STATE OF NEW JERSEY v. MICHAEL F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1099-03T11099-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL F.,

Defendant-Appellant.

________________________________________

 
 

Argued: February 7, 2005 - Decided April 17, 2006

Before Judges A. A. Rodr guez, Cuff and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 01-10-02512.

Michael D'Alessio, Jr. argued the cause for appellant (Michael D'Alessio, Jr., attorney; Mary Gibbons Whipple, of counsel and on the brief; Mr. D'Alessio, on the brief).

Catherine A. Foddai, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

PER CURIAM

A jury found defendant Michael F. guilty of a single count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. The jury acquitted defendant of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. At sentencing, defendant was placed on probation for five years conditioned on 500 hours of community service and counseling. The appropriate fines, penalties and assessments were imposed, as well as the requisite Megan's Law, N.J.S.A. 2C:7-1 to -19, conditions.

Defendant is a Roman Catholic priest. At the time of his March 2001 arrest, he had been a priest for seven years. In December 1997, he was assigned to a parish in Bergen County. He met John and his mother, Joan, during this assignment.

Joan was very active in the parish and a daily communicant. In 1997, Joan, who had recently separated from John's father, and defendant became friendly. He provided support and guidance to Joan during the separation and eventual divorce. By 1999, John described defendant as his mother's best friend. Defendant was a frequent visitor at Joan's house.

John resided with his mother, grandmother, brother and sister. Joan entertained regularly, inviting family and other friends from the parish to her home. John and his siblings attended these gatherings. On many occasions defendant was also present. During these gatherings, John usually sat on the floor because there was no room on the couches. It was during such an occasion that defendant and John engaged in the first "wrestling" incident.

John testified that in March 1999, defendant approached him while he sat on the floor and pushed him over. John pushed back and they wrestled on the floor. During the tussle, John felt defendant's hand graze his crotch. They continued to wrestle briefly after this touch. John, who was thirteen years old, thought nothing of the incident at the time. His entire family was present during this episode.

The next incident occurred on Thanksgiving in 1999. John testified that defendant initiated the wrestling. He described the incident as follows:

It was the same kind of set up, there was always appetizers and coffee set up on the family room table. I would be on the floor to give the couches to family and what have you, and we wrestled again, and it was the same kind of thing where his hand would linger across my crotch again.

This time, John told defendant to stop. As in March, the incident occurred in the presence of family and friends.

A similar event occurred on John's fourteenth birthday at the end of March 2000. As before, the incident occurred in the presence of John's friends and his grandmother. Defendant had been designated as chaperone of this party because Joan was attending a spiritual retreat.

During summer 2000, another incident occurred. Defendant initiated a wrestling episode with John, in the course of which defendant's hand touched and lingered briefly on John's crotch. This incident occurred in the presence of John's family and friends of defendant.

Defendant also accompanied Joan and John to Williamsburg, Virginia, over Labor Day Weekend in 2000. John testified that his mother and he shared a room with defendant. While his mother showered, defendant pinned him against the bed and touched John's crotch. John pulled away and the contact stopped immediately.

Between March 1999 and September 2000, John attended mass regularly, although not every Sunday. He was not an altar server or a member of the youth group. He testified that he did not report the incidents because he "didn't want to be the kid who went up against the church." He also testified that after the Thanksgiving incident, he was annoyed "that someone like that who I thought I could trust, got that close to me and used me in that kind of way."

On appeal, defendant raises the following contentions:

POINT I

THE COURT'S REFUSAL TO ALLOW [BRIAN MASON AND DONNA MASON] TO TESTIFY ABOUT BEING QUESTIONED BY THE [LOCAL] POLICE CONSTITUTED AN ABUSE OF DISCRETION.

POINT II

THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO ESTABLISH "SUPERVISORY AUTHORITY" PURSUANT TO N.J.S.A. 2C:14-3a AND THE COURT ERRED IN ITS CHARGE TO THE JURY CONCERNING "SUPERVISORY AUTHORITY["].

POINT III

THE COURT'S FAILURE TO EXCLUDE ALL OR PARTS OF DEFENDANT'S STATEMENT TO POLICE CONSTITUTED AN ABUSE OF DISCRETION.

POINT IV

THE COURT'S REFUSAL TO CONDUCT A VOIR DIRE OF THE ANONYMOUS JUROR WAS ERROR.

Because we find merit in Point III, we conclude that the jury instructions provided inadequate guidance on the issue of supervisory or disciplinary authority by virtue of defendant's occupation or professional status, we reverse and remand for a new trial.

