June 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LUZ RIVAS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 07-02-0256 and 07-03-0408.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa,
Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Nugent.
Defendant appeals his conviction by a jury of attempted endangering the welfare of a child and his conviction by a judge of violating the conditions of his community supervision for life (CSL), a sentence he was serving when arrested for attempted child endangerment. In this appeal, defendant argues the court misinstructed the jury on the elements of attempt and child endangerment at his first trial. He also argues that the subsequent non-jury trial placed him in double jeopardy because the charges were based on the same conduct underlying his conviction of attempted child endangerment. Alternatively, he argues the CSL conviction should be dismissed because he did not knowingly waive his right to a jury trial on that offense, and the court should have merged the convictions before he was sentenced. Defendant made none of these arguments to the trial court. We affirm his convictions and his sentences.
The State's trial evidence established that early one morning in November 2006, while walking to school with her brother, ten-year old Natalie decided to stop at a bodega where defendant worked behind the counter. Her brother did not stop with her. She walked into the store and to the counter, ordered a buttered roll from defendant, and then walked away to get orange juice. After getting orange juice, she returned to the counter where she paid for the juice and roll. Natalie then walked away from the counter to get some potato chips. While she was looking for the potato chips, defendant approached her, grabbed her by putting his arm around her, leaned forward, and said "kiss me." Scared, Natalie pushed him away and ran out of the store.
Natalie walked quickly to school where she asked the school nurse to call her mother. According to the nurse, Natalie was crying, gasping for breath, and "a little hysterical." The nurse calmed her down, Natalie explained what happened, and the nurse notified the principal. When her mother arrived at the school, Natalie was still crying hysterically. She told her mother that she had stopped at a store to get breakfast and a man tried to attack her.
Police officers arrived at the school and drove Natalie, in a police car with tinted windows, by the bodega, where she identified defendant. Later that day, Natalie gave a videotaped statement to an employee of the Passaic County Prosecutor's office trained in conducting forensic interviews of children.
The same day, a detective interviewed defendant, age fifty, who initially denied knowing "what girl" the detective was talking about. Later in his statement, defendant said that the store's owner, who was also his girlfriend, came down when the girl was there. Defendant subsequently acknowledged that Natalie had been in the store that morning while he was working alone. He remembered that she ordered a buttered roll, got juice, put the money on the counter, and left. He then contradicted himself again and said Natalie went to the "chips area" before leaving the store. The police arrested defendant.
When the events involving Natalie occurred, defendant was serving a special sentence of CSL as the result of a previous conviction for a sexual offense. Following defendant's arrest, a Passaic County Grand Jury charged him in a two-count indictment with second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2b (count one), and third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4a (count two). In a separate indictment, the Passaic County Grand Jury charged defendant with two counts of violating a condition of his special sentence of CSL, N.J.S.A. 2C:43-6.4d; the first count for failing to report to his parole officer as directed, the second for failing to refrain from having contact with a minor.
Defendant was tried separately on the indictments. Before beginning defendant's trial on the first indictment, the State dismissed count one, attempted sexual assault, and thereafter proceeded to trial only on the second count, attempted endangering the welfare of a child. Defendant denied Natalie's accusations, testifying that he had remained behind the counter the entire time Natalie was in the store. He also testified that Natalie knew a woman who once worked at the store. Defendant reported that woman to his girlfriend, the owner, for some unspecified deed, and as a result, his girlfriend fired the woman. Defendant told the jury that Natalie had fabricated her story to get back at him for having the woman fired.
The jury disbelieved defendant and found him guilty of attempted child endangerment. The court thereafter conducted a non-jury trial on the second indictment. In a written decision, the court acquitted defendant of count one, failing to report to his parole officer, but found him guilty of count two, failing to refrain from having contact with a minor while serving CSL.
The court subsequently sentenced defendant on count two of the first indictment to a five-year prison term, and ordered that he comply with the conditions of CSL and with the registration and reporting requirements of Megan's Law, N.J.S.A. 2C:7-2c and d. On the second count of the second indictment, the court imposed a consecutive eighteen-month prison term. The court also imposed appropriate fines, penalties, and assessments.
