Opinion
DOCKET NO. A-3816-13T1
03-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARIO CRISPIN, a/k/a JOSE ALVARADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-10-1615. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury convicted defendant of four counts of Indictment No. 12-10-1615: fourth-degree criminal sexual contact against J.J. (Juana) when she was less than sixteen years old, N.J.S.A. 2C:14-3(b) (count one); third—degree endangering the welfare of Juana, N.J.S.A. 2C:24-4(a) (count two); third-degree endangering the welfare of A.T. (Ana) when she was less than sixteen years old, N.J.S.A. 2C:24-4(a) (count three); and second-degree endangering the welfare of W.T. (Wanda) by engaging in sexual conduct with her while possessing a legal duty for her care, N.J.S.A. 2C:24-4(a) (count four). Before trial, the State moved to sever the remaining count, fourth-degree forcible sexual contact with R.T., N.J.S.A. 2C:14-3(b) (count five). Defendant was subsequently sentenced to an aggregate term of eight years in prison and count five was dismissed by the State.
We use pseudonyms for the victims for ease of reference.
In this appeal, defendant seeks reversal of his convictions arguing the charge to the jury was improper, N.J.S.A. 2C:24-4(a) was unconstitutionally vague as applied, and he did not have the required supervisory power over Wanda to permit a conviction for second-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1). We reject these arguments and affirm.
The trial testimony revealed the following facts. The three victims are first cousins and close friends. Defendant was a family friend whom the girls had known since birth. Defendant and the family of the three victims all come from the Dominican Republic.
In 2009, Wanda, defendant's goddaughter, lived with defendant for nine months while she was a junior in high school. While she was living in defendant's home, defendant told Wanda, "[T]oday I'm going to teach you how to kiss a boy." He told her "that [she] needed to open [her] mouth and stick out [her] tongue to kiss a guy." When she backed away and refused, he asked "Why are you scared of me? I'm not going to do anything wrong with you." In response, Wanda again rejected defendant's advances, stating that she can learn how to kiss on her own. Defendant then told her he would teach her using an apple. He later told Wanda "Don't tell anyone because I can get deported or I can get arrested." After Wanda moved into her stepmother's house, defendant approached her when she was alone and said, "I am going to peck you on the lips from father to daughter." He did kiss her on the lips, but Wanda did not tell anyone. She felt like she "owed him a debt" because he had allowed her to live in his home.
Around the same time as this was happening, defendant visited Juana's home daily. After Juana turned twelve years old, defendant began to talk to her about boys. He told Juana that she was getting to the age where she would be old enough to have a boyfriend and began talking to her about kissing boys. He explained to Juana that if she told anyone about the discussions, "he would go to jail and be deported back to" the Dominican Republic, leaving his family.
When Juana was in the seventh grade, defendant began showing her how to kiss. He brought her to a park and engaged in a "tongue kissing session" ostensibly to teach her how to kiss boys. Twice he put his hand on her buttocks, placed his lips on her mouth, and told her to move her tongue in his mouth for a minute. During defendant's "lessons," a man walking his dog passed by and defendant changed their location to continue the session. Defendant then told Juana to turn around and he put her buttocks against his groin. He moved her around against his penis, moaning and grunting. On the way home, defendant told Juana, "[R]emember to not tell anybody in your house."
Later that same month, defendant engaged in another "tongue kissing session" with Juana in his car, placing his hand on her breast and rubbing it. As he placed his hand on Juana's breast, he told Juana, "I love you." After defendant proclaimed his love, Juana avoided defendant. Juana felt embarrassed; she felt she had let her younger sisters and cousins down, and that her mother would be angry at her if she found out what had happened.
A month later, Juana warned her younger cousin, Ana, that defendant "was getting ready to go on to" her. Defendant had asked Juana if it would be all right to approach Ana and asked her if Juana thought Ana would tell her mother. In response, Juana told defendant to stay away from Ana. Juana also warned Ana. After Juana told Ana about her tongue kissing sessions with defendant, Ana was shocked.