At the conclusion of the State's case, defendant moved for a judgment of acquittal pursuant to Rule 3:18-1 because the State produced insufficient evidence that defendant had supervisory or disciplinary authority over the victim. The judge denied this motion. Following the return of the verdict, defendant filed a motion for a new trial or a judgment of acquittal. Defendant argued that the evidence was insufficient to establish disciplinary or supervisory authority by defendant of John. Defendant also argued that he was no more than a guest in Joan's home. The State countered that the defendant's mere status as a priest satisfied the statutory element. On each occasion, the trial judge held that the evidence was sufficient and denied the motion.

In a written opinion dated July 25, 2003, the judge canvassed the law throughout the nation. He concluded that the statutory language was broad enough to encompass a variety of situations and that satisfaction of the supervisory or disciplinary authority element was case specific rather than simply dependent on the status of the actor. In particular, he found that there were sufficient facts from which the jury could find that defendant had assumed the requisite authority within the victim's household due to his position as the assistant pastor and advisor to John's mother.

The charge of aggravated criminal sexual contact requires consideration of two statutes. N.J.S.A. 2C:14-3a provides that "[a]n actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in 2C:14-2a (2) through (7)." As charged in the indictment, the relevant circumstance is found at N.J.S.A. 2C:14-2a(2)(b) which provides that "[t]he actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status. . . ."

When the meaning or scope of a statute is in question, it is customary to review the legislative history and decisions interpreting and applying the statute. Here, the legislative history of N.J.S.A. 2C:14-2a(2)(b) is scant. It was enacted in 1978 as part of the Code of Criminal Justice. L. 1978, c. 95. The provision was not included in section 2C:14-2 in the Final Report of the New Jersey Criminal Law Revision Commission; therefore, the commentary therein is not helpful. See The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, 61 (1971) (Commission Report). Nor was it included in the relevant section of the Model Penal Code. See

Model Penal Code, 213.4 Commentaries (1985).

According to the statement accompanying the Senate bill enacted as the Code, "Chapter 14 which deals with sexual offenses was totally revised by the Senate Judiciary Committee during its review of the Code." Statement to Senate Bill No. 738, at 5 (May 15, 1978). The only reference in that Statement to the pertinent language is the explanation that, pursuant to the committee revision, for sexual offenses, the degree of offense was made to depend on several factors, including "the relationship of the accused vis- -vis the victim (Did the accused have supervisory or disciplinary power over the victim? i.e. a prison guard and an inmate.)" Ibid.

There are few decisions interpreting N.J.S.A. 2C:14-2a(2)(b). In State v. Spann, 236 N.J. Super. 13, 27 (App. Div. 1989), aff'd, 130 N.J. 484 (1993), the actor's status as a corrections officer at a county jail was enough to establish his supervisory authority over the inmate victim. In State v. Martin, 235 N.J. Super. 47, 55-56 (App. Div.) certif. denied, 117 N.J. 669 (1989), we held that a supervisor at a juvenile shelter had supervisory power over a young female resident. In State v. Buscham, 360 N.J. Super. 346, 362 (App. Div. 2003), the actor's status as a coach was insufficient standing alone to establish the requisite supervisory or disciplinary authority over the victim.

In Buscham, the victim was a young person who frequented the gymnastics business operated by defendant. Id. at 353. Defendant served as a teacher and coach to those enrolled in his program. Ibid. There was conflicting evidence whether the victim was enrolled in defendant's program in the summer of 1999; however, the evidence clearly established that the victim was enrolled in the program in December 1999. Id. at 353-54. According to the trial testimony, the victim became involved in a sexual relationship with the defendant and another student during the summer of 1999 and thereafter only with defendant through December 1999. Id. at 354.

We readily recognized that "a coach can, indeed, be in a position to possess significant psychological or emotional power over a team member and that, in appropriate circumstances, a coach can be found to have supervisory or disciplinary power." Id. at 361. We acknowledged the role of sports in our society. Nevertheless, the circumstances of the relationship between the coach and the victim would determine whether the defendant's status as a coach placed him in a supervisory or disciplinary position vis- -vis the victim. Ibid. In Buscham, the evidence was ambiguous and thus a jury question was presented. Ibid.

So, too, in this case. Religion plays a powerful role in the lives of some people. For them, a member of the clergy provides guidance in spiritual matters and on occasion, in secular matters. In addition, the church or parish is the center of their social lives. They engage in various activities through church or within their parish. Some of these events or activities are educational, designed to provide spiritual and moral formation. Some activities provide a basis to perform community service. Some activities within the parish are purely social.

For many people, a member of the clergy is a person who can be trusted in all things. For others, religion plays little, if any, role in their lives. For these people, members of the clergy may be viewed with respect, indifference or contempt. To others, the advice offered by a member of the clergy may be considered informative. To others, it may be considered of no consequence to the manner in which they conduct their lives.

