STATE OF NEW JERSEY v. ROBERTO GONZALEZ

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2533-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERTO GONZALEZ,

     Defendant-Appellant.
__________________________

              Submitted April 24, 2018 – Decided May 15, 2018

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No.
              15-05-1000.

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

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Sarah Lichter, Deputy Attorney
              General, of counsel and on the brief).

PER CURIAM

        A jury convicted defendant Roberto Gonzalez of third-degree

aggravated criminal sexual contact, 
N.J.S.A. 2C:14-3(a).                    He was
sentenced to three years in prison, Megan's Law registration, and

parole supervision for life.     He also was ordered to pay mandatory

penalties and assessments, including a $750 sex crime victim

treatment fund (SCVTF) penalty.       Defendant appeals his conviction

and the imposition of the SCVTF penalty. We affirm the conviction,

but remand for the limited purpose of reassessing the SCVTF

penalty.

                                     I.

     We summarize the facts based on the evidence presented at

trial.     The State presented testimony from the victim's court-

appointed guardian, two employees of the assisted living facility

where the contact occurred, and a detective who investigated the

incident.      Defendant   elected    not   to   testify   and    called    no

witnesses.

     Defendant and the victim were both residents of an assisted

living     facility.1      The   victim     suffered       from   dementia,

schizophrenia, and delusions.        In 2007, she was deemed legally

incapacitated and a guardian was appointed to oversee her affairs.

     On March 10, 2015, a physical therapist at the assisted living

facility observed defendant "flipping" or "bouncing" the victim's

left breast several times.       The therapist testified that while


1
  To protect the victim's privacy interests, we will not refer to
her by name.

                                     2                               A-2533-16T2
defendant was doing that, the victim just "sat there and did

nothing."

     The    physical    therapist   immediately   alerted    a   certified

nursing aid as to what he had observed. The nursing aid recognized

defendant and he saw defendant near the victim and then saw

defendant quickly move his hands away from the vicinity of the

victim's breast.       Defendant then walked out of the room.

     The police were notified and an investigating detective spoke

with the victim.        The victim, however, could not provide any

meaningful information and what she told the detective illustrated

that she was suffering from delusions.

     Before closing arguments, the trial court held a charge

conference and discussed the proposed jury instructions.                The

court informed counsel that it would charge the jury on aggravated

criminal sexual contact by using the Model Jury Charge.           Defense

counsel did not object to the proposed charge.         Counsel and the

court then discussed certain lesser included offenses and agreed

to charge the jury on the lesser included offense of fourth-degree

criminal sexual contact.

     As previously noted, the jury found defendant guilty of third-

degree aggravated criminal sexual contact, 
N.J.S.A. 2C:14-3(a).

Defendant was sentenced to three years in state prison, Megan's

Law registration, and parole supervision for life.          The court also

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imposed the statutorily mandated SCVTF penalty, but did not hold

an ability-to-pay hearing or give a statement of reasons for

imposing the maximum $750 SCVTF penalty.

                                II.

     On appeal, defendant makes two arguments, contending that

(1) the jury instructions were confusing concerning one of the

elements of aggravated criminal sexual contact, and (2) the court

erred in imposing the maximum SCVTF penalty without giving a

statement of reasons or conducting an ability-to-pay hearing.

Specifically, defendant articulates his two arguments as follows:

           POINT I – IMPROPER AND CONFUSING INSTRUCTIONS
           ON AN ELEMENT OF THE CRIME REQUIRE REVERSAL
           OF DEFENDANT'S CONVICTION BECAUSE THERE IS NO
           WAY OF KNOWING THAT ALL JURORS PROPERLY
           DELIBERATED ON THE CORRECT ELEMENTS.

           POINT II – A REMAND IS REQUIRED FOR A STATEMENT
           OF REASONS REGARDING ONE OF THE IMPOSED
           PENALTIES.

     We find no merit in defendant's arguments concerning the jury

instructions and, therefore, we affirm his conviction.       We are

constrained, however, to vacate the SCVTF penalty and remand the

matter so the trial court can hold an ability-to-pay hearing and

give a statement of reasons for the amount of the SCVTF penalty

imposed.




                                 4                           A-2533-16T2
  A. The Jury Instructions

     A jury must be properly instructed to ensure that a defendant

receives a fair trial. State v. McKinney, 
223 N.J. 475, 495 (2015)

(citing State v. Afanador, 
151 N.J. 41, 54 (1997)).            Accordingly,

a trial judge must deliver "a comprehensible explanation of the

questions that the jury must determine, including the law of the

case applicable to the facts that the jury must find."                Ibid.

(quoting State v. Green, 
68 N.J. 281, 287-88 (1981)).

