STATE OF NEW JERSEY v. LOU E. JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5378-03T45378-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOU E. JOHNSON,

Defendant-Appellant.

_____________________________

 

Submitted December 20, 2005 - Decided February 10, 2006

Before Judges Lefelt, R. B. Coleman and Seltzer.

On Appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

02-09-2126.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, of counsel and on the

brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Bergen County Indictment No. S-2126-02, filed September 17, 2002, charged defendant, Lou E. Johnson, with first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) (Counts One and Eight); second degree sexual assault, N.J.S.A. 2C:14-2c(4) (Counts Two, Five and Nine); third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Three and Six); fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b (Counts Four and Seven); third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Ten) and third degree tampering with a witness, N.J.S.A. 2C:28-5a (Count Eleven). Count Five was dismissed prior to trial.

After a jury trial, defendant was convicted on Count One of the lesser included offense of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; on Count Two of the lesser included offense of fourth-degree sexual contact, N.J.S.A. 2C:14-3(b); and on Counts Eight, Nine, Ten, and Eleven. He was acquitted of the first-degree aggravated sexual assault originally charged in Count One and the second-degree sexual assault originally charged in Count Two as well as the charges contained in Counts Three, Four, Six, and Seven.

On January 13, 2004, defendant was sentenced. Count Nine was merged into Count Eight and Count Two was merged into Count One. On Count Eight, defendant was sentenced to sixteen years imprisonment, eighty-five percent of which was to be served without parole, with a five-year parole supervision. On Count One, Ten, and Eleven, defendant was sentenced to concurrent five-year terms, concurrent to the sentence on Count Eight. Appropriate fines and penalties were imposed. Defendant appeals from his convictions and from the sentences imposed. We find no merit to defendant's arguments with respect to his convictions and, therefore, affirm. We are satisfied, however, that the sentences imposed violate the direction of State v. Natale, 184 N.J. 458 (2005), and remand for re-sentencing in accordance with that opinion.

Given the nature of this appeal, which does not attack the sufficiency of the evidence as it relates to defendant's acts, and our belief that none of defendant's challenges to his conviction merit extensive discussion, the facts need not be recounted in great detail. E.D. was born February 7, 1987, and, at the time of the events described in the indictment, was fifteen years old. She had been diagnosed with attention deficit/hyperactivity disorder, lack of impulse control, bipolar disorder, obsessive-compulsive disorder, and addictive personality. At various times, she had been admitted to the Bergen Regional Medical Center and, on January 1, 2002, voluntarily admitted herself "as the result of a really bad fight with my mom."

She was initially placed in a short-term crisis unit, providing mental therapy and schooling for children under the age of eighteen. On February 11, 2002, she was transferred to the C-1 unit as the result of her extended stay. She had never been a patient in that unit. Defendant, known to E.D. from her prior stays in the hospital, was at this time a mental health attendant in the unit to which E.D. was assigned.

Trial testimony described the duties of mental health attendants:

The function of the mental health [attendant] is to assist the [nurse] in providing care to the children. By care I mean the way we start our day is they typically shower. They eat breakfast together. They're organized for a community meeting. They have, like I mentioned, recreational therapy so they'd have to -- one of them would have to go down with the children to accompany them. It's a locked unit. You go through two sets of double doors when you go in. They would be responsible for making sure the doors are locked. If they're given a head count, which we use as a evacuation sheet, their responsibility to me, if I was the charge nurse, would be to report any pertinent information. And by pertinent I mean most importantly safety issues, if they're of [sic] a danger to themselves or others.

At trial, E.D. and a psychiatric nurse who worked at the Unit during E.D.'s stay testified that defendant engaged in inappropriate sexual behavior with E.D. We need not explicate the details of that conduct, given the nature of the arguments raised on this appeal. Indeed, there is no question that the evidence was sufficient to support a finding of the conduct alleged; defendant does not suggest otherwise. Rather, he argues on appeal that:

POINT I - THE DENIAL OF DEFENDANT'S MOTION TO HAVE THE ALLEGED VICTIM UNDERGO A PSYCHIATRIC EXAMINATION CONSTITUTES REVERSIBLE ERROR.

POINT II - THE DENIAL OF DEFENDANT'S MOTION TO HAVE THE ALLEGED VICTIM'S PSYCHIATRIC RECORDS RELEASED CONSTITUTES REVERSIBLE ERROR.

