STATE OF NEW JERSEY v. THOMAS S. MACGREGOR

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3356-17T4

STATE OF NEW JERSEY,

                   Plaintiff-Respondent,

v.

THOMAS S. MACGREGOR,

          Defendant-Appellant.
______________________________

                   Submitted March 31, 2020 – Decided May 14, 2020

                   Before Judges Yannotti and Hoffman.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Burlington County, Indictment No.
                   16-10-1016.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (James K. Smith, Jr., Assistant Deputy
                   Public Defender, of counsel and on the briefs).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Alexis R. Agre, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Tried by a jury, defendant Thomas S. MacGregor appeals from his

judgment of conviction. We affirm.

      On October 4, 2016, a Burlington County grand jury returned Indictment

No. 16-10-1016, charging defendant with the following offenses: second-degree

attempted sexual assault, pursuant to  N.J.S.A. 2C:5-1a(3), 2C:14-2c(4) (count

one); second-degree luring a minor, pursuant to  N.J.S.A. 2C:13-6 (count two);

third-degree attempting to endanger the welfare of a child, pursuant to  N.J.S.A.

2C:5-1a(3), 2C:24-4a (count three); third-degree attempting to endanger the

welfare of a child, pursuant to  N.J.S.A. 2C:5-1a(1), 2C:24-4a (count four); third-

degree endangering the welfare of a child, pursuant to  N.J.S.A. 2C:24-4b(5)(b)

(count five).

      In February 2017, a jury found defendant guilty of the first four counts of

the indictment. 1 On April 26, 2017, the trial court sentenced defendant to an

aggregate six-year term of incarceration, plus parole supervision for life.

      Defendant then filed this appeal, raising the following arguments:

            POINT I

                   THE CONVICTIONS OF ALL FOUR COUNTS
                   CHARGING DEFENDANT WITH ATTEMPTS

1
   Before trial, the court severed the fifth count, which alleged possession of
child pornography. At the request of the State, the trial court dismissed the
fifth count at defendant's sentencing hearing.
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                  MUST BE REVERSED BECAUSE THE
                  INCONSISTENT AND PREDOMINANTLY
                  INCORRECT    JURY      INSTRUCTIONS,
                  TOGETHER    WITH      THE      COURT'S
                  "OUTLINE" OF THE ELEMENTS OF THE
                  CRIMES, ALLOWED DEFENDANT TO BE
                  CONVICTED BASED ON A KNOWING
                  MENTAL STATE. (Not Raised Below)

                  A. The Jury Charges

                  B. Legal Argument

            POINT II

                  THE JUDGE ERRED IN COMBINING THE
                  JURY INSTRUCTIONS ON COUNTS THREE
                  AND FOUR, WHICH CHARGED DIFFERENT
                  FORMS OF ATTEMPT, AND IN FAILING TO
                  INSTRUCT THE JURY THAT AN ATTEMPT
                  UNDER THE "IMPOSSIBILITY" THEORY
                  REQUIRES A COMPLETED CRIME.
                  (Not Raised Below)


      Having considered these arguments in light of the applicable law and

facts, we discern no basis to disturb defendant's judgment of conviction .

                                            I

      On April 28, 2014, Detective Sara Hyde, an investigator at the Burlington

County Prosecutor’s Office, posted an ad on the casual encounters section of

Craigslist posing as a fourteen-year-old girl named "Jen." Defendant, a sixty-

two-year-old man, responded to the ad using the alias "Harry Mudd."

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      On April 28, 2014, defendant responded to Jen's ad stating, "So, what sort

of things do you need Daddy to buy for you? Can I trust you? " Jen replied,

"Yea, you can. I'm pretty young though, just so you know. Still in high school,

so like I said I need to be able to trust you too. That okay? I want someone to

take me shopping though. What's your name daddy?"

      Defendant asked for a picture of Jen and eventually asked to talk outside

of Craigslist through email. Jen disclosed that she was from Burlington County.

Defendant responded he lived relatively close and liked "younger woman, within

reason. There is quite an age range that would be considered 'younger.'" He

added, "there are certain things explicit in your ad, i.e., a quid pro quo sort of

thing which would be problematic if you are too young. . . . Can you share with

me, how you envision something like this working out."

      After Jen did not answer, defendant sent a second email. Jen revealed she

was fourteen-years-old and said it "didn’t sound like [you're] into girls my age."

