STATE OF NEW JERSEY IN THE INTEREST OF M.W.M., a Minor.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1059-04T41059-04T4

STATE OF NEW JERSEY IN

THE INTEREST OF M.W.M.,

a Minor.

 

Submitted: September 21, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket Number FJ-17-607-04.

Yvonne Smith Segars, Public Defender, attorney for appellant M.W.M. (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent State of New Jersey (Frank C. Holley, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this juvenile delinquency case, M.W.M. appeals from a final adjudication of delinquency entered by the Family Part on June 2, 2004, finding that he had committed acts which, if committed by an adult, would constitute fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and petty disorderly persons harassment, N.J.S.A. 2C:33-4b. M.W.M. also appeals from that part of the dispositional order issued on August 23, 2004, requiring him to comply with the registration and notification provisions of Megan's Law, N.J.S.A. 2C:7-1 to -19. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

On March 4, 2004, M.W.M., then age twelve, was a seventh-grade male student. K.E.M., A.J.L., and T.M.E.S. were M.M.W.'s thirteen-year-old female classmates. On March 5, 2004, three juvenile delinquency complaints were filed against M.W.M.

In FJ-17-605-04 it was alleged that on March 3, 2004, M.W.M. had committed an act of delinquency by subjecting K.E.M. to an act of criminal sexual contact, contrary to N.J.S.A. 2C:14-3b, by grabbing K.E.M.'s buttock and breasts and then laughing. It was also charged that M.W.M.'s conduct constituted an act of harassment against K.E.M. by subjecting her to offensive touching, contrary to N.J.S.A. 2C:33-4b.

In FJ-17-603-04, it was alleged that M.W.M. had committed an act of delinquency on March 4, 2004, by subjecting A.J.L. to an act of criminal sexual contact by grabbing A.J.L.'s genital area and breasts and then laughing, contrary to N.J.S.A. 2C:14-3b. The complaint also charged that M.W.M.'s conduct constituted an act of harassment against A.J.L., contrary to N.J.S.A. 2C:33-4b in that he had subjected her to offensive touching, during which he stated, "you want some milk," and "it looks nice," while looking at her genital area.

In FJ-17-607-04, M.W.M. was charged with committing an act of delinquency on March 4, 2004, by subjecting T.M.E.S. to criminal sexual contact by grabbing her buttock and breasts and then laughing, contrary to N.J.S.A. 2C:14-3b. The complaint also charged that this same conduct constituted an act of harassment by subjecting T.M.E.S. to offensive touching, contrary to N.J.S.A. 2C:33-4b.

These three complaints were tried together in the Family Part on June 2, 2004. K.E.M. testified that on March 3, 2004, M.W.M. was standing in back of her in the lunch line when he smacked her on her buttocks with his hand. She stated that when she turned around, M.W.M. touched her breasts "like three times" with "a twisting motion." K.E.M. stated that when she told M.W.M. to stop, he laughed and "thought it was funny." K.E.M. also testified that after school was discharged that day, she was walking in the school hallway with A.J.L., when M.W.M. came up from behind them and slapped A.J.L. on the buttocks with his hand.

A.J.L. testified that on March 3, 2004, during seventh period she and other classmates, including M.W.M., were sitting in chairs in a circle; M.W.M. was sitting across from her. A.J.L. stated that M.W.M. reached out and "tapped" or "flicked" his hand, touching her in her front groin area. A.J.L. also testified that on that day, she saw M.W.M. touch K.E.M. on one of her breasts.

T.M.E.S. testified that on March 3, 2004, she had been talking to M.W.M. Thereafter, M.W.M. touched her on her buttocks with his hand as he walked past her; she told him to stop. T.M.E.S. stated that on the next day, in the school gym, M.W.M. touched her again on her buttocks and then on her breasts. T.M.E.S. testified that when she told M.W.M. to stop "[h]e would start laughing and like later on then he would touch me again." T.M.E.S. also stated that on other occasions she had seen M.W.M. touch A.L. on the buttock in the gym room and K.E.M. in the hallway.