     Where counsel does not object to the jury charge, we apply a

plain error standard of review.         State v. Young, 
448 N.J. Super.
 206, 224 (App. Div. 2017).        Under that standard, defendant must

demonstrate   "a    legal   impropriety   in   the   charge   prejudicially

affecting [his] substantive rights . . . and that . . . the error

possessed a clear capacity to bring about an unjust result.           Ibid.

(quoting State v. Nero, 
195 N.J. 397, 407 (2008)).

     A person "is guilty of aggravated criminal sexual contact if

he [or she] commits an act of sexual contact with the victim under

any of the circumstances set forth in [
N.J.S.A.] 2C:14-2(a)(2)

through (7)."      
N.J.S.A. 2C:14-3(a).    The subsection relevant here

is subsection (7), which requires the State to prove that defendant

knew or should have known that the victim was physically helpless

or incapacitated, or intellectually or mentally incapacitated or

had a mental disease or defect which prevented the victim from

                                    5                               A-2533-16T2
understanding the nature of the conduct and that the victim was

incapable of providing consent.            
N.J.S.A. 2C:14-2(a)(7).

     Consequently, to sustain a conviction of aggravated criminal

sexual contact, the State must prove three elements beyond a

reasonable doubt: (1) that defendant purposely committed an act

of sexual contact with the victim; (2) at the time of the contact,

the victim was physically helpless, mentally incapacitated, or had

a mental disease or defect which rendered him or her temporarily

or permanently incapable of understanding the nature of his or her

conduct,   including,    but    not    limited    to,   being   incapable    of

providing consent; and (3) that defendant knew or should have

known   that   the   victim    was    physically    helpless,   or   mentally

incapacitated.       See Model Jury Charges (Criminal), "Aggravated

Criminal Sexual Contact – Victim Helpless, Mentally Incapacitated,

Incapable [or] Incapacitated" (2012).

     The first and third elements focus on defendant's mental

state; that is, the jury must determine whether defendant purposely

committed an act of sexual contact and whether defendant knew or

should have known that the victim was physically helpless, or

mentally incapacitated.        See State v. Olivio, 
123 N.J. 550, 568-

70 (1991).     The second element focuses on the victim's mental

state; that is, the jury must evaluate the victim's ability to

understand the nature of his or her own conduct, including his or

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her capacity to both understand and consent to sexual acts.

Olivio, 
123 N.J. at 565-67; see also State v. Cuni, 
159 N.J. 584,

595-96    (1999)    (analyzing    the    proofs       required   to    sustain     a

conviction for aggravated sexual assault when a victim is deemed

mentally incapacitated).

     In   this     case,   the   trial       court   listed   the     elements    of

aggravated criminal sexual contact using the Model Jury Charge and

explained that the State was required to prove each element of the

offense beyond a reasonable doubt. In doing so, the court referred

to the victim's capacity to understand "the nature of his conduct."

Although the correct reference should have been to "her conduct,"

a comprehensive reading of the instructions demonstrates that the

jury charge was not "clearly capable of producing an unjust

result." R. 2:10-2. Read in its entirety, the jury charge clearly

instructed the jury as to the required elements of aggravated

criminal sexual contact.         Specifically, the trial court properly

instructed the jury on each element.                 Although the instructions

used the phrase "his conduct," that error was harmless because the

court correctly defined the elements of the charge.                 Moreover, the

evidence at trial made it clear that the defendant was male and

the victim female.




                                         7                                 A-2533-16T2
  B. The SCVTF Penalty

     
N.J.S.A. 2C:14-10(a)(3) provides that "a person convicted of

a sex offense, as defined in . . . [N.J.S.A. 2C:7-2], shall be

assessed a penalty for each such offense not to exceed $750, when

the conviction is a crime of the third degree . . . ."            Our Supreme

Court has explained that although the SCVTF penalty is mandatory,

the sentencing court must consider (1) the nature of the offense,

(2) defendant's ability to pay the SCVTF penalty, and (3) provide

a statement of reasons to support the amount of any SCVTF penalty

imposed.     State v. Bolvito, 
217 N.J. 221, 223-24 (2014).

     Here,    the   sentencing   court    did   not   consider    defendant's

ability to pay, nor did it provide a statement of reasons in

support of its decision to impose the maximum $750 SCVTF penalty

for a third-degree sex offense.          Accordingly, we are constrained

to vacate the SCVTF penalty imposed and remand for the limited

purpose of reassessing the amount of that penalty.            On remand, the

court should consider the nature of the offense, defendant's

ability to pay, and provide a statement of reasons to support the

amount of the SCVTF penalty imposed.

     The conviction is affirmed.         The matter is remanded for the

court   to   reconsider   the    SCVTF   penalty.       We   do   not    retain

jurisdiction.



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