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State ex rel. K.B.

Superior Court of New Jersey, Appellate Division

June 28, 2013

STATE OF NEW JERSEY IN THE INTEREST OF K.B.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2083-10.

Joseph E. Krakora, Public Defender, attorney for appellant K.B. (Michael C. Wroblewski, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent State of New Jersey (Nidara Rourk, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Axelrad and Haas.

PER CURIAM.

K.B., a sixteen-year-old juvenile at the time of the offense, appeals from an adjudication of delinquency for an offense that, if committed by an adult, would have constituted aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5) and (7).[1] On appeal, K.B. contends the court erred in finding him guilty of N.J.S.A. 2C:14-2(a)(7) when he was not charged with that offense, the State failed to prove a violation of either subsection, and the thirty-month placement was excessive. Based on our review of the record and applicable law, we exercise original jurisdiction, modify the judgment of the trial court to enter an adjudication reflecting the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and remand for a new disposition.

I.

In juvenile delinquency complaint FJ-09-2083-10, filed April 23, 2010, K.B. was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), and second-degree conspiracy, N.J.S.A. 2C:5-2, for having penile-vaginal sex with fourteen-year-old D.J.[2] Three other juveniles were also charged in connection with a subsequent sexual assault of D.J. the same day, and all four juveniles were tried together. D.O., K.S., [3] and A.B. were charged with aggravated sexual assault of D.J. and conspiring with each other to lure her into the bathroom for the purpose of sexually assaulting her. D.O. was adjudicated delinquent of aggravated sexual assault by anally penetrating D.J. with his penis in the presence of A.B. and K.S. in the bathroom, but was acquitted of the conspiracy charge. K.S. and A.B. were each adjudicated delinquent of the lesser-included offense of simple assault on D.J.

At the conclusion of trial, the judge found the State proved beyond a reasonable doubt that K.B. committed an act of first-degree aggravated sexual assault on D.J. pursuant to N.J.S.A. 2C:14-2(a)(5) and (7). He dismissed the conspiracy charge as insufficiently charged, and dismissed the unrelated theft of services charge. On January 19, 2011, he imposed a disposition of a concurrent thirty-month placement with the Juvenile Justice Commission for sexual assault and probation violation, with a term of post-incarceration supervision equivalent to one-third of the term, N.J.S.A. 2A:4A-44(d)(5). K.B. was further required to register as a Megan's Law offender. Mandatory fines and fees were also imposed. K.B. appealed.

II.

At trial, the State presented the testimony of D.J., her twelve-year-old girlfriend K, a sexual assault nurse examiner, forensic scientists, and detectives. None of the juveniles testified or presented witnesses on their behalf. The following facts are derived from the trial testimony.

D.J. testified that on April 20, 2010, she was hanging out after school with K and a third girl near Montgomery Gardens in Jersey City. K told her that K.B. wanted to talk to her. The girls went into K.S.' apartment and D.J. talked to K.B. in a room. He asked her if she was a virgin, to which she replied "yes." Afterwards, they all went outside, sat on a bench, and talked for a few hours with other people. D.J. then went upstairs with K and two other girls to buy Roman candles from K.S., and a group of people joined them in the apartment.

K.S. told her his brother wanted to talk to her. She followed K.B. into the bathroom and sat on the sink. The door was closed. It was dark but she could see a little bit from a light coming from the kitchen. "He then put [her] on the floor and he pulled [her] pants and panties" halfway down her legs, a little below her knees. He then "put his dick in [her] pussy." She did not want him to do this and he hurt her; while he was doing this she did not say anything because he had his hand over her mouth, although she made noises that were like "moaning and screaming put together." This happened for five or six minutes, until she heard a knock on the door, which apparently was K, who was concerned about her. K.B. got up, fixed his clothes and left to go look for K.

D.J. left the bathroom after she pulled her panties and pants up but did not fasten her pants, which were loose and falling down a little, and went to look for K. She saw "[a] whole bunch of boys" she did not know outside the bathroom and two girls she knew, and when she was approximately seventeen feet from the bathroom, K.S. pulled her back into the bathroom. Two minutes later three other boys came in, who she identified as D.O., A.B., and someone she did not know. She testified about the incident in the bathroom involving the three juveniles not involved in this appeal.

After some of the boys left, D.J. rushed out of the bathroom and saw K and the other girls in the hallway. She had blood on her panties and pants and one of the girls said she should go home and take a shower. D.J. walked home, took a shower, and put a pad on as she was bleeding. She did not have any bumps or bruises on her body. When her mother arrived, she told her what happened, and her mother took her to the hospital. The State presented D.J.'s blood-stained clothes as evidence. The State also presented a forensic scientist who analyzed the fluid collected from D.J. at the hospital and confirmed the presence of K.B.'s and D.O.'s seminal fluids.

