RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-1810-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.E.D.,
Defendant-Appellant.
_________________________
Submitted May 2, 2017 – Decided July 7, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Indictment
No. 12-04-0882.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Roberta
DiBiase, Senior Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant M.E.D.1 was convicted of crimes connected with
sexual assaults against her younger sister, K.B. Defendant was
indicted with D.C., her boyfriend at the time of the assaults.
She was sentenced to an aggregate term of fifteen years in prison
with an eighty-five percent parole disqualifier pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2. After considering the
issues raised on appeal, we affirm defendant's convictions but
remand for resentencing and a hearing regarding the monetary
sanction.
K.B. testified to the following facts at trial. At the time
of trial, she was fifteen years old. In the summer of 2010, she
was twelve years old and lived with her "surrogate grandmother"
in Jackson. Two years earlier, K.B. had lived with defendant, who
was about fourteen years older, in defendant's apartment in
Lakewood for almost a year. K.B. visited defendant "on weekends,
usually every other week" and sometimes after school during the
week. Every few weeks during the summer, K.B. stayed with
defendant "for a week or two."
While visiting defendant, K.B. met D.C., defendant's thirty-
year-old boyfriend. In K.B.'s presence, D.C. suggested defendant
teach K.B. how to engage in safe sex so that K.B. could "have an
1
We use initials to preserve the confidentiality of the victim.
R. 1:38-3(c)(12).
2 A-1810-14T3
outlet with them." "[Defendant] was very agreeable with what
[D.C.] had suggested." Defendant and D.C. told K.B. that she was
not allowed to tell anyone about their sexual encounters or "they
wouldn't love [her] anymore, wouldn't talk to [her], [and] they'd
say things to [her] mother to get [her] in trouble."
K.B. had joint sexual encounters with D.C. and defendant on
three occasions in the summer of 2010 at defendant's apartment in
Lakewood. During the first encounter, D.C. and defendant engaged
in sexual intercourse on the bed while K.B. sat in a chair facing
the bed and watched. D.C. and defendant instructed K.B. to take
her pants off and touch herself. K.B. followed their directions,
took off her pants and inserted her fingers into her vagina.
During the two subsequent encounters, defendant and D.C.
performed vaginal and oral sex in front of K.B. Defendant and
D.C. taught K.B. "how to use sex toys such as a vibrator and a
dildo." Defendant held K.B.'s legs open while D.C. inserted a sex
toy into K.B.'s vagina. Defendant and K.B. also took turns
performing oral sex on D.C.
K.B. also engaged in sexual conduct with defendant two times
when D.C. was not present. Defendant masturbated while watching
pornography. Defendant "had a dildo that also had a built-in
vibrator mechanism on the top of it." Defendant inserted the sex
toy into K.B.'s vagina. K.B. testified, "When I was hesitant
3 A-1810-14T3
about necessarily how far to stick it in, [defendant] came over
and said, here, let me show you how far you should, and then pushed
it in further into my vagina."
On February 13, 2012, a Division of Youth and Family Services
(Division)2 worker visited K.B.'s school to speak with K.B. about
her "safety." The worker testified that during the meeting, K.B.
disclosed that "her sister's boyfriend raped her multiple times
and that her sister was present during some of those incidents."
The worker testified that "[K.B.] seemed relieved to be able to
tell somebody, get it off her chest."
Defendant, who did not testify, admitted her involvement in
a videotaped statement she gave to the police. She stated on the
tape that when K.B. was eleven, K.B. said she was sexually active
and asked defendant questions about sex. Defendant said that she
was concerned and wanted to educate K.B. about safe sex. Defendant
admitted to her part in the sexual activity alleged by K.B.
Defendant and D.C. were indicted in three counts with
committing first-degree aggravated sexual assault against K.B.
when she was under thirteen years old, between June and August
2010 in Lakewood, N.J.S.A. 2C:14-2(a)(1) (counts one through
three). Count four charged defendant alone with the same crime.
She was also charged in count five with the same crime between
2
Currently the Division of Child Protection and Permanency.
