STATE OF NEW JERSEY VS. G.A.(14-01-0060, SOMERSET COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-3159-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.A.1,
Defendant-Appellant.
________________________________
Submitted November 6, 2017 – Decided November 22, 2017
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
14-01-0060.
Law Offices of Brian J. Neary, attorney for
appellant (Brian J. Neary, of counsel and on
the brief; Perry Primavera, on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Perry
Farhat and Paul Heinzel, Assistant Prosecutors,
on the brief).
PER CURIAM
1
For privacy reasons, we use initials for defendant and the minor
victim, who is related to him.
Tried by a jury in 2014, defendant G.A. was convicted of
third-degree endangering the welfare of a child by engaging in
"sexual conduct[,] which would impair or debauch the morals of a
child" under the age of sixteen, N.J.S.A. 2C:24-4(a) (count two).2
Defendant was acquitted of the more serious offense of first-
degree aggravated sexual assault committed by an act of sexual
penetration on a child under the age of thirteen. N.J.S.A. 2C:14-
2(a)(1) (count one). The trial court sentenced him to a four-year
custodial term, with Megan's Law consequences, and other penalties
and conditions.
On appeal, defendant raises the following arguments, none of
which were raised by his trial counsel:
POINT I
THE COURT'S FAILURE TO INSTRUCT THE JURY ON
THE ELEMENTS OF SEXUAL CONTACT, WHICH IS THE
ALTERNATE SEXUAL CONDUCT THE STATE ALLEGED TO
SUPPORT THE CHARGE OF ENDANGERING, IS FATAL
IN THIS MATTER AND COMPELS THE REVERSAL OF
[G.A.]'S CONVICTION. (not raised below)
POINT II
THE COURT MUST VACATE [G.A.]'S CONVICTION AND
ORDER A NEW TRIAL BECAUSE OF PROSECUTORIAL
MISCONDUCT. (not raised below)
2
The Legislature revised this provision after the time of
defendant's conduct to raise the definitional maximum age of a
child from sixteen to eighteen. See L. 2013, c. 136, § 1 (effective
Aug. 14, 2013).
2 A-3159-14T1
POINT III
DEFENDANT'S CONVICTION MUST BE REVERSED BASED
UPON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
(not raised below)
a. Trial counsel's failure to object to the
State's request that the Court allow the jury
to consider an alternate sexual offense as the
basis for endangering, and counsel's failure
to request the jury be properly charged
constituted ineffective assistance of
counsel. (not raised below)
b. Trial Counsel's repeated failure to raise
appropriate objections constitutes
ineffective assistance of counsel. (not raised
below)
POINT IV
CUMULATIVE TRIAL ERRORS DEPRIVED DEFENDANT OF
A FAIR TRIAL AND WARRANT REVERSAL. (not raised
below)
After initially reporting incidents of defendant's improper
behavior to her mother, M.R. was then interviewed by the
prosecutor's office. She reiterated her account of defendant's
wrongful conduct, but denied having touched or placed her mouth
on defendant's penis. However, in her subsequent testimony at
trial, M.R. made such an allegation.
After defendant was arrested, he admitted that M.R. had
touched his penis with her hand on one occasion, causing him to
be aroused. Defendant denied that M.R. had placed her mouth on
his penis. As we have already noted, the jury found defendant
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guilty only of the endangerment charge, suggesting they found the
proofs lacking to establish penetration.
I.
In his first point on appeal, defendant challenges the jury
charge the trial court issued on count two. Acceding to a request
by the prosecutor, without objection, the court informed the jury
that the State was alleging that the endangering occurred by way
of either (1) the alleged sexual penetration, (2) the alleged
touching, or (3) both. Defendant now contends the court erred in
this respect. He argues that the court should have informed the
jury, sua sponte, that it had to find defendant committed the
offense of criminal "sexual contact," as a predicate to finding
defendant guilty of endangering. We disagree.
In considering this newly-minted attack on the jury charge,
we bear in mind several well-settled general principles. When a
defendant does not object to a jury instruction at the time it is
given, "there is a presumption that the charge was not error and
was unlikely to prejudice the defendant's case." State v.
Montalvo, 229 N.J. 300, 320 (2017) (quoting State v. Singleton,
211 N.J. 157, 182 (2012)). In such instances lacking an objection,
an appellate court reviews the instruction for plain error. Ibid.(citations omitted). Plain error is confined to errors that are
"'clearly capable of producing an unjust result.'" Id. at 320-21
4 A-3159-14T1
(quoting R. 2:10-2). The appellate court reviews a "defendant's
claim in light of 'the totality of the entire charge, not in
isolation.'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting
State v. Chapland, 187 N.J. 275, 289 (2006)).
We discern no such plain error here. The predicate wrongdoing
charged in count two is sexual "conduct," not the distinct crime
of sexual "contact," N.J.S.A. 2C:14-3. The definition of the
offense of criminal sexual contact is "an intentional touching by
the victim or [by the defendant], either directly or through
clothing, of the victim's or [the defendant]'s intimate parts for
the purpose of degrading or humiliating the victim or sexually
arousing or sexually gratifying the [defendant]." N.J.S.A. 2C:14-
1(d); see also Model Jury Charge (Criminal), "Sexual Assault –
Victim Less Than 13 Actor At Least 4 Years Older Than Victim
(N.J.S.A. 2C:14-2b)" (2008).