Detective Joanne Son testified that before being read his rights, K.B. said "I didn't touch that girl, I'll never do this again." After being read his rights, K.B. made a statement to the detective that included:[4]

So she started pulling her pants down. So I took my condom out and I stuck it in the — something in. Something told me in my head to stop, so I stopped. So she's still there with her pants down.
She said, what are you doing, I want to finish. So I said, nah, I can't do it. So I told her to put her pants up.

K.B. then acknowledged that his "penis went in a little bit in her vagina." He then said:

So she put her pants up, so we . . . [o]pened the bathroom door. We left out. She's laughing. They getting on her, so I left, I left the house. . . . I went home . . . I don't know what happened after that.

The judge noted that in K.B.'s statement he denied that any other juveniles were present or could have witnessed what transpired.

At the conclusion of the trial, counsel for K.B. conceded that there was sexual contact between K.B. and D.J., but claimed there was no aggravated sexual assault under N.J.S.A. 2C:14-2(a)(5) because "there was no physical force or coercion" and no "aiding or abetting" as the "act took place between these two individuals in the bathroom, by themselves." The prosecutor argued that K.S.' statement to D.J. that his brother was interested in her "was part of what got her into the bathroom with [K.B.] to begin with"; that D.J. testified she was scared and did not want to have sex with K.B. but he put his hand over her mouth and pulled her pants down and inserted his penis into her vagina; that the evidence clearly demonstrated penetration and K.B. acknowledged that fact; and K.B.'s contradictory statements to the officer demonstrated "consciousness of guilt."

The judge found that K.S. told D.J. his brother wanted to speak with her and K.B. approached her and led her into the bathroom. The judge explained in detail why he credited the testimony of D.J. regarding the encounter with K.B. and "based on the totality of the credible evidence" found K.B.'s assertion that D.J. "consented to the sexual intercourse to be totally without merit." The judge elaborated:

He would have this court believe that, not only did she welcome the opportunity to have sex with him, but that she was disappointed when his conscience got the better of him.
It is also simply incredible that, given the circumstances of the assault, that he would have this court believe for a moment that she was laughing and giggling as she left the bathroom; a scenario vehemently denied by her friends[.]
This court, therefore, finds his statement to be a fabrication, but also at the same time admitting that he did, indeed, have sexual intercourse with her.

The judge also found K.B. "used physical force, not only when he placed her on the bathroom floor against her will, but then proceeded to pull down her pants and panties, immediately prior to inserting his penis against her will." He also credited the forensic evidence.

In finding the State proved beyond a reasonable doubt aggravated sexual assault under N.J.S.A. 2C:14-2(a)(5) and (7), the judge further noted that the victim was the tender age of fourteen; was in a very small bathroom with at least three other co-juveniles, two of whom were also, to varying degrees, involved in criminal conduct with her; was "extremely unsophisticated" and "her will to resist was diminished by the extreme circumstances in which she found herself"; and other individuals were immediately outside the bathroom. The judge concluded that "[a]ll of these conditions placed her clearly in a position of physical helplessness, where she was incapable of resisting [K.B.'s] sexual advances and ultimate assaultive behavior." Following the adjudication and disposition, K.B. appealed.

On appeal, K.B. argues:

POINT I
THE TRIAL COURT DENIED [K.B.] HIS RIGHT TO DUE PROCESS OF LAW BY FINDING HIM GUILTY OF VIOLATING N.J.S.A. 2C:14-2(a)(7) WHEN [HE] WAS NOT CHARGED WITH VIOLATING THIS SECTION OF THE STATUTE.
POINT II
THE COURT'S FINDING THAT [K.B.] WAS GUILTY CONSTITUTED REVERSIBLE ERROR AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF BOTH N.J.S.A. 2C:14-2(a)(5) AND (7).
POINT III
THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE.
III.

N.J.S.A. 2C:14-2(a) provides:

An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:
(5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;
(7) The victim is one whom the actor knew or should have known was physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

K.B. argues that his defense would have been different had he known he was being charged with N.J.S.A. 2C:14-2(a)(7), and because he was not charged with that offense, he was denied due process by being adjudicated delinquent under that statute. The State concedes that K.B. was not charged with N.J.S.A. 2C:14-2(a)(7), and does not assert that it argued that offense at trial. The State conclusorily submits, however, that the record supports a finding of guilt on that basis, citing to the judge's findings of D.J.'s physical helplessness.

"An appellate court should give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." State v. Harris, 211 N.J. 566, 578 (2012). However, our review of the legal conclusions and analysis of the trial court is plenary. State v. Handy, 206 N.J. 39, 45 (2011).