The disparate place of religion and the role of clergy in our society strongly suggests that defendant cannot be considered a person with supervisory or disciplinary authority over others simply because he was a priest at the time of the acts for which he is accused. Rather, the supervisory or disciplinary authority of a member of the clergy depends on the circumstances of the contact with and relation to the victim.

In this case, John's mother was active in the parish. His grandmother, who lived with him, was also involved in the parish. For this family, a priest was to be accorded deference and respect. He was acknowledged as an advisor to Joan, a person who helped to guide her through a painful marital separation and divorce. John acknowledged that defendant was someone he should have been able to trust. In fact, Joan placed defendant in charge of John's birthday party in March 2000. On the other hand, John emphasized that he was not a daily communicant, he did not attend the parish school, and did not participate in any parish activities, such as acting as an altar server or attending the youth groups. He did not seek advice or counsel from defendant. He also acknowledged that every incident occurred in the presence of others in his home. Under these circumstances, we consider defendant's supervisory or disciplinary authority over John by virtue of his status as a priest to pose a question to be resolved by the jury. Therefore, we conclude that defendant's motion for a judgment of acquittal was properly denied.

Having decided that the evidence was sufficient to allow the jury to resolve the charge, we next consider the jury charge. Defendant argues that the jury instruction was inadequate because the trial judge provided no guidance on the element of supervisory or disciplinary authority over the victim. Defendant acknowledges that this portion of the delivered instruction was consistent with his request to charge. He urges, however, that subsequent case law highlights the inadequacy of the charge.

Following the return of the verdict, defendant filed a motion for a new trial in which he highlighted recent case developments. In the course of his opinion, the trial judge noted that the charge was consistent with defendant's request to charge and commented that the discussion of the charge in State v. Buscham, supra, was dicta. The judge denied defendant's motion for a new trial.

The jury received the following instruction regarding the charge of aggravated criminal sexual contact. The judge stated:

A person is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with a victim who is at least 13 years old but less than 16 years old and the person has supervisory or disciplinary power over the victim because of his professional status[.] In order for you to find the defendant guilty of this crime, the State is required to prove beyond a reasonable doubt, each of the following elements: That on or about March 1, 1999, through March 19, 2001, in the County of Bergen, the defendant committed an act of criminal sexual contact with [John]. . . . According to the law, sexual contact means an intentional touching by the victim or the defendant, either directly or through clothing, of the victim's or defendant's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant. Intimate parts means the following body parts: Sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of the person.

The judge then instructed the jury thoroughly on the purposeful state of mind required to convict defendant of this offense. The judge provided no instruction, however, on the element of supervisory or disciplinary power or authority over the victim by virtue of defendant's professional status.

In Buscham, we noted our concern that the jury was required to find that the gymnastics coach had supervisory or disciplinary power over the victim in order to find him guilty of the charged offense, without any guidance to resolve the question. Buscham, supra, 360 N.J. Super. at 361. We instructed the trial judge on remand to inform the jury of the factors to consider with particular reference to the evidence in the case. Id. at 362. In the context of the athletic coach, we suggested the following factors:

Depending upon the evidence presented, the jury may consider whether there was a significant disparity in ages and/or maturity level between the two; the role that the athletic activity plays in the life of the alleged victim; the extent, if any, to which the coach has offered guidance and advice to the alleged victim on questions and issues outside the athletic arena; and the power or ability of the coach to affect future athletic participation or success.

[Ibid.]

We urged the judge and counsel to identify different factors based on the evidence to allow the jury to examine the entire relationship. Ibid.

Here, the jury was similarly unguided in its determination of defendant's supervisory or disciplinary role in John's life. This lack of guidance cannot be minimized and treated as harmless error. The omission left the jury without factors or guideposts to consider a critical element of the offense and raises considerable concern about the verdict. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). In other words, a properly crafted instruction may have produced a different result. R. 2:10-2; State v. R.B., 183 N.J. 308, 3431-42 (2005). Therefore, a new trial is required.

Based on the evidence adduced, the jury should have been instructed to consider the role of religion in John's life; the role of defendant in John's household; the extent to which defendant offered guidance or advice to John or his family; and perhaps, the role the victim's mother viewed defendant as having in her household and what, if anything, she communicated to her son on this subject. As in Buscham, the judge and counsel are free to identify additional factors that will allow the jury to evaluate the relationship between John and defendant.

Because the matter must be retried, we address three evidentiary issues. First, defendant argues that he should have been allowed to present the testimony of Brian Mason and Donna Mason, who would have testified about being questioned by the local police. Second, defendant contends that the trial judge should have excluded a portion of his statement. Third, defendant argues the trial judge should have excluded testimony of the trip to Williamsburg with the victim and his mother.