Even so, to sustain a conviction for endangering the welfare
of a child, the State was not required to prove that defendant
committed an act of sexual contact, as defined by the sexual
assault statute. On count two, the State was only required to
prove two elements: (1) M.R. was a child; and (2) defendant
knowingly engaged in sexual conduct with M.R. that would impair
debauch the morals of a child. Model Jury Charge (Criminal),
5 A-3159-14T1
"Endangering the Welfare of a Child, Sexual Conduct (Third Degree)
(N.J.S.A. 2C:24-4a(1))" (2014).
The term "sexual conduct" is not defined in the statutory
scheme. To be sure, sexual "conduct" that would impair or debauch
the morals of a child may certainly encompass sexual "contact,"
as that latter term is defined by the sexual assault statute. See
State v. Bryant, 419 N.J. Super. 15, 24 (App. Div. 2011) (noting
that overtly sexual acts committed by a defendant upon a child
constitute "sexual conduct" within the meaning of N.J.S.A. 2C:24-
4(a)). However, sexual conduct may also consist, more broadly,
of other acts that "tend[] to corrupt, mar, or spoil the morals
of a child[.]" Model Jury Charge (Criminal), "Endangering the
Welfare of a Child, Sexual Conduct (Third Degree) (N.J.S.A. 2C:24-
2a(1))" (2014); see e.g., Bryant, supra, 419 N.J. Super. at 24
(observing that "because some forms of sexual conduct are by their
nature more ambiguous, and involve no touching of the child, it
stands to reason that the Legislature would have intended to
require proof that the defendant knowingly engaged in sexual
conduct").
Defendant rests his argument on a footnote in the model charge
for child endangerment, which he reads to suggest that sexual
conduct must necessarily involve criminal sexual contact. The
statutory scheme does not support that inapt interpretation.
6 A-3159-14T1
Although the concept of sexual conduct certainly includes criminal
sexual contact, it is not limited to particular defined crimes.
See Cannel, New Jersey Criminal Code Annotated, comment 2 on
N.J.S.A. 2C:24-4 (2017). The endangering statute was divided into
paragraphs (a)(1) (impairing and debauching) and (a)(2) (abusing
and neglecting) by amendment in 2013. Cannel, New Jersey Criminal
Code Annotated, comment 1 on N.J.S.A. 2C:24-4 (2017); L. 2013, c.
136. The model jury charge for endangering that was approved
about a decade earlier was not divided into subsections and
featured the very same footnote advising the court to specify the
sexual offenses that the State is alleging in the case, "[i]f the
sexual conduct is not alleged in the indictment[.]" Model Jury
Charge (Criminal), "2C:24-4a Endangering the Welfare of a Child,
Third Degree" (2003). Accordingly, the footnote does not place
an obligation on the court to instruct the jury on the concept of
sexual "contact" as that term is defined in N.J.S.A. 2C:14-1.
Rather, it simply advises the court to remind the jury of whether
the defendant was alleged to have impaired or debauched the morals
of a child under subsection (a)(1), or, alternatively, abused or
neglected the child under subsection (a)(2).
The jury in this case was provided with adequate and
appropriate instructions concerning the nature of defendant's
alleged sexual conduct for purposes of evaluating his guilt under
7 A-3159-14T1
the endangerment charge in count two. The jury was also
appropriately instructed on the requisite mental state required
by N.J.S.A. 2C:24-4(a)(1). The trial court correctly advised the
jury that, in order to be found guilty on count two, defendant
must have knowingly penetrated M.R., or knowingly exposed himself
to M.R. and had M.R. touch him. There was no error, let alone
plain error, in these instructions to require a new trial.
II.
Defendant's second argument, alleging prosecutorial
misconduct during the trial, is likewise unavailing. He
specifically argues that the assistant prosecutor's comments and
use of leading questions constituted misconduct. We are
unpersuaded.
Generally, the following three factors pertain when reviewing
the impact of the prosecutor's alleged improper remarks: "(1)
whether defense counsel made timely and proper objections to the
improper remarks; (2) whether the remarks were withdrawn promptly;
and (3) whether the court ordered the remarks stricken from the
record and instructed the jury to disregard them." State v.
Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Smith, 167
N.J. 158, 182 (2001)). Here, we are satisfied that the various
remarks now complained of by defendant were either not improper
8 A-3159-14T1
at all, or, even if they were, do not amount to reversible error
given the absence of a timely objection.
Defendant first argues that the assistant prosecutor
inappropriately vouched for the credibility of the victim by asking
his former girlfriend, who he had called as a defense witness, on
cross-examination, whether M.R. would have a reason to lie about
defendant touching her. Defense counsel did not object to this
question. In fact, defense counsel probed the subject further on
re-direct by asking the ex-girlfriend whether M.R. had a history
of lying. This whole line of questioning was not withdrawn, nor
was it stricken from the record.
