STATE OF NEW JERSEY IN THE INTEREST OF R.M. and M.T.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-5922-12T3

STATE OF NEW JERSEY

IN THE INTEREST OF R.M.

and M.T.H.

________________________

March 14, 2014

Argued February 25, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FJ 02-1099-12 and FJ-02-1055-12.

Donald J. Millman argued the cause for appellant R.M. (Millman and Millman, attorneys; Mr. Millman, on the brief).

David J. Altieri argued the cause for appellant M.T.H. (Galantucci & Patuto, attorneys; Mr. Altieri, on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent State of New Jersey (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

PER CURIAM

By leave granted, defendants R.M. and M.T.H. appeal from a trial court order dated March 18, 2013, granting the State's motion to waive defendants from juvenile to adult court. For the reasons that follow, we affirm.

I

We begin with a brief outline of the procedural history. Defendants were charged as juveniles with acts that, if committed by an adult, would constitute first-degree aggravated sexual assault, by having sexual intercourse with a victim whom they knew was helpless by reason of intoxication. N.J.S.A. 2C:14-2(a)(7). On July 26, 2012, the Family Part judge granted the prosecutor's motion to waive the cases to adult court, finding that the waiver decision was not a gross and patent abuse of discretion. On August 24, 2012, we denied defendants' motions for leave to appeal. By order dated October 16, 2012, the Supreme Court granted leave to appeal and remanded these cases to the trial court for reconsideration, in light of the Court's September 12, 2012 decision in State in the Interest of V.A., 212 N.J. 1 (2012). V.A. held that the standard of review for a waiver decision was abuse of discretion, rather than gross and patent abuse of discretion.

On remand, the prosecutor filed amended statements of reasons for the waiver decision, dated November 14, 2012. In an opinion issued on March 18, 2013, the Family Part judge determined that, applying V.A., the prosecutor's amended decision was not an abuse of discretion. On May 7, 2013, we denied defendants' motions for leave to appeal from that decision, but by order dated July 9, 2013, the Supreme Court remanded the cases to this court with direction to consider the appeals on the merits.

To expedite the appeals, which were consolidated, we granted defendants' motions for permission to rely on the briefs they filed with the Supreme Court. We granted the State's motion for leave to file one responding brief. We have considered the entire record presented to us, including the prosecutor's amended statements of reasons, which for purposes of this appeal, are the documents to be tested against the standards set forth in V.A.

The charges against defendants, respectively aged seventeen and sixteen years old, were based on allegations that they forced a very intoxicated fourteen-year-old girl to have sexual intercourse with each of them. The Family Part judge presided over a six-day waiver hearing, at which numerous exhibits were introduced, including recorded statements of witnesses. On this appeal, neither side has provided us with any of the witness statements or other original evidence. Instead, defendants rely on the judge's summary of the evidence in his oral opinion issued March 18, 2013, and the State relies on the summary of the evidence as set forth in the prosecutor's amended statements of reasons. We have reviewed the record provided to us, including all of the transcripts. We briefly summarize the factual record as follows.

According to the victim, M.D., the assault occurred on August 10, 2011, although she did not report it to the police until October 26, 2011. At the waiver hearing, one of the investigating detectives, Wendy Cevallos, recounted that she interviewed the victim and her mother on October 27, 2011. Although M.D. had only recently told her mother about the rape, her mother recalled noticing a change in her daughter over the past couple of months; her grades slipped and the girl said she no longer wanted to attend the high school she was going to.

M.D. told the detective that she was in a local park drinking alcohol with two female friends when she encountered M.T.H., who tried to "hook up" with her. He kissed her and she told him to leave her alone. She wandered away into the woods, but M.T.H. and R.M. followed her. M.T.H. pushed her down and raped her, while R.M. held her down by the shoulders. Then M.T.H. held her down while R.M. raped her. M.D. stated that she was quite intoxicated and was not feeling well, even before she walked into the woods.