POINT III - THE ADMISSION OF DEFENDANT'S INVOLUNTARY STATEMENTS, WHICH VIOLATED THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, CONSTITUTES REVERSIBLE ERROR.

POINT IV - THE PROSECUTOR'S IMPROPER REMARKS IN SUMMATION CONSTITUTE REVERSIBLE ERROR.

POINT V - THE AGGREGATE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED. (Not Raised Below)

POINT VI - DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THE AGGRAVATED SEXUAL ASSAULT CHARGE (COUNT ONE) SHOULD HAVE BEEN GRANTED; THEREFORE, THE AGGRAVATED CRIMINAL SEXUAL CONTACT CONVICTION, A LESSER-INCLUDED CRIME OF THE AGGRAVATED SEXUAL ASSAULT CHARGE, MUST BE REVERSED.

POINT VII - DEFENDANT'S AGGRAVATED CRIMINAL SEXUAL CONTACT CONVICTION MUST BE REVERSED BECAUSE THE JURY WAS NOT INSTRUCTED AS TO THE FACTORS TO CONSIDER REGARDING "SUPERVISORY OR DISCIPLINARY POWER." (Not Raised Below)

We begin our consideration of defendant's arguments with his claim that he was entitled to both a psychiatric examination of E.D. and access to her psychiatric records. Defendant asserts that the examination and the records would be relevant to E.D.'s capacity to testify and her credibility if she were allowed to do so. All persons, including youthful witnesses, are presumed qualified to be witnesses, so long as they are competent. N.J.R.E. 601; State v. R. W., 104 N.J. 14, 20 (1986). A witness is competent unless she "is incapable of understanding the duty of a witness to tell the truth . . . ." N.J.R.E. 601. The trial court is vested with the discretion to determine competency, State v. Butler, 27 N.J. 560, 601 (1985), and that decision is entitled to great deference.

State v. Moya, 329 N.J. Super. 499, 506 (App. Div.) certif. denied, 165 N.J. 529 (2000).

While the court has the inherent power to compel a psychiatric or psychological evaluation to assist in its determination of competence, "[i]t is an unusual situation that impels the grant of a psychiatric examination as a precondition to a determination of competence." State v. R. W., supra, 104 N.J. at 21. A defendant must demonstrate a substantial need for such an examination by presenting "persuasive evidence of potential incompetence . . . ." Id. at 25. The trial judge rejected defendant's assertion that the admission to Bergen Regional alone "is sufficient to require a psychiatric examination." He held, instead

The only thing I was told is she is bipolar, [and has a] history of drug abuse and maybe that she has had some sexual activity based upon [her] journal. Moreover this information barely raises effective evidence that challenges the victim's competency. These facts do not raise any legitimate issue that questions the witness's ability to be sufficiently competent to testify.

There is nothing in this record that would support a conclusion that E.D.'s condition rendered her incompetent to testify or that would affect her credibility. In the absence of some showing to the contrary, as, for example, that she suffered from delusions, defendant was not entitled to either the examination or the access to the documents he sought, and the judge's decision refusing defendant's requests was quite correct.

Defendant's next two arguments relate to the admission of his confession and what he alleges to be improper remarks made by the prosecution in summation. Neither argument has any merit. Prior to defendant's interrogation, he was advised of his Miranda rights. The judge conducted a hearing and determined that the confession given by defendant after the administration of his Miranda warnings was voluntary. The judge made factual findings that were supported by substantial credible evidence in the record and drew appropriate legal conclusions. His decision may not now be disturbed.

See State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992) certif. denied, 133 N.J. 441 (1993).

Defendant next argues that the prosecutor exceeded the permissible bounds of advocacy in his summation. Our independent review of the record satisfies us that the trial judge took appropriate action on the several occasions when the prosecutor's comments were marginally inappropriate. Given that corrective action, we find no prejudicial error. See

State v. Blanton, 166 N.J. Super. 62, 68 (1979). Even absent that corrective action, we are well satisfied that none of the comments made by the prosecutor were so severe as to deprive defendant of a fair trial. See State v. Josephs, 174 N.J. 44, 124 (2002).

Defendant next focuses on the elements necessary to demonstrate both aggravated sexual assault and the lesser included crime of aggravated criminal sexual contact. Aggravated sexual assault is criminalized by N.J.S.A. 2C:14-2a(2)(b). The statute defines aggravated sexual assault as the commission of an act of sexual penetration if (a) the victim is at least thirteen but less than sixteen years old and (b) the "actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status . . . ." The lesser included crime of criminal sexual contact is defined, by N.J.S.A. 2C:14-3, as the commission of an act of sexual contact when the victim is between the ages of thirteen and sixteen and the actor has supervisory or disciplinary power over the victim.

