STATE IN THE INTEREST OF D.M.(FJ-20-209-15, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0216-15T2
APPROVED FOR PUBLICATION
STATE IN THE INTEREST OF
D.M., a juvenile. August 9, 2017
_________________________
APPELLATE DIVISION
Submitted May 16, 2017 — Decided August 9, 2017
Before Judges Reisner, Koblitz and Sumners.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Union County, Docket No. FJ-20-209-15.
Joseph E. Krakora, Public Defender, attorney
for appellant D.M. (Seon Jeong Lee,
Designated Counsel, on the briefs).
Grace H. Park, Acting Union County
Prosecutor, attorney for respondent State of
New Jersey (Milton S. Leibowitz, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
D.M.,1 appeals from a May 29, 2015 adjudication of
delinquency for acts which, if committed by an adult, would
constitute third-degree endangering the welfare of a child,
1
We use initials and pseudonyms to protect the identity of the
juvenile and minors involved in these proceedings. R. 1:38-
3(d).
N.J.S.A. 2C:24-4(a). The dispositional order imposed a three-
year probationary term, N.J.S.A. 2A:4A-43(b)(3), treatment at an
outpatient residential placement program, and full compliance
with sex offender requirements pursuant to Megan's Law, N.J.S.A.
2C:7-1 to -11.2 The trial judge found that the State did not
prove the sexual behavior between fourteen-year-old D.M. and his
eleven-year-old alleged victim, "Zane," involved sexual
penetration. Coercion was not alleged or found. Based on those
findings, using the appropriate principles of statutory
construction, an adjudication of delinquency against a child for
endangering the welfare of another child less than four years
younger based on sexual contact is not sustainable and we
therefore reverse.
2
Because D.M. was over the age of fourteen when the incident
occurred, he must report for at least fifteen years. N.J.S.A.
2C:7-2(f); In re Registrant J.G., 169 N.J. 304, 337 (2001)
(holding that in the case of a ten-year old adjudicated
delinquent for aggravated sexual assault of his eight-year-old
cousin, Megan's Law applies until age eighteen if the juvenile
offender is under the age of fourteen and is determined by clear
and convincing evidence to be unlikely to pose a threat to the
safety of others); State ex rel. J.P.F., 368 N.J. Super. 24, 38-
39 (App. Div.), certif. denied, 180 N.J. 453 (2004) (declining
to extend the holding in J.G. regarding termination of Megan's
Law requirements to a seventeen-year-old juvenile offender
adjudicated delinquent for fourth-degree criminal sexual contact
of another seventeen year old, as juvenile was over fourteen
years of age). Cf. State ex rel. C.K., 228 N.J. 238 (2016)
(granting certification on the issue of whether lifetime
registration requirements imposed on juveniles is
constitutional).
2 A-0216-15T2
D.M. was charged with delinquency for conduct occurring
between April 1 and August 20, 2014, which, if engaged in by an
adult, would constitute first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1).
After conducting an N.J.R.E. 104(a) hearing, the trial
judge admitted into evidence Zane's out-of-court disclosures
pursuant to N.J.R.E. 803(c)(27) (permitting hearsay testimony by
a child under the age of twelve "relating to sexual misconduct
committed with or against that child" if the court finds "there
is a probability that the statement is trustworthy"). The following
facts were developed at the hearing3 and subsequent trial.
Eleven-year-old Zane and his younger brother, Za.Y., who
was nine years old, spent time when not in school in the area
where their mother, L.Y., operated her hair salon. Zane and
Za.Y. played across the street from the salon in the playground
behind a school with their friend, R.R., who was fifteen years
old at the time and lived a few doors away from the salon. R.R.
and D.M. had been friends for several years. R.R. introduced
D.M. to Zane at the playground. D.M. is approximately three and
one-half years older than Zane. During April 2014, D.M. was
fourteen years old.
3
By consent, testimony from the hearing was incorporated into
the bench trial. See State v. Gibson, 219 N.J. 227, 249 (2014)
(allowing that procedure in a drunk-driving prosecution).