Based on our review of the record, there appears to be ample evidence - certainly enough to support probable cause - that defendants had sexual intercourse with M.D. while she was obviously intoxicated to the point of helplessness. See State v. J.M., 182 N.J. 402, 417 (2005) ("Probable cause is a well-grounded suspicion or belief that the juvenile committed the alleged crime."). There were eyewitnesses to the fact that each defendant held M.D.'s shoulders down while the other defendant had sex with her. According to M.D.'s friend Roberta,1 she saw R.M. "humping" M.D. and tried to intervene, but M.T.H. essentially told her to mind her own business and shooed her away. Witnesses later saw M.D. come out of the woods, appearing very intoxicated and vomiting. Several of the teenagers in the group half-carried M.D. to Roberta's house, where her mother picked her up and drove her home.

M.D.'s mother told Detective Cevallos that when she brought M.D. home, she noticed that the girl was wearing her shorts on inside out. M.D. was so intoxicated that her mother considered taking her to the hospital but did not do so. The next morning, M.D. told her sister that she had been raped and that she could not find the tampon she had been wearing. The sister was present in the bathroom later that day when M.D. took a shower and found the tampon pushed up high inside her vagina.

The prosecutor's amended statements of reasons emphasized the strength of the State's case, the fact that defendants each took turns holding the victim down and raping her, and that they took no precautions against transmitting a sexual disease to the victim. The State's recitation of the facts also considered that the victim was in no condition to ask for help, and defendants rebuffed the victim's friend when she tried to intervene. The State noted that R.M. had made incriminating statements about the crime and had posted a message on Facebook about it.

In discussing deterrence, the statements acknowledged that while each defendant had no criminal record, the circumstances leading up to the crime (drinking in a group and encountering a vulnerable victim) were likely to recur:

It is not hard to imagine that this juvenile will face similar situations where he is present at a social event with peer-aged males and females who are drinking to the point of intoxication . . . . Waiving this matter to adult court, where the consequences of being found guilty are severe, will serve to deter [defendant] in the future from making the same decision that it is somehow acceptable to engage in sexual activity with another person who is so highly intoxicated that they are physically unable to flee or communicate unwillingness to act.

The statements further reasoned that waiver would serve to deter other adolescents who might believe "that there will be few, if any, consequences for having sexual intercourse with someone who has become highly intoxicated, to the point of physical incapacitation, while 'partying' or 'hanging out' with the offender."

The statements also compared the relatively lenient treatment the juveniles could anticipate in Juvenile Court as first offenders (possibly juvenile probation and sex offender therapy), as compared to the jail terms that would result from an adult conviction. The statements considered that M.T.H. was "less than one month away from his seventeenth birthday," and R.M. was six months away from his eighteenth birthday, when they committed these offenses. The prosecutor also noted the evidence corroborating the victim's allegations, and the fact that the victim and her mother "both expressed a strong desire to have this matter waived to adult court."

In an oral opinion placed on the record on March 18, 2013, the Family Part judge found probable cause to believe that defendants committed the crime, and concluded that the waiver decisions were not an abuse of discretion.

II

On this appeal, both defendants argue that waiver was an abuse of discretion.2 See V.A., supra, 212 N.J. at 26. In particular, they contend that the State filed "a written statement of reasons for waiver that did not comply with the juvenile waiver guidelines or the directives of [] V.A." We cannot agree.

In 2000, the Legislature amended the juvenile waiver statute to make it easier to waive to adult court older juveniles accused of serious crimes, including aggravated sexual assault. N.J.S.A. 2A:4A-26(e). Previously, a juvenile over age fourteen, charged with one of the listed serious offenses would be waived to adult court unless the juvenile could prove the likelihood of his or her rehabilitation by age nineteen. L. 1982, c. 77 7. The 2000 amendments eliminated the opportunity for defendants aged sixteen and older to prove their candidacy for rehabilitation. N.J.S.A. 2A:4A-26(e).

