STATE OF NEW JERSEY v. C.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.H.,

Defendant-Appellant.

________________________________________________________________

July 9, 2015

Submitted October 6, 2014 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment Nos. 10-10-0377 and 10-10-0378.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged in separate indictments with various sex offenses involving two minors and was convicted on multiple counts. He appeals from his convictions, arguing the trial judge committed plain error in failing to charge lesser-included offenses sua sponte. In addition, he contends he is entitled to additional jail credits on one of the indictments. We affirm his convictions and remand his sentence for the correction of jail credits.

The allegations of sexual abuse came to light in November 2009, after a therapist contacted the Division of Youth and Family Services (DYFS)1 regarding disclosures two minors, D.M. (Dahlia)2 and D.H. (Daisy), had made to a patient. Detectives Hernani Goncalves and Aaron Perkins went to defendant's home on November 19, 2009. They advised defendant he was the subject of a criminal investigation and the nature of that investigation. They asked if he would go to the police department voluntarily to be interviewed. Defendant agreed. After defendant was given Miranda3 warnings, he waived his rights in writing and proceeded to give a video-recorded statement regarding the allegations made by the minors.4 After defendant admitted to certain acts of sexual abuse as to each child, he was arrested.

The first case to go to trial was Indictment No. 10-10-378, which alleged offenses concerning Dahlia. When she was approximately three years old, Dahlia was sent to live with her great-aunt, C.D., defendant's mother. Defendant, who was approximately twelve years older than Dahlia, resided there as well.

According to Dahlia, the abuse occurred when she was between the ages of five and seven and defendant was in his late teens. It began by defendant asking if she wanted to play a game. She agreed. He told her to lie on her back and then began to rub the front of his body against the front of her body. He also rubbed his fingers against her vagina, both over and under her clothes and directed her to suck his penis. Dahlia testified that defendant had her perform fellatio on him on a number of occasions during this time period.

Dahlia did not tell anyone about the abuse until she was thirteen because defendant told her to keep it a secret. At that time, she confided in a friend who, in turn, told her therapist. DYFS was contacted and a referral to the Warren County Prosecutor's Office followed. Dahlia gave a sworn statement to the Prosecutor's Office.

In the statement defendant gave to Detective Goncalves, defendant initially denied ever touching Dahlia. He said that, on one occasion, he had just gotten out of the shower and was in his room changing when she walked in and saw him naked. Defendant said that he stood there, not knowing how to react, and Dahlia touched his penis. Shortly thereafter in the interview, he admitted he had Dahlia perform oral sex on him one time because he "just wanted to see what it felt like." He maintained these were the only two incidents involving sexual behavior with Dahlia.

Dahlia returned to live with her mother approximately seven months before defendant was arrested. At some point after defendant was arrested, Dahlia saw a letter from defendant addressed to her mother. She opened the envelope and found a letter from defendant in which he told Dahlia's mother "that it was a one time thing and [that] he was high on coke."

At trial, defendant testified and denied committing any of the offenses alleged by Dahlia. He stated he gave a false statement to the police because he was tired, hungry and wanted to go home. He said he thought that, since he was a juvenile when the alleged acts occurred, he would be permitted to go home if he made an admission. Defendant was under a lot of financial stress and had to file bankruptcy because of accumulated debts. He stated he believed that if he went to jail he would not have to pay his debts.

Defendant's mother, C.D., and Dahlia's mother, A.E., also testified for the defense. C.D. stated she never observed any sexual conduct between Dahlia and defendant and, further, that Dahlia never told her that such behavior occurred.

A.E. testified she did not believe the abuse occurred when she first heard the allegations against defendant and that she remained close with him after learning about the allegations. However, A.E. admitted that, when she took Dahlia to the Prosecutor's Office, she asked her if she wanted to tell her anything. Dahlia told her that defendant had "touched her" and had sexual contact with her "when she was younger." A.E. also corroborated Dahlia's testimony that defendant had sent her a letter in which he admitted to a "one time thing" when he was "high on coke."

The jury convicted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one), based upon the allegation of fellatio, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four). He was acquitted of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two).5

The charges on Indictment No. 10-10-377 concerned allegations of abuse against D.H. (Daisy), the younger sister of defendant's friends. Daisy testified that defendant texted her and asked her to send him photographs of her breasts. She did so and, upon his request, also sent him photographs of her vagina.

