guide our conclusion. In Athorn, supra, 46 N.J. at 249, a defendant police officer was convicted by a jury of bribery charges. The trial court had found good cause for post-conviction voir dire because (1) a juror had remarked "cops take bribes" and cited a newspaper article during deliberations, (2) jurors insulted and demeaned a hold-out juror, (3) the hold-out juror was "tricked" into voting guilty, and (4) the hold-out juror was confused by the court's instructions. Id. at 249-50. Granting the State leave to appeal, the Supreme Court disagreed with the trial court and reversed its ruling. Ibid. The Court found "no reason for departing from the general rule that evidence of expressions or arguments of jurors made during their deliberations may not be used to impeach the verdict." Id. at 252. It noted that the verdict was not influenced by a juror's "personal knowledge of any facts concerning the defendant which were not adduced in evidence." Ibid. As to the insults and trickery, the Court reminded trial courts "not [to] investigate the thought processes which induced a particular juror to join in a verdict." Id. at 253.

In Young, supra, 181 N.J. Super. at 468, 471, we affirmed the trial court's conclusion that good cause was not shown to justify post-conviction voir dire. There, a juror believed defendant's conviction was a "bum deal" because he and other jurors were pressured to convict, and they ultimately did so under a mistaken understanding of the law, that a defendant would be released on bail during an appeal but not if there was a hung jury. Id. at 466-67.

In this case, the trial court correctly concluded that defendant failed to demonstrate grounds for post-conviction voir dire. After the verdict was announced in open court, the jury was polled and the agreement of all jurors individually with the partial guilty verdict was confirmed. Like Athorn, a juror's later sentiment that she was misled by a fellow juror or that the instructions were confusing does not demonstrate good cause to inquire further of the jurors. Like Young, a juror's mistaken belief about the legal consequences of a verdict also does not demonstrate good cause for such inquiry.

The cases defendant relies upon are factually distinguishable. In State v. Nelson, 318 N.J. Super. 242, 255-56 (App. Div.), certif. denied, 158 N.J. 687 (1999), we considered whether the trial court had proceeded appropriately in questioning jurors during the trial, not after deliberations had been completed, in order to determine whether an attorney who was serving as a juror had improperly instructed the other jurors about the law and speculated about factual circumstances that were not part of the evidence. In Barber v. ShopRite of Englewood & Associates, Inc., 406 N.J. Super. 32, 47-51, 53-56 (App. Div.), certif. denied, 200 N.J. 210 (2009), we considered whether jury misconduct occurred when a lawyer who served as foreperson of the jury voluntarily disclosed in a post-verdict article published in the New Jersey Law Journal that he had instructed his fellow jurors on issues of law relevant to the trial. We did not discuss the legal grounds upon which we had previously ordered that the trial court conduct a post-verdict voir dire of the jurors. Id. at 37. Barber does not address the precise issue before us and does not contain an analysis of the secrecy and privilege that attaches to jury deliberations as we have discussed.

Here, we conclude that the trial court correctly followed the law of privileged jury deliberations in declining a post-verdict voir dire of the jurors.

Nor can the jurors' letters be considered with respect to defendant's other arguments, as to sufficiency of evidence and error in the jury charge. "For strong policy reasons, courts 'have generally refused to accept from jurors, for the purpose of impeaching a verdict, any evidence of the discussion which they may have had among themselves while considering their verdict.'" Koedatich, supra, 112 N.J. at 288 (quoting Athorn, supra, 46 N.J. at 251). Two exceptions to this rule have been recognized: the injection of racial or religious bigotry into the jury deliberations, ibid. (citing State v. Levitt, 36 N.J. 266, 272 (1961)), and factual information outside the evidence reported by a juror to other jurors, ibid. (citing State v. Kociolek, 20 N.J. 92, 96-97 (1955)); see also State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.) (referring to "extraneous considerations" and "irregular influences" as grounds to set aside a jury's verdict), certif. denied, 151 N.J. 466 (1997).

In this case, the trial judge did not err in denying defendant's motion for acquittal on the grounds of jury misconduct. The two letters from the jurors did not allege bigotry or extraneous matters intruding upon the jury's deliberations. There is no basis on this record to abandon the general rule that jurors' accounts of the content and dynamics of jury deliberations are inadmissible to impeach the jury's verdict.*fn3

In reaching decisions on other issues presented on this appeal, we rely on the trial record without consideration of the letters from the two jurors.

B.

We reject defendant's arguments made in Points I and III that the evidence was insufficient to find him guilty of endangering the welfare of a child. N.J.S.A. 2C:24-4a provides in relevant part:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child . . . is guilty of a crime of the second degree.