We need not address K.B.'s constitutional challenge because we are satisfied that even if he were placed on notice of the subsection (7) charge based on discovery and the State pursued it as an alternate ground, the record is insufficient to support a conviction of that offense. See, e.g., State ex rel. J.D.H., 171 N.J. 475, 477 (2002) (victim was intoxicated and had fallen asleep when sexually assaulted); State v. R.T., 411 N.J.Super. 35, 38-44 (App. Div. 2009 (victim was between four and ten years old when assaulted by his caregiver, who at times gave him Nyquil so he would be asleep prior to assaulting him), aff'd, 205 N.J. 493 (2011). See also N.J.S.A. 2C:14-1(g) ("'Physically helpless' means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act"); N.J.S.A. 2C:14-1(i) ("'Mentally incapacitated' means that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent . . . .).

That the victim was fourteen years old and a virgin was insufficient to render her "helpless, " "mentally incapacitated, " or "incapable of providing consent" within the statute. It is also difficult to ascertain from the court's comments whether he found that other individuals were in the bathroom with K.B. and D.J. If he did, that is not supported by the record; D.J. never claimed anyone else was in the bathroom when K.B. sexually assaulted her and K.B. expressly denied that anyone else was present in his statement to the police. Moreover, there was no evidence that the mere presence of other individuals outside the bathroom had any impact on the incident between K.B. and D.J.

We turn now to N.J.S.A. 2C:14-2(a)(5), which was the offense charged and prosecuted by the State. K.B. argues the State failed to prove that he used physical force or coercion on D.J. and that he was aided or abetted by one or more persons. The prosecutor requests we defer to the judge's factual findings on force and penetration. He further urges that K.S. provided the apartment, made the initial contact with D.J., suggested she speak with his brother, pulled her back into the bathroom after the initial assault by his brother and, as noted by the judge, the co-juveniles were with other people "in the immediate area of the bathroom" when K.B. sexually assaulted D.J.

K.B. acknowledged the act of sexual penetration. We defer to the trial court's credibility assessments and findings, as clearly supported by the record, that D.J. did not consent to sexual intercourse but, rather, K.B. put his hand over her mouth, pulled her pants and panties down, and forced her to have sex against her will. Thus, the statutory elements of penetration, physical force and coercion have been met. See, e.g., State in re M.T.S., 129 N.J. 422, 444 (1992) (holding that "any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault").

We are not convinced, however, that the State carried its burden or that the judge made adequate findings that K.B. was "aided or abetted by one or more other persons" as additionally required for a conviction under N.J.S.A. 2C:14-2(a)(5). The State did not argue or demonstrate that K.S. "aided or abetted" K.B. in K.B.'s sexual offense against D.J. as defined in the model jury charge, nor did the judge make that finding. The Model Jury Charge (Criminal), Aggravated Sexual Assault, provides:

The third element that the State must prove beyond a reasonable doubt is that at the time of the penetration, defendant was aided or abetted by one or more other persons. To aid means to assist, support or supplement the efforts of another. To abet means to encourage, counsel, incite or instigate the commission of the crime. The State does not need to prove aiding or abetting by direct evidence of a formal plan to commit the crime or by a verbal agreement from all who were charged or involved. Rather, the proof can be circumstantial and can be established from conduct as well as spoken words. However, a person cannot be an aider or abettor unless you find as a fact that he/she shared the same purpose required to be proven against the person who actually committed the act of penetration.

The judge found, and the record supports, that the assault took place at K.S.' residence, K.S. told D.J. his brother wanted to see her, and K.S. dragged D.J. back into the bathroom after his brother left and sexually assaulted her himself in the presence of juveniles other than his brother. No one was present in the bathroom at the time of the subject incident other than K.B. and D.J., and no evidence was presented that the co-juveniles or any other persons held the door closed, egged K.B. on, or by words or conduct assisted, supported, encouraged or incited K.B. to sexually assault D.J. Moreover, the judge dismissed the conspiracy counts against all the juveniles.

Accordingly, the adjudication cannot stand for first-degree aggravated sexual assault under either N.J.S.A. 2C:14-2(a)(5) or (7). However, in accepting the judge's credibility assessments and findings supported by the record, which we have independently analyzed under the law, we are satisfied the record supports a guilty adjudication beyond a reasonable doubt as to the lesser-included offense of second-degree sexual assault under N.J.S.A. 2C:14-2(c)(1). K.B. "commit[ted] an act of sexual penetration with another person[, ]" namely D.J., and "use[d] physical force or coercion, but the victim [did] not sustain severe personal injury." We therefore deem it appropriate to exercise original jurisdiction in the interest of the juvenile and for the welfare of society, R. 2:10-5; In re S.H., 61 N.J. 108, 116 (1972), modify the judgment of the trial court to enter an adjudication reflecting the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and remand for a new disposition.

Adjudication modified and remanded consistent with this opinion. We do not retain jurisdiction.


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