Defendant was approximately ten years older than Daisy. She testified that, while visiting her brothers sometime after her fourteenth birthday, defendant came into her room and touched her breasts. Daisy stated this occurred several times thereafter and that he also touched her buttocks and vagina. Daisy stated he rubbed her vagina both over her clothes and under her pants, putting his fingers inside her vagina. She stated further that twice, he pulled down her shorts, had her lie down and then placed his tongue inside her vagina. Another time, after touching her chest, vagina and buttocks, defendant pulled his pants down and told her to touch his erect penis. She complied.

Daisy did not initially reveal the abuse "because [she] was afraid to tell anyone." After she told a friend, her friend spoke to her therapist, and the referrals to DYFS and the Warren County Prosecutor's Office followed.

At the outset of the part of the interview addressing Daisy's allegations, Detective Goncalves told defendant Daisy stated he touched her breasts and buttocks on a couple of occasions two years earlier. Defendant stated, "I will admit to touching her chest." He also admitted to touching her buttocks, touching and lightly rubbing her vagina over her underwear, and allowing her to touch his penis. Defendant denied inserting his finger in Daisy's vagina, or performing oral sex on her.

At trial, defendant denied committing any of the offenses alleged by Daisy. He admitted to slapping her on the buttocks but said it was like a coach slaps a player after a good game rather than for sexual gratification. Defendant testified he lied in his statement to police because he was tired, hungry and "mentally overwhelmed." Defendant believed that if he told the detective what he wanted to hear, he would be allowed to go home. On cross-examination, defendant was asked about his prior explanation that he made admissions to the police because he thought he could avoid his debts if he went to jail. Defendant answered that the bankruptcy had "slipped [his] mind."

The jury convicted defendant of two counts of fourth-degree sexual contact, N.J.S.A. 2C:14-3(b) (counts three and four, based on allegations he touched Daisy's vagina and she touched his penis), and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a (count five). The jury acquitted defendant of second-degree sexual assault, N.J.S.A. 2C:14-2(c), based upon allegations of digital penetration (counts one and two).

Evaluations conducted at the Adult Diagnostic and Treatment Center following each conviction determined defendant was not subject to sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. Defendant was sentenced on Indictment No. 10-10-378 as follows: ten years with an eighty-five percent period of parole ineligibility on count one; a concurrent three-year prison term on count four; Megan's Law registration requirements; parole supervision for life; and appropriate fines and penalties. On Indictment No. 10-10-377, defendant was sentenced to concurrent twelve-month terms on counts three and four and to a concurrent sentence of four years on count five. The court ordered that the aggregate four-year sentence on this indictment be consecutive to the aggregate ten-year sentence on Indictment No. 10-10-378. In addition, defendant was sentenced on this indictment to Megan's Law registration requirements, parole supervision for life and appropriate fines and penalties.

Defendant was arrested on November 19, 2009, and remained in custody until he was sentenced on August 22, 2012. He was awarded 1007 days of jail credits in the sentence imposed on Indictment No. 10-10-378. Although the original judgment of conviction for Indictment No. 10-10-377 awarded him 1007 days of jail credits, Da31, an amended judgment of conviction was filed on October 17, 2012, which gave him no credit for the time spent incarcerated prior to sentencing.

Defendant presents the following issues in his appeal

POINT I

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY FAILING TO CHARGE LESSER-INCLUDED OFFENSES THAT WERE CLEARLY INDICATED IN THE RECORD. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 1. (not raised below).

POINT II

DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDITS PURSUANT TO STATE V. HERNANDEZ, 208 N.J. 24 (2011). U.S. CONST. AMEND. VIII, XIV; N.J. CONST. ART. I, 1, 12.

I.

Charge conferences were conducted in both trials. The question of lesser-included offenses was raised by the judge in each case. Defense counsel did not request a lesser included offense charge in either case and, in the trial on Indictment No. 10-10-378, counsel explicitly agreed there were no lesser-included offenses to be charged. Defendant now argues it was plain error, R. 2:10-2, for the judge to fail to charge the following lesser included offenses, sua sponte. We disagree.

