STATE OF NEW JERSEY IN THE INTEREST OF J.E., a minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2953-07T42953-07T4

STATE OF NEW JERSEY IN THE

INTEREST OF J.E., a minor,

Juvenile-Appellant.

________________________________________________________________

 

Submitted June 1, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-2346-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.E., a seventeen-year-old juvenile at the time of the offense, was adjudicated delinquent for conduct that would constitute second-degree sexual assault, N.J.S.A. 2C:14-2b, if committed by an adult. Judge Call imposed a suspended two-year custodial disposition and three years probation, with special conditions for sex-specific treatment. The judge also ordered J.E. to register as a youthful sexual offender under Megan's Law.

J.E. argues on appeal:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE JUVENILE'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

POINT II

THE ORDER OF DISPOSITION SHOULD BE REVERSED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE JUVENILE OF A FAIR TRIAL BY FAILING TO CONSIDER THE LESSER INCLUDED OFFENSE OF HARASSMENT (NOT RAISED BELOW).

POINT III

IMPOSITION OF A 3 YEAR PERIOD OF PROBATION CONSTITUTED AN ABUSE OF THE TRIAL COURT'S DISCRETION.

We reject these arguments and affirm.

J.E. has been in the care and custody of the Division of Youth and Family Services (DYFS) since age three. Both parents' parental rights have been terminated. His biological sister is also in the custody of DYFS. J.E. has three half-siblings, who live with their paternal grandmother. In September 2006, J.E. was living at the Bonnie Brae Residential Treatment Center for Adolescent Boys. He was granted Saturday visitation at the home of his half-siblings. It was during one of these visitations that the offense occurred.

In addition to J.E.'s half-siblings, other children were present, including the victim, eleven-year-old K.S. K.S. and some of the other children, all of whom were younger than J.E., were wrestling on the floor when J.E. arrived. J.E. joined in the activity. At some point, all of the other children left the room, leaving J.E. and K.S. alone. J.E. threw K.S. onto the bed, grabbed both of K.S.'s arms with one of his hands and held them down. With his other hand, K.S. reached into K.S.'s pants. He placed his hand under K.S.'s underwear and fondled K.S.'s penis for about ten seconds. While J.E. was holding K.S.'s hands down and fondling his penis, K.S. cried out in a loud voice several times asking him to stop. When the incident finally ended, K.S. locked himself in the bathroom. It was noted by others who later came into his presence that day that he was visibly upset. When asked what was wrong, he reported that J.E. was "feeling on" him or had "touched [his] dick."

J.E. acknowledged to others present that he "did something." When asked what he did, he acknowledged that he "touched [K.S.'s] dick." J.E. apologized to K.S.

The incident was reported to adults the next day. An investigation followed, resulting in the charge against J.E.

J.E.'s principal argument on appeal is that Judge Call erred in denying his motion for a judgment of acquittal at the end of the State's case pursuant to Rule 3:18-1. In that procedural posture, the judge was bound to consider the evidence in the light most favorable to the State. State v. Reyes, 50 N.J. 454, 458-59 (1967). Applying that standard, the judge denied the motion.

Although J.E. has not expressly articulated the argument on appeal, we also consider whether the judge erred in adjudicating J.E. delinquent at the close of all of the evidence. In that posture, of course, the evidence would not be viewed in the light most favorable to the State. At the close of the case, considering all of the evidence, J.E.'s presumption of innocence, and the State's burden of proof, Judge Call concluded that the State proved its case beyond a reasonable doubt.

To be guilty of sexual assault in violation of N.J.S.A. 2C:14-2b, an individual must commit an act of sexual contact with a victim who is less than thirteen years old, and the perpetrator must be at least four years older than the victim. State v. Zeidell, 154 N.J. 417, 428 (1998). There is no dispute here about the ages of J.E. and K.S.

Sexual contact is defined 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." N.J.S.A. 2C:14-1d. J.E. argued in the trial court, and argues before us, that the evidence did not support a finding that his touching of K.S. was intentional, or that he had the requisite purpose of degrading or humiliating K.S. or sexually arousing or sexually gratifying himself.
In denying J.E.'s motion for acquittal at the close of the State's case, Judge Call rendered a thorough oral decision. Applying the Reyes standard, he rejected J.E.'s arguments. As to whether the touching was intentional, he found:

At this point, the Court has before it the testimony of the victim, an 11-year-old boy, who testified -- and again, the Court at this point must give the benefit to the State and draw . . . favorable inferences from the testimony and the testimony of the victim is that he was held down with one hand by the juvenile on trial.

What has been described to the Court, in essence, is the victim being held on the bed with his hands above his head with [J.E.] allegedly holding both of the 11-year-old's hands together and using his other hand[] to reach inside the pants of the juvenile and fondle, grab, pull or touch the genitalia of the victim.