Although Ana tried to avoid defendant, he started coming over to her house more often. In June 2012, defendant entered Ana's room and told Ana he was going to teach her how to kiss. He took Ana to the bathroom, where he explained to her that she had to "wet" her lips and stated that, "If you don't do it longer than two seconds, it's not a real kiss." Defendant kissed Ana's lips several times until they heard Ana's father coming upstairs. Defendant told Ana not to tell anyone about the "lesson" or he would be "arrested and deported." As soon as defendant left, Ana called Juana to tell her what had happened.
The two girls decided to tell their older cousin Wanda, because defendant told Juana that "he was also teaching [Wanda]" how to kiss. They told Wanda on July 7, 2012, at a pool party where defendant was present. The girls were upset and spoke in private about their interactions with defendant. Wanda confronted defendant, who denied that he had engaged in sexual activity with the two younger girls. He told Wanda that the two younger girls were lesbians, and that if he wanted to engage in such activity, he would do so with Wanda, who was then over eighteen years old.
Defendant later told another relative that the two younger girls, who he said were lesbians, were making false accusations. That relative told Juana's mother that defendant said Juana was a lesbian. Juana's mother subsequently interrogated Juana about defendant's accusation and Juana finally told her mother about defendant's behavior. The three cousins then told the entire family about defendant's behavior and the police were called.
Defendant testified that he never attempted to instruct Wanda how to kiss, never kissed or touched Juana, and never kissed Ana. According to defendant, he observed Juana and Ana "touching each other, kissing each other, and rubbing their hands on each other's private parts." He testified that he threatened to tell the children's parents about their actions and the girls subsequently accused him of sexual misconduct.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT FOUR OF THE INDICTMENT.
POINT II: AS APPLIED TO COUNTS THREE AND FOUR OF THE INDICTMENT, N.J.S.A. 2C:24-4A IS VOID FOR VAGUENESS BECAUSE IT FAILS TO PROVIDE ADEQUATE NOTICE OF PROHIBITED
CONDUCT AND LIKEWISE FAILS TO PROVIDE THE STATE WITH GUIDELINES FOR ENFORCEMENT, LEADING TO ARBITRARY RESULTS. U.S. CONST., Amend. XIV; N.J. CONST. Art. 1, Para. 1. (Not Raised Below).
POINT III: THE TRIAL JUDGE'S FAILURE TO GIVE THE JURY A COMPLETE DEFINITION OF THE "KNOWING" STATE OF MIND DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. (Not Raised Below).
POINT IV: THE TRIAL JUDGE COMMITTED SERIOUS ERROR IN GIVING THE JURY AN INAPPROPRIATE AND CONFUSING INSTRUCTION THAT ONLY SERVED TO INCREASE THE EXTREME PREJUDICE THAT TRYING THE ACCUSATIONS OF ALL THREE GIRLS IN A SINGLE TRIAL CAUSED THE DEFENDANT. (Not Raised Below).
In a supplemental pro se brief, defendant raises the following issue, providing further argument in favor of Point I of his appellate attorney's brief:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO ACQUIT HIM OF COUNT FOUR OF THE INDICTMENT.
I
Defendant argues in Point I that the trial court erred in denying his motion to dismiss count four of the indictment because defendant's conduct was not sexual in nature and defendant did not possess the legal duty to care for Wanda.
"We review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014). Pursuant to Rule 3:18-1, a trial court shall grant a defendant's motion for acquittal "if the evidence is insufficient to warrant a conviction." In evaluating whether evidence is insufficient, our Supreme Court enunciated that a court "must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt." State v. Williams, 218 N.J. 576, 593-94 (2014).
Pursuant to N.J.S.A. 2C:24-4(a)(1), "[a]ny 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." "The Legislature intended the child-endangerment statute to criminalize a broad array of sexual activity involving children." State v. Perez, 177 N.J. 540, 549 (2003). In expressing that intent, our lawmakers have "consistently strengthened the statute, broadened its reach, and toughened its penalties." State v. Bryant, 419 N.J. Super. 15, 27 (App. Div. 2011). Thus, we recognized that we should not construe the child-endangerment statute in a way that "would weaken the very protection of children that the Legislature has for decades striven to achieve." Ibid.