Defendant responded it "depends on what you wanted to do." Jen requested

clothes and an iPad and asked defendant what he wanted in return. Defendant

stated that ads like Jen’s carry

            an implication of an exchange of favors of some sort.
            It [is] really not much different than what happens in a
            typical male/female relationship. It [is] just that the
            'exchange' part is front and center rather than left

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            unsaid. What do you think you have to offer in
            consideration of 'cloths and stuff' or perhaps even 'an
            ipad'? I’m very curious to see where your thinking is
            on this.

      Jen asked defendant if he was talking about sex.         On May 3, 3014,

defendant asked again for a picture of Jen. According to Detective Hyde, she

used a picture of herself and sent it to the National Center for Missing and

Exploited Children (NCMEC), which used a program to age regress her picture

so she looked like a teenage girl.     Jen sent the picture to defendant , who

responded Jen looked about ten-years-old and "very cute." He asked her where

they could meet and Jen responded he could pick her up at a shopping center

near her house and bring her back later.

      Defendant questioned whether their email exchanges were a scam but later

confirmed that he believed Jen was real. He then stated,

            it is very rare for me to be attracted to a girl your age.
            On the rare occasion that does happen, I tend to study
            her and try to figure out why I’m attracted to her. Kind
            [of] trying to figure out what makes me tick, why I react
            to some things the way I do. I’ll leave it up to you as
            to whether you would want to meet.

      Jen told defendant she was going away with her dad. Between May 21

and June 12, defendant sent Jen nine unanswered emails. Detective Hyde

explained that she stopped answering defendant periodically as an investigative


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technique to provide defendant an "exit opportunity" to stop communicating

with Jen.

      On June 12, 2014, defendant sent an email stating he would "be

forwarding your info[rmation,] pic[ture], email . . . to CMEC." Detective Hyde

interpreted that email as an incorrect reference to the NCMEC. Jen responded

to the email asking what CMEC was and asked defendant not to disclose their

conversations. Defendant requested another picture of Jen and said he would

not report her once they met in person. He eventually sent her a picture of

himself and asked if they could still "hookup." Jen agreed but disclosed to him

that she would be going to summer camp.

      Jen told defendant she was unsure about meeting him.          Defendant

responded, "Since I am in the habit of meeting the needs of the woman I meet,

why don't you tell me what you want to do with me? Sort of a role reversal

thing. Would that work for you?" In another email, defendant suggested that

he pick up Jen and give her a full body massage at his place. After Jen did not

respond, he sent a second email with the subject line, "Young cutie, would you

feel better if…" The body of the email stated, "I told you I wanted a blow job,

or to fuck you?"




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      The following day, defendant sent another email discussing the television

show "To Catch a Predator," and attached multiple links of police arresting

individuals for meeting underage girls. In that email, he acknowledged he

fantasized about being with underage girls and "wasn't looking for an underage

girl but I apparently found one anyway."       He later stated, "The potential

consequences scare the hell out of me, but I need to confront this demon/fantasy.

Will you help me?"

      On August 1, 2014, Jen emailed defendant apologizing for not responding

to him and suggested they meet. Defendant sent numerous emails about meeting

on August 8, 2014. He also emailed her asking if she wanted a massage and

continued to express interest in meeting her. However, when they did not meet

on August 8, defendant emailed, "I guess when I do finally meet you. I'll have

to pull down your pants and spank your hot little ass for ignoring me. Then

we’ll see where things go from there."

      In total, defendant sent Jen thirteen unanswered emails between August 1

and August 27. Thereafter, defendant and Jen continued to email each other,

discussing a time and place to meet in person. Defendant confirmed he bought

whipped cream vodka at Jen’s request. He and Jen agreed to meet at the Boston

Market in Mount Holly on September 9, 2014.


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       Defendant drove to the Boston Market in his registered vehicle and texted

Jen. Meanwhile, Detective Hyde and other officers arrived at the Boston Market

and waited for defendant. Police apprehended him after he left Boston Market

and transported him to the Burlington County Prosecutor's Office.              The

following day, a search of defendant's vehicle revealed he had whipped cream

flavored vodka in his car, printed directions to the Boston Market from google

maps, and condoms.

       After receiving his Miranda2 rights, defendant provided a statement to

detectives. He admitted to being attracted to younger woman and described

younger woman and girls as his "own demons." Specifically, he admitted to

being attracted to girls "anywhere from like [eight] to [fifteen], [seventeen]" and

that he watched child pornography. He explained he wanted to meet Jen at the

Boston Market to explore his demons and see if he would actually give her a

massage. He acknowledged his massage room was always set up and confirmed

buying whipped cream flavored vodka for Jen. When asked if he would have

touched Jen if she came to his house, he responded, "May have . . . It 's one of

those things you’ll never know because it didn’t happen."




