STATE OF NEW JERSEY v. STANFORD T. ARMSTEAD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4142-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANFORD T. ARMSTEAD,

Defendant-Appellant.

____________________________________

December 7, 2010

Submitted November 17, 2010 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-04-328.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent(Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Stanford T. Armstead was charged by a Cumberland County Grand Jury with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree lewdness, N.J.S.A. 2C:14-4(a)(1) (count four). Counts two and four were dismissed by the State, and defendant was tried on the remaining charges in October 2007, but the jury could not reach a verdict.

Defendant's case was retried in May 2008, before Judge John M. Waters, Jr. and a jury. This time, the jury returned a verdict acquitting defendant of first-degree aggravated sexual assault, but found him guilty of third-degree endangering the welfare of a child. Judge Waters found defendant eligible for an extended-term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a), and imposed an eight-year term of imprisonment with four years of parole ineligibility. Defendant appeals from this conviction and sentence.

On appeal, defendant raises the following two points:

POINT I: THE TRIAL JUDGE ERRED IN FAILING TO DEFINE THE TERM "SEXUAL CONDUCT" AS PART OF THE CHARGE OF ENDANGERING THE WELFARE OF A CHILD AND IN READING THE UNINDICTED PORTION OF THE STATUTE TO THE JURY.

(Not Raised Below)

POINT II: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Finding no merit in either of defendant's claims, we affirm. R. 2:11-3(e)(2). We add only the following comments.

I.

The one-day trial saw the production of only two witnesses: A.C., the victim, and Millville Police Officer Bruce Cornish. Their testimony revealed the following to the jury. In February 2005, A.C., then twelve-years old, was visiting her older sister, K.C., in Millville. After retiring for the night, A.C. was awakened by defendant, K.C.'s boyfriend, who was grabbing at her arm. Defendant then removed A.C.'s pants and inserted his penis into her vagina. Defendant also forced A.C. to engage in fellatio and licked her vagina.

Approximately three weeks after this incident, A.C. first told a friend what had happened. A.C.'s friend told her aunt, who in turn notified A.C.'s mother. On March 15, 2005, A.C. was brought to Fam Care in Millville where she was medically examined. A nurse at Fam Care notified the Millville police of the situation that day.

Officer Cornish spoke with A.C. and her mother at police headquarters. After their conversation, Officer Cornish contacted the Cumberland County Prosecutor's Office, which immediately resulted in A.C., her mother, and Officer Cornish traveling to the Child Advocacy Center in Vineland for an interview.

After the interview process, Officer Cornish continued his investigation and tried to contact defendant without success. A warrant was eventually issued for defendant's arrest. In early April 2005, Officer Cornish received an anonymous tip that defendant was at a specific location in Vineland. There, Cornish saw the defendant who, upon seeing the police, fled. After a short chase, defendant was apprehended and brought to the Millville Police Department where he was advised of his Miranda1 rights and gave a statement.

In the statement, defendant admitted having contact with A.C. He stated that after he arrived at K.C.'s apartment on the night in question, he fell asleep on the couch only to be shaken awake by A.C. Defendant claimed that A.C. climbed on top of him trying to touch his penis; he told her to stop and pushed her away. A.C. continued to pursue defendant and asked to perform oral sex on him. Defendant stated nothing sexual happened between them and he rejected A.C.'s advances. However, defendant admitted that he telephoned A.C. about a month after the incident and asked if she missed him.

II.

A.

Without objecting to the jury instructions during the trial, defendant argues for the first time on appeal that it was plain error for the trial judge to not more clearly define the term "sexual conduct" for the jury. Defendant claims that this error permitted the jury to speculate on the meaning of the phrase, which led to an inconsistent verdict as evidenced by his acquittal on the charge of aggravated sexual assault, while contemporaneously being convicted of child endangerment. According to defendant, the only factual circumstances for a child endangerment conviction were the identical actions upon which the State based its accusation of aggravated sexual assault. Thus, the jury's determination that the State had not proven his guilt beyond a reasonable doubt precluded the same proofs from serving as the basis for the less-serious offense of child endangerment. Defendant also maintains that the trial court's recitation of the "endangerment statute in toto" confused the jury, thereby inviting it to "convict the defendant based on certain behavior which might be offensive and constitute abuse," rather than on the more serious offense of "engag[ing] in sexual conduct which would impair or debauch the morals of the child." N.J.S.A. 2C:24-4(a).

None of defendant's arguments are persuasive. Because defendant's attorneys did not object to the trial court's instructions during the trial, we infer that they also did not perceive that they were unfair or otherwise problematic, and any error will be disregarded unless it was "'clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)); see also R. 2:10-2. We find the delivery of the jury instructions completely unremarkable and detect no plain error in the substance of what was conveyed to the jury.

Likewise, we perceive nothing inconsistent in the verdict. It is well-settled that our law does not require consistency in jury verdicts. State v. Banko, 182 N.J. 44, 53 (2004); State v. Peterson, 181 N.J. Super. 261, 267 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982). A jury may render inconsistent verdicts provided a sufficient evidentiary basis exists to support the ultimate charge upon which a defendant is convicted. Banko, supra, 182 N.J. at 54-55. The court may review a verdict only where "'an acquittal on one count precludes the finding of one or more elements of an offense charged in a second count as a matter of law.'" State v. Ortiz, 253 N.J. Super. 239, 245 (App. Div.) (quoting Peterson, supra, 181 N.J. Super. at 266), certif. denied, 130 N.J. 6 (1992)). Such was not the case here, and we have no doubt that there was sufficient evidence upon which the jury could find defendant guilty of endangering the welfare of A.C.

B.

Defendant argues that his sentence to an extended term as a persistent offender was inappropriate. Pursuant to N.J.S.A. 2C:44-3(a), defendant was sentenced to an eight-year extended term with four years of parole ineligibility and also parole supervision for life and registration pursuant to Megan's Law. Defendant argues the trial judge did not adequately follow the requirements set forth in State v. Pierce, 188 N.J. 155 (2006). We disagree.

New Jersey law prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). "An abuse of discretion standard applies in the review of a sentencing court's decision to impose an extended-term sentence." Pierce, supra, 188 N.J. at 167 n.4. Appellate review examines whether the sentencing judge followed lawful sentencing guidelines and determines if the sentence imposed could have been reached by a reasonable person based upon the evidence presented. State v. Roth, 95 N.J. 334, 365-366 (1984).

However, the reviewing court "may not substitute its judgment for that of the sentencing court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)).

The sentencing court in this case correctly assessed defendant's eligibility for an extended term because of the commission of two separate crimes on two separate occasions within ten years of the current crime and while he was over eighteen years of age. N.J.S.A. 2C:44-3(a). After determining eligibility for an extended term, the sentencing court then used the full range of sentences available by a weighing of aggravating and mitigating factors. Pierce, supra, 188 N.J. at 168.

Here, the sentencing court applied aggravating factors three, N.J.S.A. 2C:44-1(a)(3); six, N.J.S.A. 2C:44-1(a)(6); and nine, N.J.S.A. 2C:44-1(a)(9). No mitigating factors were found. Our canvass of the record reveals that these factors were based on credible evidence available to the trial court. Finally, considering the carefully reasoned approach with which the court decided defendant's sentence, it cannot be said that the sentence shocks the judicial conscience. The imposition of the extended term sentence was not an abuse of discretion.

A

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed 2d

694 (1966).