Defendant appealed. Because the videotape system that recorded the non-jury trial had malfunctioned, we directed the trial court and the parties to reconstruct the record. During that hearing, in which the attorneys were given the opportunity to comment, the trial court was able to obtain the indictment and the trial exhibits, which included: a CSL form signed by defendant October 28, 2003, specifying conditions defendant allegedly violated; the judgment of conviction that placed defendant on CSL; and the violation complaint prepared by defendant's parole officer following the November 2006 incident involving Natalie. The court included in the reconstructed record its written decision following defendant's non-jury trial.
Defendant argues the following points:
THE TRIAL JUDGE MISINSTRUCTED THE JURY ON THE CORRECT STATE OF MIND FOR ATTEMPTED CHILD ENDANGERMENT. (NOT RAISED BELOW).
THE PROSECUTION OF DEFENDANT FOR THE CRIME OF VIOLATING A CONDITION OF HIS COMMUNITY SUPERVISION FOR LIFE BY HAVING CONTACT WITH A MINOR WAS VIOLATIVE OF HIS STATE CONSTITUTIONAL PROTECTIONS AGAINST DOUBLE JEOPARDY WHEN THAT "CONTACT" WAS PART AND PARCEL OF THE CRIME OF ATTEMPTED ENDANGERING THE WELFARE OF A CHILD FOR WHICH HE HAD JUST BEEN CONVICTED; ALTERNATIVELY, THOSE CONVICTIONS SHOULD HAVE BEEN MERGED; ALTERNATIVELY, THERE IS NO INDICATION THAT DEFENDANT PROPERLY WAIVED HIS RIGHT TO A JURY TRIAL. (NOT RAISED BELOW).
We first address defendant's argument that the trial court misinstructed the jury. "Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . ." R. 1:7-2. Thus, in cases where defendants do not object at trial, we "review the charge for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126 (2011) (quoting Rule 2:10-2). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).
"When the error alleged concerns only a portion of a charge, the challenged portion is not to be 'dealt with in isolation but the charge must be examined as a whole to determine its overall effect.'" State v. Docaj, 407 N.J.Super. 352, 363 (App. Div.), certif. denied, 200 N.J. 370 (2009). Here, though defendant challenges only a portion of the charge, we consider the charge in its entirety.
When the court charged the jury, it followed the model jury charge on attempt. Model Jury Charge (Criminal), "Attempt" (Revised 6/15/09). Defendant does not challenge that portion of the charge. The trial court also followed the model jury charge when it instructed the jury on the offense of endangering the welfare of a child. Model Jury Charge (Criminal), "Endangering the Welfare of a Child" (Revised 11/10/03). Defendant claims a gratuitous comment the trial court injected into the model jury charge on child endangerment, considered in the context of the court's prefatory and concluding instructions about the jury having to "combine" the attempt and child endangerment charges, suggested the jury could find defendant guilty of attempt if he acted knowingly, rather than purposely.
Immediately before explaining the elements of attempt and child endangerment, the court made the following prefatory remark:
Now the charge, as you can see, is attempted endangering the welfare of a child. So let me tell you - - instruct you as to what attempt means in the law. Alright. Because you have to kind of combine the two. You have to take the law on attempt and you have to take the law on endangering the welfare of a child and you - - you have to combine those two and then be convinced beyond a reasonable doubt in order - - if you're going to find the defendant guilty. If you're not convinced beyond a reasonable doubt then you must find him not guilty.
Immediately following this prefatory comment, the court instructed the jury on the law of attempt. In part, the court instructed the jury that in order to find defendant guilty of criminal attempt, the State had to prove, as the first element, "that the defendant had the purpose to commit the crime of endangering the welfare of a child." The court then properly defined "purposely." Upon completing its charge on attempt, the court stated: "Alright. So we have that attempt, right, with those elements and that state of mind. You have to combine that now with the substantive charge."
The court next instructed the jury on the elements of endangering the welfare of a child. After reading the statutory language, the court stated:
To find the defendant guilty of this crime the State must prove beyond a reasonable doubt the following elements. One, that [Natalie] was a child; two, that the defendant knowingly engaged in sexual conduct with [Natalie], and this is an attempt; three, that the defendant knew that such conduct would impair or debauch the morals of [Natalie].
The emphasized clause is not part of the model jury charge.
After completing its charge on child endangerment, the court continued:
In this case, again, it's attempted, you have to put the two together. If the State has failed to prove any element of the offense beyond a reasonable doubt, then you must find the defendant not guilty of attempted endangering the welfare of a child.
