Opinion
DOCKET NO. A-4281-13T1
04-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAMUEL WOODY, Defendant-Appellant.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-06-00497. Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Tried to a jury, defendant Samuel Woody, a former Plainfield police sergeant, was convicted of second-degree official misconduct, N.J.S.A. 2C:30-2, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. The State contended that defendant arrested the female victim and later directed her to expose her vaginal area while he masturbated. On appeal, defendant argues that proof that the value of the benefit involved exceeds $200 is a material element necessary to elevate third-degree misconduct to second-degree official misconduct, and that the Court's failure to instruct the jury on this material element requires reversal of his official misconduct conviction. He also argues that the trial judge should have charged the jury on lewdness as a lesser-included offense of criminal sexual contact. Finally, defendant contends that the prosecutor's remarks during summation denied him a fair trial. Having considered these arguments in light of the record and applicable legal standards, we affirm.
I.
The victim, K.C., testified that she was romantically involved with another Plainfield police officer. K.C. became upset when she observed that officer's patrol car parked outside another woman's home. Consequently, K.C. removed the officer's personal cell phone from his patrol car and used it to call the other woman in an effort to speak with the officer.
We use initials to preserve the anonymity of the victim.
Shortly thereafter, at approximately 1:30 or 2:00 a.m. on July 24, 2011, defendant called K.C. and asked her to return the officer's phone. K.C. testified that she did not know defendant personally, but knew of him because he was friends with the officer whose phone she had taken.
K.C. traveled to police headquarters, where she attempted to hand the phone to defendant in the parking lot. Defendant did not take it but instead directed K.C. into the building. Once inside, K.C. met with defendant and Lieutenant Urbanski. K.C. told them that she took the officer's phone because she wanted to speak to him and that she then intended to return it.
K.C. testified that she was familiar with Plainfield police headquarters because her mother had "worked there as a secretary for about [twenty-five] years, and I was also a Plainfield police explorer." After speaking with defendant and Urbanski, K.C. was taken to a back room where she was fingerprinted, photographed, and served with papers. It was at this time that she first realized she was being charged with a crime, although she did not realize she was being arrested. Defendant then informed her that she was free to leave.
K.C. testified that defendant followed her outside police headquarters when she left at approximately 4:00 a.m., and asked her to meet him to "discuss what was going on." K.C. agreed, and met defendant near her apartment complex. She believed defendant was still on duty at this time because he was in his police uniform, had his police radio, and was driving his police vehicle. At defendant's direction, K.C. then followed defendant to a location near his cousin's house, where they arrived approximately fifteen to twenty minutes after K.C. was processed and released.
Defendant and K.C. parked their cars next to each other in an area behind the house. According to K.C., defendant informed her that she could receive five years in prison for entering the officer's patrol car and removing his phone. Defendant further stated that he was the individual who would file the paperwork and enter the charges into the computer, and that he could "get rid of the paperwork." K.C. testified that she interpreted this to mean that her charges would be dismissed. K.C. asked defendant if he could just trust her and get rid of the paperwork. Defendant responded that he could lose his job by doing so.
At that point, K.C. was preparing to leave when defendant asked to see her vaginal area. K.C. testified that she asked defendant at least ten times if he could just trust her, but he indicated that she would have to do something to gain his trust. Defendant then asked K.C. if she was recording their conversation, which led her to believe that he was doing something wrong and prompted her to begin recording. K.C. testified that she placed her cell phone in the ash tray of her car and pressed record. She then decided to accede to defendant's request because she had a young son and did not want to go to jail.
In addition to K.C.'s testimony, the jury heard the recorded conversation during which defendant repeatedly asked K.C. to open her legs and "lips" wider, despite her reluctance to do so. The following discussion ensued:
[Defendant]: You unsnap [your girdle]? Just lay back and open up.
[K.C.]: Oh my God this is so uncomfortable.
. . . .
[K.C.]: [] if I get a summons in the mail then that means you lied. You making me do this for nothing.
[Defendant]: I told you I'm going to take care of it. I don't know, I'm trying, you think I'm just making this shit up.
[K.C.]: I mean I don't know, I don't know you and I'm about to have to degrade myself just so I don't go to jail, just so I don't go to court.
[Defendant]: Come on open up let me see.
. . . .
[K.C.]: If I do this I'm not going to jail?
[Defendant]: No you're not going to jail.
[K.C.]: I'm not . . . going to jail. I'm not getting [a] summons.
[Defendant]: No.
[K.C.]: I'm not going to court. Huh?
[Defendant]: No you're not.
K.C. testified that she was seated in the front passenger seat of her car while defendant was observing her vaginal area. Defendant was standing outside the car, behind the open car door. From where she was positioned, K.C. could only see the upper portion of defendant's body, and she could not see him from the waist down. During the recording, defendant stated "my hands [are] in my pocket." K.C. asked defendant, "why is your hand down there," to which defendant responded, "I'm jerking on my dick."