N.J.S.A. 2C:1-8(d) states an offense is a lesser-included offense when

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

N.J.S.A. 2C:1-8(e) states, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See also State v. Cassady, 198 N.J. 165, 178 (2009).

When a defendant requests a charge on a lesser-included offense, the trial court applies a two-prong test to determine if the charge should be given: "whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Ibid. (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994). "[S]heer speculation does not constitute a rational basis. The evidence must present adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." Id. at 118-19 (citations omitted). "'[A] contention that the jury might accept the prosecution's evidence in part and might reject it in part ought not to be sufficient.'" Id. at 115 (quoting Model Penal Code 1.08 cmt. at 42-43 (Tentative Draft No. 5, 1956) (citations omitted)).

The applicable standard is different when a charge has not been requested. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Further, "the court need not sift through the record to determine whether any combination of facts would support a lesser charge." State v. Garron, 177 N.J. 147, 181 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).

Defendant's argument calls upon us to determine the following as to each lesser included offenses he identifies: whether the offense meet the definition in N.J.S.A. 2C:1-8(d); whether "the facts in evidence 'clearly indicate' the appropriateness" of the charge, Savage, supra, 172 N.J. at 397 (quoting Choice, supra, 98 N.J. at 298); and, if both these criteria are satisfied, whether it was plain error for the trial court to fail to include the charge sua sponte.

A.

We first address defendant's argument that lesser-included offenses should have been charged in the trial of Indictment No. 10-10-378.

Count one charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), alleging he committed acts of fellatio upon Dahlia when she was less than thirteen years old. In contending that lesser included offenses were clearly indicated by the evidence, defendant relies heavily upon the recorded statement he gave to police. In that statement, he initially denied having Dahlia perform fellatio. He admitted she had seen him naked but said there was no physical contact. Defendant later admitted Dahlia touched his penis, but said that was the only contact. Finally, he admitted he asked Dahlia to put her mouth on his penis and that she did so. Defendant contends, "[i]f the jury believed that defendant's statements admitting to the fellatio were coerced but his other statements were truthful," he could have been acquitted on the first-degree aggravated sexual assault charge and convicted of: second-degree attempt to commit aggravated sexual assault, N.J.S.A. 2C:14-2(a) and 2C:5-1, based upon evidence that he asked Dahlia to perform fellatio; second-degree sexual assault, N.J.S.A. 2C:14-2(b), based upon his statement Dahlia merely touched his penis; or fourth-degree lewdness, N.J.S.A. 2C:14-4, if the jury only believed his initial statement that Dahlia only saw him naked. Defendant also argues that fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1), should have been charged as a lesser included offense to endangering the welfare of a child, charged in count four of this indictment.

Attempted aggravated sexual assault falls within the definition of a lesser-included offense of aggravated sexual assault pursuant to N.J.S.A. 2C:1-8(d)(2). However, the evidence does not "clearly indicate" the appropriateness of this charge. Defendant's conviction on the first-degree charge alleging Dahlia performed fellatio upon him was supported both by Dahlia's testimony and defendant's admission to police. For the jury to acquit defendant of first-degree aggravated sexual assault and convict him on the second-degree attempt, it would have to cherry-pick his denial from the evidence to conclude he only attempted the assault. That is insufficient. See Brent, supra, 137 N.J. at 115.

Defendant's argument that second-degree sexual assault, N.J.S.A. 2C:14-2(b), should have been charged sua sponte fails for the same reason. N.J.S.A. 2C:14-2(b) defines sexual assault as "an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." To acquit defendant of the first-degree aggravated sexual assault charge, the jury would have to reject the prosecution's evidence and defendant's own admission that he committed an act of penetration with Dahlia to rely exclusively upon one of the several versions defendant gave to police that Dahlia only touched his penis. Speculation that the jury might have accepted one of his conflicting statements fails to establish that this offense was clearly indicated by the record. See Brent, supra, 137 N.J. at 118-19.

Defendant also contends that fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1), should have been charged as a lesser-included offense of count four, which charged him with endangering the welfare of a child. N.J.S.A. 2C:14-4(b)(1) states a person commits this offense if

He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 year of age where the actor is at least four years older than the child.

[Emphasis added.]

