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

• Court: New Jersey Superior Court Appellate Division
• Decided: November 22, 2017
• Docket: A-3159-14T1
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

3 A-3159-14T1 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

12 A-3159-14T1 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.

13 A-3159-14T1