M.W.M. testified, denying that he had touched K.E.M., A.J.L. or T.M.E.S. on their buttocks, breasts or groin area. He claimed that on one occasion A.J.L. had punched him on his shoulder without provocation. However, M.W.M. provided no explanation as to why K.E.M., A.J.L. and T.M.E.S. had made these allegations against him.

After hearing the testimony and considering the arguments of counsel, the trial judge credited the testimony of the victims, finding that M.W.M. had violated the provisions of N.J.S.A. 2C:14-3b, by committing acts of criminal sexual contact against the victims under circumstances where M.W.M. had used physical force but the victims did not sustain severe personal injury. N.J.S.A. 2C:14-2c(1).

Citing to State in Interest of M.T.S., 129 N.J. 422 (1992), the judge concluded that because M.W.M. had engaged in acts of "sexual contact," as defined by N.J.S.A. 2C:14-1d, against the victims without their permission the requisite "physical force" element of the offense of criminal sexual contact had been established beyond a reasonable doubt. The judge found that M.W.M. had committed acts of "sexual contact" against the victims by intentionally touching their intimate parts, inferring that he had done so "for the purpose of degrading or humiliating" them. N.J.S.A. 2C:14-1d. The judge also found that M.W.M.'s actions constituted acts of harassment, contrary to N.J.S.A. 2C:33-4b.

The Family Part conducted a dispositional hearing on August 23, 2004. On the adjudication of delinquency on FJ-17-607-04 involving victim T.M.E.S., the dispositional judge imposed a two-year probationary term. On FJ-17-605-04, involving victim K.E.M., the judge placed M.W.M. on a concurrent two-year term of probation and required that

he must register with local police under Megan's Law, may not belong to any community organizations such as fire companies or rescue squads, it ordered to have no contact with the victims of either crime, allow probation to release all records requested by the counseling agency, receive sex offender specific counsel[ing] if appropriate, obtain a photo ID, complete a school-based youth services evaluation, have no unsupervised visits with children, and not to view or possess pornographic material in any media, submit to a search, including computers, if requested, and must notify probation of any job opportunities before he is employed.

On FJ-17-603-04, the judge imposed a two-year probationary period, concurrent to the disposition on the other adjudications with "the same limitations as just placed on the record as to the other two charges." The court also required that M.W.M. provide a DNA sample. Applicable mandatory fines and penalties were also assessed.

On appeal, M.W.M. presents the following arguments for our consideration:

POINT I

SINCE THERE WAS NO EVIDENCE OF EXTRINSIC FORCE TO DISTINGUISH FOURTH DEGREE CRIMINAL SEXUAL CONTACT FROM HARASSMENT, THE JUVENILE DEFENDANT SHOULD HAVE ONLY BEEN FOUND DELINQUENT FOR THE HARASSMENT CHARGES. (Not Raised Below).

POINT II

SINCE THE JUVENILE-DEFENDANT WAS UNDER THE AGE OF FOURTEEN, HE SHOULD NOT BE SUBJECT TO THE REGISTRATION AND NOTIFICATION REQUIREMENTS OF MEGAN'S LAW AS A RESULT OF FOURTH DEGREE SEXUAL CONTACT ON A MINOR. (Not Raised Below).

N.J.S.A. 2C:14-3b provides that "[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c (1) through (4)." "Sexual contact" is defined in N.J.S.A. 2C:14-1d as

an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present[.]

If the "sexual contact" defined therein occurs under any of the four circumstances set forth in N.J.S.A. 2C:14-2c(1) to -2c(4), then a person is deemed to have committed the fourth-degree offense of criminal sexual contact. As noted by the trial judge, the State contended that the circumstances under which M.W.M. committed acts of sexual contact against his victims were that he "use[d] physical force or coercion, but the victim[s] [did] not sustain severe personal injury[.]" N.J.S.A. 2C:14-2c(1).