Later that day, defendant arrived at K.C.'s apartment and served her with a summons and complaint that contained upgraded charges. When K.C. asked defendant "what about what I did," he replied, "that never happened."
Defendant offered a different version of events. He testified that he and K.C. had a dating relationship and that he had also assisted her financially. According to defendant, he was off-duty when K.C. arrived at his house after her arrest. The two then went out to the back yard, and K.C. was a willing participant in the sexual activity that followed. Defendant denied that he was acting in his position as a police officer, but rather "it was a[n] activity that took place with a personal friend that I was dating." Defendant denied masturbating or touching himself. He also testified that K.C. never touched herself, nor did he ever ask her to do so.
During the charge conference, with respect to the official misconduct charge, the trial judge proposed to instruct the jury as follows: "[h]ere, the State alleges the benefit was to have K.C. exhibit her vaginal area and for defendant to masturbate." Defense counsel replied, "[n]o objection." With respect to the sexual contact charge, the judge found "there is no evidence that [K.C.] said that she touched herself." Accordingly, in the final charge the judge instructed the jury that it was required to determine whether "defendant purposely committed an act of sexual contact by touching himself . . . ."
The jury found defendant guilty of both charges. On the official misconduct count, the judge sentenced defendant to a six-year prison term with a five-year parole ineligibility period. Defendant was sentenced to a concurrent eighteen-month prison term on the sexual contact conviction. He was also ordered to pay $13,039.82 in restitution. Additionally, the judge entered an order directing that defendant forfeit his public office and be forever disqualified from holding any such office. See N.J.S.A. 2C:51-2. This appeal followed.
II.
Defendant raises the following issues on appeal:
POINT IBecause defendant did not raise any of these issues at trial, our review is governed by the plain error standard. R. 2:10-2. Pursuant to this standard, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Ibid.; see State v. Galicia, 210 N.J. 364, 386 (2012).
THE FAILURE TO CHARGE A MATERIAL ELEMENT OF SECOND-DEGREE OFFICIAL MISCONDUCT WAS PLAIN ERROR. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. (Not Raised Below)
POINT II
THE FAILURE TO CHARGE LEWDNESS AS A LESSER-INCLUDED OFFENSE OF CRIMINAL SEXUAL CONTACT WAS PLAIN ERROR. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. (Not Raised Below)
POINT III
THE PROSECUTOR'S MISCONDUCT, INCLUDING ARGUING IN HIS CLOSING THAT THE STATE'S MAIN WITNESS WAS CREDIBLE BECAUSE SHE GAVE A FORTY-PAGE PRIOR CONSISTENT STATEMENT TO THE POLICE, DENIED DEFENDANT A FAIR TRIAL. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. (Not Raised Below)
A.
We first address defendant's argument that the State was required to prove that the value of the benefit to defendant exceeded $200 in order to convict him of second-degree, as opposed to third-degree, official misconduct. Defendant contends that the value of the benefit involved is a material element of the misconduct statute, and the court's failure to charge this material element was plain error that requires reversal of his conviction.
Our review of the official misconduct statute and applicable case law interpreting it leads us to a contrary conclusion. The statute provides:
A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:
a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or
b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of
official misconduct is a crime of the third degree.The term "benefit" is defined broadly to include "gain or advantage, or anything regarded by the beneficiary as gain or advantage . . . ." N.J.S.A. 2C:27-1a. It includes a "pecuniary benefit," which in turn is defined as "benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain." N.J.S.A. 2C:27-1f.
[N .J.S.A. 2C:30-2.]
In construing N.J.S.A. 2C:30-2, we have concluded that official misconduct is a crime of the second degree, except where the benefit involved is both pecuniary and $200 or less. See State v. Phelps, 187 N.J. Super. 364, 372-76 (App. Div.), certif. granted, 93 N.J. 309 (1983), aff'd 96 N.J. 500 (1984). We explained:
It is apparent from this section that the Legislature provided that ordinarily official misconduct is a crime of the second degree. Thus, if the Legislature made no statement at all with regard to the benefit sought to be obtained, any official misconduct would be a second degree offense. The Legislature did not provide that official misconduct in which the benefit obtained or sought to be obtained had a value of over $200 would be an offense of the second degree. Therefore, the reference to official misconduct in which the benefit obtained or sought to be obtained is of a value of $200 or less carves out an
exception from the more general treatment of official misconduct as a second degree offense.
. . . .
Thus, contrary to defendant's argument, "official misconduct is a crime of the second degree and [], rather than forming a substantive element of the offense, . . . N.J.S.A. 2C:30-2 'carves out an exception' where the benefit obtained or sought to be obtained is of a value of $200 or less." State v. Lake, 408 N.J. Super. 313, 321-22 (App. Div. 2009) (quoting Phelps, supra, 187 N.J. Super. at 373-74).