While the term "sexual conduct" is not defined in N.J.S.A. 2C:24-4, it is well-recognized that the statute does not require direct sexual contact. See State v. Hackett, 323 N.J. Super. 460, 472 (App. Div. 1999) (holding that "'sexual conduct' includes showing nude explicit photographs to children"), aff'd as modified, 166 N.J. 66 (2001). Based on the totality of the circumstances, mere sexual conversations or encouragement of sexual conduct may be sufficient for a jury's finding of "sexual conduct." See State v. McInerney, 428 N.J. Super. 432, 438, 450 (App. Div. 2012) (holding that defendant's encouragement of sexual conduct satisfied the element), certif. denied, 214 N.J. 175 (2013); see also State v. Maxwell, 361 N.J. Super. 502, 517-18 (Law Div. 2001) (recognizing that "sexually explicit conversation" may "rise[] to the level of 'sexual conduct'"), aff'd o.b., 361 N.J. Super. 401 (App. Div.), certif. denied, 178 N.J. 34 (2003).
The evidence of sexual conduct presented by the State was sufficient to warrant submission to a jury. Based on the circumstances of the present case, defendant's predatory conduct towards Wanda constituted "sexual conduct" as contemplated by the child-endangerment statute. Defendant initiated a sexual relationship with each of the three victims by first suggesting that the child acquiesce to kissing lessons. Despite Wanda's initial rejection, defendant continued to provide explicit instructions. Further, after Wanda moved out of defendant's residence, defendant persisted and eventually succeeded in kissing Wanda on the lips. He went on to more egregious sexual behavior with the younger cousins. The evidence of defendant's predatory pattern of behavior, with direct sexual contact as his goal, was sufficient to warrant a child endangerment conviction.
We are also unpersuaded by defendant's argument denying his supervisory role over Wanda. Our Supreme Court has recognized that a defendant's supervisory position over a child may be based on "less-structured relations" and may apply to a person "living with the child." State v. Sumulikoski, 221 N.J. 93, 107-08 (2015) (quoting State v. Galloway, 133 N.J. 631, 659 (1993)). In fact, a defendant's responsibility for the care of a child "may arise from informal arrangements." McInerney, supra, 428 N.J. Super. at 442 (quoting Galloway, supra, 133 N.J. at 661). Here, Wanda was living with defendant in his home without her parents. Defendant described their relationship on the stand as a father-daughter relationship. In addition, defendant's status as Wanda's godfather, as well as his respected position in the family, enhances his "responsibility for the care of" Wanda as required by N.J.S.A. 2C:24-4(a)(1). The State presented sufficient evidence both that defendant was in a supervisory role and that he engaged in sexual conduct with Wanda.
II
Defendant's remaining arguments are raised as plain error. In applying the plain error standard, we disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. To warrant reversal, "[t]he error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. Weston, 222 N.J. 277, 294 (2015) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2). The defendant has the burden of demonstrating the existence of plain error. Id. at 295.
A
Defendant contends in Point II of his brief that N.J.S.A. 2C:24-4(a) is void for vagueness as applied to him because the statute fails to provide a definition of "sexual conduct." Defendant was convicted in count four of second-degree endangering the welfare of a child by engaging in sexual conduct with Wanda while she was living with him. The behavior alleged during that period of time was suggestively importuning her to let him teach her how to kiss boys on the mouth. Defendant argues that because the act of kissing family members on the mouth is accepted in various cultures, he lacked notice that his actions would constitute "sexual conduct" as contemplated by the statute.