3 A-0216-15T2
L.Y., her adult daughter, N.C., N.C.'s boyfriend, Zane,
Za.Y, and E.B., L.Y.'s boyfriend's seven-year-old son were at
L.Y.'s house one evening in August 2015. Zane and Za.Y. were in
their shared upstairs bedroom with E.B. L.Y. went to "check on
the boys." Upon entering the room, she observed Za.Y. sleeping
on the top section of the bunkbed, and Zane and E.B. sitting
together on the bottom bed in an odd arrangement. Although she
initially left, L.Y. shortly returned and observed that Zane's
shorts were "twisted." L.Y. angrily asked Zane "what [were] you
doing?" Zane initially denied any wrongdoing. L.Y. then asked
E.B. what was going on. E.B. told L.Y. that "[Zane] was doing
nasty things" including "rubbing his penis on him." L.Y. yelled
at Zane, "popped" Zane on the buttocks, and asked him repeatedly
where he learned this behavior. Zane answered, "the boy did it
to me."
According to N.C., she came upstairs and her mother, L.Y.,
sounded "furious." N.C. found her mother in her bedroom crying
and yelling at her brother, Zane. N.C. took Zane to the
downstairs bathroom, hugged Zane as he was crying, and told him
he "shouldn't be in bed with another little boy." N.C. asked
him three times, "where did he get that from?" Zane responded,
"someone did that to him." Zane then told N.C. that D.M. "made
him suck his penis . . . and [D.M.] told [Zane] to put his penis
4 A-0216-15T2
in his anus." Zane said he had not told his family because "he
was scared of what everyone would think." L.Y. testified, and
N.C. confirmed, that Zane stated he was afraid "daddy's going to
kill me" and his brothers and father "would think he was gay."
Sergeant Walter Johnson of the Union County Prosecutor's
Office, Special Victims Unit, testified that he conducted a one-
on-one video-recorded interview with Zane sometime mid-morning
on the day following this incident.
On the video recording,4 Johnson asked Zane "do you know why
you're here today?" Zane responded, "Yeah" and, "[c]ause I did
something." Zane was initially unresponsive, until Johnson
assured Zane that he was "not in any trouble[,]" after which he
asked Zane "what happened?"
Zane revealed two interactions two weeks apart with D.M.
while they were at the playground. Zane said that, at D.M.'s
request, Zane "sucked [D.M.'s] thingy." Zane further stated to
Johnson that the sexual activity with D.M. occurred at the
playground in a stairwell after it "got dark" and their friends
and Za.Y. left. According to Zane, both he and D.M. were
standing while Zane performed fellatio on D.M. for only "two
seconds." Zane also claimed he did not know any other name for
the part he referred to as "thingy," and that D.M. did not touch
4
We were provided with the transcript but not the recording.
5 A-0216-15T2
any other part of Zane's body. Zane said, "[i]t made [him] feel
weird."
Although Zane originally denied that D.M. had touched him
during this second incident, he later stated that D.M. "touched
[him] on [his] butt" with D.M.'s "thingy." Zane stated that
D.M. told him to take off his clothes and he tried to put it in,
but Zane told him to stop because "[i]t kind of hurt." At
trial, Zane testified that it was during the first incident that
D.M. attempted to anally penetrate him.
Johnson asked Zane if "something like [the D.M. incident]
happened with anyone else[,]" and Zane confirmed that it
happened with E.B., his mother's boyfriend's seven-year-old son,
after Zane asked E.B. "to suck his thingy[,]" and E.B. complied.
Zane told Johnson that "[l]ast night" was the only time that
Zane had ever done that with E.B., and that nothing else
occurred between them.
Zane told Johnson that he told both L.Y. and his father,
"everything [he] told [Johnson]."