This exception is clearly pecuniary in nature. The use of the words "of a value" convinces us that the Legislature in this downgrading provision intended to treat more moderately offenses which, by an objective standard, could be measured to be relatively less consequential in nature than would otherwise be the case. It carved out a type of official misconduct for lenient treatment. But the Legislature did not in the downgrading provision deal with a benefit not subject to pecuniary measurement.
[Id. at 373-75.]
In the context of the sufficiency of a grand jury indictment, our Supreme Court recently determined that where an employee took her employer's documents for use in her civil employment discrimination action, "the trial court properly concluded that she acted with a 'purpose' to 'obtain a benefit' for herself" so as to support an official misconduct charge. State v. Saavedra, 222 N.J. 39, 60 (2015). Citing Phelps, the Court noted that "[o]fficial misconduct is a second-degree crime unless the value of the benefit obtained or deprived is '$200 or less,' in which case it is a third-degree crime. Defendant was indicted for official misconduct in the second degree." Id. at 58, n. 3 (citations omitted).
The Court expressly recognized that N.J.S.A. 2C:30-2 has "been held to encompass a variety of non-pecuniary benefits." Id. at 59. As examples, it cited State v. Parker, 124 N.J. 628, 641 (1991) (holding defendant's personal gratification derived from exposing students to sexually explicit material and discussion is benefit), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992); State v. Stevens, 115 N.J. 289, 306-07 (1989) (holding illegal strip search to satisfy sexual desire is benefit); State v. Quezada, 402 N.J. Super. 277, 285 (App. Div. 2008) (holding "joy of responding to fires as a volunteer firefighter" is benefit). Id. at 59-60. See also Lake, supra, 408 N.J. Super. at 322 (affirming defendant's second-degree misconduct conviction where defendant sought to obtain the benefit of winning an unopposed election, and holding that "[b]ecause that benefit is not subject to pecuniary measurement, the State was not required to provide evidence as to any pecuniary value with respect to it").
Contrary to defendant's argument, State v. Federico, 103 N.J. 169 (1986), does not compel a different result. Construing the kidnapping statute, N.J.S.A. 2C:13-1c, the Court in Federico held the State was required to prove that the victim was harmed or not released in a safe place in order to elevate kidnapping from a second-degree to a first-degree offense. Id. at 176. Thus, under the kidnapping statute, proof that the victim was not released safe and unharmed constitutes a material element of the offense. In contrast, N.J.S.A. 2C:30-2 defines official misconduct without regard to whether the benefit involved is pecuniary in nature. Thus, as we have pointed out, the value of any pecuniary benefit is not a substantive element of official misconduct, but merely an exception to the statute's general grading provision.
In the present case, any benefit that defendant gained or sought to gain in directing K.C. to expose her vaginal area while he masturbated is non-pecuniary in nature. It would clearly be repugnant, and violative of the Legislature's intent, to compel the State to ascribe a value to such sexual conduct. Moreover, the judge's instructions fully comported with the Model Charge, which requires that the jury "determine the fair market value of the benefit involved" only where the State alleges that the benefit involved is pecuniary. Model Jury Charges (Criminal), "Official Misconduct" (2006). A jury charge that tracks the language of the governing statute, and which is consistent with the applicable Model Jury Charge, is not plainly erroneous. State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). Accordingly, the jury was properly instructed on the material elements necessary to support defendant's second-degree official misconduct conviction.
B.
Defendant next argues that the trial court committed plain error when it failed to charge the jury on lewdness, N.J.S.A. 2C:14-4, as a lesser-included offense of criminal sexual contact. The State conceded at oral argument that, following defendant's conviction, the Court in State v. Jones, 224 N.J. 70, 97-98 (2016), recognized disorderly persons lewdness to be a lesser-included offense of fourth-degree criminal sexual contact. This concession, however, does not end our analysis.
N.J.S.A. 2C:1-8(e) provides that a court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See also State v. Maloney, 216 N.J. 91, 107 (2013). When a defendant requests a charge on a lesser-included offense, the trial court applies a two-prong test to determine if the charge should be given: "whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Ibid. (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994). "[S]heer speculation does not constitute a rational basis. The evidence must present adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." Id. at 118-19 (citations omitted). "'[A] contention that the jury might accept the prosecution's evidence in part and might reject it in part ought not to be sufficient.'" Id. at 115 (quoting Model Penal Code § 1.08 cmt. at 42-43 (Tentative Draft No. 5, 1956)).
The applicable standard is different when, as here, an included offense charge has not been requested. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Further, "the court need not sift through the record to determine whether any combination of facts would support a lesser charge." State v. Garron, 177 N.J. 147, 180 n. 5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).
