STATE OF NEW JERSEY v. JOHN GEDDIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0553-05T40553-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN GEDDIS,

Defendant-Appellant.

___________________________

 

Submitted October 18, 2006 - Decided March 13, 2007

Before Judges Collester and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, 02-09-2125-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Linda Mehling, Assistant

Deputy Public Defender, of counsel and on the

brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant John Geddis was indicted for two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) and two counts of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). The alleged victims were P.U., a boy of nine, and A.V., a seven-year-old girl. Tried to a jury, the defendant was found not guilty as to counts one and two pertaining to P.U. but guilty of counts three and four that named A.V. as victim. On July 22, 2005, the sentencing judge merged counts three and four and sentenced defendant on the conviction for second-degree sexual assault to a term of five years, eighty-five percent to be served without parole pursuant to the No Early Release Act, and mandatory fines and fees together with the requirements that defendant register as a sex offender pursuant to N.J.S.A. 2C:7-2(a), provide a DNA sample, and submit to community supervision for life as mandated by N.J.S.A. 2C:43-6(4)(a).

The trial proofs disclosed that defendant has an IQ of about seventy and attended schools for special needs children. However, he was later mainstreamed and graduated from high school. He is fully functioning and able to live independently as an adult. In early September 2001, he moved out of his apartment on Staten Island and moved into his mother's house in Bloomfield because of financial problems. Defendant's parents are divorced. His father lives in an apartment in Lyndhurst with the defendant's two sisters. In fall of 2001, defendant visited his father and sisters and sometimes stayed for a weekend or overnight during the week. When he visited in Lyndhurst, he liked to sit on the steps outside of his father's building, and defendant would run an extension cord from his father's office to the front stoop in order to listen to music while he sat outside. The children in the neighborhood, including A.V. and P.U. rode their bikes and scooters on the street or sidewalk and played in front of the building or in the adjoining parking lot. Defendant was friendly with the children and on occasion would walk with them to a nearby convenience store and purchase soda and candy for them. These trips were usually done with the permission of the children's parents. No parent objected to John's associating with the children, and there were no allegations of inappropriate conduct until January 2002.

One afternoon in early January, J.V. drove her daughter, A.V., and P.U. to Burger King. During the ride P.U. suggested to A.V. that they play "scrunch, scrunch." When J.V. asked what it was, P.U. answered, "It's a game that John plays." When J.V. questioned him further, P.U. pointed toward his penis and said, "He touches me down there." J.V. dropped P.U. off and told him to tell his mother what he had just told her.

When P.U. got home he did not mention anything about defendant to his mother. When he told his mother that he had left his food at A.V.'s house, P.U.'s mother told him to go back and get it. But P.U. told her that he could not because A.V. was crying. When his mother asked him why A.V. was crying, P.U. said he did not know. Concerned that P.U. had done something to make A.V. cry, P.U.'s parents began questioning him further about what he may have done. P.U. told his father and mother that he could not tell them because, "It was a secret between him, John and A.V." and defendant told him not to tell anyone because if he did, the defendant would go to jail. When pressed further about the nature of the "games," P.U. described one in which the defendant would ask him to touch him and another in which the defendant would simultaneously touch P.U. on the front and back of his pants.

Later A.V. and her mother came to P.U.'s home to report what P.U. had said in the car that afternoon. P.U. and A.V. were sent outside to play, and P.U.'s parents requested the defendant's father come over and discuss the matter. When P.U. repeated his story, defendant's father looked shocked and said he did not believe it. According to P.U.'s mother, he then turned to A.V. and asked, "Did John do this to you?" A.V. responded by nodding her head. A.V.'s mother recalled differently. She said defendant's father asked A.V. if the same thing happened to her, and she said no while continuing to cry. Several days later P.U.'s mother spoke to a family friend who knew people on the local police force, and law enforcement became involved and investigated.

P.U. and A.V. reported several instances when the defendant allegedly touched them inappropriately. P.U. said he was riding his scooter and standing by a fence separating his backyard and the parking lot of the apartment building. Defendant was leaning against a parked car close to the fence, and he reached down and touch P.U.'s crotch over his clothes. P.U. said the next incident occurred after dark while he and the defendant were in a parking lot. Defendant was sitting on a car and touched P.U.'s crotch over his clothes, this time saying "scrunch, scrunch," while opening and closing his hand. P.U. said that he did not tell anyone about it because defendant said it was a secret.

P.U. then described another incident outside a convenience store. He claimed defendant walked up to him, touched his crotch over his clothes, and said "scrunch, scrunch." P.U. testified to a similar incident when he was playing baseball in a park across the street. He had to use the bathroom, and he walked with defendant to a nearby school where a janitor let them inside. When P.U. exited the stall, he said defendant touched his crotch over his clothes and said again, "scrunch, scrunch." The last reported incident involved A.V. and was allegedly witnessed by B.B., an eight-year-old boy. A.V. said that defendant leaned behind her as she was on her scooter, put his hand between her legs, and touched her vagina over her clothes.

Defendant testified that he had never touched the genitals or buttocks of either A.V. or P.U. His father testified that he saw P.U. exhibit sexual behavior, one day coming into his office and jumping on defendant's leg while rocking back and forth in saying, "I'm humping John." Defendant's sister, Jolene, also said that when she hugged P.U., he put his hands on her buttocks. Jessica, the defendant's other sister, claimed that in May 2001, when she was sitting on the stoop, P.U. walked by and when she said hello, he responded with, "shut up, bitch." When she threatened to tell his mother, P.U. pulled down his pants, exposed his penis, and said "suck this." Additional defense evidence came from character witnesses including family members, friends, and the defendant's elementary school teacher, all testifying that defendant had a reputation for truthfulness.

After the close of the defense case, the trial judge held a charge conference. Both the prosecutor and defense counsel acknowledged that they had reviewed the proposed charges, and were asked for any comments, additions or objections. The judge concluded by asking whether any lesser-included offenses should be charged, specifically harassment. The judge then stated that he saw no purpose to annoy or alarm from the testimony so that he did not consider harassment appropriate. Both lawyers agreed that there were no lesser-included offenses charged to the jury. Following conviction and sentence, defendant appealed. Defendant presents the following arguments for our consideration:

POINT I - THE COURT'S CONFUSING AND CONTRADICTORY INSTRUCTION ON THE SEXUAL ASSAULT COUNT, WHICH TOLD THE JURY THAT IT COULD CONVICT THE DEFENDANT IF HE ACTED EITHER KNOWINGLY OR PURPOSELY, AND ITS DEFICIENT INSTRUCTIONS ON THE ENDANGERING COUNT, REQUIRE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below.)

POINT II - THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE LESSER OFFENSE OF HARASSMENT. (Not Raised Below.)

Under the Criminal Code, all sexual assaults except those committed on a victim less than thirteen years old by a person at least four years older, N.J.S.A. 2C:14-2(b), require penetration as defined in N.J.S.A. 2C:14-1(c). However, the acts criminalized by N.J.S.A. 2C:14-2(b), known as "tender years" sexual assaults, require only sexual contact. The statutory term "sexual contact" is defined as follows:

... 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. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present.

[N.J.S.A. 2C:14-1(d).]

In order to find the defendant guilty of a tender years sexual assault, the jury must determine the following: (1) the victim is less than thirteen years old; (2) the defendant is at least four years older; (3) the sexual contact involves a purposeful touching of an intimate part, which in turn is defined as sexual organs, genital area, anal area, inner thigh, groin, buttock or breast; and (4) the intentional touching must be either to degrade or humiliate the victim or sexually arouse or sexually gratify the defendant. See State v. Zeidell, 154 N.J. 417-28 (1998). As to the fourth element, one of the specific purposes named is required to sustain a conviction. State v. Cusick, 219 N.J. Super. 452, 465 (App. Div.), certif. denied, 109 N.J. 54 (1987). See also State ex rel G.B., 365 N.J. Super. 179, 186 (App. Div. 2004) (held that the required purpose element had not been proved when the trial judge found the twelve-year-old defendant had touched the victim but not for any purpose other than curiosity); State ex rel D.W., 381 N.J. Super. 516, 518 (App. Div. 2005) (victim's testimony that she was humiliated by being touched on the buttock insufficient proof of purpose under the statute).

Except where a statute indicates legislative intent to impose strict liability, the Code creates four mental states: purpose, knowledge, recklessness, and negligence. State v. Demarest, 252 N.J. Super. 323, 326 (App. Div. 1991). The distinguishing feature of a purposeful mental state is the conscious object to engage in prohibited conduct or cause a prohibited result. N.J.S.A. 2C:2-2(b)(1); State v. McCoy, 116 N.J. 293, 304 (1989). In contrast, "knowingly" is grounded on the awareness of the nature of the conduct or an awareness that the conduct will cause the result or practically certain that it will cause the result. State v. Clausell, 121 N.J. 298, 316

(1990; State v. Cruz, 163 N.J. 403, 418 (2000); State v. Simon, 161 N.J. 416, 449 (1999); State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999). Under the Code these are independent mental states, and a person may act knowingly without purposeful action. Therefore, where the applicable statute requires the mental state of purposeful, an instruction that a conviction may be found if a defendant acted knowingly requires reversal. State v. Jackmon, 305 N.J. Super. 274 (App. Div.), certif. denied, 153 N.J. 49 (1998).

In this case the trial judge correctly told the jury that for the State to have satisfied its burden of proof, it must find that the defendant committed an act of sexual contact. He correctly defined sexual contact in the words of the statute. Then he gave the model jury instruction defining the term purposely. He then told the jury:

I've just defined the concept of 'purpose' as to 'knowing' a person acts knowingly with respect to the nature of his conduct if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. 'Knowing' with 'knowledge,' or equivalent terms have the same meaning.

