STATE OF NEW JERSEY VS. J.C.K. (12-04-0628, BERGEN COUNTY AND STATEWIDE) (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NOT FOR PUBLICATION WITHOUT THE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-1274-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.C.K.,1
Defendant-Appellant.
_________________________
Argued March 3, 2020 – Decided April 22, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 12-04-0628.
James M. Doyle argued the cause for appellant.
Mark Musella, Bergen County Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Craig A. Becker, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
1
In this opinion, we use initials to identify defendant and others to protect the
identity of the victim. R. 1:38-3(c)(12).
Defendant was tried before a jury and found guilty of endangering the
welfare of a child, N.J.S.A. 2C:24-4(a). He appeals from the judgment of
conviction (JOC) dated August 19, 2013. We affirm.
I.
A Bergen County grand jury charged defendant with second-degree sexual
assault upon K.K., by committing an act of sexual contact, specifically touching
K.K.'s vagina with the purpose to humiliate or degrade the victim or to sexually
arouse or gratify defendant, in violation of N.J.S.A. 2C:14-2(b) (count one). The
indictment alleged that at the time of the offense, K.K. was less than thirteen
years of age, and defendant was at least four years older.
The grand jury also charged defendant with second-degree endangering
the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count two). The
indictment alleged that defendant had a legal duty for the care of K.K., or had
assumed responsibility for her care, and engaged in sexual conduct that would
impair or debauch the morals of said child.
At the trial, K.R., K.K.'s mother, testified that she had been married to
defendant and two children were born of the marriage. K.R. and defendant
separated in April 2008, and they divorced in May 2011. She testified that on
Friday, October 29, 2010, she dropped off the children with defendant so that
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he could enjoy parenting time. She picked up the children on Sunday afternoon,
October 31, 2010.
K.R. stated that while K.K. was getting ready to shower on Sunday
evening, she complained about pain in her vaginal area. When K.K. removed
her underwear, K.R. noticed that her vaginal area was "red and swollen." K.R.
testified that she had previously seen K.K.'s vaginal area appear "like a light
pink or a little swollen," but this time it was "very swollen and very red."
K.R. asked K.K. if she had been scratching herself, because she had done
that before. K.K. replied that the area was red because defendant had been
rubbing it. K.R. asked K.K. if defendant had been putting an ointment on her
to treat a rash, as he had done in the past. K.K. said no.
K.K. told K.R. that defendant was "rubbing and touching" her for "no
reason" and not applying an ointment. K.K. began to cry and became more upset
as K.R. questioned her further. K.K. rubbed the inside of her thigh to
demonstrate to K.R. how defendant touched her vaginal area.
K.R. gave K.K. a bath to "help her feel better" then took her for an
examination at the Chilton Medical Center. She explained to the doctor what
K.K. told her. The doctor examined K.K. while K.R. was in the room. After
the examination, someone at the hospital contacted the police. K.R. spoke to
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the police on the phone and arranged to meet with detectives. The next day,
K.K. and K.R. met with Detectives Brian Lucas and Linda McNulty at the
Bergen County Prosecutor's Office (BCPO). K.R. was sworn and provided the
detectives a formal statement regarding K.K.'s disclosures.
On November 1, 2010, McNulty conducted a recorded interview of K.K.,
without K.R. present. McNulty interviewed K.K. again a week later.
Recordings of both interviews were played for the jury. K.K. told McNulty that
her father touched her in her vaginal area with a "black butter-knife-like object."
The BCPO arranged for K.K. to be examined by a doctor at Children's
House in Hackensack. Dr. Nina Agrawal performed the examination. She
testified that K.K. told her "Daddy . . . touched her genital area" with a gold -
colored butter-knife-like object. Dr. Agrawal stated that the examination did
not reveal any signs of obvious trauma. She noted, however, that most instances
of sexual abuse without penetration do not leave such signs.
Defendant's mother testified that defendant was living in her home during
the weekend when the offenses were allegedly committed. She accounted for
defendant's whereabouts throughout the weekend and stated that she did not see
K.K. alone with defendant in his bedroom at any time. J.C., who was defendant's
girlfriend at the time, stated that she arrived at the home of defendant's parents
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around 11:45 p.m. on Saturday evening and spent the night. She left to go to
her own house around 12:30 p.m. on Sunday.
