STATE OF NEW JERSEY v. L.G.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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

L.G.R.,

Defendant-Appellant.

_________________________________

December 8, 2014

Submitted September 15, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-06-954.

Brickfield & Donahue, attorneys for appellant (Joseph R. Donahue, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant L.G.R.1 was found guilty of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). The trial court imposed a custodial sentence of seven-and-a-half years, plus certain fines and other monetary sanctions. We affirm defendant's conviction and sentence, except to remand for the limited purpose of correcting the judgment of conviction to vacate the $100 sexual offender's surcharge.

I.

The State's proofs at trial essentially were as follows. In reciting those facts we recognize that the jury found defendant not guilty of the other count of the indictment, which had charged him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one). The factual narrative we present is therefore subject to that caveat.

Defendant is the step-grandfather of the minor victim, S.M. ("Sally"), who was age seven at the time of the offense on September 24, 2006. On the night in question, Sally stayed at the home of defendant and his wife C.R., who is Sally's maternal grandmother. C.R.'s eight-year-old son, A.R. ("Andrew"), who is Sally's biological uncle, also lived there. Sally's mother had dropped her off at the residence so that C.R. could baby sit that night.

While defendant was at work, Sally and Andrew were playing video games in the living room, with C.R. near them on the sofa. They all fell asleep on the sofa. Defendant returned from work late that night, apparently in a drunken state. He went to bed in the bedroom that he shares with C.R.

According to Sally's account of the events, at about 6:00 a.m., defendant emerged from the bedroom. He pulled down his underwear and got on top of her, placing his penis either in or next to her mouth for about two minutes. As defendant did so, Sally tried to wake up C.R. by pinching her. According to Sally, C.R. woke up, screamed at defendant, and he retreated to the bedroom. When Sally's mother arrived about ten minutes later to pick her up, Sally told her what had happened. The mother immediately took Sally to the police station, where Sally repeated her allegations. Defendant was subsequently arrested and charged in this two-count indictment.

L.G.R., who testified in his own defense at trial, denied having any sexual contact with Sally. He claimed that at about 5:00 a.m. on the morning in question he woke up and rousted his wife C.R. According to defendant, the two of them went into the bedroom and C.R. performed fellatio upon him, with the bedroom door ajar. Defendant claimed that Sally walked into the bedroom and saw him and C.R. engaged in their sexual activity.

In her own testimony, C.R. partially supported defendant's narrative, although she initially told the police that the sex in the bedroom occurred around 9:00 a.m. rather than around 5:00 a.m. She denied observing defendant having any sexual contact with her granddaughter. However, Sally contended that before she was taken from the residence that morning, C.R. admonished Sally not to "tell anybody what [defendant] did to you."

II.

On appeal, defendant raises two points for our consideration

POINT I

THE COURT ERRED IN FAILING TO CHARGE THE JURY WITH THE LESSER-INCLUDED CHARGE OF CRUELTY AND NEGLECT OF CHILDREN.

POINT II

THE JURY VERDICT WAS INCONSISTENT AND AGAINST THE GREAT WEIGHT OF THE EVIDENCE.

We address these points in turn.

A.

Defendant's first argument is that the trial court erred in rejecting his counsel's request that the jury be charged on count two, the endangerment count, with fourth-degree abuse or neglect of a child under N.J.S.A. 9:6-3 as a lesser-included offense. We disagree.

In considering this charge issue, we are cognizant of the well-established principle that proper jury charges are "essential for a fair trial." State v. Koskovich, 168 N.J. 448, 507 (2001) (internal citations and quotation marks omitted); see also State v. Eldridge, 388 N.J. Super. 485, 495 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007). We also recognize that "[e]rroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986); see also State v. Lopez, 187 N.J. 91, 101 (2006).

The trial court generally has an obligation to submit to a criminal jury not only the charges specified in the indictment but also uncharged lesser-included offenses that are rationally grounded in the evidence. State v. Denofa, 187 N.J. 24, 41 (2006); see also State v. Rivera, 205 N.J. 472, 489 (2011). The Legislature has defined a lesser-included offense in N.J.S.A. 2C:1-8(d) in three alternative ways, only the first of which is pertinent to defendant's argument here. Under that first alternative definition, an offense is a lesser-included offense when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1). The issue presented here is whether, in the context of the facts of this case, a fourth-degree offense under N.J.S.A. 9:6-3 for child abuse or neglect comprises such a "lesser-included offense" with respect to the child endangerment offense under N.J.S.A. 2C:24-4(a) as to which defendant was found guilty. Even if defendant's conduct would represent a violation of both the Title 2C and the Title 9 statutes, we also must consider whether the trial court was obligated to charge the jury with the Title 9 offense as an alternative, less-serious disposition. Applying case law precedent and what appears to be the Legislature's intent respecting these two overlapping statutes, we conclude that the court was not obligated to charge the Title 9 violation.

Two separate portions of the New Jersey statutes criminalize certain forms of child abuse or neglect: Title 9 and Title 2C. We begin with Title 9.