2
    Miranda v. Arizona,  384 U.S. 436 (1966).
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      On July 7, 2016, the trial judge heard argument on defendant’s motion to

suppress his statement to the police. On July 12, 2016, the judge issued a written

opinion denying defendant's motion to suppress; in addition, the judge granted

in part, and denied in part, defendant's motion to redact portions of his statement.

      On January 31, 2017, the trial judge charged the jury, and also provided

jurors with a handout of the elements of the crimes charged and the definition

of the words knowingly and purposely. On count one, attempted sexual assault,

the judge charged the jury:

            An actor is guilty of attempted sexual assault if he
            attempts to commit an act of sexual penetration with
            another person where the victim is at least [thirteen] but
            less than [sixteen] years old and the actor is at least four
            years older than the victim.

            In order to convict the defendant on this charge, the
            State must prove beyond a reasonable doubt the
            following. One, that the defendant attempted to commit
            an act of sexual penetration with a person he reasonably
            believed to be at least [thirteen] years old but less than
            [sixteen] years of age. Two, that the defendant acted
            knowingly. Three, that . . . at the time of the attempted
            penetration defendant was at least four years older than
            the person he believed to be at least [thirteen] years old
            but less than [sixteen] years old.

                   ....

            The word attempted means to try. . . . [T]hat someone
            purposely does or admits to do anything or engages in
            conduct which would constitute a crime if the attendant

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              circumstances were as a reasonable person would
              believe them to be. It is sometimes explained as a
              substantial step in a course of conduct which if not
              interrupted would have resulted in the commission of a
              crime.

                    ....

              We say that a person acts knowingly if he acts with an
              understanding of what it is that he is doing and with an
              appreciation of the consequences thereof. The State
              must prove beyond a reasonable doubt that at the time
              of the attempted penetration the defendant reasonably
              believed he was engaging a person who was at least
              [thirteen] years old but less than [sixteen] years old. If
              the State failed to prove any element of this offense
              beyond a reasonable doubt, then you must find the
              defendant not guilty of attempted sexual assault.

      The judge charged the jury on count two. For the mental state he specified

a "person acts purposely if he acts with a resolution to do a particular act or to

accomplish a certain goal." The judge charged the jury on counts three and four

as follows:

              The defendant, is charged in counts three and four of
              endangering the welfare of a child. Count three charges
              that he attempted to engage in sexual conduct with a
              person he believed to be a child under the age of
              [eighteen] which conduct would impair or debauch the
              morals of a child.

              Count four charges that he did engage in sexually
              explicit conversations with a person he believed to be a
              minor under the age of [eighteen,] which conduct would
              impair or debauch the morals of a child.

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            The governing statute provides any person who
            attempts to engage in sexual conduct which would
            impair or debauch the morals of a child is guilty of a
            crime. In order for you to find the defendant guilty of
            endangering the welfare of a child, the State must prove
            beyond a reasonable doubt, one, that Detective Sarah
            Hyde was a person who the defendant reasonably
            believed to be a child.

            Two, that the defendant knowingly engaged in or
            attempted to engage in sexual conduct with her which
            would impair or debauch the morals of a child. And
            again, a child is any person under the age of [eighteen].

      During deliberations, the jury sent the judge a note concerning count one,

requesting guidance on the definition of attempt, "A[.] [M]ust a substantial step

be physical in nature? B[.] [W]hat is meant by a substantial step? C[.] In the

context of this statute is intent synonymous with attempt? If not please explain

the difference." After a conference with counsel, the judge recharged the jury

on attempt; in pertinent part, he explained:

            In order to be guilty of an attempt to commit a crime,
            the defendant must have acted with purpose. In other
            words, the defendant must have had a purpose to
            commit the crime of sexual assault in order to be guilty
            of attempting to commit that crime.

            In order to find the defendant guilty, the State must
            prove two elements beyond a reasonable doubt. First,
            that the defendant had a purpose to commit the crime
            of sexual assault. A defendant acts purposely with
            respect to the nature of his conduct or a result thereof if
            it is his conscious object to engage in conduct of that

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             nature or to cause such a result. A person acts
             purposely with respect to attendant circumstances if he
             is aware of the existence of the circumstances or he
             believes or hopes they exist.

      The jury then submitted another question, asking whether it was

"sufficient that [defendant] hoped the penetration would happen." The judge

again provided another instruction on "purposely." After further deliberations,

the jury returned its guilty verdict.