Later in the charge, the judge told the jury that it must find that defendant intentionally touched A.V.'s vagina with the purpose to humiliate or degrade her or to sexually gratify himself, and once again correctly defined "purposely."

Since no objection to the charge was made by defendant, our review is based on the standard of plain error. That is, whether the "possibility of injustice [arising from the alleged error] is sufficient to raise reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Hogan, 297 N.J. Super. 7, 21 (App. Div. 1997); State v. Cook, 300 N.J. Super. 476, 488-89 (App. Div. 1996). The judge's charge is a "road map" for the jury to reach its determination. State v. Martin, 119 N.J. 2, 15 (1990). Erroneous jury instructions on material matters to the jury's deliberation are ordinarily presumed to be reversible error and are unlikely candidates for a finding of harmless error. Ibid. See also State v. Rhett, 127 N.J. 3, 4 (1992).

The State concedes that the instruction on the definition of knowing was "unfortunate" and erroneous, but argues that the error was not sufficient to raise a reasonable doubt as to whether it led the jury to convict the defendant on the charge of sexual assault. We disagree. The culpability state of "knowingness" is applicable only when the State's case charges a defendant with sexual contact of himself/herself in view of a person the defendant knows is present. See e.g., Zeidell, supra, 154 N.J. at 434. See also Model Jury Charges, Criminal, Sexual Assault, N.J.S.A. 2C:14-2(b), (revised February 23, 2004). By charging the definition of knowingly, which is not the requisite state of mind requirement for sexual conduct under N.J.S.A. 2C:14-2(b), the trial judge sowed the seeds of confusion by leading the jury to believe that they could apply either purposeful or knowingly to establish whether the State had met its burden of proof. While the State argues that inclusion of the knowingly definition is not of such magnitude to require reversal because the trial judge correctly instructed the jury later in the charge during his explanation of the jury verdict form, the test is whether the charge as a whole is misleading or accurately states controlling principles of law. State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997); State v. Sette, 259 N.J. Super. 156, 190-91 (App. Div. 1992).

In Sette we explained that

"[t]he key to finding harmless error . . . is the isolated nature of the transgression and the fact that a correct definition of the law on the same charge is found elsewhere in the court's instructions."

[Sette, supra, 259 N.J. Super. at 192.]

Here the error was not isolated or fleeting, and we cannot simply assume that the jury ignored the reference to knowing in favor of only purposeful.

Certainly the distinction between knowingly and purposeful conduct is not one without a difference. In the instant case it has great significance. Considering the limitations of this defendant as brought out during the course of the testimony, the mental state of purposeful was an issue since the jury could have found that the defendant knowingly touched intimate parts of A.V. in the course of innocent horseplay without the purpose to humiliate or degrade her, or sexually arouse or sexually gratify himself. Therefore, defendant's conviction of sexual assault under N.J.S.A. 2C:14-2(b) must be reversed and the matter remanded for a new trial.

A similar result is compelled with respect to the judge's charge on endangering the welfare of a child under N.J.S.A. 2C:24-4. Knowingly is the required mental state. See State v. Overton, 357 N.J. Super. 387, 393 (App. Div.), certif. denied, 177 N.J. 219 (2003); State v. N.A., 355 N.J. Super. 143, 153 (App. Div.), certif. denied, 175 N.J. 434 (2003); State v. N.I., 349 N.J. Super. 299, 313-14 (App. Div. 2002). However, the endangering charge alleged that the sexual conduct committed by defendant consisted of intentionally touching A.V.'s vagina for the purpose of degrading or humiliating her or sexually arousing or sexually gratifying the defendant. While the judge properly instructed the jury as to the knowing requirement, he did not define purposeful conduct in terms of the sexual assault charge. We conclude that the jury could well have been confused.

While it is unnecessary to our decision, we add that defendant's argument that the trial judge erred in failing to charge harassment as a lesser-included offense of either sexual assault or endangering the welfare of a child is without merit. There was no specific request to charge and the judge brought up the matter and explained his reasoning in not so charging. No objection was taken at that time to the exclusion of harassment as a lesser-included charge. In light of the facts of this case, we cannot find that the failure to so charge constituted plain error. See State v. Thomas, 187 N.J. 119 (2006). Moreover, the requisite purpose necessary to prove a violation of the harassment statute, N.J.S.A. 2C:33-4 is different from the requisite purpose required for a sexual assault. Rather than sexual gratification to the actor or humiliation to the victim, the focus is upon conduct designed to annoy or harass. The trial judge has no obligation to scour the record to determine whether there was "some uncharged offense" of which defendant might be guilty. Thomas, supra, 187 N.J. at 134. There was no error, much less plain error.

Reversed and remanded for trial.

 

(continued)

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14

A-0553-05T4

RECORD IMPOUNDED

March 13, 2007