M.W.M. argues that since he had exerted no extrinsic force against the victims other than the inappropriate touching itself, he should not have been adjudicated delinquent for committing acts of criminal sexual contact. Stated differently, M.W.M. contends that criminal sexual contact requires some amount of "physical force" more than that necessary to accomplish the "sexual contact." We disagree.

In M.T.S., supra, the Court thoroughly analyzed the history of the adoption of our current law concerning sexual offenses. The issue in that sexual assault prosecution was "whether the element of 'physical force' is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result." 129 N.J. at 425.

Before embarking on that analysis, the Court first noted that "[a]n unconstrained reading of the statutory language indicates that both the act of 'sexual penetration' and the use of 'physical force or coercion' are separate and distinct elements of the offense[]" of sexual assault; however, the words "physical force" contained in N.J.S.A. 2C:14-2c(1) are not defined in the Code of Criminal Justice. Id. at 429. The State contended that "any amount of sexual touching brought about involuntarily[]" would fulfill the "physical force" requirement of the statute. Id. at 430. To the contrary, the defendant argued that "physical force" required to establish sexual assault was that force "used to overcome lack of consent[,]" thereby, "the application of some amount of force in addition to the act of penetration." Ibid.

The Court then reviewed the "legislative history and the contemporary context of the statute[]" to determine the intent of the Legislature in its use of the words "physical force." Id. at 431. The Court noted that "[u]nder traditional rape law[]" in New Jersey, "the state had to show both that force had been used and that the penetration had been against the woman's will." Id. at 432. Thereby, "[f]orce was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim's own state of mind." Ibid. The Court explained that this traditional definition of rape "squarely placed on the victim the burden of proof and of action[]" in resisting the rape. Ibid. This "resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime." Id. at 433.

Accordingly, this "judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant's conduct." Id. at 343. Essentially, "[t]hat the law put the rape victim on trial was clear." Ibid. Moreover, the State also had "to demonstrate that the force used by the defendant had been sufficient to overcome the victim's will[,]" characterized as "'the degree of force sufficient to overcome any resistance that had been put up by the female.'" Id. at 435 (quoting State v. Terry, 89 N.J. Super. 445, 451 (App. Div. 1965)).

The Court explained that modern research and reformers helped demonstrate that "the crime of rape rested not in the overcoming of a woman's will or the insult to her chastity but in the forcible attack itself the assault on her person." M.T.S., supra, 129 N.J. at 437. "Critics of rape law agreed that the focus of the crime should be shifted from the victim's behavior to the defendant's conduct, and particularly to its forceful and assaultive, rather than sexual, character." Id. at 438. Thereby, "the burden of showing non-consent should not fall on the victim of the crime." Ibid. In tracing the historical evolution of rape law, the Court noted:

Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of "bodily integrity." Susan Estrich, Rape, 95 Yale L.J. 1087, 1105 (1986). In urging that the "resistance" requirement be abandoned, reformers sought to break the connection between force and resistance.

[Id. at 438-39.]

The Court concluded that "[t]he circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy." Id. at 439. The Court stated that the sex-offense laws in New Jersey were substantially modified with the adoption of the Code of Criminal Justice in 1978, L. 1978, c. 95, explaining:

Since the 1978 reform, the Code has referred to the crime that was once known as "rape" as "sexual assault." The crime now requires "penetration," not "sexual intercourse." It requires "force" or "coercion," not "submission" or "resistance." It makes no reference to the victim's state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional "carnal knowledge." . . .

The reform statute defines sexual assault as penetration accomplished by the use of "physical force" or coercion," but it does not define either "physical force" or coercion" or enumerate examples of evidence that would establish those elements. . . . The task of defining "physical force" therefore was left to the courts.

[Id. at 440-41 (footnote eliminated).]

The Court again noted that "in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant." Id. at 442. "Thus, by eliminating all references to the victim's state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse between a man and a woman but a range of acts that invade another's body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery." Id. at 442-43. The Court further explained:

The intent of the Legislature to redefine rape consistent with the new law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14-1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when "physical force" or "coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a crime under the traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is unauthorized sexual penetration a crime under the reformed law of sexual assault.