      On April 26, 2017, the trial judge considered and denied defendant’s

motion for a new trial. The judge then held defendant’s sentencing hearing. The

judge found aggravating factor three based on defendant’s persistence in

contacting Jen. He found aggravating factor nine, noting the need to deter

defendant and the public in general from committing crimes of this nature. The

judge found mitigating factor seven based on defendant’s lack of a criminal

record.

      On counts one and two, the trial judge sentenced defendant on each count

to six years of imprisonment, subject to Megan's Law and parole supervision for

life. On counts three and four, he sentenced defendant on each count to four

years of imprisonment. The judge ordered all sentences to run concurrently.



                                        II

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      Defendant argues for the first time on appeal that the judge erred in his

instructions on all four charges. He contends these are all "attempt" offenses,

and the judge failed to correctly instruct the jury that it must find that defendant

acted purposely. He argues that the judge failed to consistently and correctly

define "purposely" in his instructions.

      When a defendant fails to object to a jury charge at trial, we review for

plain error, and "disregard any alleged error 'unless it is of such a nature as to

have been clearly capable of producing an unjust result.'" State v. Funderburg,

 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error, in the context of a jury

charge, is "[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and sufficiently grievous to justify notice by

the reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result." State v. Camacho,  218 N.J. 533,

554 (2014) (alteration in original) (quoting State v. Adams,  194 N.J. 186, 207

(2008)).

      When reviewing any claim of error relating to a jury charge, "[t]he charge

must be read as a whole in determining whether there was any error[,]" State v.

Torres,  183 N.J. 554, 564 (2005), and the effect of any error must be considered

"in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J.


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73, 90 (2010) (quoting State v. Chapland,  187 N.J. 275, 289 (2006)). However,

a defendant's attorney's failure to object to jury instructions not only "gives rise

to a presumption that he did not view [the charge] as prejudicial to his client's

case[,]" State v. McGraw,  129 N.J. 68, 80 (1992), but is also "considered a

waiver to object to the instruction on appeal." State v. Maloney,  216 N.J. 91,

104 (2013). "[T]he key to finding harmless error in such cases is the isolated

nature of the transgression and the fact that a correct definition of the law on the

same charge is found elsewhere in the court’s instructions.” State v. Jackmon,

 305 N.J. Super. 274, 299 (App. Div. 1997) (quoting State v. Sette,  259 N.J.

Super. 156, 192 (App. Div. 1992)).

      In Jackmon, the defendant argued that the trial judge incorrectly charged

the jury on accomplice liability because the judge did not distinguish the intent

required for the grades of the offense.  305 N.J. Super. at 284-85. The defendant

also argued the trial judge did not establish that an attempt requires a purposeful

mens rea, even if another mental state could establish the underlying crime. Id.

at 298. We found reversible error because critical portions of the charge were

not just "fleeting reference[s]" and "the entire charge was lengthy and somewhat

confusing." Id. at 300.




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                                        14
      Conversely, in State v. Smith, we concluded the judge "fully and

accurately instructed the jury on the elements of attempt," even though the

instruction was given "during an explanation of the law relating to another

offense."  322 N.J. Super. 385, 399 (App. Div. 1999). We held, based on the

defendant’s testimony, the overwhelming evidence that established his guilt, and

the "appearance elsewhere in the jury instructions of a proper charge[,] . . . the

failure to define attempt in the robbery charge did not prejudice defendant’s

rights." Id. at 400.

      In this case, the trial judge held a charge conference and defense counsel

agreed to the proposed charge. The judge provided the jury with a handout

detailing the elements of the charged crimes and the definition of purposely that

followed the model jury charge. The judge did not define purposely when

stating the elements of count one, but immediately thereafter defined the word.

Additionally, when the jury asked questions concerning the term attempt, the

judge, with the input and consent of defense counsel, recharged the jury

similarly to the model jury instructions. Defense counsel did not object to the

recharge.

      While the trial judge did not define the term purposely every time it was

used, like Smith, the judge defined the term purposely multiple times throughout


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                                       15
the charge and throughout the recharge. The instructions on "purposely" were

in conformance with the model jury charges, and the record does not support the

contention that the jury was confused by the instructions.

        Additionally, as in Smith, there was overwhelming evidence that

defendant committed the offenses charged. Defendant made a statement to

police that was played for the jury. The State provided six months of email

exchanges that showed defendant conversing with a person he believed to be a

minor, insinuating sexual conduct, and repeatedly trying to meet that person.

Police arrested defendant at the location he had arranged to meet the minor.

Thus, we find that when viewing the charge as a whole, the mistakes that

defendant alleges do not constitute reversible error. Torres,  183 N.J. at 564.