In determining that the abuse of discretion standard, as opposed to the gross abuse of discretion standard, should apply to the waiver decision, V.A. considered the Legislature's intent to narrow the situations in which older juveniles could avoid waiver for serious crimes. V.A., supra, 212 N.J. at 10; see J.M., supra, 182 N.J. at 412. However, the Court also considered the need to avoid arbitrariness in the waiver decision. The Court noted that to achieve that goal, the Legislature required the Attorney General to adopt guidelines that prosecutors must follow in making the waiver decision.3 V.A., supra, 212 N.J. at 10; N.J.S.A. 2A:4A-26(f). The Court emphasized the importance of the Attorney General's Guidelines as a curb on prosecutorial discretion and the need for the prosecutor's statement of reasons to demonstrate in sufficient detail consideration of each applicable guideline. V.A., supra, 212 N.J. at 10-11.

However, bearing in mind that waiver is the norm in these cases, the Court placed a heavy burden on the juvenile to prove abuse of discretion:

The Legislature did not say that a prosecutor must seek waiver for all sixteen and older juveniles charged with an enumerated offense. See N.J.S.A. 2A:4A-26. Therefore, a reviewing court must have before it a statement that explains why the discretionary determination was made as to the individual juvenile before the court. A proper statement of reasons protects against the abuse of discretion that undermines the general interest in promoting uniformity in these determinations and avoids arbitrary decision-making. That said, when applying the abuse of discretion standard to such statements, it must be borne in mind that a juvenile seeking to avoid the "norm" of waiver in these circumstances, when probable cause is found to exist, must carry a heavy burden to clearly and convincingly show that the prosecutor was arbitrary or committed an abuse of his or her considerable discretionary authority to compel waiver.

[Id. at 28-29.]

Judged by those standards, we agree with the Family Part that defendants did not carry their heavy burden to show that the prosecutor's decision was an abuse of discretion. The amended statements of reasons discussed in sufficient detail all of the Guidelines factors that were relevant to the waiver decision and made a reasoned qualitative evaluation of those factors.

In particular, if the State's proofs are believed, this crime could fairly be described as predatory. This was not a teenage romance that went too far. Defendants took turns raping a drunken fourteen-year-old girl, while restraining her on the ground. One of them turned away the victim's friend when she tried to intervene. Whether, as defendants claim, they did not ply the victim with alcohol but rather she brought her own alcohol to the park, is irrelevant to their culpability. There may be some weaknesses in the State's case, but there is clearly probable cause to prosecute these defendants for aggravated sexual assault.4

We reject defendants' argument that V.A. requires us to apply the same analysis to a prosecutor's waiver decision that we would apply in reviewing a trial court's sentencing decision. While V.A. recognized that waiving a juvenile to adult court can result in more severe punishment, the Court did not require the prosecutor to consider the types of mitigating and aggravating factors that a court reviews in imposing sentence. Nor does V.A. support the analogy defendants attempt to draw between the prosecutor's waiver decision and a court's decision to impose a sentence higher than the mid-range. V.A. requires the prosecutor to apply the Guidelines and to provide a specific statement of reasons. However, V.A. acknowledges that where the juvenile is over sixteen, and the crime is one of the enumerated serious offenses, waiver is to be the norm not the exception.

Unlike V.A., where the prosecutor's statement of reasons was inadequate, in this case the State provided a sufficiently specific explanation of the need for deterrence, both of defendants and other young men who may find themselves in a similar situation. The State also sufficiently addressed the other relevant Guidelines factors. We find no abuse of the State's discretion in seeking waiver of these defendants, and we find no abuse of the Family Part judge's discretion in granting the waiver motions.

For these reasons, and the reasons stated by the Family Part judge in his March 18 opinion, we affirm.

Affirmed.

1 We use a pseudonym for the witness.

2 M.T.H. filed a brief discussing the issue in detail. R.M. filed a short brief largely joining in M.T.H.'s brief.

3 The Guidelines require the prosecutor to consider seven factors: the nature of the offense; deterrence; the effect of waiver on co-defendants; the maximum sentence and length of time to be served if prosecuted as an adult or as a juvenile; the defendant's prior record, if any; trial considerations; and the victim's input. Attorney General's Juvenile Waiver Guidelines (March 14, 2000).

4 As we previously noted, defendants did not provide us with the exhibits introduced in evidence at the waiver hearing, perhaps because they are not helpful to the defense.