N.J.S.A. 9:6-1 prohibits four types of conduct directed toward a child: abuse, abandonment, cruelty and neglect. N.J.S.A. 9:6-1 contains no restriction as to who may unlawfully commit such abuse. The abuse provision of N.J.S.A. 9:6-1 states, in pertinent part, that "[a]buse of a child shall consist in any of the following acts: . . . (e) the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child. . . ." Ibid. (emphasis added). That abusive conduct prohibited under N.J.S.A. 9:6-1 is criminalized by N.J.S.A. 9:6-3, which states, in part

Any parent, guardian or person having the care, custody or control of any child, who shall abuse . . . such child . . . shall be deemed to be guilty of a crime of the fourth degree.

[N.J.S.A. 9:6-3 (emphasis added).]

The child endangerment section of the Criminal Code, as it existed at the time of the present incident, incorporated the standards of N.J.S.A. 9:6-3, elevating child abuse and neglect to a second-degree offense when, as here, it is committed by

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of a child, or who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-3] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

[N.J.S.A. 2C:24-4(a) (emphasis added).]2

In State v. N.A., 355 N.J. Super. 143, 152 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003), we examined these Title 2C and Title 9 provisions and held that the trial court is not obligated to charge a fourth-degree violation of N.J.S.A. 9:6-3 when the State has elected to prosecute a defendant under the more stringent parallel terms of N.J.S.A. 2C:24-4(a). We recognized in N.A. that "the Title 2C offense of endangering the welfare of children and the Title 9 offense of cruelty and neglect of children are the same offenses." Id. at 153. "The only difference is the degree of the offense and the penalty." Ibid. "Each offense characterizes the same harm or risk of harm to the child." Ibid. "Each offense requires the same proof of 'knowing culpability.'" Ibid. (citation omitted). "Each offense also encompasses conduct by a parent." Ibid. Consequently, "[a]n instruction to the jury on each offense would be the same." Ibid.

We explained in N.A. that the duplicative relationship between N.J.S.A. 9:6-3 and N.J.S.A. 2C:24-4(a) is the result of the Legislature's design. As we noted

The conclusion that the offenses are identical is supported by the legislative history of Title 2C. The 1971 Commentary to what became the Criminal Code, specifically the section which was later codified as [N.J.S.A.] 2C:24-4, states "[t]his Section incorporates into the Code the existing law as to abuse, abandonment, cruelty and neglect of children by making such conduct criminal under the definitions of those terms in Title 9. The intent is to incorporate the crime now defined in [N.J.S.A.] 9:6-3 without substantial change except for the penalty provisions." Final Report of the New Jersey Criminal Law Revision Commission, Vol. II at 259 (1971). Although one commentator opines that [N.J.S.A.] 9:6-3 has been superseded, it has not been repealed. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:24-4 (2002).

[Ibid.]

We further explained in N.A. that the continued dual existence of the second-degree or third-degree child endangerment offense in N.J.S.A. 2C:24-4 and the separate fourth-degree criminal provision within N.J.S.A. 9:9-3 persists in order to give prosecutors the discretion to charge the less stringent Title 9 violation where circumstances justify it

Indeed, amendments to both statutes in the intervening years evince a legislative intent that both statutes are to be preserved perhaps to provide prosecutors the option of charging a lesser offense under appropriate circumstances.

[Ibid.]

Given this dual structure that reposes wider charging discretion with prosecutors, we concluded that it would be inappropriate for trial courts to interfere with that discretion by allowing juries to be charged in N.J.S.A. 2C:24-4 cases with N.J.S.A. 9:6-3 violations as a lesser-included offense. As we noted, a jury cannot be permitted to make a finding in this context that will solely affect "the gradation of the offense" for the same conduct. Ibid. See also State v. D.V., 348 N.J. Super. 107, 114-16 (App. Div. 2002), aff'd sub nom, State v. D.A.V., 176 N.J. 338 (2003) (upholding a prosecutor's inherent discretion to select between charging a defendant with a crime of the fourth degree rather than a crime of the second or third degree).

The principles set forth in N.A. are reinforced by our subsequent opinion in In re Registrant R.B., 376 N.J. Super. 451 (App. Div. 2005), overruled on other grounds, In re T.T., 188 N.J. 321 (2006). In R.B., the central issue before the court was whether a defendant's federal conviction for sexual exploitation of a child was similar to luring under New Jersey criminal law, N.J.S.A. 2C:13-6, for Megan's Law reporting purposes. In analyzing that question, we looked for comparative purposes to the child abuse or neglect provisions in Title 9. We observed that, although the Title 9 statute did not expressly use the term "sexual conduct" as did the endangering statute, we observed that "there can be no doubt that the reference in N.J.S.A. 9:6-1 to 'debauch[ing] or endanger[ing] or degrad[ing] the morals of the child' is a reference to prohibited sexual conduct." Id. at 469. R.B. is thus consistent with the notion that the Title 9 abuse provision mirrors the Title 2C child endangerment provision, at least in the present factual context, where an act of sexual contact debauches or degrades a child's morals.