Defendant argues there was insufficient evidence to prove an essential element of the offense -- that he "engaged in sexual conduct." See Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Second Degree" (Nov. 2003).

When reviewing a motion to acquit based on insufficient evidence, we view the totality of the evidence in a light most favorable to the State, giving it the benefit of all favorable inferences. State v. Perez, 177 N.J. 540, 549 (2003); State v. Reyes, 50 N.J. 454, 459 (1967). The standard is "whether such evidence would enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the crime or crimes charged." Perez, supra, 177 N.J. at 549.

Defendant's principal argument - that he engaged only in non-criminal, inappropriate "horseplay" - is premised on a narrow interpretation of the phrase "sexual conduct" as used in N.J.S.A. 2C:24-4a. Defendant views the statute as only prohibiting "blatant sexual contact, exposure, and/or specific verbal sexual references." But the Supreme Court has stated that "[t]he Legislature intended the child-endangerment statute to criminalize a broad array of sexual activity involving children." Perez, supra, 177 N.J. at 549. Similarly, we have observed that "our Legislature has consistently strengthened the [child endangerment] statute, broadened its reach, and toughened its penalties," and consequently, the statute should not be construed in a manner that "would weaken the . . . protection of children . . . ." State v. Bryant, 419 N.J. Super. 15, 27 (App. Div. 2011); cf. In re T.T., 188 N.J. 321, 333-34 (2006) (interpreting sexual conduct liberally to achieve the legislative goals of Megan's Law).

In many prosecutions for child endangerment, the sexual nature of the conduct is obvious. E.g., Bryant, supra, 419 N.J. Super. at 18, 24 (sexual intercourse with a child or touching a child's genitalia); State v. White, 105 N.J. Super. 234, 236-37 (App. Div.) (showing a child photographs of naked men and women in various positions), certif. denied, 54 N.J. 242 (1969); State v. Maxwell, 361 N.J. Super. 502, 517-18 (Law Div. 2001) (telephone conversation about oral sex and manipulating child to touch her intimate parts), aff'd o.b., 361 N.J. Super. 401 (App. Div.), certif. denied, 178 N.J. 34 (2003). In other cases, the conduct is ambiguous. E.g., Perez, 177 N.J. at 544-45 (thirty-four-year-old neighbor approaching thirteen-year-old-girl and attempting to give her a ride or to converse with her); State v. Hackett, 166 N.J. 66, 71-72, 81 (2001) (man repeatedly standing nude at a window in his house in view of children at school bus stop). The Supreme Court has found sufficient evidence of sexual conduct where the defendant's admissions revealed a sexual state of mind, Perez, supra, 177 N.J. at 545-46, 554, or where the victim perceived a sexual aspect to the conduct that involved brazen nudity, Hackett, supra, 166 N.J. at 81.

In support of his argument for a narrow construction of "sexual conduct," defendant relies on two cases where we reversed adjudications of juvenile delinquency based on a lack of proof of the requisite mental culpability in engaging in the conduct. In State ex rel. D.W., 381 N.J. Super. 516, 517-18 (App. Div. 2005), we found insufficient evidence of fourth-degree sexual contact where the State did not prove beyond a reasonable doubt that the purpose of the juvenile's touching of another juvenile's buttocks was for his own sexual gratification or the degradation of the other juvenile. We described the incident as "inappropriate horseplay between schoolmates."

Ibid. In State ex rel. G.B., 365 N.J. Super. 179, 180, 185 (App. Div. 2004), we reversed an adjudication of delinquency because the State did not prove that the purpose of the twelve-year-old juvenile's touching of the vagina of a four-year-old girl was for sexual gratification or degradation. The trial judge as the factfinder had found only that the juvenile acted out of "curiosity" and not malice, and we held that "[i]nappropriate conduct, by itself, is not criminal." Id. at 185-86. On the other hand, we recently concluded in State ex rel. B.P.C., 421 N.J. Super. 329, 343-46 (App. Div. 2011), that the conduct of juveniles was not merely "horseplay" immune from criminal laws where it involved the sexual organs, as defined in N.J.S.A. 2C:14-1e, and was intended to humiliate the victim.

Our decisions in D.W. and G.B. turned on the failure of the Family Part judges as the factfinders to make findings of the required mental culpability under N.J.S.A. 2C:14-3b. Here, the jury did not convict defendant of the sexual assault charge based on alleged "touching" of the boy's genitals with water for his own sexual gratification or the humiliation of the boy. It found, however, that defendant acted with the culpable mental state for conviction on the child endangerment charge.*fn4

Moreover, this is not a case of juveniles engaged in immature horseplay but of an adult encouraging minors to engage in inappropriate activity that involved exposure of their genitals in his presence. The jurors could properly consider the "whole picture" to assess whether there was a sexual aspect to defendant's conduct. See Perez, supra, 177 N.J. at 550, 553-54. The evidence was sufficient to find defendant guilty of endangering the welfare of a child.

C.

We do not have confidence, however, that the jury's verdict was based on sufficiently precise instructions, especially because the evidence of sexual conduct was not indisputable. In Point IIA, defendant contends that the court provided confusing instructions to the jury on an essential element of endangering the welfare of a child, that the conduct "would impair or debauch the morals of the child . . . ." N.J.S.A. 2C:24-4a. Specifically, he argues the court committed plain error by using both "would" and "could" in its final jury instructions and in reinstruction of the jury on the child endangerment charge. The State responds that no error was committed because "would" and "could" are interchangeable as used in the context of the child endangerment charge. We are persuaded by defendant's argument that the two words connote different degrees of probability and are not interchangeable in this context.

The third element of child endangerment is "conduct that likely would impair or debauch the morals of a child in the community." Hackett, supra, 166 N.J. at 83 (emphasis added); see Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Second Degree" (Nov. 2003). Use of the word "would" mirrors the language of the statute. N.J.S.A. 2C:24-4a. Here, the trial court gave the following instructions in conformity with the model charge:

The third element that the State must prove beyond a reasonable doubt is that [defendant] engaged in sexual conduct knowing it would impair or debauch the morals of a child. Sexual conduct that would impair or debauch the morals of a child is conduct which tends to corrupt . . . . In analyzing the proofs to determine whether the evidence demonstrates [defendant's] conduct would tend to impair or debauch . . . evaluate the proofs . . . [under] objectively reasonable . . . standards. [Emphasis added.]

Had the jury instruction ended there, defendant would have no issue. However, prompted by a request to charge from the defense, the court added the following:

Inappropriate conduct by itself is not criminal. . . . [T]he State must prove beyond a reasonable doubt that [defendant] knowingly engaged in sexual conduct and that conduct could impair or debauch the morals of a child. [Emphasis added.]*fn5

The instructions we have quoted were repeated three additional times when the jury began considering the endangerment charge and requested reinstruction. Defendant did not object at that time to the insertion of the word "could" into the charge. Consequently, the plain error standard of review applies to his contention now on appeal that the wording of the charge was erroneous. R. 2:10-2.

"'[C]lear and correct jury instructions are essential for a fair trial.'" State v. Nelson, 173 N.J. 417, 446 (2002) (quoting State v. Koskovich, 168 N.J. 448, 507 (2001)). "[E]rroneous instructions on material points are presumed to be reversible error." Ibid.; accord State v. Martin, 119 N.J. 2, 15 (1990). "[A] reviewing court must evaluate a challenged jury instruction in the context of the entire charge to determine whether the challenged language was misleading or ambiguous . . . ." Nelson, supra, 173 N.J. at 447. However, the essential terms and elements of a criminal offense must be accurately provided to the jury to enable it to evaluate the facts according to the law. Martin, supra, 119 N.J. at 18. "A court's obligation properly to instruct and to guide a jury includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant's guilt." State v. Alexander, 136 N.J. 563, 571 (1994).

Particularly relevant to this case, we have previously held that a jury instruction that fails to indicate the degree of probability in an element of a crime can be a basis for reversal. In State v. Saunders, 277 N.J. Super. 322, 324-29 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995), we reversed a conviction because of jury confusion over "probability" and "possibility" as those terms pertained to the difference between the essential elements of aggravated and reckless manslaughter. The jury had indicated to the court it was confused about whether the State was required to prove that the defendant was aware his actions "would" or "could" result in death or serious injury. Id. at 328. We concluded that the trial court's failure to provide clarification as to the "would-could" distinction was sufficient to affect the verdict. Ibid.

We have not been provided legal authority that directly supports the State's argument that the words "would" and "could" are interchangeable in application to the child endangerment statute. In Hackett, supra, 166 N.J. at 80, the Court stated that proof of violation of the child endangerment statute does not require proof of actual impairment of the morals of a child. The Court interpreted the statute's use of the word "would" as indicating "futurity of a likely event." Ibid. Similarly, the dictionary definition of "would" is "simple futurity" or "likelihood or certainty." Webster's II New College Dictionary 1263 (1995). "Could," on the other hand, is "used to indicate possibility or probability." Id. at 160. These definitions reflect the common use of the terms and indicate different degrees of probability.