        Defendant also argues for the first time on appeal that the trial judge erred

by combining the instructions on counts three and four, which both charged

defendant with attempting to endanger the welfare of a child.             Defendant

contends that the charges were based on different theories of "attempt."

        The criminal attempt statute,  N.J.S.A. 2C:5-1(a), provides in pertinent

part:

              A person is guilty of an attempt to commit a crime if,
              acting with the kind of culpability otherwise required
              for commission of the crime, he:


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            (1) Purposely engages in conduct which would
            constitute the crime if the attendant circumstances were
            as a reasonable person would believe them to be;

                   ....

            (3) Purposely does or omits to do anything which, under
            the circumstances as a reasonable person would believe
            them to be, is an act or omission constituting a
            substantial step in a course of conduct planned to
            culminate in his commission of the crime.

      The statute creates three separate categories of criminal attempt. State v.

Smith,  262 N.J. Super. 487, 503 (App. Div.), certif. denied,  134 N.J. 476 (1993).

The first category, subsection a(1), is "where the criminal act is complete but

for the attendant circumstances which did not coincide with the actor's

reasonable belief"; the third, subsection a(3), is "where the actor has taken a

substantial step toward commission of a crime." Cannel, New Jersey Criminal

Code Annotated, comment 2 on  N.J.S.A. 2C:5-1 (2006).

      In State v. Kornberger, the trial judge provided instructions as to all three

subsections of the criminal attempt statute, even though only the "substantial

step" type of attempt, subsection a(3), applied to the facts of the case.  419 N.J.

Super. 295, 302 (App. Div. 2011). We concluded that although a "charging

error" was committed, it did not require reversal given the strength of the State’s




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case, the balance of the judge's charge, and the contentions of the parties. Id. at

303-04. We explained:

            Taken in context, there is no realistic likelihood that the
            jury would have focused on the clearly inapplicable
            theor[y] of impossibility. . . . We will not speculate that
            "for unknown reasons" the jury might have convicted
            defendant on . . . a(1) . . . when they "would have
            acquitted him" under a(3). Cf. [State v. Condon, 391
            N.J. Super. 609 (App. Div. 2007)].              Given the
            overwhelming evidence in this record, there is no
            change that any jury "would have acquitted" this
            defendant under a(3).

            [Id. at 304.]

      Defendant relies on Condon where the defendant was charged with

attempted sexual assault.  391 N.J. Super. at 611. The judge permitted the jury

to convict defendant under subsection a(1) or a(3) of the attempt statute. The

jury found defendant guilty without specifying under which theory of liability it

had reached its verdict. Id. at 617. Based on the fact that defendant could not

have completed the sexual assault, we found that the defendant could only be

convicted under subsection a(3), while the judge instructed the jury on both

subsection a(1) and a(3). We reversed because it was unclear whether the jury

could have applied the right subsection for conviction. Id. at 617-18.

      In counts three and four, defendant was charged with attempted

endangering the welfare of a child.      Count three charged defendant under

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                                       18
subsection a(3) of the attempt statute, while count four charged defendant under

subsection a(1) of the attempt statue.

      Under count three, the State alleged that defendant attempted to engage in

sexual conduct by participating in sexually explicit conversations that would

impair or debauch the morals of a child. Defendant contends the judge relied

entirely on a subsection a(3) of the attempt statute. If there is no completed

sexual act, the defendant should only be charged under subsection a(3). Here,

there was no completed sexual act for count three. Therefore, the subsection

a(3) was appropriately charged.

      Defendant's reliance on Condon is misplaced because in Condon a jury

returned a verdict without specifying which attempt subsection applied to the

sexual assault charge.    Here, there are two separate counts, each applying

separate attempt subsections to the charge of endangering the welfare of a child.

The jury returned a verdict specifying which subsection of the attempt statute

applied. Thus, the error that warranted reversal in Condon does not apply here.

      Regarding, count four, subsection a(1) applies when the criminal act is

complete, but the attendant circumstances are not as a reasonable person would

believe them to be. Defendant could not be convicted, however, unless the State

established that a reasonable person would believe the fictitious person with


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whom defendant was communicating was actually a minor.         There was no

completed act, just an attempt. Thus, subsection a(3) applied to that charge.

While there may have been a charging error, we find this case similar to

Kornberger, where there was overwhelming evidence of the defendant's guilt.

Thus, when viewing the charge as a whole, the mistakes that defendant alleges

do not amount to reversible error. Torres,  183 N.J. at 564.

      Affirmed.




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