STATE OF NEW JERSEY v. STEVEN E. YOUNG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN E. YOUNG,

Defendant-Appellant.

______________________________________

December 7, 2015

Submitted October 28, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 12-01-0088.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Following a jury trial, defendant Steven E. Young was convicted of two counts of first-degree aggravated sexual assault upon a physically helpless, mentally defective or mentally incapacitated person, N.J.S.A. 2C:14-2(a)(7) (counts one and three); two counts of third-degree invasion of privacy, N.J.S.A. 2C:14-9(b) (counts two and four); and third-degree aggravated criminal sexual contact with a physically helpless, mentally defective or mentally incapacitated person, N.J.S.A. 2C:14-3(a) (count five). After considering merger, the judge sentenced defendant to an aggregate term of eighteen years, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following issues

POINT I.

BECAUSE THE STATE FAILED TO PROVE LACK OF CONSENT OR THE ABSENCE OF ABILITY TO CONSENT, [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT II.

THE COURT'S JURY INSTRUCTION ON THE DEFENSE OF CONSENT, WHICH WAS INAPPLICABLE TO THE DEFENSE INTERPOSED IN THIS MATTER, BOTH DEPRIVED [DEFENDANT] OF HIS OWN DEFENSE AND DIRECTED VERDICTS OF GUILT AS TO EACH OF THE CRIMES CHARGED. [Not Raised Below]

POINT III.

THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT CONSENT COULD BE A DEFENSE TO AGGRAVATED CRIMINAL SEXUAL CONTACT. [Not Raised Below]

POINT IV.

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

After consideration of these arguments in light of the record and applicable legal standards, we affirm.

I.

The relevant facts were adduced at trial. Defendant, a licensed practicing nurse, was charged with caring for B.Q.,1 a thirty-two year old man, who suffered catastrophic injuries at the age of twelve when he was hit by an automobile while riding his bicycle. B.Q.'s injuries left him quadriplegic, unable to speak and in need of twenty-four hours skilled nursing care to assist with all aspects of his daily life. Defendant admitted that on two occasions, he performed fellatio on B.Q. and recorded it with his cell phone,2 but asserts that B.Q. consented to the sexual acts. Consequently, a main focus of the trial involved B.Q.'s ability to communicate.

Trial testimony revealed that B.Q. has limited ability to communicate, by blinking his eyes, moving his head, or making a noise. The owner and operator of the health care agency, ACW Health Care (ACW), which employed defendant, testified that she oversaw B.Q.'s care and was familiar with B.Q.'s needs. She stated that B.Q. was unable to communicate and needed intensive medical care. While he would moan to try to communicate, it was unclear whether he was responding to a question.

Similar testimony was presented by B.Q.'s father. He testified that it was uncertain whether B.Q.'s blinking was directly responsive to questions as there was usually a delay in B.Q.'s responses. B.Q.'s father expressed his frustration in attempting to communicate with B.Q.

No, he can't speak. He can -- when he's alert and in good form he can usually make some sort of a noise like ahhhhhh. But you can ask him a question, there is a delay between the time you ask him a question and if you're in a hurry for an answer you may ask him two or three questions before he -- that have a yes/no answer before he responds. And sometimes you're not really sure which question he answered.

And, if he can't -- if after awhile he can't make a verbal response then you ask him to try and turn his head. And sometimes he can and very often, you know, you'll have to wait half a minute or something to see a response. And then when he can't do any of that, then you'll ask him to blink his eyes

. . . .

And one of the biggest frustrations for his mom and I is to know what he's really thinking, what he's really answering to.

At the conclusion of the State's case, defendant made a motion for acquittal on the basis that the State did not prove that B.Q. did not consent to the sexual acts in question. The State acknowledged that since B.Q. could not communicate, he did not testify that he did not give defendant consent. However, giving the State the benefit of inferences from the testimony and the videos, the State argued that the jury could find that B.Q. did not give consent. The trial judge agreed with the State that a reasonable jury could find defendant guilty of all the charges. The judge reasoned that the jury could conclude that under the totality of the circumstances, B.Q. did not consent or lacked the ability to consent.

