STATE OF NEW JERSEY v. E. P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4616-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

E. P.,

Defendant-Respondent/

Cross-Appellant.

________________________________

November 8, 2010

 

Argued: October 14, 2010 - Decided:

 

Before Judges Axelrad and R. B. Coleman.

 

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-10-1031.

 

Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for appellant/cross-respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief).

 

Vincent J. Pancari argued the cause for respondent/cross-appellant(Capizola, Pancari, Lapham & Fralinger, attorneys; Mr. Pancari, on the brief).

 

PER CURIAM

The State appeals defendant's sentence and defendant cross-appeals her conviction. We reverse and remand for a new trial.

Defendant was indicted by the grand jury in July 2007 and charged with third-degree witness tampering, N.J.S.A. 2C:28-5a(1) (count one), and second-degree official misconduct, N.J.S.A. 2C:30-2 (count two), for attempting to influence the testimony of a seventeen-year-old female high school student who was believed to be the victim of sexual assault by another teacher. Following a bench trial, defendant was found guilty of both offenses. Her motion for a new trial was denied.

The court imposed a four-year custodial sentence with a two-year period of parole ineligibility on count one. As to count two, a second-degree offense, the court sentenced defendant as a third-degree offender based on a finding that the mitigating factors substantially outweighed the aggravating ones, but made no finding that the "interest of justice demand[ed]" the downgrade, N.J.S.A. 2C:44-1f(2), and imposed a concurrent custodial sentence of four years with a two-year period of parole ineligibility. The State appealed and the defense conceded error by the court if her convictions were upheld. By order of July 28, 2009, we continued the trial court's stay of defendant's sentence pending appeal. We reverse defendant's convictions but note the court's sentencing error in the event defendant is convicted on retrial.

On her cross-appeal, defendant argues:

POINT I

IT WAS ERROR FOR THE TRIAL COURT TO CONVICT THE DEFENDANT OF OFFICIAL MISCONDUCT SINCE THE INDICTMENT WAS INSUFFICIENT TO SUBSTANTIATE SUCH A CHARGE AND THE FACTS DID NOT SUPPORT IT. (NOT RAISED BELOW).

 

POINT II

THE STATE FAILED TO PROVE A REQUIRED ELEMENT OF WITNESS TAMPERING NAMELY THAT E.P. ENGAGED IN CONDUCT TO CAUSE B.D. TO TESTIFY FALSELY. FURTHER, THE TRIAL COURT COMMITTED ERROR IN: REFUSING TO PERMIT E.P. TO INTRODUCE EVIDENCE REGARDING HER STATE OF MIND; INCORRECTLY SHIFTING THE BURDEN TO E.P.; AND, FOLLOWED THE INCORRECT JURY CHARGE AND CONSIDERED EVIDENCE THAT SHOULD NOT HAVE BEEN CONSIDERED.

 

POINT III

BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, E.P.'S CONVICTIONS FOR WITNESS TAMPERING AND OFFICIAL MISCONDUCT MUST BE REVERSED.

 

I.

Because we find the court incorrectly shifted the burden of proof to defendant with respect to the charge of witness tampering and found defendant was required to prove ignorance or mistake of fact of law pursuant to N.J.S.A. 2C:2-4c(3), as argued in Point II, we reverse and remand for a new trial.

In May of 2007, B.D., a seventeen-year-old female high school student, became involved in the investigation of sexual assault allegations against E.U., a physical education/health teacher and field hockey coach at her school, as a result of an anonymous letter sent to the principal accusing E.U. and B.D. of engaging in consensual sexual contact. B.D. gave a statement to Detective Stacy Lick of the prosecutor's office in which she initially denied the relationship but later admitted she had engaged in sexual conduct with E.U., who was arrested shortly thereafter.

Defendant and B.D. had a very close relationship in and out of school. In addition to coaching her in field hockey for her first three years of high school, defendant was good friends with B.D.'s aunt, J.G., and knew B.D. since shortly after her birth. Because B.D. was a sought-after field hockey prospect, defendant also helped her in the college recruitment process, at one point serving as her guardian during a trip to California to participate in a tournament.

On May 17, 2007, defendant asked B.D.'s homeroom teacher to send B.D. to the gym to speak with defendant. The following lengthy conversation, the bulk of which occurred in defendant's office located inside the locker room, formed the basis of the charges against defendant. The trial testimony of B.D. and defendant about their conversation conflicted on several important points.