Second, defendant complains about the assistant prosecutor's
manner of addressing M.R. on re-direct examination. Defendant
variously asserts that it was inappropriate for the assistant
prosecutor to call M.R. "hon;" to tell M.R. "Let's focus on what
this man did to you. How about that? Okay? Because you are not
here because you did anything wrong. Do you understand that?;"
and to read part of M.R.'s interview statement as she directed the
child to the portion of the interview where M.R. had denied
defendant's penis touched her body. None of these remarks deprived
defendant of a fair trial.
Significantly, defense counsel did not object to any of these
comments. Further, the assistant prosecutor's questioning was not
9 A-3159-14T1
improper under the circumstances. A fair reading of the record
shows that M.R. was upset after being cross-examined by defense
counsel. The child sat with her head down and said she was
ashamed. All of the prosecutor's comments that defendant now
decries as inappropriate came after this point of the trial. The
assistant prosecutor refocused the child on re-direct and assured
her that she had done nothing wrong. In encouraging her to
continue with her testimony, the assistant prosecutor innocuously
said "go ahead, hon." Since defense counsel did not object, the
comments were not withdrawn and were not stricken from the record.
We recognize the assistant prosecutor did ask M.R. a few
leading questions on re-direct examination, after the child was
given a copy of her statement to refresh her recollection. Again,
defense counsel did not object to such questioning. Moreover, the
use of leading questions was appropriate under the circumstances.
N.J.R.E. 611(c) provides that "[l]eading questions should not
be used on the direct examination of a witness except as may be
necessary to develop the witness' testimony." To be sure, the
general purpose of this rule is to "encourage testimony from
witnesses, rather than evidence resulting from the prompting of
counsel." State v. Bueso, 225 N.J. 193, 206 (2016) (quoting
Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, comment
8 on N.J.R.E. 611(c) (2015)). But child witnesses are a recognized
10 A-3159-14T1
exception to this general policy disfavoring leading questions on
direct. For example, in Bueso, the Supreme Court noted that
leading questions may be used in the examination of a child witness
in situations where the child is "hesitant, evasive or
reluctant[.]" 225 N.J. at 207 (quoting State v. Smith, 158 N.J.
376, 390 (1999)).
Here, the assistant prosecutor appropriately used leading
questions to refocus an upset child witness, to guide her through
her prior statement for the purpose of refreshing her recollection,
and to elicit an explanation for her seemingly contradictory
statements. The use of leading questions in this discrete context
was permissible to develop the child's testimony. The assistant
prosecutor's questions were not egregious, nor did they manifestly
deprive defendant of a fair trial.
Defendant further argues that other leading questions asked
by the assistant prosecutor mandate reversal. Again, none of
those questions were the subject of objection. Moreover, we are
satisfied that such additional leading questions served the
allowable purpose of clarifying testimony.
For example, the prosecutor permissibly confirmed with the
police officer, who transported defendant to the police station
for questioning, that defendant had gone there willingly. The
prosecutor also permissibly questioned M.R.'s mother about her
11 A-3159-14T1
work schedule, confirming that there were times that defendant was
still home when she left in the morning. The prosecutor also
permissibly asked M.R. whether she "really" wanted to talk about
her assault with a doctor and a detective. In addition, the
prosecutor permissibly clarified with M.R.'s doctor that the child
had disclosed to her that defendant had touched her in a way that
she did not like. The prosecutor did not overstep her bounds in
slowly going through defendant's statement with the interviewing
detective, after he already had testified to the pertinent facts
on direct and cross-examination. Although the prosecutor's query
to the detective on re-direct as to whether persons suspected of
sexually assaulting a child are immediately forthcoming about it
during an interview was arguably objectionable, no such objection
was raised. We are not persuaded that the testimony could have
materially altered the proofs as a whole.
In sum, we are satisfied defendant was not deprived of a fair
trial because of the assistant prosecutor's manner of questioning
the child or any of the other witnesses, or in advocating the
State’s position.
III.
Defendant lastly argues that his trial counsel was
ineffective in various respects. A fair assessment of this
argument would require the development of a record beyond the
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present trial transcripts that have been supplied on direct appeal.
As such, we reserve this argument for a future application by
defendant for post-conviction relief. Claims of ineffective
assistance of counsel generally should not be raised on direct
appeal; "[r]ather [a] defendant must develop a record at a hearing
at which counsel can explain the reasons for his conduct and
inaction and at which the trial judge can rule upon the claims
including the issue of prejudice." State v. Sparano, 249 N.J.
Super. 411, 419 (App. Div. 1991); see also State v. Preciose, 129
N.J. 451, 460 (1992). For example, trial counsel's lack of
objection to certain leading questions may well have been motivated
by a reasonable tactical assessment that the jury might have
reacted negatively to repeated objections that interfered with the
flow of testimony.
The balance of defendant's arguments and sub-arguments,
including his claim of cumulative error, lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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