September 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-10-1753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 27, 2012 -
Before Judges Reisner and Hayden.
Defendant T.F.*fn1 appeals from his conviction, following a jury trial, of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and from that part of his sentence that imposed parole supervision for life. For reasons that follow, we affirm the conviction and remand for resentencing.
We discern the following from the trial record. In July 2003, T.F., who had just turned seventeen, came from his home in Florida to stay with his aunt in New Jersey. He slept in a finished basement of the aunt's home. During that month, the aunt's grandchildren, five-year-old A.V. and her seven-year-old brother C.V., also visited the home.
On one occasion, the grandchildren were in the basement when only T.F. was present. According to A.V., she was lying on T.F.'s bed while her brother was playing a video game across the room. T.F., standing next to A.V., massaged her foot, ran his hand up her leg, then began to touch her vagina with his finger in a circular motion and rub her hips with his hands. In a quiet tone, he told her not to tell anybody. A.V. was too afraid to tell any of the adults upstairs about what had transpired.
At some point, C.V. paused his game and turned around to see defendant touching his sister in the upper thigh area. From across the room, defendant put a finger to his lips and made a "shush" sound. C.V. was then called upstairs for dinner. The defendant and A.V. came up a minute or so later.
In January 2004, A.V.'s family moved from New Jersey to another state. She had nightmares for several months before and after the move and suffered from anxiety and trouble sleeping. In November 2007, A.V., then ten years old, told her mother about the incident with T.F. in her grandmother's basement four years earlier. When questioned, C.V. also told his mother what he had seen. In January 2008, A.V.'s mother and father contacted the police department in the town where the grandmother had lived during 2003. The police took statements from A.V. and her family. Shortly thereafter, the police questioned T.F., who denied that he was ever alone with the children and that the incident took place. On July 20, 2009, defendant was arrested at his residence in Florida.
On October 8, 2009, a grand jury returned an indictment charging T.F. with second-degree sexual assault, N.J.S.A. 2C:14-2(b). In October 2010, a jury trial took place. At the close of the presentation of evidence, the State asked the judge to charge the jury on the lesser offense of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge asked defense counsel what his position was. Counsel asked for time to consider the issue. When the parties came back after lunch, defense counsel stated that he had no objection to the endangering charge.
During their deliberations, the jurors twice asked a question about the difference between the sexual assault charge and the endangering charge. The judge reread both charges. On October 28, 2010, the jury acquitted defendant of sexual assault, but found him guilty of endangering the welfare of a child.
On February 28, 2011, the trial judge sentenced defendant to 364 days in the county jail and imposed parole supervision for life, Megan's Law registration, and the requisite monetary assessments and penalties. This appeal followed.
On appeal, defendant raises the following contentions for our consideration.
I. DEFENDANT'S CONVICTION SHOULD BE REVERSED, BECAUSE THE TRIAL COURT HAD NO RATIONAL BASIS TO CHARGE THE JURY WITH ENDANGERING THE WELFARE OF A CHILD AS A "LESSER INCLUDED OFFENSE" TO SEXUAL ASSAULT, UNDER THE FACTS PRESENTED. (NOT RAISED BELOW).
A. Endangering the Welfare of a Child, N.J.S.A. 2C:24-4a, is not a strict lesser included offense of a Sexual Assault, N.J.S.A. 2C:14-2b.
B. There was no rational basis for the jury to acquit Defendant of sexual assault, but convict of Endangering.
C. The trial court's error meets the "plain error" standard.
II. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO PAROLE SUPERVISION FOR LIFE, INSTEAD OF COMMUNITY SUPERVISION FOR LIFE.
We are governed by the plain error standard because defendant consented to the endangering charge which he now contends was erroneous. R. 2:10-2. Thus, defendant must show a legal impropriety affecting defendant's substantive rights sufficiently grievous to "convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969)). "[N]ot every possibility of an unjust result will suffice." State v. Jordan, 147 N.J. 409, 422 (1997). Rather, the legal impropriety "must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it might otherwise not have reached.'" Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)). A reviewing court must consider the charge as a whole and in the context of the evidence of the case to determine its overall effect." State v. Savage, 172 N.J. 374, 387 (2002) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)).