Citing State v. Zeidell, 154 N.J. 417, 430-31 (1998), the Court in Jones "recognized that the key distinction between lewdness and sexual [contact] [is] the difference between mere exposure of an intimate part and the sexual touching of that part." Jones, supra, 224 N.J. at 98. In Jones, the young victim testified on direct examination that defendant was "playing with his penis." Ibid. However, on cross-examination she stated that a man had "flashed" her, and she had previously reported to a witness that the man had "flashed" her. Ibid. The Court noted that "[t]he act of 'flashing' as that term is used in general parlance can support a conviction for lewdness, but not for criminal sexual contact." Ibid. The Court concluded that, "[g]iven that ambiguity and potential contradiction in [the victim's] testimony, a reasonable jury could find defendant guilty of the lesser-included offense of lewdness if it was not persuaded that defendant had touched or manipulated his penis." Ibid.
In Zeidell, although the offensive conduct involved sexual contact, it was charged as sexual assault due to the age of the victims. Id. at 428.
We also note that sexual contact includes intentional touching of the victim by the actor, intentional touching of the actor by the victim, and sexual contact by the actor with himself. N.J.S.A. 2C:14-1d. In contrast, "lewdness is limited to exposing or displaying an actor's intimate parts rather than touching them." Zeidell, supra, 154 N.J. at 431 (emphasis added). --------
We find the circumstances of the present case distinguishable from those that warranted the lesser-included instruction in Jones. Here, the record is devoid of any evidence that defendant exposed himself to the victim. Rather, K.C. testified that she could only see defendant from the waist up. During the recorded conversation, defendant stated that his hand was in his pocket. When asked why his hand was "down there," defendant replied "I'm jerking on my dick." For his part, during his testimony, defendant denied masturbating or exposing himself to K.C.
The evidence in the present case is thus entirely consistent with touching rather than exposure. While our result may have been different had defendant requested a lewdness charge, we conclude that, under the controlling standard, the facts in evidence do not "clearly indicate the appropriateness of" such charge. Savage, supra, 172 N.J. at 397. We therefore find no plain error in the trial court's failure to sua sponte charge lewdness as a lesser-included offense.
C.
Finally, defendant argues that the prosecutor's improper remarks in his closing statement were so prejudicial as to warrant the reversal of both convictions. We disagree.
Our Supreme Court has articulated the standard for review of alleged prosecutorial misconduct with respect to summation remarks:
An appellate court, in reviewing the trial record to determine whether the conduct of the prosecutor exceeded these bounds, must consider several factors, including whether "timely and proper objections" were raised, whether the offending remarks "were withdrawn promptly," and whether the trial court struck the remarks and provided appropriate instructions to the jury. Additionally, an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel. If, after completing such a review, it is apparent to the appellate court that the remarks were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. In contrast, if the prosecutorial remarks were not "so egregious that they deprived the defendant of a fair trial," reversal is inappropriate.
[State v. Smith, 212 N.J. 365, 403-04 (2012) (internal citations, parentheticals, and alteration omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).]
Preliminarily, we again note that, at trial, no objection was posed to the prosecutor's comments that defendant now contends were improper.
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.
[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).]
Defendant now contends that the prosecutor improperly bolstered K.C.'s testimony when he argued to the jury that K.C. was credible because she previously gave a forty-page statement that was essentially consistent with her trial testimony. However, the prosecutor's remarks were in direct response to defense counsel's closing argument which emphasized that K.C.'s testimony at trial, that her mother had worked for the Plainfield Police Department for twenty-five years, conflicted with her prior statement in which she indicated her mother worked there for twenty-eight years. Consequently, defense counsel suggested that K.C.'s willingness to deceive the jury on such a minor point was indicative of her overall lack of credibility.
We discern the prosecutor's summation that followed not as an attempt to vouch for K.C.'s credibility or to mislead the jury. Rather, taken in context, the comments were in response to defendant's argument casting doubt about K.C.'s credibility. "A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001). The prosecutor did not vouch for the State's witness by "express[ing] a personal belief or opinion as to the truthfulness" of K.C.'s testimony or her prior statement. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993).
Defendant also argues that the prosecutor improperly made the following inflammatory and emotional appeal to the jury:
That's all [K.C.] cared about, I've got to take care of my kid, and that guy capitalized on that and did these things to her because of that. And for that, ladies and gentleman, the case is clear you need to find him guilty, you need to get this over with because that's despicable. Besides being criminal, it's despicable.However, K.C. testified that she was her young son's sole caretaker and she was concerned for his welfare should she go to jail. She cited this concern as the reason she acceded to defendant's request to expose her vaginal area. Viewed as a whole, the prosecutor's remarks about K.C.'s concern for her son represented fair comment on the trial testimony. Where, as here, "a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson (Johnson I), 31 N.J. 489, 510 (1960)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION