On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-05-0706.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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?
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 ...