4 A-1810-14T3
August and September 2010. Counts six through eight charged
defendant and D.C. with three counts of second-degree sexual
assault against K.B. between June and August 2010 in Lakewood,
N.J.S.A. 2C:14-2(b). Counts nine through twelve charged defendant
alone with second-degree endangering the welfare of K.B. between
June and August 2010 in Lakewood, N.J.S.A. 2C:24-4(a). Count
thirteen charged defendant with the same crime between August and
September 2010. The jury convicted defendant of all charges and
she was given concurrent sentences.3
Defendant raises the following issue on appeal:
POINT ONE: THE TRIAL COURT VIOLATED N.J.R.E.
404(b) BY ALLOWING A DYFS WORKER TO TESTIFY
THAT SHE INTERVIEWED K.B. ABOUT HER SAFETY,
DEPRIVING [DEFENDANT] OF HER RIGHT TO A FAIR
TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING
INSTRUCTION WAS ERROR. (Not Raised Below)
POINT TWO: THE TRIAL COURT'S ERRONEOUS JURY
CHARGES ON ENDANGERING THE WELFARE OF A CHILD
DEPRIVED [DEFENDANT] OF HER RIGHT TO DUE
PROCESS AND A FAIR TRIAL. (U.S. Const. Amends.
V, VI and XIV; N.J. Const. (1947), Art. I [¶]1,
9, and 10.)
POINT THREE: THE TRIAL COURT ABUSED ITS
DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE
3
D.C. was tried separately. Unlike defendant, D.C. admitted only
one incident of sexual activity to the police. The jury evidently
did not believe much of K.B.'s testimony about D.C.'s actions
because he was acquitted on most counts. On appeal, we reversed
his conviction, due to errors in the jury charge and verdict sheet,
which mandated reversal and made a retrial impossible without
violating Double Jeopardy principles. State v. D.C., No. A-2825-
14T4 (App. Div. June 19, 2017).
5 A-1810-14T3
SENTENCE AND A $14,000.00 SEX CRIMES VICTIM
TREATMENT FUND PENALTY.
I
Defendant argues as plain error that the testimony by the
Division worker led the jury to assume that defendant was involved
in an unsafe situation that caused the caseworker to meet with
K.B. Defendant argues that the trial court failed to perform a
Cofield analysis "to avoid the over-use of extrinsic evidence of
other crimes or wrongs." State v. Cofield, 127 N.J. 328, 338
(1992); N.J.R.E. 404(b).
The caseworker's testimony was short and constituted "fresh
complaint" evidence. See State v. R.K., 220 N.J. 444, 455 (2015).
It would have been unreasonable for a jury to assume that defendant
was responsible for creating the concerns that led the Division
worker to speak with K.B. because K.B. was not living with
defendant at that time. Defense counsel and the prosecutor asked
questions to clarify that the caseworker's initial reason for the
inquiry was unrelated to defendant.
When reviewing a trial judge's ruling on the admissibility
of evidence, we must determine whether there has been an abuse of
discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). When the
defendant failed to object to the admission of testimony, this
court reviews the admission of such evidence "for plain error,
only reversing if the error is 'clearly capable of producing an
6 A-1810-14T3
unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting
R. 2:10-2).
Pursuant to N.J.R.E. 403, evidence that is relevant may be
inadmissible if the risk of prejudice substantially outweighs its
probative value. "In relevance determinations, the analysis
focuses on 'the logical connection between the proffered evidence
and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007)
(quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)).
"The standard for the requisite connection is generous: if the
evidence makes a desired inference more probable than it would be
if the evidence were not admitted, then the required logical
connection has been satisfied." Ibid. (citing State v. Davis,
96 N.J. 611, 619 (1984)).
The caseworker's testimony was relevant as it provided the
jury with an explanation as to how the conduct became known to the
authorities. The risk of prejudice was minimal because the
caseworker told the jury that the Division was not investigating
any mistreatment of K.B. by defendant.
After the caseworker's testimony, the trial judge addressed
the jury regarding the limited purpose of her testimony, stating:
The only reason that evidence is permitted is
to negate the inference that K.B. failed to
confide in anyone about the sexual offense.
In other words, the narrow purpose of the
fresh complaint rule is to allow the State to
introduce such evidence to negate any
7 A-1810-14T3
inference that K.B. failed to tell anyone
about the sexual offense and that, therefore,
her later assertion could not be believed.
The testimony was not unfairly prejudicial to defendant and
does not support defendant's argument, raised for the first time
on appeal. N.J.R.E. 404(b), which regulates the admissibility of
other crimes or bad acts, was not applicable.
II
Defendant argues next that the trial court failed to properly
instruct the jury regarding the charge of endangering the welfare
of a child. Pursuant to N.J.S.A. 2C:24-4(a), defendant must have
had a legal duty to care for K.B. or assumed responsibility for
the care of K.B. to be guilty of second-degree endangering the
welfare of a child. Defendant contends that the trial court
mistakenly refused to include language in its charge pursuant to
State v. Galloway, 133 N.J. 631 (1993) and State v. McInerney, 428
N.J. Super. 432 (App. Div. 2012), certif. denied, 214 N.J. 175
(2013), which would have clarified that defendant's relationship
with K.B. did not trigger the requisite duty of care.
Additionally, defendant argues that further harm was caused
by the court when it agreed to instruct the jury that evidence of
K.B.'s prior sexual activity could be used as evidence of the lack
of intent to debauch the morals of the child and then did not do
so.
8 A-1810-14T3
The charge of second-degree endangerment of a child applies
only to a "person having the legal duty for the care of a child
or who has assumed responsibility for the care of a child."
N.J.S.A. 2C:24-4(a). In Galloway, our Supreme Court distinguished
between those that assume a "general and ongoing responsibility"
for the supervision of the child and those who only assume
"temporary, brief, or occasional caretaking functions." Galloway,
supra, 133 N.J. at 661. In Galloway, the Court held that
occasional caretakers would be "chargeable with child endangerment
in the fourth degree." Id. at 662. This type of supervision
includes infrequent and irregular babysitting. Ibid.
Interpreting the Legislature's intent, the Court in Galloway
also pointed out:
the third-degree crime of child endangerment
should apply to those who have assumed a
general and ongoing responsibility for the
care of the child. That responsibility may
be legal and formal or it may arise from
informal arrangements. It may be based on a
parental relationship, legal custody, or on
less-structured relations; or it may arise
from cohabitation with the child's parent.
The actor, however, must have established a
continuing or regular supervisory or caretaker
relationship with the child that would justify
the harsher penalties of the third-degree
crime of child endangerment under N.J.S.A.
2C:24-4.
[Id. at 661.]
9 A-1810-14T3
"[T]he profound harm that can be inflicted on a child by one
who holds a position of trust is what propels the offense of
endangering from a third- to a second-degree offense." State v.
Sumulikoski, 221 N.J. 93, 108 (2015).
The State must prove the following elements
beyond a reasonable doubt to convict a person
of second-degree endangerment: (1) the victim
was a child; (2) defendant knowingly engaged
in sexual conduct, which would impair or
debauch the morals of a child; and (3)
defendant (a) had a legal duty for the care
of the child or (b) had assumed responsibility
for the care of the child.
[Ibid. (citing N.J.S.A. 2C:24-4(a)(1)).]
"The considerations under N.J.S.A. 2C:24-4(a) focus more on the
dependence and trust the child places in the adult." McInerney,
supra, 428 N.J. Super. at 449.
"[C]lear and correct jury charges are essential to a fair
trial." State v. Brown, 138 N.J. 481, 522 (1994). In evaluating
whether claimed defects in the jury instructions rise to the level
of reversible error, we must consider those defects within the
overall context of the charge as a whole. State v. Simon, 161
N.J. 416, 477 (1999). The alleged error must be "viewed in the
totality of the entire charge, not in isolation." State v.
Chapland, 187 N.J. 275, 289 (2006). If, upon reviewing the charge
as a whole, the reviewing court finds that prejudicial error did
not occur, then the jury's verdict must stand. State v. Coruzzi,
10 A-1810-14T3
189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531
(1983).
Regarding the legal duty for care of a child, the court
instructed the jury:
The final fourth element that the State must
prove beyond a reasonable doubt is that the
defendant had a legal duty for the care of the
child, or assumed responsibility for the care
of the child. A person having a legal duty
for the care of a child, or who has assumed
responsibility for the care of the child,
includes a natural parent, adoptive parent,
foster parent, stepparent, or any other person
who has assumed responsibility for the care,
custody or control of a child, or upon whom
there is a legal duty for such care.
A person who has assumed the responsibility
for the care of the child includes any person
who assumes a general and ongoing
responsibility for the child and who
establishes a continual – continuing or
regular supervisory or caretaking
relationship with the child.
The court then proceeded to instruct the jury on the lesser-
included offense of third-degree endangering the welfare of a
child, which does not require proof that the defendant had a legal
duty of care of the child.
Based on K.B.'s testimony and defendant's statement,
defendant was a trusted figure K.B. looked up to, and who cared
for K.B.'s well-being. K.B. was not living with defendant at the
time of the sexual encounters, however she was consistently staying
at defendant's home after school, on weekends, and for weeks during
11 A-1810-14T3
the summers. Defendant had been the primary caretaker when K.B.
lived with her. K.B. testified, "I just more listened to her, you
know, no matter what she said to me. I trusted her guidance. And,
you know, I trusted everything she said to me and everything she
told me to do." Defendant stated on the videotape that K.B.
"look[ed] up to [her] more as a mother."
The instruction given by the court is consistent with Galloway
and Sumulikoski in defining legal duty and assumed responsibility.
In McInerney, the trial court instructed the jury with the same
model charge, and we determined that the charge "clearly provided
the jurors with adequate direction on Galloway's critical
distinction between persons who assume 'general and ongoing
responsibility' for 'regular supervision or caretaking' and those
who assume 'a temporary, brief, or occasional caretaking
function.'" McInerney, supra, 428 N.J. Super. at 444-45.
Defendant's responsibility over K.B. went beyond just temporary
and occasional caretaking. K.B. habitually stayed at her house,
and had lived with defendant for a year in the past. K.B. testified
that she trusted defendant completely. Defendant's videotaped
admissions, in which she also claimed her intention was to protect
and benefit K.B., rather than being exculpatory, was further
evidence of her assumption of a caretaking role.
12 A-1810-14T3
Defense counsel in summation did not deny the sexual activity
occurred, as defendant admitted on the videotape shown to the
jury. Rather, counsel argued that co-defendant was the true
culprit and defendant was only trying to protect K.B. On appeal
defendant argues that the court should have charged the jury that
K.B.'s prior sexual activity, as alleged in defendant's statement,
showed that defendant was trying to protect K.B. by teaching her
about sex. We have held, however, that an intent to debauch the
morals of a child is not necessary. We stated:
a conviction for a violation of N.J.S.A.
2C:24-4(a) does not require proof that a
defendant knew that his sexual conduct would
impair or debauch the victim's morals.
Instead, the State must prove, or a defendant
must admit, only that he knowingly engaged in
sexual conduct with a child below the age of
sixteen and that such conduct had the capacity
to impair or debauch the morals of a child.
[State v. Bryant, 419 N.J. Super. 15, 17-18
(App. Div. 2011).]
K.B.'s prior sexual activity, if it occurred, is irrelevant to the
offense charged. The trial court's charge, when viewed as a whole,
did not contain prejudicial error.
III
When sentencing defendant, the court found mitigating factors
four, that there were grounds to excuse or justify defendant's
conduct; seven, that the defendant had no prior criminal history;
and eight, that defendant's conduct was the result of circumstances
13 A-1810-14T3
unlikely to recur. N.J.S.A. 2C:44-1(b) (4), (7) & (8). The court
found aggravating factors one, the nature and circumstances of the
offense; two, the seriousness of the harm inflicted on the victim;
and nine, the need to deter defendant and others from violating
the law. N.J.S.A. 2C:44-1(a) (1), (2) & (9). Defendant argues
that the court erred in its analysis and balancing of aggravating
and mitigating factors and improperly imposed a financial penalty
upon defendant. We agree with some of defendant's arguments and
reverse and remand for resentencing.