Zane's father was in the courtroom as a "support person"
during Zane's testimony. In addition to his disclosures
regarding the two incidents with D.M. in the playground
stairwell, Zane testified at trial about another incident when
he and D.M. walked to D.M.'s house. The first time he told
6 A-0216-15T2
anyone about this third incident was one week before trial
"because [he] didn't remember it" before then. According to
Zane, D.M. asked Zane if he could "[p]ut his thing in [Zane's]
mouth again," for which Zane complied. Zane did not recall when
this occurred. When questioned about the incidents in the park,
and asked whether D.M. told him or "politely ask[ed]" him to
stay, Zane responded: "He asked me." Zane denied D.M. forced
him or threatened him, although he said the interaction made him
feel uncomfortable and "weird" and he did not like it.
On cross-examination, Zane admitted that he used the video
and messaging chat application, "Oovoo," to contact D.M. Zane
confirmed that one night at 10:29 p.m. he messaged D.M.
Although he refused to read the message aloud, he acknowledged
he wrote to D.M., "So 69, let me C-U-R cock." D.M. did not
respond, although Zane tried to call him again. Zane also
testified on cross-examination that he knew what "cock" and "69"
meant, and that his older friend R.R. had previously shown him
"dirty" pictures on R.R.'s smartphone. Zane also said that when
discovered with E.B., his mother "popped" him for the first time
in his life.
Zane stated that the night he was discovered having E.B.
perform fellatio on him was not the first time he engaged in
that behavior with E.B. Zane admitted to three sexual
7 A-0216-15T2
encounters with the seven-year-old. Zane said he told the
younger child he had learned the behavior from pornography.
D.M. presented B.V., aged seventeen, and B.C., aged
eighteen, as defense witnesses. Both were in the Junior Reserve
Officer Training Corps with D.M. B.V. testified he was "best
friends" with D.M. and that they would "hang out" together at
the playground behind the school. B.V. stated that he sometimes
saw Zane, who frequently urinated in public and "cursed a lot."
B.C. testified he also went to the playground with D.M., who he
described as "committed, hardworking, outgoing, [and]
outspoken." B.C. stated that Zane acted inappropriately at the
playground by "piss[ing] on a tree." He stated Zane made
statements to R.R., B.V., and B.C., like: "Can I suck your
dick?"
D.M. denied any sexual contact with Zane. D.M. testified
that Zane asked to "suck [D.M.'s] dick" or if D.M. "would suck
[Zane's] dick." D.M. corroborated B.C.'s and B.V.'s testimony
that Zane urinated on the playground in public. D.M. testified
that he received the "Oovoo" message from Zane, and was annoyed
with Zane "[b]ecause he kept calling." On cross-examination,
D.M. admitted someone from his school called D.M.'s mother about
D.M.'s "gay bashing" during a verbal altercation with another
student, resulting in a "Saturday detention."
8 A-0216-15T2
The parties agreed that the court could consider the
lesser-related charge of third-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a), as provided in State v. Thomas,
187 N.J. 119, 134 (2006). In summation, D.M.'s counsel argued
that he was not guilty of any offense, and the prosecutor argued
that the juvenile had committed acts that would constitute
aggravated sexual assault if committed by an adult and would
also support a finding of third-degree endangering the welfare
of a child.
The judge rendered a written opinion finding D.M. committed
third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a). The judge found D.M.'s testimony was "inauthentic" as it
"could more aptly be described as a job interview, where [D.M.]
was trying to sell himself." The judge determined D.M.'s
witnesses, B.V. and B.C., were "earnest" but both lacked
specific relevant information. The judge found Zane was a
credible witness who provided consistent and specific testimony
on all three incidents with D.M. The judge, however, found
insufficient proof of penetration.5 The judge held the evidence
5
According to N.J.S.A. 2C:14-1(c):
'Sexual penetration' means vaginal
intercourse, cunnilingus, fellatio or anal
intercourse between persons or insertion of
the hand, finger or object into the anus or
9 A-0216-15T2
adduced at trial proved that D.M. knowingly engaged in sexual
conduct that would impair or debauch the morals of a child.
