NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2012
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 09-09-0329, 07-12-0428.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sapp-Peterson, Nugent and Haas.
Tried before a jury for molesting a teenager, defendant Stephen J. Behnke was convicted of criminal sexual contact, sentenced to a four-year probationary term conditioned upon his serving 364 days in county jail, and ordered to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-2. Defendant contends that, separately and cumulatively, a witness's improper testimony, the prosecutor's misconduct during his closing argument, and four mistakes the judge made when charging the jury, require a new trial. Having considered defendant's arguments in the context of the record and controlling law, we reject them and affirm his conviction and sentence.
A Hunterdon County Grand Jury charged defendant in a four-count indictment with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Counts One and Two), third-degree criminal restraint, N.J.S.A. 2C:13-2b (Count Three), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Four). During a pre-trial status conference, the court dismissed Count Four on defendant's uncontested motion.
During the five-day trial the State developed the following proofs. On October 18, 2008, seventeen-year-old Diane (a pseudonym) answered an employment ad, interviewed with defendant, and accepted a job at his garage. Her mother's next-door neighbor drove her to the interview. Following the interview, as Diane walked back to the neighbor's car, defendant asked who her "hot friend" was and commented that the woman had "big boobs." The neighbor was sixty-five years old.
Diane worked the next morning in jeans and a t-shirt after changing from dress slacks and a "nice shirt." While she was kneeling in the garage, cleaning up oil with a rag, defendant remarked that she had a nice pink thong. Later, while Diane was leaning against a backhoe and writing down measurements that defendant was taking "for [the] backhoe, " defendant came around and put his hands on Diane's forehead, put his forehead against Diane's forehead, and then kissed her on the cheek. Diane pushed him away.
A short time later, defendant called Diane into his office and started popping the pimples on her cheeks and forehead, which scared and hurt her. Diane testified that defendant "was just squeezing them and kind of like holding my head so I wouldn't move." When she told him to get off her and stop, he told her "to hold still because [she had] a pretty face and the pimples [didn't] need to be there."
When defendant stopped, he scrubbed her face with acne pads that had been in the sink. Diane told defendant to leave her alone, but he told her to hold still. He said that he wanted to marry her and that she had "pretty deep eyes." When defendant finished, he went outside to work on a truck and Diane began cleaning the grease-stained walls in the garage. She was unable to leave the building, because he had locked the outside door.
Approximately one-half hour later, when defendant left the garage and drove a truck to a customer's house, he had Diane follow in his Ford Explorer. Before leaving, she changed back into dress clothes. The ride took fifteen or twenty minutes. At the customer's house, after defendant dropped off the truck, Diane "got out of the driver's seat and when [she] was coming around he slapped [her] butt." She got into the passenger side of the front seat and he drove her back to his shop.
On the return trip, when he stopped in front of a high school, defendant started rubbing Diane's inner thigh and he tried to put his hand down her shirt. He continued until they reached the next road, while she attempted to move his hand away. At first, she was unsuccessful, because he was much bigger and stronger. He also threatened her, telling her that if she "wasn't a good girl, he would [take her] to the abandoned house and do bad things to [her]." He continued to grab and rub her breasts.
Defendant stopped molesting Diane when he stopped to buy gas. After getting gas, defendant drove back to his garage, and Diane left. Defendant told Diane he would see her tomorrow and that he loved her. That night, Diane drove to her mother's next-door neighbor's home and told the neighbor what defendant had done to her. The neighbor called Diane's mother. After telling her mother what happened, Diane and her mother drove to a State Police station where Diane reported the entire incident to the State Police.
New Jersey State Police Detective Justin Blackwell, who at the time was assigned to the Perryville Station, became involved in the investigation of Diane's complaints on Monday, October 20, 2008. The detective explained to the jury that after reviewing audio and videotaped statements that Diane had given the previous day, and a statement her mother's neighbor had given the previous day, he spoke to Diane's mother and then to Diane, "who is the victim in this case." A week later, he interviewed defendant, recorded the interview, and had it transcribed.
In a lengthy interview at the Perryville Station, defendant confirmed where Diane worked and what she did on her first day, including following him in a Ford Explorer to a house where he delivered a customer's truck. Although he admitted helping Diane pop some of the pimples on her face, he repeatedly and adamantly denied touching her in any inappropriate manner. Defendant told the detective she was a young, mixed up kid who had a "psychological thing going on." Defendant made some derogatory comments about Diane's appearance, insisted that he had no sexual interest in Diane, suggested that she was lying to get some attention, and repeated that nothing had ever happened between him and her.
Detective Blackwell concluded his direct testimony by stating that he believed he had probable cause to charge defendant:
[Prosecutor]: Now, sir, based upon the information from your investigation, everybody that you spoke with, . . . in addition to the contents of this statement, . . did you feel that you had probable cause to move forward with a criminal charge?
[Detective]: Yes, sir. I did.
[Prosecutor]: And did you refer that matter to the Prosecutor's ...