According to J.C., defendant, defendant's mother, and K.K. met her and
her children at her house for lunch around 1:30 p.m. After lunch, the group went
trick-or-treating until defendant dropped the children off with K.R. J.C. testified
that she never saw defendant and K.K in a room by themselves. She also said
that she never saw K.K. crying or in pain.
Defendant testified that he and the children were very busy during the
weekend and he spent very little time alone with K.K. Defendant said the
children were "happy as can be" when he dropped them off with their mother on
October 31, 2010, and he did not learn of K.K.'s allegations until the evening of
the following day.
The jury found defendant not guilty on count one, in which defendant was
charged with sexual assault, but found defendant guilty of endangering the
welfare of a child by engaging in sexual conduct, as charged in count two.
Defendant thereafter filed a motion for a judgment of acquittal pursuant to Rule
3:18, or alternatively, for a new trial pursuant to Rule 3:20-1. Defendant argued
that he could not be found not guilty of sexual assault and guilty of endangering
the welfare of a child, based on the same acts.
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The trial judge denied the motion for reasons stated in a written opinion.
The judge found the verdicts were not inconsistent because sexual assault under
N.J.S.A. 2C:14-2(b) and endangering the welfare of a child by engaging in
sexual conduct under N.J.S.A. 2C:24-4(a) have different elements. The judge
also found that even if the verdicts are inconsistent, such verdicts are permitted.
The judge later sentenced defendant to a seven-year term in State prison,
and ordered defendant to serve the sentence consecutively to a sentence he was
then serving. The judge also imposed appropriate fines and penalties; required
defendant to comply with Megan's Law, N.J.S.A. 2C:7-1 to -23; and sentenced
defendant to parole supervision for life. The judge entered a JOC dated August
19, 2013.
On appeal, defendant argues that his conviction must be set aside because
the jury's verdict on count two was inconsistent with its verdict on count one.
He also argues that after the jury advised the judge it was not able to reach a
verdict, the judge erred by instructing the jury to continue deliberations.
Defendant further argues that the claimed errors cumulatively rendered the trial
unfair and require reversal of his conviction.
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II.
We first consider defendant's argument that his conviction must be
reversed because the jury's verdict on count two was inconsistent with the
verdict on count one. Defendant contends the endangering conviction cannot
stand because both counts were based on the same conduct, specifically, his
intentional touching of K.K.'s vaginal area. He argues that if he is not guilty of
sexual assault, as the jury found, there is no basis for the guilty verdict on the
endangering count. We disagree.
Here, the trial judge found the verdicts were not inconsistent because the
offenses have different elements. N.J.S.A. 2C:14-2(b) provides in part that a
person is guilty of sexual assault if [he] "commits an act of sexual contact with
a victim who is less than [thirteen] years old and [he] is at least four years older
than the victim." The term "sexual contact" is defined as "intentional touching
by the victim or actor . . . of the victim or actor's intimate parts for the purp ose
of degrading or humiliating the victim or sexually arousing or sexually
gratifying the actor." N.J.S.A. 2C:14-1(d). Furthermore, N.J.S.A. 2C:24-4(a)
provides that a person is guilty of this offense if he had a legal duty for the care
of or assumes responsibility for the care of a child and "engages in sexual
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conduct which would impair or debauch the morals of the said child
. . . ." Ibid.
Although both charges in this case were based on the allegation that
defendant intentionally touched K.K.'s vagina, the jury could have rationally
found that defendant did not do so "for the purpose of degrading or humiliating"
K.K. or "sexually arousing or sexually gratifying" himself. Moreover, the jury
could have rationally found that by intentionally touching K.K.'s vagina,
defendant engaged in "sexual conduct which would impair or debauch" K.K.'s
morals. Thus, the trial judge correctly determined that the verdicts are not
inconsistent.
The trial court also correctly determined that even if the verdicts are
inconsistent, the conviction for endangering the welfare of a child must stand.