When he initially denied any wrongdoing with Dahlia, defendant stated she saw him naked on one occasion when he had stepped out of the shower and she came into his room as he was changing. In other words, the exposure was purely accidental. If the jury relied upon this version of events, it would also find defendant did not have the purpose of sexually arousing or gratifying himself or another. This is an inadequate basis for a conviction under this statute and, therefore, cannot serve as a lesser-included offense of the first-degree aggravated sexual assault charge. See Brent, supra, 137 N.J. at 119 ("The evidence must present adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser.")

B.

Turning to the second trial, defendant was convicted on two counts of fourth-degree sexual contact, N.J.S.A. 2C:14-3(b), charged in Indictment No. 10-10-377. The offense charged in count three was based upon defendant touching Daisy's vagina when she was at least thirteen years old but less than sixteen years old and he was at least four years older. Count four alleged that, with the same age requirements, defendant committed this offense by having Daisy touch his penis. In addition, defendant was convicted on one count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a), by engaging in sexual conduct which would impair or debauch the morals of Daisy.

Defendant argues the disorderly persons offense of lewdness, N.J.S.A. 2C:14-4(a), should have been charged as a lesser-included offense for each of these charges. N.J.S.A. 2C:14-4(a) states this offense is committed if a person "does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed."

In his statement to the police, defendant corroborated much of Daisy's allegations. He admitted touching her breasts and vagina and allowing her to touch his penis. He denied digital penetration and cunnilingus. Although he denied all abuse at trial, the jury convicted him of the offenses he admitted to the police and acquitted him of the offenses he denied to the police. To acquit defendant on the greater charges and convict him on the lewdness charges, the jury would have to disregard all evidence that there was physical touching and rely exclusively upon defendant's denial at trial. We conclude lewdness was not clearly indicated by the record and, further, that it is not reasonable that a jury would acquit defendant on the charges in the indictment and convict him of the lewdness charges here.

II.

In Point II, defendant argues he was entitled to 1007 days jail credit for both cases pursuant to State v. Hernandez, 208 N.J. 24 (2011). The State argues that Hernandez does not apply because defendant was sentenced to consecutive sentences. It argues the award of 1007 days jail credits to both sentences would frustrate the sentencing judge's intention. The State cites no authority for this distinction.

Rule 3:21-8, which governs jail credits, states, "The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." In Hernandez, the Court held that "defendants are entitled to precisely what the Rule provides: credits against all sentences 'for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence' on each case." Hernandez, supra, 208 N.J. at 28 (quoting R. 3:21-8). As we noted in State v. Rippy, 431 N.J. Super. 338 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014), the Court made it clear that "[w]hen a defendant is confined prior to sentencing on multiple charges, the defendant is entitled to 'credits against all sentences for any time served in custody in jail . . . between arrest and the imposition of sentence on each case.'" Id. at 348 (quoting Hernandez, supra, 208 N.J. at 28). Under that principle, "[a] defendant is entitled to jail credits on all cases for all days of confinement after his arrest in that case and prior to imposition of the first sentence." Id. at 348 (emphasis added); see also Hernandez, supra, 208 N.J. at 48-49; State v. Adams, 436 N.J. Super. 106, 111-12 (App. Div. 2014), certif. denied, 220 N.J. 101 (2014). Where a defendant is entitled to jail credits under Rule 3:21-8, they are "mandatory, not discretionary." Hernandez, supra, 208 N.J. at 37.

In this case, defendant was arrested on November 19, 2009, for the charges that gave rise to the two indictments. Similarly, he was sentenced on August 22, 2012 on both indictments. Accordingly, he was entitled to credits against both sentences "for any time served in custody in jail . . . between arrest and the imposition of sentence" on each case. See R. 3:21-8. This matter must, therefore, be remanded.

We affirm defendant's convictions and remand for the correction of jail credits awarded to defendant on Indictment No. 10-10-377.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. , 2012, c. 16, eff. July 2, 2012. To avoid confusion, we use the name in effect at the time of this matter.

2 We use initials to protect the privacy of the minors and pseudonyms to avoid confusion.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 The statement was redacted to produce two separate statements for admission at the separate trials. Each statement was redacted so that references to the charges in the other indictment were excluded.

5 Count three was dismissed.