It is undisputed B.D. and defendant were alone during their conversation. According to B.D., at the outset, defendant informed her she had learned from E.U.'s mother that E.U. was on suicide watch. Defendant then informed B.D. she had had a prior intimate relationship with E.U. Defendant denied she informed B.D. of either of these facts. B.D. related that defendant told her defendant could be arrested and jailed for witness tampering if anyone discovered the substance of their conversation.1

B.D. further testified she told defendant she had informed Detective Lick that she and E.U. had a sexual relationship, to which defendant responded that B.D. could "save" E.U. if she returned to the detective and recanted her statement. Specifically, B.D. testified defendant told her to say she had been under a lot of pressure when she admitted to the sexual relationship and the sexual encounters were just a fantasy and never actually took place. This was almost precisely what B.D. initially had told the detective before she admitted the relationship; however, B.D. denied she informed defendant of this fact. B.D. also testified that defendant repeatedly stated she could not believe the allegations against E.U., and B.D. was of the impression defendant genuinely did not believe there had ever been a sexual relationship between B.D. and her teacher. While B.D. was in the bathroom, defendant wrote her a pass back to class. B.D. testified there was a post-it note attached to the pass that stated "you hold the key," which she interpreted as meaning she held the "key" to getting E.U. out of trouble. B.D. and another student C.M., who saw the note later in the day, testified it was defendant's handwriting, which defendant denied.

B.D. also testified about nine notes she found strewn on the gym locker room floor and bench near her locker later that afternoon. B.D. related that the notes were "about telling the truth and how it can -- the truth can set you free. And like having anxiety set from your soul." B.D. and C.M. testified they recognized the handwriting on the notes as defendant's, which defendant denied. Accordingly, B.D. interpreted the notes as defendant's further effort to get her to recant her statement to Detective Lick. Shortly afterwards, B.D. told two of her lacrosse coaches that she believed defendant wrote the post-it and locker room notes, and the investigation of defendant commenced when the documents were turned over to an assistant principal.

Defendant claimed to have first learned of the allegations of the sexual relationship from J.G. the night B.D. gave her statement to Detective Lick. Defendant testified her primary motivation in calling B.D. to her office arose from her conversation with J.G., who had accused her of being more concerned with E.U. than with B.D.

J.G.'s testimony confirmed she had such a conversation with defendant and had asked defendant to keep an eye on B.D. during school hours to ensure she was doing okay and attending her classes. J.G. further stated that although she initially assumed defendant knew of the relationship between E.U. and her niece, she eventually came to understand that defendant did not believe the sexual encounters had taken place.

Defendant testified that B.D. had discussed her statement to Detective Lick with her. According to defendant, B.D. told her she had felt a lot of pressure at the time, the investigator had repeatedly asked her the same question about the sexual encounters with E.U., and she felt like the investigator would not stop asking the question until she changed her answer. Defendant testified she responded, "[i]f you feel like you were pressured into saying something that you shouldn't have said or that didn't happen, then you need to tell someone." In addition to the other denials previously discussed, defendant denied ever telling B.D. to recant her story or lie to the police.

In support of defendant's contention that she did not write the notes, defendant presented another physical education teacher who testified about the constant activity in the girl's locker room all day until 2:10 p.m., during which no one reported seeing the notes. The teacher testified the notes were discovered at about 2:25 p.m. She further stated she assumed the notes were directed at B.D., "because there were a lot of people who were thinking [B.D.] wasn't being honest." Defendant also called an assistant coach of the girls' track team, whose testimony placed defendant at a track meet away from the school at about 1:45 p.m.

Defendant also presented the testimony of a friend and fellow teacher who related that she and defendant had a telephone conversation shortly before defendant's conversation with B.D. and defendant said she felt like "[B.D.] wasn't telling the truth, and she was upset about it." The teacher further related that defendant had said "she wanted [B.D.] to tell the truth and that she knows the family, so it would be, I guess, she assumed it would be easier to speak to her."

About a week after the trial concluded, the court orally issued its findings of fact and law. The court largely accepted B.D.'s version of the conversation, expressly finding B.D. to be a credible witness, specifically finding: (1) defendant warned B.D. that defendant could be arrested if she were caught asking her about the investigation of E.U.; (2) defendant told B.D. that E.U. was on suicide watch; (3) defendant told B.D. about defendant's prior sexual relationship with E.U.; (4) defendant told B.D. she could get E.U. out of jail if she told the police she had wanted a sexual relationship with E.U. but that it never actually happened; and (5) defendant wrote the post-it note attached to the pass she gave to B.D. following their conversation, and implicitly found the notes in the locker room had also been written by defendant. The court also stated that "B.D. felt . . . defendant did not think anything happened . . . between her and [E.U.]."

The court first addressed count one, tampering with a witness, N.J.S.A. 2C:28-5. The court found defendant guilty, finding defendant knew an official investigation had been instituted and because defendant "knew she had a great deal of influence over B.D." and "pressured [B.D.] from many angles to try to influence [her] testimony," defendant's conduct "was of such a nature and under such circumstances that the Court is convinced of the high probability that it would influence or intimidate B.D." The court then went on to address whether defendant employed "force, deception, threat or an offer of pecuniary benefit," a finding that would render the charge a second-degree crime despite the fact the indictment had charged defendant with a third-degree crime. The court concluded "there was a threat of suicide by [E.U.] on the benefit of getting her out of jail, that I think satisfies that requirement."