"A presumption of validity attaches to every statute." State v. Lenihan, 219 N.J. 251, 266 (2014). "A fundamental element of due process is that a law 'must give fair notice of conduct that is forbidden or required.'" State v. Pomianek, 221 N.J. 66, 84 (2015) (quoting FCC v. Fox Television Stations, Inc., ___ U.S. ___, 132 S. Ct. 2307, 2317, 183 L. Ed. 2d 234, 245 (2012)). A statute is void for vagueness only "if it is so vague that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" Lenihan, supra, 219 N.J. at 267 (quoting Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 279-80 (1998), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770 (1999)). "A law that is challenged as vague as applied must lack sufficient clarity respecting the conduct against which it is sought to be enforced." Visiting Homemaker Serv. v. Bd. of Chosen Freeholders, 380 N.J. Super. 596, 612 (App. Div. 2005).
N.J.S.A. 2C:24-4(a) was not unconstitutionally vague as applied to defendant. A person of ordinary intelligence would reasonably understand that offering a child boyfriend-kissing lessons in preparation for later more explicit sexual contact constitutes sexual conduct as proscribed by the child-endangerment statute. After defendant sought to teach Wanda how to kiss when she was living in his home, he went on to engage in more serious sexual behavior with Wanda's two cousins, starting with kisses on the mouth. His serial sexual involvement with the two other children clarified any ambiguity about the nature of his conduct with Wanda. While defendant seeks to defend his actions by construing them as innocuous familial signs of affection, defendant's instructions to Ana and Wanda to keep quiet because his actions could result in his arrest and deportation belie such a claim.
B
Defendant next contends in Point III of his brief that he was deprived of a fair trial with regard to counts two, three, and four because the trial judge failed to give the first paragraph of the model jury charge on "knowingly":
A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that such conduct will cause a result. "Knowing," "with knowledge," or equivalent terms have the same meaning.
[Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Abuse or Neglect (Second Degree)" (2014).]We reject defendant's argument.
"Appropriate and proper jury charges are essential to a fair trial." State v. R.T., 411 N.J. Super. 35, 46 (App. Div. 2009), aff'd by an equally divided court, 205 N.J. 493 (2011). "'[E]rroneous instructions on material points are presumed to' possess the capacity to unfairly prejudice the defendant." State v. Baum, ___ N.J. ___, ___ (2016) (slip op. at 22) (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)). "In the context of jury instructions, plain error is '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)). In evaluating the propriety of the jury instruction, the charge must be read "as a whole." State v. McKinney, 223 N.J. 475, 494 (2015) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
Although the trial judge did not provide the jury with the initial paragraph of the criminal model jury charge, which essentially restates the dictionary definition of knowingly, the judge charged the jury with the essential legal definition of the requisite state of mind:
According to Merriam-Webster, knowledge is defined as "awareness of something: the state of being aware of something." Knowledge, Merriam-Webster, http://www.merriam-webster.com/dictionary/knowledge (last visited Feb. 29, 2016).
Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inference from Defendant's conduct, words or acts. A state of mind is rarely susceptible to direct proof, but must ordinarily be inferred from the facts. And again, as I told you with regard to purpose, it is not necessary that the State produce witnesses to testify that an accused had a certain state of mind when he did a particular thing.
It is within your power to find that such proof has been furnished to you beyond a reasonable doubt by inferences which may arise from the nature of the acts and conduct and from all the defendant said and did at a particular time and place, and from all the surrounding circumstances established by the evidence.
[See Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Abuse or Neglect (Second Degree)" (2014).]
The judge also appropriately guided the jury by sufficiently explaining that knowledge can be "determined by inference from defendant's conduct, words or acts" and by distinguishing the mens rea terms "knowledge" and "purpose." Further, we fail to see, and defendant fails to explain, how the inclusion of a more detailed definition of "knowingly" would have made any difference to the outcome of the trial. Defendant did not maintain that the jury was confused, or that the jury mistakenly believed that defendant's convictions required a less demanding mens rea. By instructing the jury on the comparative standards of "knowingly" and "purposeful," the trial judge informed the jury that the criminal behavior alleged in the indictment was subject to the less-stringent state of mind requirement. Further, the record is replete with evidence of defendant's attempts to conceal his actions and his awareness of the sexual nature of his conduct. Contrary to defendant's assertion, defendant cannot show error, plain or otherwise, in the jury charge defining the state of mind "knowingly."
