State v. Perez

832 A.2d 303, 177 N.J. 540, 2003 N.J. LEXIS 850
CourtSupreme Court of New Jersey
DecidedJuly 22, 2003
StatusPublished
Cited by46 cases

This text of 832 A.2d 303 (State v. Perez) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Perez, 832 A.2d 303, 177 N.J. 540, 2003 N.J. LEXIS 850 (N.J. 2003).

Opinions

The opinion of the Court was delivered by

[544]*544VERNIERO, J.

We are called on to evaluate the sufficiency of the State’s evidence in respect of defendant’s convictions for child luring and attempted child endangerment. Both offenses stemmed from two encounters with the same thirteen-year-old victim. The Appellate Division set aside the jury’s guilty verdict, concluding that the evidence presented against defendant was insufficient as a matter of law. We disagree and reverse.

I.

We derive our summary of facts largely from evidence adduced at trial. At the time of the two incidents, D.D. was a thirteen-year-old student in the seventh grade of middle school, and she lived with her parents in a municipality in Passaic County. Defendant, who was thirty-four-years old when the encounters occurred, resided about three blocks from D.D. The child testified that she had seen defendant in the neighborhood on three prior occasions, but that before the first incident they never had talked.

That incident took place on a rainy morning in February 1999 when D.D. was walking alone to school. She had neither an umbrella nor other rain gear, and was carrying a backpack. D.D.’s most direct path to school led her past defendant’s house. Defendant, driving a few blocks from his home and about one block from the school, pulled beside D.D. on the street and offered her a ride. She declined. He offered again, and she again said no. Defendant then drove away. D.D. told her father what had happened but he did not contact the police, believing it to be an isolated incident.

The second encounter occurred in May 1999, at about 9:00 p.m., when D.D. and her younger brothers, F.D. and K.D., were playing on a neighborhood street. D.D. was riding a mountain bike while her brothers were roller-blading. Defendant drove past them traveling in the same direction, and stopped his car. When D.D. was about even with the ear’s back seat, defendant turned while remaining in the car and asked her, “do you remember me?” She [545]*545ignored him. He called out to her again, asking her to come over, motioning with his hand. F.D. asked “what?” to which defendant replied, “not you, her.” (There is some inconsistency among the siblings’ testimony about the order of defendant’s statements and about how many times he called out to D.D.) Eventually, D.D. turned around and led her brothers in the opposite direction, towards their home. Defendant drove off without further contact with the children.

After D.D. had informed her father of the second incident, he called the police. A municipal police officer interviewed D.D., who described her two encounters with defendant and directed the officer to defendant’s house. The child then identified defendant’s car.

The officer transported defendant to police headquarters and informed him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After waiving those rights, defendant made a formal statement. He volunteered that on prior occasions he had seen D.D. walking to school or pushing a baby carriage. Defendant stated:

I see this girl all the time, all the time. I’ve only spoken to her twice during the winter and today. Sometimes on weekends or after school hours she’s with friends, and tonight I saw her on the bicycle. I know she’s younger than me, but I didn’t know she’s a minor. She’s cute, she’s nice, but her looks are deceiving. I thought she’s a teenager, about 16. Also her height, she’s a pretty tall girl.
■ I don’t want to give up anything like my marriage, but what impressed me about her is her looks, she’s attractive and her height. I don’t know much about her.
[On a prior occasion] [s]he was sitting on her front porch and I saw her talking to two young guys. I just drove by and we made eye contact and I just smiled at her. I was surprised that she lived there, I didn’t know. I wasn’t jealous of them, they were in her age bracket, I guess I’m trying to take advantage of how I look now while I can. I am obsessed with her, but not like anything out of the ordinary. I find her attractive and there are plenty of young ladies that go by that way and sometimes I get to talk to them. Sometimes girls going to school or joggers. I don’t usually fantasize about her, but sometimes if it come[s] to me mentally. [546]*546Mentally I’ve thought of asking her for a date, but actually no, it’s hard to come on to a lady straight. You have to play the game. I wish I could ask her out, but physically it is hard.
Yes, I said come over here [at the second encounter]. She didn’t come over, she made a U-turn with the two boys and went up [the] Avenue. I just smiled and continued on my way. I wanted to talk to her because she was across the street, and I wanted to tell her that if she remembers me and that I was the guy that lives over on the corner of [the street], I just wanted to see her up close and hear- her voice and what she’s like.

Defendant also admitted that the first incident had occurred as D.D. described it to the police.

A grand jury charged defendant with fourth-degree stalking in violation of N.J.S.A. 2C:12-10b (count one); third-degree child luring, in violation of N.J.S.A. 2C:13-6 (count two); and third-degree attempting to endanger the welfare of a child, in violation of N.J.S.A. 2C:5-1 and 2C:24-4a (count three). At trial, the State sought to prove that defendant had attempted to lure D.D. into his car to engage in some form of prohibited sexual conduct. The prosecution presented testimony from D.D., her two brothers, her father, and from the police officer who had taken defendant’s statement at police headquarters. The officer read much of that statement to the jury.

After the State had rested, defendant moved under Rule 3:18-1 for a judgment of acquittal, arguing that there was insufficient evidence to warrant a conviction. The court granted defendant’s motion in respect of the stalking charge (a determination that the State does not contest). The court, however, allowed the other two charges to proceed to the jury, reasoning:

The evidence does not indicate that either in February of 1999 or in May of 1999, that the conversation dealt with sex.
In fact D.D. herself testified that there was nothing sexual. The defendant did not do anything that, under the circumstances—did not follow her, did not offer to take her anywhere, did not show her anything; did not ask her any other questions and did not mention he liked her or thought she was pretty or attractive and this would be [applicable] to both February of 1999 and May of 1999.
What moves it in the direction of sex is the statement of the defendant.
[547]*547It’s very close in my judgment as to whether or not both Counts 2 and 3 should be dismissed. It’s a close question I believe, but as I indicated the standard is that the State does not have to exclude every reasonable hypothesis except that of guilt, and I think when you consider the totality of the circumstances in giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could he drawn therefrom, I think ...

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Cite This Page — Counsel Stack

Bluebook (online)
832 A.2d 303, 177 N.J. 540, 2003 N.J. LEXIS 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perez-nj-2003.