Defendant contends the court's interjection of the clause "and this is an attempt" while defining the second element of child endangerment, and later stating to the jury, "you have to put the two together, " effectively "told the jurors that they must determine if defendant 'purposely' acted 'purposely or knowingly.'" The State disagrees, arguing that the judge clearly and repeatedly instructed the jury the State had to prove beyond a reasonable doubt defendant acted purposely in order to commit the crime of attempt. We agree.
Here, the trial court charged the jury, explicitly, that "the State must prove . . . defendant had the purpose to commit the crime of endangering the welfare of a child." The court further explained that "a defendant acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." Although the court's use of the word "combine" was perhaps not as precise as it could have been, when considered in the context of the charge as a whole, it conveyed precisely the same thing as the model charge; that because the indictment charged defendant with attempted endangerment, the State was required to prove defendant's conscious object was to commit the crime of endangering the welfare of a child. In view of that explicitly clear instruction, and the presumption from defendant's failure to object "that the charge was not error and was unlikely to prejudice [his] case[, ]" Singleton, supra, 211 N.J. at 182, we are unpersuaded by defendant's argument.
In support of his argument, defendant relies upon State v. Rhett, 127 N.J. 3 (1992). There, the Supreme Court held that the trial court had committed reversible error when it instructed the jury on attempted murder. In Rhett, "[t]he trial court charged the jury that a person 'acting purposely or acting knowingly' who 'purposely engaged in the conduct which would constitute the crime' is guilty of an attempt." Id. at 7. Here, unlike Rhett, the trial court did not charge the jury that a person acting either purposely or knowingly is guilty of an attempt. Rather, the court instructed the jury that the State was required to prove beyond a reasonable doubt that defendant acted purposely. Accordingly, we find no plain error in the trial court's charge in this case.
Defendant next argues that the second trial placed him in double jeopardy. Defendant did not raise the issue before the trial court. Rule 3:10-2c requires that a defendant raise "[t]he defense of double jeopardy . . . by motion before trial." The Rule further provides that "[f]ailure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver." Requiring the filing of "a timely motion to preclude a second trial on double jeopardy grounds promotes judicial economy and efficiency by preventing the waste of time and resources of judges, counsel, and juries." State v. Allah, 170 N.J. 269, 282 (2002). Here, defendant did not raise his double jeopardy claim before trial. For that reason, he has waived the issue.
Defendant has not attempted to show good cause why he should be relieved from complying with Rule 3:10-2. It is unlikely that he could make such a showing, as the record of his attempted endangering trial discloses that he objected to even the mention of the nature of his prior criminal convictions. In this appeal, defendant does not mention, let alone discuss, his implicit argument that the second indictment should have been tried in the same trial as the first indictment. He has not shown good cause to excuse his pre-trial omission.
Defendant's argument "that the fourth-degree conviction should be reversed because there is no proper demonstration in the record that defendant knowingly and intelligently waived his right to a jury trial" is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. In the written opinion announcing its verdict, the court recounted that defendant had waived his right to a jury trial. The court stated: "The defendant requested a bench trial on the CSL violation. After extensive voir dire of the defendant, this court was satisfied that the defendant knowingly and intelligently waived his right to a jury trial." Although we remanded this matter so that the parties could reconstruct the trial record, defendant did not even mention the issue, let alone submit an affidavit from either himself or his trial attorney, claiming that he did not knowingly and voluntarily waive his right to counsel. Considering those circumstances, and because defendant did not raise this issue before the trial court, it is not reviewable. See State v. Holland, 423 N.J.Super. 309, 319 (App. Div. 2011).
Lastly, defendant argues that both convictions should have merged for purposes of sentencing. Merger is based on the principle that "'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" Miller, supra, 108 N.J. at 116 (1987) (quoting State v. Davis, 68 N.J. 69, 77 (1975)) (alteration in original). "[T]he focus is on the elements of the crimes and the Legislature's intent in creating them." Ibid.
The crime of endangering the welfare of a child is aimed at both "specific conduct . . . [and] at the violation of the duty that a parent owes to a child." Id. at 118-119. The purpose of N.J.S.A. 2C43-6.4 is to protect the public and foster rehabilitation. See N.J.S.A. 2C:43-6.4 b and c. Merger would have been inappropriate, even had defendant raised the issue before the trial court.