We apply a deferential standard of review to the sentencing
court's determination. State v. Bolvito, 217 N.J. 221, 228 (2014).
Appellate courts must affirm the sentence of
a trial court unless: (1) the sentencing
guidelines were violated; (2) the findings of
aggravating and mitigating factors were not
"based upon competent credible evidence in the
record;" or (3) "the application of the
guidelines to the facts" of the case "shock[s]
the judicial conscience."
[Id. at 228 (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)).]
The court erred in using the age of the victim as support for
aggravating factor two, when the victim's age is also an element
of the crime. See State v. Fuentes, 217 N.J. 57, 79-81 (2014).
Aggravating factor two states:
The gravity and seriousness of harm inflicted
on the victim, including whether or not the
defendant knew or reasonably should have known
that the victim of the offense was
14 A-1810-14T3
particularly vulnerable or incapable of
resistance due to advanced age, ill-health,
or extreme youth, or was for any other reason
substantially incapable of exercising normal
physical or mental power of resistance.
[N.J.S.A. 2C:44-1(a)(2).]
The trial court applied this factor based on "the seriousness
of the harm inflicted upon the victim, and that she was
particularly vulnerable because of her situation of extreme youth
at the time." One element of first-degree aggravated sexual
assault is that the victim is less than thirteen years old.
N.J.S.A. 2C:14-2(a)(1). K.B. was twelve. "[A] sentencing court
must scrupulously avoid 'double-counting' facts that establish the
elements of the relevant offense." Fuentes, supra, 217 N.J. at
75. Considering the victim's age is only permissible when the
victim is much younger than is required to be guilty of the crime.
See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988)
(finding that the "extreme youth" of the four-year-old victim was
an appropriate aggravating factor).
Next, defendant contends that the court erred in finding the
aggravating factor of deterrence, N.J.S.A. 2C:44-1(a)(9), and the
mitigating factor that the conduct is unlikely to recur, N.J.S.A.
2C:44-1(b)(8), because the two rarely appear in the same
sentencing. Given the unusual situation here, where defendant
will not be in proximity to K.B. in the future, we accept the
15 A-1810-14T3
court's explanation that this is one of those rare situations
where both factors are appropriately applied. See Fuentes, supra,
217 N.J. at 78-80.
Defendant argues that the court erred in imposing a $14,000
Sex Crime Victim Treatment Fund penalty (SCVTF) pursuant to
N.J.S.A. 2C:14-10 because the court failed to consider the nature
of the offense and defendant's ability to pay as required by
Bolvito, supra, 217 N.J. at 221. The State acknowledges that the
court did not specifically address defendant's ability to pay the
$14,000 penalty.
A sentencing court may impose an SCVTF penalty against a
defendant in any amount between a nominal figure and the upper
limit prescribed by N.J.S.A. 2C:14-10(a) for the degree of the
offense at issue. Bolvito, supra, 217 N.J. at 233. In making
that determination, a sentencing "court should begin by
considering the nature of the offense when determining a
defendant's SCVTF penalty within the statutory range." Ibid. In
particular, when setting an SCVTF penalty, courts "should consider
the defendant's ability to pay the amount assessed." Id. at 234.
"If a substantial penalty is assessed against a defendant who has
no realistic prospect of satisfying it, that penalty is destined
to become an unsatisfied judgment . . . ." Ibid. In determining
a defendant's ability to pay, "the sentencing court should look
16 A-1810-14T3
beyond the defendant's current assets and anticipated income
during the period of incarceration." Ibid. Upon sentencing, the
"court should provide a statement of reasons when it sets a
defendant's SCVTF penalty within the statutory parameters," which
"will apprise the parties, the victim, and the public and will
facilitate appellate review." Id. at 235. The court did not
supply such a statement of reasons here.
We thus remand for resentencing without consideration of
aggravating factor two. The sentencing court should also state
the reasons for the imposition of any SCVTF penalty imposed,
including within those reasons an assessment of defendant's
ability to pay.
The convictions are affirmed and the sentence is reversed and
remanded for resentencing. We do not retain jurisdiction.
17 A-1810-14T3