No defense witnesses were called, and defendant exercised his right not to testify. After deliberating for a few hours, the jury convicted defendant on all charges.

At sentencing, following merger of count five into count three, the judge sentenced defendant to an aggregate term of imprisonment of eighteen years for first-degree aggravated sexual assault, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed concurrent sentences on the remaining convictions: four years for third-degree invasion of privacy; eighteen years, subject to NERA, for first-degree aggravated assault; and four years for third-degree invasion of privacy. This appeal followed.

II.

We will first address defendant's contention that the court erred in not granting his motion for acquittal. In considering a motion for judgment of acquittal based upon the insufficiency of the State's evidence, Rule 3:18-1, the judge must decide,

whether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted).]

We apply the same standard and review the judge's decision de novo. See State v. Bunch, 180 N.J. 534, 548-49 (2004).

As noted, defendant was charged with: aggravated sexual assault upon a physically helpless, mentally defective or mentally incapacitated person, N.J.S.A. 2C:14-2(a)(7);3 invasion of privacy, N.J.S.A. 2C:14-9(b);4 and aggravated criminal sexual contact with a physically helpless, mentally defective or mentally incapacitated person, N.J.S.A. 2C:14-3(a).5 Defendant's defense was that B.Q. consented to his performing and recording the sexual acts. He argues that the State failed to prove beyond a reasonable doubt that defendant did not have B.Q.'s consent. To substantiate his claim that B.Q. communicated his consent, defendant cites the father's testimony that, despite B.Q.'s physical helplessness, B.Q. was able to consent through body language and noises, albeit delayed. Defendant further argues that if he had acted in an inappropriate manner with B.Q., B.Q. could have, but did not, show his discontent to his parents when defendant was present. Thus, the jury could not properly infer from B.Q.'s physical limitations, that he could not consent to defendant's conduct. We disagree.

We see no reason to disturb the judge's ruling. Giving the State the benefit of all its favorable testimony, there is ample proof that defendant did not obtain B.Q.'s consent to perform and record his sexual acts on B.Q. Due to B.Q.'s condition, a reasonable jury could find through the testimony of B.Q.'s father and the owner of ACW that B.Q. was unable to communicate or reliably indicate a response to a specific question. The jury also had the benefit of the videos, and could assess B.Q.'s ability to communicate. Under these circumstances, denial of defendant's motion for acquittal did not constitute error.

III.

We next consider defendant's challenge for the first time on appeal that the court failed to provide proper jury instructions related to his defense of consent. "[A]ppropriate and proper charges to a jury are essential for a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to a jury charge,

plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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."

[Id. at 341 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[ ] for rehabilitation' under the plain error theory." Id. at 341 (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light of the overall strength of the State's case." Ibid. (citation omitted).

We first address defendant's claim that the consent charge that was given was incorrect. In accordance with N.J.S.A. 2C:2-10(a), there are two types of jury instructions in which consent constitutes a defense: "[t]he consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense." (emphasis added). Thus, there are two model criminal charges on consent: "Consent Negate Element" and "Consent Preclude Harm." See Model Jury Charge (Criminal), "Consent (Which Negates an Element of the Offense)" (1988); Model Jury Charge (Criminal), "Consent (Which Precludes the Infliction of Harm)" (1988). Without objection from either party, the court only gave the consent charge which negates an element of the offense. The court stated that consent was a "complete defense," but only if it "negated or made it impossible for the State to prove," or if it "nullified," an element of the offense. In effect, the court did not find that the consent instruction precluding harm sought to be prevented by the offense charged, applied to the circumstances of this case.

Defendant now maintains that the consent charge precluding harm should have been given, rather than the charge negating an element. He argues that because he admitted committing acts of knowing sexual penetration and purposeful sexual contact with B.Q., a patient he knew was physically helpless, "there was literally no way, short of nullification, for the jury to find that an element of aggravated assault or of aggravated criminal sexual contact was negated, even if it found that consent had been given." Thus, defendant contends that he was deprived of his only defense, resulting in a violation of his constitutional rights to due process and a fair trial under U.S. Const. amends. V, VI, XIV, and N.J. Const. art. I, 1, 10. We disagree.