Prior to trial, defendant provided the names and addresses of the witnesses he would present. See R. 3:13-3(d)(3) (requiring the defendant to provide the names and addresses of persons who may be called as witnesses and any written statements or memo reporting any oral statements). During trial, defendant called several persons as character witnesses, including Donna Mason and her eighteen year old son, Brian. Mrs. Mason testified that defendant is "a wonderful man" and her son and other young people are "lucky to know him." Brian testified that defendant is "one of my best friends," and he chose defendant as his Confirmation sponsor.

Defendant's attorney attempted to ask Mrs. Mason about her interview and her son's interview with detectives. He sought to elicit from her that her son was interviewed in her presence and denied ever being touched inappropriately by defendant. The trial judge sustained the State's objection. He ruled that Donna and Brian Mason were called only as character witnesses. On appeal, defendant argues that the State was aware of the information he sought to elicit because the State possessed the interview statements of each witness. Defendant also contends that Detective Haviland testified that he interviewed Brian during his investigation; therefore, the State "opened the door" to this inquiry.

The admission of evidence rests in the discretion of the trial judge. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). This discretion is not unbounded or unguided. A trial judge refers not only to the Rules of Evidence, but also common law, statutes and court rules to inform evidentiary decisions.

Here, the prosecutor could hardly feign surprise about the subject of the proposed testimony. She was in possession of the interview statements. She also knew that defendant intended to call the Masons as witnesses. On the other hand, defendant can hardly argue that he was prejudiced in any way. Detective Haviland informed the jury that he interviewed Brian Mason because he had learned that defendant and the Mason family were close and to determine if Brian had been a victim. He then stated that Brian did not report any inappropriate conduct. Any error was harmless.

Defendant also argues that the trial judge erred by failing to exclude a portion of the statement given by defendant to the police prior to his arrest. This statement included defendant's account of the Williamsburg incident and his statement that he was homosexual. On appeal, defendant urges that the Williamsburg incident was not admissible as other uncharged evidence and that his statement that he was a homosexual struggling with his identity should have been excluded as unduly prejudicial. He argues that the probative value of his sexual preference or identity was minimal but the prejudice was great because there was no nexus between the acts for which he was accused and his sexual identity.

The trial judge admitted the portion of defendant's statement regarding the Williamsburg trip as evidence of lack of accident or mistake and evidence of defendant's state of mind. He provided a proper limiting instruction at the time Haviland testified about defendant's statement. He reiterated the limitation in the jury instructions at the close of the evidence. In the final instructions, however, the judge reminded the jury the "[d]efendant said that he has an interest in males and that his grabbing [John] excited him." He then advised the jury that it was their function to decide whether the evidence of the Williamsburg incident supports the specific purposes for which the State offered the evidence. The judge proceeded to deliver an extensive instruction outlining the criteria the jury should use in evaluating oral statements, concluding that such statements should be viewed with caution.

The portion of the statement about the Williamsburg trip was properly admitted in accordance with N.J.R.E. 404(b). Other crimes or other uncharged misconduct may not be introduced to show that a person is disposed to criminal behavior and, therefore, guilty of committing the act of which he is accused. State v. Reddish, 181 N.J. 553, 608 (2004); State v. Covell, 157 N.J. 554, 563 (1999). Such evidence is ordinarily excluded because of the prejudice that naturally flows from the evidence. State v. Engel, 249 N.J. Super. 336, 373 (App. Div.), certif. denied, 130 N.J. 393 (1991). In cases where the other bad conduct is similar in nature and close in time to the charged acts, the probative value of the evidence will be high. State v. Stevens, 115 N.J. 289, 300 (1989).

Here, the portion of the statement reciting what occurred in Williamsburg was properly admitted to negate any contention that the touching was inadvertent or a mistake. Reference to another event, other than the four events outlined in the indictment, may also be indicative of the purpose of defendant's repeated actions. On the other hand, the balance between probative value and undue prejudice to the accused tipped in favor of defendant as to the portion of the statement about defendant's sexual identity. The admission of this statement injected into this case the specter of a jury deciding defendant's guilt on the unfounded association between homosexuality and pedophilia. Moreover, defendant's fear that the statement would be used to draw unwarranted conclusions was realized when the judge reminded the jury that defendant stated that he was homosexual.

Finally, due to our disposition of this appeal, we need not address defendant's contention that the trial judge erred when he refused to conduct a voir dire of the juror who wrote to the judge following the verdict.

Reversed and remanded for a new trial.

 

We have altered the names of the victim and his mother in this opinion.

This incident was not a subject of the indictment but was admitted in accordance with N.J.R.E. 404(b), with a limiting instruction as evidence to rebut accident and as evidence of defendant's state of mind.

The names of the mother and son are also fictitious.

(continued)

(continued)

19

A-1099-03T1

RECORD IMPOUNDED

April 17, 2006