Three months later, when imposing a disposition, the judge
commented that he had found no penetration only for
"humanitarian reasons," and in spite of the strength of the
proofs.
D.M. raised the following issues on appeal:
POINT I: THE COURT ERRED IN RULING THAT
[ZANE'S] SELF-SERVING OUT-OF-COURT
STATEMENTS MADE UNDER DURESS AND COERCION BY
ADULT FAMILY MEMBERS WERE TRUSTWORTHY AND
ADMISSIBLE UNDER N.J.R.E. 803(c)(27),
DEPRIVING D.M. OF A FAIR TRIAL. U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. (1947) ART. 1,
PAR. 10.
POINT II: THE COURT'S FINDING OF DELINQUENCY
WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE
EVIDENCE AND MUST BE REVERSED.
POINT III: THE ADJUDICATION OF DELINQUENCY
SHOULD BE REVERSED BECAUSE D.M.'S
PREDISPOSITION REPORT WAS NOT PROVIDED AT
THE DISPOSITION HEARING AND D.M. DID NOT
EXPRESSLY WAIVE THIS MANDATORY REQUIREMENT.
R. 5:24-2.
POINT IV: THE COURT'S IMPOSITION OF THE
MAXIMUM SENTENCE OF 3 YEARS' PROBATION WAS
EXCESSIVE AND SHOULD BE REDUCED.
vagina either by the actor or upon the
actor's instruction. The depth of
penetration shall not be relevant as to the
question of the commission of the crime.
10 A-0216-15T2
At our request, the parties also submitted supplemental
briefs expanding the issue the juvenile raised in Point II to
encompass the question of whether the lack of a finding of
penetration or coercion undermines the delinquency finding of
endangering the welfare of a child, in light of the four-year
age difference required for a delinquency finding of sexual
assault. Because we reverse the adjudication on this issue, we
do not address the other points raised by D.M. on appeal.
When reviewing the result of a bench trial, we do not make
factual findings. "We must give deference to those findings of
the trial judge which are substantially influenced by his or her
opportunity to hear and see the witnesses and have the 'feel' of
the case, which we do not enjoy upon appellate review." State
ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). We
do not weigh the evidence, assess the
credibility of witnesses, or make
conclusions about the evidence. We are not
in a good position to judge credibility and
ordinarily should not make new credibility
findings. However, our review of the
sufficiency of the facts to satisfy an
applicable legal standard is a question of
law.
[Mountain Hill, L.L.C. v. Twp. of
Middletown, 399 N.J. Super. 486, 498 (App.
Div. 2008) (internal quotation marks and
citations omitted).]
The potential lesser-included crime of first-degree
aggravated sexual assault of a child, fourth-degree criminal
11 A-0216-15T2
sexual contact through force or coercion, N.J.S.A. 2C:14-3(b),
was expressly excluded from consideration by the judge.
Coercion was not charged in the complaint and the judge found no
evidence of coercion, force or an attempt to commit an
aggravated sexual assault. The judge stated he made findings
consistent with Zane's testimony, writing "at no time did [D.M.]
use force or threaten him to perform the charged sex acts, and
in fact, was rather polite in his requests." Coercion as used
in N.J.S.A. 2C:14-3(b) is defined the same way as criminal
coercion in N.J.S.A. 2C:13-5(a). N.J.S.A. 2C:14-1(j).
A person is guilty of criminal coercion if,
with purpose unlawfully to restrict
another's freedom of action to engage or
refrain from engaging in conduct, he
threatens to:
(1) Inflict bodily injury on anyone or
commit any other offense, regardless of the
immediacy of the threat;
(2) Accuse anyone of an offense;
(3) Expose any secret which would tend to
subject any person to hatred, contempt or
ridicule, or to impair his credit or
business repute;
(4) Take or withhold action as an official,
or cause an official to take or withhold
action;
(5) Bring about or continue a strike,
boycott or other collective action, except
that such a threat shall not be deemed
coercive when the restriction compelled is
demanded in the course of negotiation for
12 A-0216-15T2
the benefit of the group in whose interest
the actor acts;
(6) Testify or provide information or
withhold testimony or information with
respect to another's legal claim or defense;
or
(7) Perform any other act which would not
in itself substantially benefit the actor
but which is calculated to substantially
harm another person with respect to his
health, safety, business, calling, career,
financial condition, reputation or personal
relationships.