Here, the precluding harm charge does not relate to the evidence and offenses in this case. The defense strategy was that B.Q. had the ability to communicate, and in fact, consented to defendant's conduct. Defendant argued that the State could not prove that B.Q. objected to the fellatio acts and their recordings, which addresses elements of the offenses. Before us, defendant does not establish that consent precludes a harm sought to be prevented in the offenses in question - aggravated sexual assault upon a physically helpless, mentally defective or mentally incapacitated person; invasion of privacy; and aggravated criminal sexual contact with a physically helpless. Simply put, harm is not an element of the offenses to be negated in order for defendant to avoid conviction. Accordingly, the consent charge negating elements of the offense was proper, as evidenced by defendant's lack of objection at trial.

We next address defendant's assertion that the court erred in failing to instruct the jury that the defense of consent applied to the charge of aggravated criminal sexual contact. He contends that the court's jury instructions mentioned the defense of consent for every offense except aggravated criminal sexual contact. Similar to his other jury instruction challenge, defendant asserts that plain error occurred because "the omission of any reference to [consent] with respect to aggravated criminal sexual contact deprived [him] of his defense to this charge." Again, we disagree.

The record refutes defendant's contention. The judge's jury instructions on aggravated criminal sexual contact was the last offense mentioned. The judge stated,

In order to convict defendant of [aggravated criminal sexual contact], the State must prove the following elements beyond a reasonable doubt.

One, that defendant purposely committed an act of sexual contact with another person.

And two, that at the time of the sexual contact, the victim was physically helpless and, therefore, permanently incapable of consent.

And three, the defendant knew or should have known that the victim was physically helpless and, therefore, permanently incapable of consent.

[(Emphasis added).]

The judge had previously explained consent when setting forth the elements of the other offenses: aggravated sexual assault and invasion of privacy. Thus, the jury was provided the consent charge negating elements of the offense and was fully aware that it had to consider whether B.Q. consented to aggravated criminal sexual contact from defendant.

Moreover, given that aggravated sexual assault (count three) and aggravated criminal sexual contact (count five) were merged, failure to give an explanation of consent when charging the jury on the later offense was harmless. Thus, the outcome of defendant's conviction would not have been affected since the jury found that B.Q. did not consent to defendant's conduct.

IV.

Lastly, defendant contends that the trial court's sentence is "manifestly excessive" due to double counting in applying aggravating factors number two, the gravity and seriousness of harm inflicted, N.J.S.A. 2C:44-1(a)(2),6 and number twelve, offense against an elderly or disabled person, N.J.S.A. 2C:44-1(a)(12),7 which are both elements of crimes convicted: aggravated sexual assault upon a physically helpless, mentally defective or mentally incapacitated person and aggravated criminal sexual contact with a physically helpless, mentally defective or mentally incapacitated person.

We begin by noting that review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless"(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation omitted).

If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). A sentencing court must avoid "double-counting" facts that establish the elements of the relevant offense in making that determination. State v. Fuentes, 217 N.J. 57, 74-75 (2014); see State v. Kromphold, 162 N.J. 345, 353 (2000) ("[D]ouble-counting of elements of the offenses as aggravating factors would [645] . . . likely . . . interfere with the Code's dedication to uniformity in sentencing."). However, the court may consider the relationship between an assaulter and a victim as an aggravating factor even though it is an element of the offense that made the crime a first-degree offense. See State v. Yarbough, 100 N.J. 627, 646 (1985) (conceding that while the age of a victim alone can make the crime of aggravated sexual assault one of the first degree, defendant's supervisory relationship with his live-in girlfriend's eleven year old child, which also would have made it a first-degree crime as to a victim under sixteen, can be considered an aggravating factor in determining sentencing for said crime); see also, Fuentes, supra, 217 N.J. at 75 ("[i]n appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense.").

In this matter, the trial judge found the existence of five aggravating factors: two, three, six, nine, and twelve. N.J.S.A. 2C:44-1(a)(2) ("the gravity and seriousness of harm inflicted on the victim"); -1(a)(3) ("risk that the defendant will commit another offense"); -1(a)(6) ("extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); -1(a)(9) ("the need for deterring defendant and others from violating the law"); and -1(a)(12)("defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled"). In weighing these aggravating factors, she placed "moderate" weight on factors two and six, and "heavy" weight on factor three, citing defendant's three municipal court convictions, two prior indictable convictions, a pending sentencing in another county for first-degree sexual assault, as well as an Avenel Report concluding that defendant was a compulsive and repetitive sex offender. As to aggravating factors nine and twelve, there was no specific mention of the weight given. Yet, based upon the judge's comment while addressing factor nine that defendant "needs to also be punished and removed from society on the basis of his actions as an individual," it appears that she gave it heavy consideration.

In addition, although defendant argued for several mitigating factors, the judge only found mitigating factors two and four, giving them limited weight.8 N.J.S.A. 2C:44-1(b)(2)("defendant did not contemplate that his conduct would cause or threaten serious harm"); and -1(b)(4)("substantial grounds tending to excuse or justify the defendant's conduct though failing to establish a defense"). In conclusion, the judge determined that the aggravating factors outweighed the mitigating factors.

We are not persuaded to disturb the court's sentence. The court's decision to apply aggravating factors number two and twelve to defendant's conviction for aggravated sexual assault and aggravated sexual contact was done fully mindful of the need "to be very careful about double counting."

Defendant was convicted of having sexual penetration and sexual contact with a person who he knew or should have known was physically helpless or incapacitated and which rendered the victim incapable of understanding the nature of the conduct and unable to provide consent. N.J.S.A. 2C:14-2(a)(7) and -3(a). Aggravating factor two, N.J.S.A. 2C:44-1(a)(2), involves the defendant's knowledge that the victim's health made him incapable of resisting the defendant's conduct, and factor twelve, N.J.S.A. 2C:44-1(a)(12), involves defendant's awareness that victim was disabled. In applying these two factors, the judge emphasized that defendant's special role as B.Q.'s nurse.

In considering aggravating factor two, she stated defendant "was acting in the capacity of [B.Q.'s] nurse at the time of this criminal incident herein. Therefore, he was highly aware of [B.Q.'s] inability to exercise normal physical resistance to his advances." When finding aggravating factor twelve, the judge commented that defendant "acted as [B.Q.'s] nurse and was aware that [B.Q.] was severely disabled at the time he committed these offenses." Consequently, the court was taking into consideration the special relationship between defendant and B.Q. when applying these two factors. As the court in Yarbough indicated, the parties' special relationship can be considered and does not constitute double counting when evaluating which aggravating factors apply, although it is an element of the offense.

Even if the judge erred in finding aggravating factors two and twelve, we would conclude it was harmless error. See State v. Gallagher, 286 N.J. Super 1, 21 (App. Div. 1995) (trial court's reference to defendant's use of a gun in committing aggravated sexual assault was not improper double counting, but if it was, it was harmless error as the court found five aggravating factors and no mitigating factors), certif. denied, 146 N.J. 569 (1996); see also R. 2:10-2. In light of the weight afforded to other aggravating factors and the minimal weight afforded to mitigating factors, the sentence imposed on defendant does not shock our judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

1 We use the victim's initials to protect his identity.

2 The jury viewed the videos, which are not a part of the record.

3 N.J.S.A. 2C:14-2(a)(7) provides, "[a]n actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: . . . (7) [t]he victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent."

4 N.J.S.A. 2C:14-9(b) provides, "[a]n actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person s consent and under circumstances in which a reasonable person would not expect to be observed."

5 N.J.S.A. 2C:14-3(a) provides, "[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:14-2(a)(2) through (7). Aggravated criminal sexual contact is a crime of the third degree."

6 N.J.S.A. 2C:44-1(a)(2) provides that the following circumstances constitute aggravating factor number two: "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]"

7 N.J.S.A. 2C:44-1(a)(12) provides that the following circumstances constitute aggravating factor number twelve: "[t]he defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled[.]"

8 Defendant does not challenge the trial court's assessment of the mitigating factors.