The court then addressed defendant's claim that she was not guilty of witness tampering because she mistakenly believed E.U. and B.D. never had a sexual relationship. The court then sua sponte brought up the issue of mistake of fact or law, noting that such mistake is a defense if defendant reasonably arrived at the conclusion underlying the mistake, N.J.S.A. 2C:2-4 A. 2 Citing N.J.S.A. 2C:2-4c(3), the court held that "[t]his is a reverse burden defense that requires the Defendant to prove by clear and convincing evidence, facts which satisfy the requirement." The court concluded the "defense of ignorance or mistake of [defendant] as to whether [E.U.] and B.D. had a sexual relationship has not been established to this Court's satisfaction, to a clear and convincing standard," explaining:

I do not find that [defendant] has met the burden by clear and convincing evidence, that she reasonably arrived at the conclusion that there was no sexual relationship between B.D. and [E.U.][a]s compared to whether Defendant did not want [E.U.] in jail and did not want her to lose her job over it.

The court also found defendant guilty of count two, official misconduct, N.J.S.A. 2C:30-2. The court found defendant was a public servant and committed an act related to her office in that she "used her power and authority as a teacher to send for B.D. and to take her out of class so that she could talk to her. She did it on school property and during school time. She had the obligation to nurture and protect B.D." The court was also convinced defendant had "acted with the purpose to induce B.D. to change her statement," finding defendant knew she was not authorized to talk to B.D. about the case and she could get arrested for having the conversation, and defendant knew she was attempting to influence the statement given to the police.

II.

We are convinced the court committed plain error when it incorrectly shifted the burden of proof to defendant with respect to the charge of witness tampering and forced her to disprove an element of the crime by clear and convincing evidence, rather than compelling the State to prove every element of the offense beyond a reasonable doubt, including that defendant acted with the purpose to convince B.D. to change her statement and provide false information. Additionally, the court erred in interjecting the issue of mistake of fact or law under N.J.S.A. 2C:2-4 into the case in her decision when the statute was neither raised nor addressed by either party during trial. Moreover, it does not appear mistake of fact or law was a defense asserted by defendant. Rather, defendant asserted her state of mind was such that she truly did not believe B.D. had had a relationship with E.U., not that she was mistaken as to that belief.

Defendant was charged under N.J.S.A. 2C:28-5a(1). On May 17, 2007, this statute provided:

A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to . . . [t]estify or inform falsely.3

The court expressly shifted the burden to defendant, to prove by clear and convincing evidence, her ignorance of law pursuant to N.J.S.A. 2C:2-4c(3). This subsection defines mistake of law as follows:

A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

 

. . . .

 

(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.

 

The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence.

 

Defendant never asserted a defense under this subsection or presented evidence that she did not believe her conduct legally constituted an offense after diligent research of the law. Nevertheless, applying N.J.S.A. 2C:2-4c(3) to its factual findings, the court concluded "[i]n this instance . . . I do not find that [defendant] has met the burden by clear and convincing evidence, that she reasonably arrived at the conclusion that there was no sexual relationship between B.D. and [E.U.]."

Subsection c(3) is inapplicable to this case as tried before the court. Even if the court were correct in determining that the defense in this case was mistake of fact, the only subsection that potentially would have applied was subsection a(1), which is not a reverse-burden defense. See State v. Sexton, 160 N.J. 93, 106 (l999) ("[E]vidence of an actor's mistaken belief relates to whether the State has failed to prove an essential element of the charged offense beyond a reasonable doubt."). We would also expect that on retrial if the court were inclined to inject N.J.S.A. 2C:2-4a into the case, it would inform the parties of such during the trial and allow them to address the issue.4

Perhaps, in hindsight, defense counsel should have raised an objection after the court delivered its decision or included the burden-shifting argument advanced on appeal as part of defendant's motion for a new trial. Nonetheless, we are satisfied the error possessed the clear capacity of producing an unjust result, R. 2:10-2, as "the error was clear and obvious and [] it affected [her] substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Based on our reversal of defendant's conviction for witness tampering, we must also reverse and remand defendant's related conviction for official misconduct.

Reversed and remanded for retrial consistent with this opinion. We do not retain jurisdiction.

1 During trial, defendant was never asked whether she made this statement to B.D.

2 N.J.S.A. 2C:2-4a has a two-prong definition that allows a defense of ignorance or mistake as to a matter of fact or law "if the defendant reasonably arrived at the conclusion underlying the mistake and" the mistake either "negatives the culpable mental state required to establish the offense" or "[t]he law provides that the state of mind established by such ignorance or mistake constitutes a defense."

3 The statute was amended on September 8, 2008 to incorporate a reasonable person standard. See Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:28-5 (2010). The provision now reads as follows: "A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to . . . [t]estify or inform falsely." N.J.S.A. 2C:28-5a(1).

4 We also note that on retrial, the court should confine itself to the elements of the third-degree witness tampering offense on which defendant was indicted and not consider whether defendant "employ[ed] force or threat of force" as the latter element is only required for a second-degree witness tampering conviction. N.J.S.A. 2C:28-5a.