STATE OF NEW JERSEY VS. ERIC EPPSÂ (14-02-0397, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4094-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC EPPS, a/k/a CHARLES WATKINS,
DWIGHT MITCHELL and COREY GRUBBS,
Defendant-Appellant.
_______________________________
Submitted October 17, 2016 – Decided June 8, 2017
Before Judges Sabatino and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-
02-0397.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender II, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Jane
Deaterly Plaisted, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Eric Epps appeals from a March 23, 2015 judgment
of conviction for sexual assault, endangering the welfare of a
child, and lewdness; crimes for which a judge sentenced him to an
aggregate seventeen-year prison term. Defendant argues:
POINT I
THE FAILURE TO GIVE AN N.J.R.E. 404(b)
LIMITING INSTRUCTION DENIED DEFENDANT A FAIR
TRIAL BECAUSE THE JURY UNDOUBTEDLY CONCLUDED
THAT DEFENDANT HAD A PROPENSITY TO MASTURBATE
IN FRONT OF CHILDREN, WHICH IS PRECISELY WHAT
THE RULE PROSCRIBES (Not Raised Below).
A. Introduction.
B. Defendant Was Harmed by the Failure
of the Court to Limit the Jury's
Consideration of Other-Crimes
Evidence.
C. The Invited Error Doctrine Should
Not Bar Relief.
D. Conclusion.
POINT II
A SEVENTEEN-YEAR [NO EARLY RELEASE ACT]
SENTENCE FOR MASTURBATING IN PUBLIC IS
UNCONSCIONABLE; IT MUST BE REDUCED.
For the reasons that follow, we affirm.
An Essex County Grand Jury returned an indictment charging
defendant with second-degree sexual assault (count one), N.J.S.A.
2C:14-2(b); three counts of third-degree endangering the welfare
of a child (counts two through four), N.J.S.A. 2C:24-4(a); and
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fourth-degree lewdness (count five), N.J.S.A. 2C:14-4(b)(1). A
petit jury acquitted defendant of two endangering offenses (counts
three and four) and convicted him of the remaining crimes.
Following defendant's convictions, the State moved to have
him sentenced as a persistent offender under N.J.S.A. 2C:44-3(a).
The trial court granted the motion and sentenced defendant to a
seventeen-year prison term subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2(a), on count one, second-degree sexual
assault. The court imposed concurrent prison terms of five years
on count two, third-degree endangering the welfare of a child, and
eighteen months on count five, fourth-degree lewdness observed by
children under age thirteen. The court also ordered defendant to
comply with the reporting and registration requirements of Megan's
Law, sentenced defendant to parole supervision for life following
his release from prison, and imposed appropriate fines and
assessments. This appeal followed.
The State presented the following proofs at defendant's
trial. On May 2, 2013, at approximately 3:00 p.m., a twelve-year-
old girl and her two younger brothers, ages eleven and eight, were
walking home from their school bus stop in East Orange when they
passed a parked green Jeep with its windows rolled down. Inside
the vehicle, they observed a man, who the girl and the older boy
identified in court as defendant, masturbating in the driver's
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seat. Defendant was not wearing pants but had a towel around his
waist. The older boy was shocked, and the younger boy said "that's
nasty." Defendant grinned at the children.
At the girl's insistence, the younger boy wrote the Jeep's
license plate number on a piece of homework paper. The children
walked to a nearby fire station and reported what happened.
Defendant drove away from the scene. Fire station personnel
contacted the police, who took the children to the police station.
There, the children provided the police with defendant's license
plate number, which East Orange Detective Phillip Rodriguez
determined was registered to defendant.
Five days later, the girl returned to the police station
where she identified defendant from a photo array. Detective
Rodriguez prepared the photo array, which included defendant's
photo and five other photos of physically similar individuals.
According to Detective Sharif Greenwood, who displayed the photo
array, the girl identified defendant's photograph as the
individual she had seen masturbating in the Jeep. She said the
photograph "kind of looked like the suspect," though she believed
the suspect's skin was "a little darker."