[Id. at 443 (emphasis added).]

Thus, because of the elimination of non-consent and resistance from the substantive definition of the offense, "an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent." Ibid. The Court concluded that

physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

[Id. at 444 (emphasis added).]

The Court explained:

Our understanding of the meaning and application of "physical force" under the sexual assault statute indicates that the term's inclusion was neither inadvertent nor redundant. The term "physical force," like its companion term "coercion," acts to qualify the nature and character of the "sexual penetration." Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of "physical force" encompasses the notion of "unpermitted touching" derived from the Legislature's decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving "sexual penetration," the term "physical force" serves to define and explain the acts that are offensive, unauthorized, and unlawful.

[Id. at 445.]

Thus, the Court interpreted the "physical force" requirement to include any touching that occurs without permission. Id. at 448-49. The Court made it clear that this analysis was applicable to the physical force requirement as to all sexual offenses, including criminal sexual contact. Id. at 443. Accordingly, the distinction advanced by M.W.M. between sexual assault and sexual contact in relation to the element of "physical force" set forth in N.J.S.A. 2C:14-2c(1) is without merit.

M.W.M. further argues that "if the physical force element of criminal sexual contact is part and parcel to the intentional touching [required to establish 'sexual contact'], then such an act -- in contrast to sexual penetration in M.T.S. -- would be indistinguishable from the petty disorderly persons offense of harassment, pursuant to N.J.S.A. 2C:33-4b, which involves 'striking, kicking, shoving, or other offensive touching. . . .'" We disagree. The distinction lies in whether the intentional or offensive touching was of the victim's "intimate parts" and "for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying" the defendant, N.J.S.A. 2C:14-3b, elements which are not required in a harassment prosecution pursuant to N.J.S.A. 2C:33-4b.

Here, the trial judge found that M.W.M. intentionally touched the intimate parts of the three victims. That finding is unassailable, as it is supported by adequate, substantial, credible evidence contained in the record, and was based on credibility determinations by the judge. Cesare v. Cesare, 154 N.J. 394, 411-13; Pascale v. Pascale, 113 N.J. 20, 33 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

The trial judge also concluded that although there was no evidence to suggest M.W.M. had intentionally touched the intimate parts of the victims for his own sexual arousal or gratification, it was a "rational and reasonable inference" that M.W.M. committed the proscribed touching "with the purpose to degrade or humiliate" the victims, as opposed to a finding that M.W.M. had committed the acts of intentional touching "with the purpose to harass" the victims, contrary to N.J.S.A. 2C:33-4b. Certainly, a "purpose to degrade or humiliate" could also constitute a "purpose to harass," and the court so found.

It is here that we part company with the trial judge. "A person 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." N.J.S.A. 2C:2-2b(1). Generally, the requisite element of "purposely" can be inferred from the circumstances. See State v. Hoffman, 149 N.J. 564, 577 (1997) (holding that a purpose to harass may be inferred from the evidence presented); State v. McDougald, 120 N.J. 523, 566-67 (1990) (in the penalty phase of a capital murder prosecution, jury could have inferred from the attendant circumstances that defendant intended to torture the victim).

An inference may be deduced from proven facts. State v. Crosby, 28 N.J. 106, 114 (1958). Our role is to determine whether the trial judge's inferences were rationally based on evidence in the record. State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995). As we have noted:

An inference is essentially a logical deduction made from a proved fact. . . . Since, however, we are dealing with questions of human behavior and not with matters susceptible of mathematical or scientific certainty, the inferred fact need not and indeed cannot be expected to be deduced as a matter of certainty. Rather, we make our deductions guided by common sense and common experience and relying thereon in evaluating the likelihood that the suggested inferred fact follows from the proven fact. We have rejected the notion that guilt may be based on culpable inferred facts only if the proved facts do not also support a set of inferred facts consistent with innocence. . . . But obviously, before we even reach the issue involved when inferred facts consistent with innocence compete with inferred facts consistent with guilt, we must first be satisfied that the evidence which assertedly points to guilt is indeed evidence from which facts equatable with guilt can be fairly inferred. Unless that proposition is tenable, the evidence supports nothing more than speculation or conjecture which is insufficient to support a conviction. . . .