It is well-established that "[i]nconsistent verdicts are accepted in our criminal
justice system." State v. Banko, 182 N.J. 44, 53 (2004) (citing State v. Grey,
147 N.J. 4, 11 (1996)). Inconsistent verdicts are permitted "'so long as the
evidence was sufficient to establish guilt on the substantive offense beyond a
reasonable doubt.'" Id. at 55 (quoting State v. Petties, 139 N.J. 310, 319 (1995)
and State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div. 1992)).
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An inconsistent verdict will not, however, preclude reversal of the
conviction "based on other defects in the criminal proceeding." Ibid. For
example, in Grey, the Court reversed an inconsistent verdict because the record
clearly established that the inconsistency was due to the trial court's erroneous
instructions. 147 N.J. at 12-16.
In this case, defendant does not argue there was any error in the jury
instructions on the offenses charged or any other defect in the trial court
proceedings. Moreover, based on the testimony presented at trial and the
legitimate inferences that could be drawn from the testimony, a jury could
rationally find that defendant committed the endangering offense beyond a
reasonable doubt. Therefore, even if the verdict on the endangering count was
inconsistent with the verdict on the sexual assault charge, the conviction must
stand.
Defendant argues, however, that he was not fully apprised of the charges
against him. He contends he was not aware he could be convicted of
endangering the welfare of a child after being acquitted of sexual assault because
the State claimed that only one "touching" was involved. However, the
indictment clearly placed defendant on notice that he could be found guilty on
either count one or count two, or on both counts. The indictment referenced the
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statutes for the charged offenses and set forth the essential elements of both
offenses and the factual basis for the charges. Thus, defendant was fully
apprised of the possibility that he could be found guilty of endangering the
welfare of a child even if he was found not guilty of sexual assault.
III.
Defendant further argues that after the jury indicated it could not reach a
verdict, the trial judge erred by instructing the jury to continue its deliberations.
Defendant contends the judge should not have provided the instruction without
first inquiring whether further deliberations would likely result in a verdict.
The record reflects that the jury began its deliberations at 12:15 p.m. on
Thursday, April 4, 2013. The jury returned on Friday, April 5, 2013, and
continued its deliberations. At the end of the day, the jurors sent the judge a
note stating they were "unable to come to a verdict [that day]." The judge sent
the jurors home and told them to return the following Monday morning.
The judge informed counsel that he intended to provide the jury with a
Czachor charge when the jury returned on Monday. See State v. Czachor, 82
N.J. 392, 404-06 (1980) (modifying charge approved in Allen v. United States,
164 U.S. 492 (1896)). The assistant prosecutor objected, arguing the charge was
unnecessary because the jurors indicated they would not reach a verdict that day,
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not that they were at an actual impasse. The judge agreed and did not give the
charge.
The jury resumed its deliberations on Monday, April 8, 2013. During their
deliberations, the jurors sent a note to the judge stating, "After thorough
discussions and many votes[,] the jury is unable to come to an [sic] unanimous
decision." The judge then instructed the jury as follows:
. . . It is your duty as jurors to consult with one another
and to deliberate with the view to reaching an
agreement if you can do so without any violence to
individual judgment. Each of you must decide the case
for yourself, but do so only after an impartial
consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to
reexamine your own views and change your opinion if
convinced it is erroneous. But do not surrender your
honest conviction as to the weight or effect of evidence
solely because of the opinion of your fellow jurors [or]
for the mere purpose of returning a verdict.
You are not partisans. You are judges; judges of the
facts. The jury is directed to resume deliberations.
Defendant did not object to the instruction. The jury continued its
deliberations and returned a verdict a few hours later.
Defendant argues, for the first time on appeal, that the judge erred by
directing the jury to resume its deliberations after he received the jury's note
stating that it was unable to come to a unanimous decision. Defendant asserts
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that the note was an unequivocal statement by the jury that it could not reach a
unanimous verdict.
Defendant argues that even without a specific request to do so, the judge
should have questioned the jurors to determine whether further deliberations
would be fruitful. He asserts that the judge's instruction sent a message to the
jury that nothing other than a unanimous verdict could be returned and led to the
inconsistent verdict.
