STATE OF NEW JERSEY v. MELVIN A. OWENS

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4057-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

MELVIN A. OWENS, a/k/a MEL
OWENS, MELVIN ANDREWS OWENS,
and MELVIN ANDRREW OWENS,

Defendant-Appellant.
_____________________________

Submitted March 14, 2018 - Decided April 19, 2018

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 15-06-0480.

Joseph E. Krakora, Public Defender, attorney
for appellant (Jaime B. Herrera, Assistant
Deputy Public Defender, of counsel and on the
brief).

Charles A. Fiore, Acting Gloucester County
Prosecutor, attorney for respondent (Douglas
B. Pagenkopf, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the
brief).

PER CURIAM
Defendant Melvin A. Owens appeals from an October 2, 2015

order denying his motion to dismiss a third superseding indictment

arising out of alleged acts of sexual penetration against a child

on or about January 10, 2014. He argues the indictment must be

dismissed because the State failed to present exculpatory evidence

that the five-year-old victim denied penetration occurred. We

disagree and affirm.

After the prosecutor dismissed the first two indictments, a

Gloucester County grand jury charged defendant in the third

indictment with: first-degree aggravated sexual assault by

digitally penetrating the victim's anus,
N.J.S.A. 2C:14-2(a)(1)

(count one); two counts of second-degree sexual assault of a child

less than thirteen years old,
N.J.S.A. 2C:14-2(b) (counts two and

three); second-degree sexual penetration through the use of

physical force or coercion,
N.J.S.A. 2C:14-2(c)(1) (count four);

and second-degree knowingly engaging in sexual conduct with a

child in his care,
N.J.S.A. 2C:24-4(a) (count five).

After the court denied his motion to dismiss the indictment,

defendant pled guilty to count one, first-degree aggravated sexual

assault, reserving his right to appeal from his motion to dismiss.1

Consistent with the plea agreement, defendant was sentenced to an

1
Defendant also pled guilty to second-degree endangering a child,
pursuant to
N.J.S.A. 2C:24-4(a) under Indictment No. 14-08-0801-
I, which is not a part of this appeal.
2 A-4057-15T2
eleven-year term of incarceration with an eighty-five percent

parole disqualifier and five years of parole supervision pursuant

to the No Early Release Act,
N.J.S.A. 2C:43-7.2.2 The remaining

counts of the indictment were dismissed.

The sole witness at the grand jury proceeding for the third

indictment, Detective Louis Butler, testified to the following.

Detective Butler received a call from a patrolman who stated a

woman had come into the police station and reported that a

neighbor, defendant, had touched her five-year-old son, C.H.,3

inappropriately. The mother had taken C.H. to stay at defendant's

house overnight. Upon returning home, C.H. told his mother he did

not want to stay with defendant anymore. C.H. told his mother

that defendant had placed his hands down C.H.'s pants and touched

C.H.'s penis and put his finger between C.H.'s buttocks. Defendant

followed C.H. into the bathroom and requested they play sword

fights with their penises.

After the incident, C.H.'s mother called defendant on a taped

line facilitated by law enforcement. During that phone call,

defendant admitted that his finger probably touched C.H.'s "butt

2
Defendant was also sentenced to a concurrent six-year term of
incarceration under Indictment No. 14-08-0801-I.
3
We use initials for the child to protect his privacy. R. 1:38-
3(c)(12).
3 A-4057-15T2
hole" when he picked C.H. up, and that he put his hands down C.H.'s

pants.

Detectives Butler and Stacie Lick also obtained a taped

admission from defendant. Defendant stated he drank a twelve-pack

of beer and took prescription painkillers, but knew what he was

doing. Defendant admitted he grabbed C.H.'s butt cheek and that

his finger could have penetrated C.H.'s anus. Defendant later

acknowledged it was "more than likely" his finger did penetrate

C.H.'s anus. Additionally, the police report reveals that C.H.

told his mother that defendant did not penetrate his anus, but the

child complained his "butt was sore."