We perceive differences in the level and nature of proof required to establish actual impairing or debauching of the morals of a child, the likely impairing or debauching, and the possibility of impairing or debauching the morals of a child. The statute's use of the word "would" requires more than possibility.

Because the jury in this case indicated during its deliberations that it had difficulty understanding the elements of the charge of child endangerment, we cannot say that the use of both "would" and "could" in the court's instructions did not affect the jury's verdict. Some jurors may have voted guilty on the basis of a possibility rather than a likelihood of the conduct impairing the morals of a child.

In the absence of direct support in the statute or case law for the State's position, we conclude the court was required to provide instructions precisely in accordance with the statutory language, that is, consistently using the word "would" with respect to the effect of defendant's conduct on the morals of a child. We are constrained to reverse the jury's verdict and grant defendant a new trial. In doing so, we make no determination that in another case with stronger evidence of sexual conduct, the use of both words in the court's charge would constitute reversible error.

D.

We also conclude that the trial court erred in barring defendant from presenting the testimony of another boy that would have supported the defense position that defendant was not the originator of the so-called "shower game" at the YMCA.

"[T]he right of an accused to present witnesses in his own defense 'is a fundamental element of due process of law.'" State v. Garcia, 195 N.J. 192, 202 (2008) (quoting Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798, 810 (1988)); accord State v. Sanchez, 143 N.J. 273, 290 (1996). Under the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution, a defendant is guaranteed "nothing less than 'a meaningful opportunity to present a complete defense.'" Garcia, supra, 195 N.J. at 201-02 (quoting State v. Garron, 177 N.J. 147, 168 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). The defendant's right, however, is subject to the legitimate interests of the court, including its role as gatekeeper for the admission of evidence. State v. Rosales, 202 N.J. 549, 561-62 (2010); Garcia, supra, 195 N.J. at 202-03 (citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)). A defendant does not have a right to call a witness who will offer irrelevant or inadmissible testimony. Garcia, supra, 195 N.J. at 203 (citing Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 644 (1986)).

At trial, the defense attempted to call a boy to testify that the shower game had been played for years at the YMCA by teenagers and that defendant was not a participant in past games. The State objected, arguing that the testimony was irrelevant and that it would be unfair to admit it because the court had excluded evidence that defendant had himself participated in the shower game on prior occasions. The court ruled the testimony was irrelevant "given the fact that we have barred references by the victim . . . that he had seen the game played in the past."

Evidence is relevant if it has "a tendency . . . to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The inquiry "focuses upon the logical connection between the proffered evidence and a fact in issue."

Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (internal quotation marks omitted).

A critical issue before the jury was whether the State proved that defendant acted to gratify himself sexually or to degrade the boy. To prove the sexual nature and purpose of defendant's conduct, the prosecutor stated in his opening remarks to the jury that defendant "established the objectives of the game, he established the circumstances of the game." The prosecutor repeated a second and third time that defendant "established the rules" and that defendant "was establishing the game." In response to the clear impression created by those remarks that defendant was the person who originated the inappropriate game, the defense sought to present evidence of its prior existence in this particular setting, thus suggesting that defendant's role was not as significant as the State suggested. That testimony was relevant and should have been admitted. We conclude that the court mistakenly exercised its discretionary authority as to admission of relevant evidence in excluding the boy's testimony. See State v. Lykes, 192 N.J. 519, 534 (2007); State v. McGuire, 419 N.J. Super. 88, 135 (App. Div.), certif. denied, 208 N.J. 335 (2011).

We hasten to add that the trial judge was particularly diligent and thorough in making rulings on the multitude of issues presented in this case. He invariably considered all arguments, researched the law, and presented cogent rulings fully explained on the record. The judge's earlier ruling at the urging of the defense that excluded evidence of defendant's prior participation in the game prompted the judge also to exclude the defense witness's testimony. In retrospect, the judge should have revisited his prior ruling and made determinations anew as to whether the defense use of the boy's testimony would open the door to evidence that defendant himself had previously participated in the game. The defense could then have made an informed decision about presenting or foregoing testimony from the defense witness. Because the prosecutor's opening statement exposed defendant to an inference that he had created the game, the defense should have been given the opportunity to make that strategic decision.

III.

Whether or not either of the two errors we have discussed individually entitled defendant to a new trial under the applicable standards of review, cumulatively they call into question the validity of the verdict in a close factual case. See State v. Jenewicz, 193 N.J. 440, 473 (2008); State v. Orrechio, 16 N.J. 125, 134 (1954).

Reversed and remanded for a new trial.


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