[N.J.S.A. 2C:13-5(a).]
Although the judge found D.M. was larger and older than Zane,
the judge found a lack of coercion or threat.
In an adult criminal case where no penetration is found,
the factfinder could consider the lesser-included second-degree
crime of sexual assault of a child under the age of thirteen,
N.J.S.A. 2C: 14-2(b). The definition of sexual contact is:
an intentional touching by the victim or
actor, either directly or through clothing,
of the victim's or actor's intimate parts
for the purpose of degrading or humiliating
the victim or sexually arousing or sexually
gratifying the actor.
[N.J.S.A. 2C:14-1(d).]
Sexual assault of a child by sexual contact, however,
requires a four-year age difference between the actor and the
victim. N.J.S.A. 2C:14-2(b) states: "An actor is guilty of
sexual assault if he commits an act of sexual contact with a
13 A-0216-15T2
victim who is less than 13 years old and the actor is at least
four years older than the victim." Logically, the purpose of
this section is to avoid criminalizing non-coercive sexual
contact between two juveniles who are less than four years apart
in age.6 See Assembly Judiciary, Law and Public Safety, and
Defense Committee Statement to Assembly Bill No. 3279, at 78-79
(June 28, 1979) (indicating that the Legislature did not intend
to criminalize sexual experimentation between juveniles of
similar ages).
As the judge stated in his opinion, because he did not find
sexual penetration or coercion, and D.M. was less than four
years older than Zane, the judge did not consider lesser-
included sexual crimes. He considered only the lesser-related
third-degree crime of endangering the welfare of a child. Both
the State and juvenile had agreed to that possible disposition
when the issue of penetration was alleged and unresolved.
Once the judge found insufficient evidence of sexual
penetration, the question became whether a juvenile who is not
guilty of sexual assault due to an insufficient age differential
could nonetheless be adjudicated delinquent of child
endangerment for that same behavior. In other words, did the
6
No adult could be less than four years older than a child
twelve years old or younger.
14 A-0216-15T2
Legislature particularly exempt sexual contact between two
children close in age from delinquent liability only to
criminalize that same conduct under the more general rubric of
child endangerment? The State argues that even without the
four-year age difference, D.M.'s behavior constitutes "sexual
conduct" and thus fits the definition of endangerment. As our
Supreme Court has stated, however, when a clear ambiguity exists
"a canon of statutory construction directs that a specific
statute generally overrides a general statute." State v.
Robinson, 217 N.J. 594, 609 (2014); see also State ex rel.
J.P.F., supra, 368 N.J. Super. at 38 ("Under usual rules of
statutory construction, the more specific law must be
interpreted as prevailing over the more general one.").
The pertinent part of the child endangerment statute,
N.J.S.A. 2C:24-4(a), states:
(1) Any person having a legal duty for the
care of a child or who has assumed
responsibility for the care of a child who
engages in sexual conduct which would impair
or debauch the morals of the child is guilty
of a crime of the second degree. Any other
person who engages in conduct or who causes
harm as described in this paragraph to a
child is guilty of a crime of the third
degree.
[(Emphasis added).]
"Although the term 'sexual conduct' is not defined [in the
child endangerment statute], clearly included are sexual
15 A-0216-15T2
assaults and sexual contact[.]" State v. Perez, 177 N.J. 540,
553 (2003) (quoting State v. Perez, 349 N.J. Super. 145, 153
(2002)) (second alteration in the original). To ascertain
Legislative intent we "read words and phrases in their context
and apply their 'generally accepted meaning.'" N. Jersey Media
Grp., Inc. v. Twp. of Lyndhurst, __ N.J. __, __ (2017) (slip op
at 39-40) (quoting N.J.S.A. 1:1-1). "[W]e can also draw
inferences based on the statute's overall structure and
composition." State v. S.B., __ N.J. __, ___ (2017) (slip op.
at 6).