C.H.'s denial of penetration, which had been presented to the

other grand juries, was not presented to the third grand jury.

On appeal, defendant argues:

POINT I: THE TRIAL COURT ERRED IN FAILING TO
DISMISS THE INDICTMENT BECAUSE DEFENDANT MADE
ONLY EQUIVOCAL ADMISSIONS AND THE STATE
NEGLECTED TO PRESENT THE VICTIM'S EXCULPATORY
STATEMENT THAT REFUTES AN ESSENTIAL ELEMENT
OF THE CRIMES CHARGED.

We review the denial of a motion to dismiss an indictment

under an abuse of discretion standard. State v. McCrary,
97 N.J.
132, 144 (1984). Furthermore, the discretionary authority to

dismiss "should not be exercised except on 'the clearest and

plainest ground' . . . ." State v. N.J. Trade Waste Ass'n, 96

4 A-4057-15T
2 N.J. 8, 18-19 (1984) (quoting State v. Weleck,
10 N.J. 355, 364

(1952)).

Defendant argues the grand jury was unable to properly perform

its function because the State withheld exculpatory information

that negates an essential element of the crime charged.

The judge stated his reasons for denying the dismissal motion:

The child's statement, although possibly
relevant to the defense at trial, does not
negate an element; but, contradicts the
defendant's own personal account. A [p]etit
[j]ur[y] will determine proper weight to give
[to] both of these statements, [because] they
are the ones [who] will be the trier of fact
in a jury trial.

By defendant's own admission, he put his hand
down the child's pants, played with child's
penis three times, put [h]is hand in the
child's butt cheek, and more than likely,
penetrated the child's anus.

This statement made by the defendant is enough
to show that a crime was committed. And, the
crimes that were elicited were committed.
And, that the defendant was the one that
committed it, or them.

The State has put forth evidence [of] each
element of the crime charged, based upon my
review of the transcript, and that which was
submitted.

"An indictment is presumed valid and should only be dismissed

if it is 'manifestly deficient or palpably defective.'" State v.

Feliciano,
224 N.J. 351, 380 (2016) (quoting State v. Hogan,
144 N.J. 216, 229 (1996)). "The court should evaluate whether, viewing

5 A-4057-15T2
the evidence and the rational inferences drawn from that evidence

in the light most favorable to the State, a grand jury could

reasonably believe that a crime occurred and that the defendant

committed it." State v. Morrison,
188 N.J. 2, 13 (2006). Thus,

an indictment must be upheld as long as the State presents "some

evidence establishing each element of the crime to make out a

prima facie case." State v. Saavedra,
222 N.J. 39, 57

(2015) (quoting Morrison,
188 N.J. at 12).

N.J.S.A. 2C:14-2(a)(1) 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: (1) [t]he victim is less than [thirteen] years old

. . . ."
N.J.S.A. 2C:14-2(b) states that "[a]n actor is guilty

of sexual assault if he commits an act of sexual contact with a

victim who is less than [thirteen] years old and the actor is at

least four years older than the victim." Lastly,
N.J.S.A. 2C:14-

2(c)(1) provides "[a]n actor is guilty of sexual assault if he

commits an act of sexual penetration with another person under any

one of the following circumstances: (1) [t]he actor uses physical

force or coercion, but the victim does not sustain severe personal

injury . . . ."

N.J.S.A. 2C:14-1(c) defines "sexual penetration" as the

"insertion of the hand, finger or object into the anus." The

6 A-4057-15T2
statute states "[t]he depth of insertion shall not be relevant as

to the question of commission of the crime . . . ."

Defendant argues C.H.'s statement that there was no

penetration, produced at the first two grand jury hearings, was

exculpatory evidence that should have been introduced at the

presentation for the third indictment. In contrast, the State

argues C.H.'s statements were not "clearly exculpatory" as

defendant made contrary and incriminating statements and the young

victim's statement was merely evidence of the degree that defendant

violated him.