In arguing that his conviction for endangering should be reversed because the endangering charge was plain error, defendant relies primarily on State v. Brent, 137 N.J. 107 (1994). In Brent, our Supreme Court held that a crime can be charged as a lesser included offense only if (1) it is "strictly 'included'" in the definition of the greater offense, pursuant to N.J.S.A. 2C:1-8(d), and (2) "the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Brent, supra, 137 N.J. at 117. Defendant contends that the endangering charge is not a lesser included offense of sexual assault, N.J.S.A. 2C:14-2(b), because the endangering charge, in addition to requiring that a person engage in sexual conduct, requires proof of an additional element, i.e., that the sexual conduct "'would impair or debauch the morals of a child' under the age of sixteen." State v. Hackett, 166 N.J. 66, 76-77 (2001) (quoting N.J.S.A. 2C:24-4(a)). Moreover, defendant argues that there was no rational basis for an acquittal of the sexual assault charge and a conviction on the endangering charge because both charges are based upon the exact same allegations.
The State counters that defendant is using an inappropriate analysis, as endangering is a lesser related charge and, thus, is controlled by the related offense standard in State v. Thomas, 187 N.J. 119 (2006). In Thomas, the Court pointed out the distinction "between those charges that are included within the charges in the grand jury indictment (included offenses) and those that relate to the charges returned by the grand jury (related offenses)." Id. at 129. To determine if an offense may be considered an included offense of another charge one must compare the statutory elements of both charges. Id. at 130. "On the other hand, whether offenses are related is not a function of a comparison of statutory elements. Instead, the focus is whether the offense charged and the related offense share a common factual nucleus." Ibid. (citing N.J.S.A. 2C:1-8(a)).
In the context of an endangering charge, sexual conduct alone does not require a jury to find that the conduct would impair or debauch the morals of a child. State v. Hackett, supra, 166 N.J. at 77. Rather, the jury must make an additional determination by analyzing the specific conduct to see if it is likely to impair or debauch an average child in the community. Id. at 86. Thus, we agree with defendant that endangering is not a lesser included offense of sexual assault as it requires proof of an additional element. As a result, we need not consider whether there was a rational basis for the jury to acquit on the assault charge and convict on the endangering charge.
Both the United States and the New Jersey Constitutions guarantee a person a right to a grand jury indictment or presentment before being tried for a criminal offense. U.S. Const. amend. V; N.J. Const. art. I, ¶8. Because a lesser related offense contains elements not presented to a grand jury, which raises constitutional implications, a different legal analysis is required. Thomas, supra, 187 N.J. at 132-33 (citing State v. Brent, 137 N.J. 107, 116 (1994)). As the Court elaborated:
[W]hether requested by the defendant or the State, because a defendant can waive his constitutional grand jury protections, we allow a trial court to instruct the jury on a related charge when two factors coalesce: the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense. [Id. at 133-34.]
Here defendant consented to the charge of endangering the welfare of a child, thus satisfying the first factor of the Thomas test. As for the "rational basis" factor, we consider it entirely reasonable that the jury, as "the arbiter of community standards when applying the laws of our State," Hackett, supra, at 83, could rationally view evidence of a seventeen year-old boy sexually touching a five year old girl and warning her not to tell anyone as "conduct which would impair or debauch the morals of the child. . . ." N.J.S.A. 2C:24-4(a). Accordingly, we conclude that the trial court did not err in giving the endangering charge as defendant consented to it, and there was a rational basis in the evidence to sustain the charge.
Defendant also contends that the judge erred in sentencing him to parole supervision for life pursuant to N.J.S.A. 2C:43-6.4, as this type of parole did not exist until 2004 and the conviction related to events in 2003. See L. 2003, c. 267. The State acknowledges that this part of defendant's sentence was erroneous as community supervision for life applied to covered sexual offenses committed before January 14, 2004. Ibid. We agree. Thus, we remand to the trial court for resentencing to the applicable parole requirements.
Affirmed as to the conviction, remand for resentencing.