When the girl testified at trial, defense counsel decided to
cross-examine her not only about a statement she had given to
police, but also about the details of her previous encounters with
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a man she thought was defendant. Defense counsel established the
girl told police the person she had described in the green Jeep
had been following her and her brothers during the year preceding
the May 2013 incident. Defense counsel further elicited the girl's
acknowledgement she had seen "this person" in 2013 on several
occasions before May 2, 2013, at the bus stop and at her
grandmother's house in Newark. Lastly, defense counsel had the
girl acknowledge telling police the man she described in the green
Jeep had also been around her house, driving a red Jeep. On some
of the previous occasions, the man was naked and, at times,
masturbating. The girl was uncomfortable with these prior
encounters, and her parents instructed her to record the Jeep's
license plate should she find it again.
The State objected to defense counsel's cross-examination of
the specific details of defendant's uncharged conduct. In
response, defense counsel argued the girl's previous observations
of the man in the red Jeep were relevant because they led to the
girl's identification of defendant's photograph.
After completing its case, the State requested a limiting
instruction under N.J.R.E. 404(b). Defense counsel objected to
the instruction, arguing "it would be unduly prejudicial" in light
of defendant's intended testimony and lengthy criminal history.
The trial court deferred its decision. During the charge
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conference, defense counsel again objected to the court giving a
404(b) charge. The court never gave the charge.
After discussing his prior criminal history on direct
examination, defendant testified about the May 2, 2013 incident
involving the girl and her brothers. According to defendant, at
7:00 a.m. on the day of the incident, he drove his fiancée to work
in West Orange in his green 1996 Ford Explorer. Later, he looked
for scrap metals to redeem at a scrapyard. At approximately 3:00
p.m., he began driving back to West Orange to pick up his fiancée.
However, he decided to first pick up food at a corner store in
East Orange. Defendant parked in the location where the children
said they saw him, entered the store, and left shortly after
purchasing a few items.
Defendant noticed a few children outside the store, but denied
seeing the girl and her brothers. He drove away and picked up his
fiancée in West Orange. He denied sitting naked in the driver's
seat and masturbating. Defendant also testified he was
incarcerated between October 22, 2010 and December 2, 2012. The
State stipulated to the date of defendant's release on an unrelated
matter.
In summation, defense counsel argued, among other things,
defendant was in jail during some of the previous occasions the
girl had supposedly seen him. Counsel suggested the children had
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not only mistaken defendant for the man in the red Jeep, but also
mistook what he was doing when they saw him in the green Jeep.
Following the jury's verdict and defendant's sentencing,
defendant filed this appeal.
Defendant argues on appeal the trial court committed
reversible error by not giving the N.J.R.E. 404(b) limiting
instruction, and that his sentence is excessive. His arguments
are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add only the following comments.
We agree with the State that defendant's argument concerning
the 404(b) limiting instruction is precluded by the doctrine of
invited error. "Under the invited error doctrine, 'trial errors
that were induced, encouraged or acquiesced in or consented to by
defense counsel ordinarily are not a basis for reversal on
appeal.'" State v. Munafo, 222 N.J. 480, 487 (2015) (quoting
State v. A.R., 213 N.J. 542, 561 (2013)). As our Supreme Court
has explained, the invited error doctrine "gives voice to 'the
common-sense notion that a disappointed litigant cannot argue on
appeal that a prior ruling was erroneous when that party urged the
lower court to adopt the proposition now alleged to be error.'"
Ibid. (quoting A.R., supra, 213 N.J. at 561).
This is precisely what happened here. Defendant pursued a
defense premised on the proposition the children mistook him for
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a predator who pursued them in the past. Defendant objected to
the State's proposed 404(b) limiting instruction. Now,
disappointed in the trial's outcome, he argues the ruling he sought
was erroneous. Defendant invited the ruling. He is now precluded
from arguing the ruling was both erroneous and grounds for a new
trial. Accordingly, we affirm his convictions.
Defendant also argues his sentence is excessive. He asserts
a seventeen-year sentence for masturbating in public is
unconscionable. Defendant did not simply masturbate in public;
he committed the crimes of sexually assaulting a child and
endangering the welfare of children. Moreover, defendant is a
persistent offender, a fact he does not dispute. According to the
trial court, defendant's "[thirteen] prior indictable convictions"
include convictions for endangering the welfare of a child, peering
into victims' windows, and violating conditions of a special
sentence. The trial court's findings of aggravating and mitigating
factors are supported by the record, and the sentence does not
"shock the judicial conscience" in light of the particular facts
of the case and defendant's extensive criminal history. State v.
Roth, 95 N.J. 334, 364-65 (1984). Accordingly, we affirm the
sentence.
Affirmed.
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