During the grand jury presentation for the first indictment,

Detective Butler testified:

Q: And, he stated that he did not want to
sleep at [defendant]'s house ever again
because [defendant] tickled his penis and
stuck his finger between [C.H.]'s butt cheeks?

A: Correct.

Q: Okay. And, did [C.H.] indicate that
[defendant] did not actually penetrate his
"poopie hole" (phonetic) as he called it?

A: Correct.

Q: Okay. But, that he did place his finger
between his butt cheeks?

A: Correct.

7 A-4057-15T2
The grand jury proceedings for the second indictment also

included similar testimony from Detective Butler about C.H.'s

statements.

Our Supreme Court determined the prosecutor's duty to present

exculpatory evidence to a grand jury in State v. Hogan,
144 N.J.
216 (1996). The Court held that "[i]n order to perform [its]

vital protective function, the grand jury cannot be denied access

to evidence that is credible, material, and so clearly

exculpatory as to induce a rational grand juror to conclude that

the State has not made out a prima facie case against the accused."

Id. at 236. The Court noted that "the routine presentation of

evidence by prosecutors to grand juries only rarely will involve

significant questions about exculpatory evidence." Ibid. These

rare cases that trigger a prosecutor's duty arise only when the

evidence both directly negates guilt and is clearly exculpatory.

Id. at 237.

As to whether the evidence directly negates guilt, the

evidence at issue must "squarely refute[] an element of the crime

in question . . . ." Ibid. (emphasis in original). Further, as

to the second requirement, a court must evaluate the "quality and

reliability of the evidence." Ibid. "[T]he exculpatory testimony

of one eyewitness is not 'clearly exculpatory' if contradicted by

the incriminating testimony of a number of other witnesses."

8 A-4057-15T2
Hogan,
144 N.J. at 238. The Court noted that the testimony of a

"reliable, unbiased alibi witness that demonstrates that the

accused could not have committed the crime in question would be

clearly exculpatory." Ibid. The Court cautioned that courts

should dismiss on such a ground only after considering the

prosecutor's evaluation of whether the evidence at issue is

"clearly exculpatory." Ibid.

The record does not support defendant's assertion that C.H.

adamantly stated no penetration occurred. Apart from the

references in the first two grand jury presentations, the only

other evidence of an interview with C.H. is in Detective Lick's

investigation report, noting that C.H. was "withdrawn and reticent

during his interview" and did not disclose any abuse.

Under the principles in Hogan, there are no "clearly

exculpatory" statements by C.H. that had to be presented to the

grand jury. Under the first prong, C.H.'s statements do not

"squarely refute an element" — here that there was sexual

penetration — and thus C.H.'s statements do not directly negate

the guilt of defendant.

Under the second prong, C.H.'s statements are not

particularly reliable. C.H. was a young child at the time and as

such may not have realized what had happened to him, especially

considering the upsetting nature of the incident. He complained

9 A-4057-15T2
of soreness, which appears inconsistent with a lack of penetration.

Most importantly, defendant's incriminating statements contradict

the claim that no penetration occurred.

The trial judge carefully reviewed the grand jury record and

appropriately found that the State presented sufficient evidence

to support each element of the offenses. Feliciano,
224 N.J. at
381. Defendant's incriminating statements support the element of

penetration. Defendant admitted on more than one occasion that

he touched C.H. inappropriately and that it was more than likely

his finger did penetrate C.H.'s anus. As such, viewing this

evidence in the light most favorable to the State, the grand jury

could reasonably believe the crime of aggravated sexual assault

occurred and defendant committed it. Morrison,
188 N.J. at 13.

"Credibility determinations and resolution of factual disputes"

are not appropriately before a grand jury, but are "reserved

almost exclusively for the petit jury." Hogan,
144 N.J. at 235.

Affirmed.

10 A-4057-15T2

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