"The choice of [a criminal] statute under which [the State elects] to proceed is nothing more than the normal type of discretionary decision vested in and exercised by prosecutors on an everyday basis." State v. T.C., 347 N.J. Super. 219, 231 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). In State v. D.V., supra, 348 N.J. Super. at 114-15, we noted that

Specific conduct may violate more than one statute[.] Where two criminal statutes prohibit the same basic act, the prosecutor may in the exercise of sound discretion proceed under either or both statutes as long as only as single conviction survives.

The discretionary authority of the prosecutor in enforcement of criminal laws is well-settled. It is the fundamental responsibility of the prosecutor to decide whom to prosecute and what charges are to be considered. The factual complex, the conduct of defendant and the extent of sentencing exposure are relevant considerations for the prosecutor to consider. . . . [w]hen "an act violates more than one criminal statute, the Government may prosecute against either so long as it does not discriminate against any class of defendants." United States v. Batchelder, 422 U.S. 114, 123-24, 99 S. Ct. 2198, 2204, 60 L. Ed. 2d 755, 765 (1979). See also, State v. Kittrell, 145 N.J. 112, 127-30 (1996).

[Id. at 114-15 (citations omitted in part).]

Generally, where specific conduct may violate more than one statute, the more serious grade or offense will govern. State v. Eure, 304 N.J. Super. 469, 475 (App. Div.), certif. denied, 152 N.J. 193 (1997). The selection of the charge rests in the sound discretion of the prosecutor. The lesser-included offense instruction sought here by defendant would have thwarted that discretion. We therefore reject defendant's claim to an entitlement to an instruction under N.J.S.A. 9:6-3.

B.

In his second point, defendant contends that the jury's verdict on count two was against the weight of the evidence. We find no merit to that contention.

Rule 2:10-1 expressly provides that

[i]n both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

Here, defendant moved unsuccessfully for a new trial based on his contentions that the verdict was against the weight of the evidence and impermissibly inconsistent. Having preserved the issue, we may properly review those contentions on appeal.

The court's task on a motion under Rule 2:10-1 is to determine if a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993). Moreover, the court may not overturn the verdict "merely because it might have found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div. 1985), certif. denied, 102 N.J. 312 (1985).

Here, the jury was free to accept or reject the credibility of the State's witnesses. The jury had the ability to weigh and consider defendant's testimony and that of the witnesses called in his favor. The jury ultimately found Sally's allegations credible and believed the State's version of the facts as presented, and this court will not interfere with that result.

A conviction for endangering the welfare of a child, as charged in the present case, required the State to prove, beyond a reasonable doubt, that defendant knowingly engaged in sexual conduct that would impair or debauch the morals of a child. N.J.S.A. 2C:24-4(a). Sally testified that while she was asleep in the living room, defendant "got on top of" her, in his underwear and then placed his penis in her mouth and "push[ed] it in and out" of her mouth for "about two minutes." The jury was properly instructed that the requisite conduct alleged by the State was that defendant "rubb[ed] his penis against the buttocks of the victim over her clothing and/or perform[ed] an act of sexual penetration, namely fellatio[,] upon the victim."

Although defendant presented testimony about an alleged incident in the marital bedroom the jury was not necessarily required to accept that version of events. It is far from "clear" that the "only reasonable explanation" behind the jury's verdict is that it believed the bedroom incident, rather than the incident in the living room, endangered Sally's welfare contrary to N.J.S.A. 2C:24-4(a).3 Appellate intervention is warranted only to correct an "injustice resulting from a plain and obvious failure of the jury to perform its function." Johnson, supra, 203 N.J. Super. at 134. Such is not the case here.

Finally, we reject defendant's contention that the verdict was inconsistent and must be reversed on that basis. It is well settled that "[a] jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). For the reasons we already explained, there was an ample factual basis grounded in the evidence to support the jury's finding of guilt on count two.

C.

We therefore affirm defendant's conviction. With the State's consent, we remand the sentence for the limited purpose of having the trial court amend the judgment of conviction to remove the $100 surcharge imposed because the surcharge does not apply to endangering convictions. See N.J.S.A. 2C:43-3.7.

1 To protect the privacy of the minor victim, who is related to defendant, we use initials for defendant and other adult family members mentioned in this opinion. N.J.S.A. 2A:82-46. We also use pseudonyms for the victim and for defendant's minor stepson.

2 This subsection was amended by the Legislature in August 2013. The amendment divided the offense into two separate components, establishing separate provisions for the offense of engaging in sexual conduct which would impair or debauch the morals of the child in subsection (a)(1) and for the offense in subsection (a)(2) of causing the child such harm that would make him or her an abused or neglected child. N.J.S.A. 2C:24-4(a) now reads as follows

(1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

(2) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L. 1974, c.119, s.l (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

[N.J.S.A. 2C:24-4a(1), (2) (emphasis added).]

For the reasons set forth in our opinion, the restyling of N.J.S.A. 2C:24-4(a) into these two subparts does not affect our lesser-included offense analysis.

3 It is also questionable as a matter of law whether the allegedly consensual sexual activity of defendant with his wife within the confines of their bedroom would comprise child endangerment under the statute.