[State v. Richards, 155 N.J. Super. 106, 118 (App. Div.), certif. denied, 77 N.J. 478 (1978) (citations omitted).]

We have recently encountered similar circumstances in State in the Interest of D.W., ___ N.J. Super. ___ (App. Div. 2005) (slip op. Nov. 15, 2005). There, a fourteen year-old male was charged with acts of juvenile delinquency which, if committed by an adult, would constitute fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b, and harassment, contrary to N.J.S.A. 2C:33-4b. Id., slip op. at 2. The charges resulted from an incident at school when D.W. allegedly touched the buttocks of a female classmate, L.T. Ibid. The trial court adjudicated D.W. delinquent as charged, imposed a two-year probationary period, and required D.W. to comply with the registration and notification provisions of Megan's Law, N.J.S.A. 2C:7-1 to -19. Ibid. In concluding that the evidence did not support the conclusion that D.W. had engaged in the prohibited conduct with the purpose to degrade or humiliate the victim, we stated in pertinent part:

While the evidence more than adequately supported the judge's finding that D.W. touched L.T.'s buttocks, L.T.'s assertion that she was embarrassed is not sufficient to support a finding that D.W. touched L.T. with a purpose to "humiliate or degrade" her. Considering that the event occurred in a classroom in the presence of others, and that the touching was brief, albeit embarrassing to L.T., are facts that do not, standing alone, meet the requirements of N.J.S.A. 2C:14-3(b). Common sense dictates that this conduct represented nothing more than inappropriate horseplay between schoolmates, and did not rise to a level of seriousness commensurate with the charge of criminal sexual contact. See [State in the Interest of G.B., 365 N.J. Super. 179, 186 (App. Div. 2004)].

[Id. at slip op. 4.]

We recognize that, here, M.W.M.'s conduct was more extensive and offensive than that committed in D.W. However, after analyzing the record in the light of the written arguments advanced by the parties, we conclude that although a purpose to harass is readily inferable from the findings of fact made by the trial judge, these circumstances do not warrant the inference of a purpose to degrade or humiliate beyond a reasonable doubt. See G.B., supra, 365 N.J. Super. at 186 (noting that inappropriate conduct, by itself, is not criminal). M.W.M.'s conduct was inappropriate and clearly harassing; however, it cannot be inferred from these facts that his behavior can be classified as "criminal sexual contact." The victims testified that M.W.M. laughed upon committing these acts, thinking it was a joke; that is not indicative of a purpose to degrade or humiliate. Accordingly, we reverse the adjudications of delinquency based on conduct that would constitute fourth-degree criminal sexual contact, if committed by an adult. We also vacate that part of the dispositional order that required registration and community notification under Megan's Law. We affirm, however, the adjudications of delinquency based on conduct that would constitute the petty disorderly offenses of harassment, contrary to N.J.S.A. 2C:33-4b, if committed by an adult. The disposition of a probationary term is also affirmed.

Reversed in part, affirmed in part and remanded for issuance of a corrected order of disposition.

 

The complaint docketed as FJ-21-603-04 alleged that the acts of delinquency had occurred on March 4, 2004; after hearing the testimony of the witnesses the court amended the complaint, finding that the conduct forming the basis of the allegations in the complaint occurred on March 3, 2004.

The complaint docketed as FJ-21-607 also alleged that the acts of delinquency had occurred on March 4, 2004; the court found that the conduct forming the basis of the allegations in this complaint also occurred on March 3, 2004.

The trial judge, who had since retired, did not preside over the dispositional hearing.

(continued)

(continued)

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A-1059-04T4

RECORD IMPOUNDED

January 30, 2006