The Legislature did not intend sexual behavior between
children close in age not involving penetration, which it
specifically exempted from the criminal statutes, to nonetheless
be included within the crime of child endangerment. Our Supreme
Court has told us to analyze ambiguous statutes in a criminal
context in favor of the accused:
Like all matters that require interpretation
of a statute, our goal of implementing the
Legislature's intent begins with the text of
the statute. If the meaning of the text is
clear and unambiguous on its face, we
enforce that meaning. If the language admits
to more than one reasonable interpretation,
we may look to sources outside the language
to ascertain the Legislature's intent. When
extrinsic sources cannot clarify the meaning
of ambiguous language, we employ the canon
of statutory construction that counsels
courts to construe ambiguities in penal
statutes in favor of defendant.
16 A-0216-15T2
[State v. Reiner, 180 N.J. 307, 311-12
(2004) (citations omitted).]
Although D.M. engaged in behavior that would generally be
considered sexual conduct with another child, the sexual contact
was exempted from criminal liability by a specific statute.
The State argues we should determine that sexual
penetration was proven in spite of the judge's findings to the
contrary. The judge found an absence of sexual penetration in a
written opinion issued two weeks after the trial ended,
concluding that Zane's testimony was not sufficiently specific
or persuasive on this issue. Three months later, when imposing
a disposition, he described his failure to find penetration as a
"humanitarian gesture." When a court does not find facts
legally sufficient to adjudicate the accused delinquent, that is
the end of the matter with respect to that charge. We cannot,
as the State here urges, change the original adjudication based
on comments the court made in the course of imposing a
disposition. We are not fact-finders. See State ex re. J.P.F.,
supra, 368 N.J. Super. at 31. The judge articulated the
insufficiency of the evidence as to penetration. Whether he was
motivated to make this finding in part by mercy is not legally
relevant. Double jeopardy prevents the State's appeal of a not-
delinquent finding in a juvenile trial. State in Interest of
17 A-0216-15T2
J.O., 242 N.J. Super. 248, 253-54 (App. Div.), certif. denied,
122 N.J. 385 (1990).
We need not reach the issue of whether the Legislature
intended a juvenile to be found delinquent for endangering the
welfare of another child under any circumstances. State in
Interest of A.B., 328 N.J. Super. 96, 97 (Ch. Div. 2000)
(determining that juveniles were subject to the child
endangerment statute, in particular with respect to the
prohibition against distribution of child pornography, N.J.S.A.
2C:24-4(b)); see also In re Civil Commitment of R.F., 217 N.J.
152, 157-58 (2014) (affirming the denial of civil commitment as
a sexually violent predator of a juvenile who pled guilty in
adult court to endangering the welfare of a child after being
charged with first-degree aggravated sexual assault of two
children aged twelve and thirteen); State ex rel. D.A., 385 N.J.
Super. 411, 414 (App. Div.), certif. denied, 188 N.J. 355 (2006)
(involving a juvenile who entered a guilty plea to endangering
the welfare of his six-year-old half-sister).
Neither penetration nor coercion was found by the trial
judge. The Legislature expressly stated its intent not to
criminalize sexual contact between children less than four years
apart in age absent either penetration or coercion. We must
honor that Legislative expression. To the extent that the child
18 A-0216-15T2
endangerment statute might nonetheless be thought to include
behavior of the nature found by the judge in this case,
ambiguity in the construction of the statute must be resolved in
favor of the juvenile both because the specific statute trumps
the general statute and because ambiguous criminal statutes must
be interpreted favorably to the accused. See Robinson, supra,
217 N.J. at 609; Reiner, supra, 180 N.J. at 311-12.
Reversed.
19 A-0216-15T2