The Court addressed a similar argument in State v. Ross, 218 N.J. 130
(2014). In that case, the jury had been deliberating for about nine hours over
three days. Id. at 138. During the first three days of their deliberations, the
jurors had posed procedural questions and requested readbacks of testimony.
Ibid.
On the fourth day of deliberations, the jury deliberated for an additional
five hours and asked the judge to clarify the meaning of the term "reasonable
doubt." Ibid. The following day, the jury sent the judge a note stating it was
unable to reach a unanimous decision on any count. Ibid. Without objection by
either party, the judge read the model jury charge based on Czachor. Ibid.
(citing Model Jury Charge (Criminal), "Judge's Instructions on Further Jury
Deliberations" (Jan. 14, 2013)) .
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The Court stated that the trial court's decision as to whether to provide the
jury with the Czachor charge "requires a careful analysis of the circumstances."
Id. at 144. "When the jury communicates a deadlock, trial courts 'should be
guided in the exercise of sound discretion by such factors as the length and
complexity of trial and the quality and duration of the jury's deliberations.'"
Ibid. (quoting Czachor, 82 N.J. at 407).
The trial court should exercise its discretion to ensure that the jury's
verdict is free from "untoward interference from any source, including the
court." Id. at 145 (quoting State v. Collier, 90 N.J. 117, 122 (1982)). If the
difference of opinions between the members of the jury is "clearly intractable,"
the court should declare a mistrial. Ibid. (quoting State v. Valenzuela, 136 N.J.
458, 469 (1994)).
The Court held that the trial judge did not err by providing the jury with
the Czachor charge. Ibid. The Court stated:
The jury in this case did not signal an intractable divide
that would warrant a declaration of a mistrial. Instead,
[the jury] communicated that its effort to reach
consensus on the issues had fallen short. The trial court
properly refrained from any inquiry that could have
compromised the confidentiality of the jury's
deliberations, and instructed the jury to resume
deliberations in accordance with the approved Czachor
charge. As both parties agree, the trial court properly
exercised its discretion in response to the jury's
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communication of an impasse by providing a Czachor
charge and directing the jury to resume deliberations.
[Ibid.]
In this case, the trial judge properly exercised his discretion by providing
the jury with the Czachor charge. The matter was not complex, but the jury had
been deliberating for less than two full days, and the jury's note did not indicate
that the difference of opinion between the jurors was "clearly intractable." The
jury's note merely indicated that the jurors had not been able to come to a
unanimous decision. The judge did not err by providing the Czachor charge and
instructing the jury to continue its deliberations.
We reject defendant's contention that the judge erred by failing to question
the jurors to determine if further deliberations would be fruitful. In State v.
Figueroa, 190 N.J. 219, 239 (2007), the jury had been deliberating for, at most,
one day and sent the judge a note stating that it was "unable to unanimously
agree on a verdict." The Court observed that when a jury indicates it is
deadlocked, "'the appropriate course . . . is to inquire of the jury whether further
deliberations will likely result in a verdict.'" Id. at 240 (quoting Valenzuela, 136
N.J. at 469).
The Court emphasized, however, that "it is not always necessary for the
court to do so." Ibid. (citing State v. Vergilio, 261 N.J. Super. 648, 655 (App.
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Div. 1993)). The Court found that the judge did not err by failing to make the
inquiry because the jury had only been deliberating a brief time. Id. at 239-40.
The same conclusion applies in this case.
IV.
Defendant argues that the cumulative effect of the claimed errors denied
him of his right to a fair trial and warrant reversal of his conviction. We
disagree.
"[W]here any one of several errors assigned would not in itself be
sufficient to warrant a reversal, yet if all of them taken together justify the
conclusion that defendant was not accorded a fair trial, it becomes the duty of
this court to reverse." State v. Orecchio, 16 N.J. 125, 134 (1954). If a defendant
alleges cumulative error but no error was prejudicial and the trial was fair, the
theory of cumulative error does not apply. State v. Weaver, 219 N.J. 131, 155
(2014). Here, there was no prejudicial error and defendant was afforded a fair
trial. We therefore reject defendant's contention that his conviction should be
reversed on the basis of cumulative trial errors.
Affirmed.
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