Again, the Court cannot from that testimony, again, giving the State all favorable inferences, conclude that that is not an intentional act as suggested by [defense counsel], that it would be accidental.

The State has satisfied that particular element that it was an intentional act at this stage, and that the touching was done in such a way as to not suggest that it was done accidentally.

As to the purpose of the touching, Judge Call found:

Again, incidents where there is contact and intentional touching of the intimate parts, and in this case, the Court finds that again obviously the genitalia of the victim qualify as intimate parts under the definitional section of the code, combined with the testimony that the young boy indicated at some point that he wanted . . . [J.E.] to stop, that he cried out stop doing that, that described himself as mad, [from] all of those at this point certainly the Court can draw the inference that the young man, the victim in this case, was degraded and humiliated by the intentional touching.

Likewise, if we go to the other provision which is the sexual gratification of the actor, again, the Court does not believe, as [defense counsel] would suggest, that the [State] has to prove sexual arousal or . . . gratification by the actor, i.e., an erection, an ejaculation, a statement. Again, the Court goes back to the example of a male who . . . walking . . . down the street would grab the breast of a woman walking in the other direction. Again, the inference to be drawn from that with regard to the sexual arousal and sexual gratification I think [is] . . . obvious.

At the close of all of the evidence, the judge rendered another thorough oral decision. He again rejected J.E.'s arguments regarding whether his conduct was intentional and with the requisite purpose. As to whether the touching was intentional, he found:

[T]he young man never varied his story when he indicated that once his hands were pinioned above his head, that the other hand of [J.E.] went into his pants, that it went under the pants, under the underwear, and again, touched his genitalia.

Again, the Court finds that that is unlikely to have occurred accidentally. To insert one's hands under . . . another person's pants and into their underwear doesn't happen accidentally. It doesn't happen unintentionally. In fact, it has to be orchestrated, because getting through that clothing to the genitalia would be something that would have to be orchestrated versus something that would occur accidentally.

But even more compelling to suggest that the touching of [K.S.'s] genitalia was intentional as opposed to accidental was the length of time that the hand of [J.E.] remained in contact with the genitalia of [K.S.], whether it was 10 seconds or 30 seconds. That is fairly academic. Again, [J.E.], had that occurred accidentally, and the Court does not find that it did, but had that occurred accidentally, the contact between [J.E.'s] hand and the genitalia of [K.S.] would have been momentary at which time [J.E.] would have removed his hand immediately. The action taken and described by the victim in this case was the . . . fondling or grabbing of the genitalia not consistent with inadvertent touching.

The judge rejected J.E.'s argument that the evidence was insufficient to establish the requisite purpose. He commented that "[a]rousal or sexual gratification are not necessarily required or need be fully consummated. If one attempts to do so for the purpose of sexual gratification, that is sufficient." The judge rejected J.E.'s reliance on State in the Interest of G.B., 365 N.J. Super. 179 (App. Div. 2004), in which we found that conduct of a twelve-year-old toward a four-year-old was more a matter of acts of curiosity rather than malice and that "[i]nappropriate conduct, by itself, is not criminal." Id. at 186. Judge Call distinguished this case from G.B., noting the "tremendous disparity and maturity, intellect, and size between a 17-year-old and an 11-year-old." The judge was convinced beyond a reasonable doubt that J.E.'s fondling of K.S.'s genitalia "was for only one purpose, and that was to sexually gratify himself. There could be no other reason."

We will not disturb the factual findings of a judge sitting without a jury if those findings could have reasonably been reached on sufficient credible evidence in the record, considering the proof as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999). We are satisfied from our review of the record that Judge Call's factual findings are amply supported by the trial record, and we have no occasion to disturb those findings on appeal. The judge correctly applied the controlling legal principles to his factual findings, as well articulated in his comprehensive oral decisions, and there is no error in the result he reached, either in denying J.E.'s motion for acquittal at the close of the State's case or in finding him guilty.

 
J.E.'s remaining arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). There was no basis here for the judge to consider the lesser offense of harassment. The evidence did not provide a basis to acquit J.E. on the greater offense and convict him on the lesser one now suggested. State v. Sloane, 111 N.J. 293, 299 (1988). Perhaps more significantly, J.E. never requested that Judge Call consider the lesser offense of harassment. Under those circumstances, considering the lesser offense would not be required unless it was "clearly indicate[d]" from the record. State v. Choice, 98 N.J. 295, 299 (1985). As to the disposition, we are satisfied that Judge Call's findings as to aggravating and mitigating factors were supported by competent and credible evidence in the record, that he correctly applied the sentencing guidelines in the Code of Juvenile Justice, and that the disposition imposed was not manifestly excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

In his trial testimony, K.S. estimated the ten second time frame. In a statement he had previously given, he estimated that J.E. fondled his penis for about thirty seconds.

(continued)

(continued)

9

A-2953-07T4

RECORD IMPOUNDED

 

July 23, 2009