Defendant argues that the State had not established that defendant occupied a position of "supervisory or disciplinary power" and, in any event, the jury was not instructed as to the requirements for finding that defendant did occupy such a position. The evidence showed that mental health attendants, such as defendant, are responsible for monitoring the children and reporting pertinent information about the children to the head nurses. They are responsible for insuring that doors are locked (and the children, therefore, secure in the unit to which they have been assigned), for accompanying children to therapy, and for generally assisting the children as required. Moreover, they are charged with monitoring more closely than usual those patients who are acting up and aggressive. We think that these duties clearly fall within the accepted meaning of "supervisory" and "disciplinary."

We recognize that the trial judge was obligated to explain the law to the jury in the context of the material facts of the case. State v. Koskovich, 168 N.J. 448, 507 (2001);

State v. Savage, 172 N.J. 374, 387 (2002). Nevertheless, the terms "supervisory" and "disciplinary" are readily understood. See State v. Anador, 134 N.J. 162, 171 (1993) ("Supervisor" as used in N.J.S.A. 2C:35-3 did not need to be defined for a jury). Clearly, it would have been better had the judge provided the jury with additional guidance, see State v. Buscham, 360 N.J. Super. 346, 361-362 (App. Div. 2003), but the failure to do so here was not fatal because there was no real contest with respect to that issue.

This conclusion is confirmed by the failure of the defense to request the inclusion of a definition of the terms or to object to the failure of the court to provide one. Such a failure suggests that, in context, no prejudice accrued.

State v. Mays, 321 N.J. Super. 619, 630 (App. Div.) certif. denied, 162 N.J. 132 (1999). For that reason, a challenge to a jury charge to which no objection is made

will not be considered unless it qualifies as plain error, that is, legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct., 2254, 26 L. Ed. 2d 797 (1970).]

The evidence was more than sufficient to allow a jury to find that defendant had "supervisory or disciplinary power" over ED and the failure to define those terms was, in this context, not error, let alone error that had the clear capacity to produce an unjust result.

Defendant next asserts that his sixteen-year aggregate sentence was both illegal and excessive. Defendant was sentenced to a sixteen-year custodial term on his conviction on Count Eight, charging a crime of the first degree. At the time of sentencing, the New Jersey Penal Code provided for the imposition of a sentence on a first-degree conviction of a term from between ten years and twenty years, N.J.S.A. 2C:43-6(a)(1), with a presumptive term of fifteen years, N.J.S.A. 2C:44-1(f)(b). In imposing a sentence in excess of the presumptive term, the judge found four of the aggravating factors described in N.J.S.A. 2C:44-1(a): (2) (seriousness of the harm inflicted); (3) (risk that defendant will commit another offense); (6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and (9) (the need for deterring defendant and others from violating the law).

As the result of constitutional challenges to the sentencing provisions of the Code, our Supreme Court eliminated presumptive terms and required re-sentencing of any defendant who had received a term of imprisonment that (1) exceeded the presumptive term and (2) was based on aggravating factors other than the defendant's prior criminal record. State v. Natale, 184 N.J. 458 (2005). Since the trial court here imposed a sentence above the presumptive term and relied on at least one factor, factor 2, that was unrelated to defendant's criminal record, we are constrained by the language of Natale to remand for re-sentencing on Count Eight.

The same considerations compel re-sentencing on Counts One, Ten and Eleven, all of which involved crimes of the third-degree. Although the presumptive sentence in effect at the time of sentencing was four years, N.J.S.A. 2C:44-1(f)(d), the judge imposed a custodial term of five years.

We add only that the State's suggestion that the jury necessarily found factor (2) in its verdict and that, therefore, a remand is unnecessary, is meritless; the jury verdict made no determination, directly or by implication, as to the injury inflicted upon E.D. Lastly, since the matter is to be remanded for purposes of sentencing, we need not comment on whether the sentence imposed on Count One, which was only one year in excess of the permissible sentencing mid-range, is excessive.

The convictions are affirmed and the matter remanded for

re-sentencing in accordance with State v. Natale.

 

We refer to the minor victim by her initials.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-5378-03T4

RECORD IMPOUNDED

February 10, 2006