C
In Point IV, defendant's final plain error argument, he contends that the trial judge erred by giving the jury an inappropriate and confusing Rule 404(b) instruction regarding the accusations of the three girls. We find no support to defendant's argument.
Defendant concedes that severance of these charges was not raised or appropriate in these circumstances, where the facts regarding the cousins are so intertwined. See R. 3:7-6. --------
Pursuant to Rule 404(b), evidence of other crimes is inadmissible "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). However, "other crimes" evidence "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. Defendant's "unusual and distinctive" conduct also could be viewed "as to earmark the crime as defendant's handiwork" or "modus operandi." See State v. Fortin, 162 N.J. 517, 530 (2000) (quoting State v. Reldan, 185 N.J. Super. 494, 502-03 (App. Div.), certifs. denied, 91 N.J. 543 (1982)). "When a jury instruction follows the model jury charge, although not determinative, 'it is a persuasive argument in favor of the charge as delivered.'" State v. Whitaker, 402 N.J. Super. 495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000)), aff'd, 200 N.J. 444 (2009).
Here, the trial judge properly provided the jury with a standard Rule 404(b) charge, tailored to the specific facts of this case. In giving the jury instruction, the trial judge tracked the language of the model jury charge. The judge also properly explained to the jury the limited purpose of each victim's testimony when considering the charges relating to the other victims. She carefully limited the jury's consideration of each victim's testimony concerning defendant's alleged sexual conduct to the single issue of defendant's motive:
You heard testimony from [Wanda], [Juana], and [Ana] about criminal acts committed upon them by defendant at different times and different dates.
. . . .
Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other[] crimes, wrongs, or acts when it is offered only to show he has a disposition or tendency to do wrong and, therefore, must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied the defendant committed the other crime. If you are not satisfied, you may not consider it for any purpose.
The rules of evidence do, however, permit such testimony where such evidence relates to some other fact in issue, including motive or intent. Here the evidence was offered as it may bear on the issue of whether the alleged sexual conduct with [Wanda], [Juana], and [Ana] was committed with the intent to obtain sexual gratification.
So, in other words, you can use the testimony of [Wanda] to decide whether that may bear upon defendant's motive for sexual conduct allegedly committed upon [Ana] and [Juana]. Similarly, you may use the testimony of [Juana] to decide whether that may bear upon defendant's motive for sexual conduct allegedly committed upon [Wanda] and [Ana]. Similarly, you may use the testimony of [Ana] to decide whether that may bear upon defendant's motive for sexual conduct allegedly committed upon [Wanda] and [Juana].
Whether this evidence does in fact demonstrate defendant's intention in touching the victims was for his own sexual gratification, assuming you are convinced that he did so, is for -- is for you to decide. You may decide that the evidence does not demonstrate defendant's intent to obtain sexual gratification and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide the evidence does demonstrate defendant's intent to obtain sexual gratification and use it for that specific purpose.Although defendant in his testimony denied any sexual conduct including kissing, defense counsel in summation argued that even if the jury believed Wanda, she did not perceive defendant's conduct as "sexual in nature."
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes, wrongs, or acts, or that he is a bad person. That is, you may not decide that just because the defendant has committed a crime, wrong, or act he must be guilty of the particular crime charged. Each charge is to be decided separately. I have admitted the evidence only to help you decide the specific question of defendant's intent to obtain sexual gratification. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs, or acts.
[(Emphasis added).]
In closing, the State argued that defendant's conduct was entirely "for his own sexual gratification" and rejected the characterization of defendant's conduct as innocuous teaching lessons. Defendant's motive to engage in the alleged conduct was thus a genuine disputed issue at trial. Further, as defendant's distinct pattern of conduct was indicative of his modus operandi, the judge did not commit error in issuing the Rule 404(b) charge to the jury.
The jury charge as a whole was appropriate and proper. The statute was not vague as applied and the evidence of defendant's conduct was sufficient to sustain his guilt.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION