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NOT FOR PUBLICATION WITHOUT THE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-5174-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
W.D.,
Defendant-Appellant.
______________________________
Submitted October 10, 2017 – Decided November 2, 2017
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Indictment No.
12-09-0401.
Joseph E. Krakora, Public Defender, attorney
for appellant (Gilbert G. Miller, Designated
Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor,
attorney for respondent (Kelly Anne Shelton,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, W.D., appeals from his judgment of conviction
after a jury found him guilty of third-degree attempted endangering
the welfare of a child. We affirm.
We discern the following facts from the trial record. In
mid-March 2011, defendant met J.R. several times in a park in
Phillipsburg. J.R.'s eleven-year-old daughter knew one of
defendant's daughters from school.
On March 19, 2011, defendant and his children invited J.R.
and her children to a barbecue. J.R. and her family arrived at
the barbecue late in the day. Once there, J.R. consumed one beer
and a number of non-prescribed pills, including Xanax and
Oxycodone. She left at approximately midnight or 1:00 a.m.
At 2:00 a.m. on March 20, 2011, J.R. called defendant asking
to borrow money to purchase gas and food. Defendant acquiesced
and asked her to meet him at a Quick Chek, where he gave her sixty
dollars, and the two sat in his car talking. J.R. testified it
was then that defendant offered her $500 to have sex with her
daughter. J.R. left defendant's car and returned to where she was
living with her friend, A.H.
Later that day, J.R. called defendant with A.H. present and
recorded her conversation with defendant. Again, defendant
offered J.R. $500 to have sex with her daughter. J.R. did not
2 A-5174-14T1
recall, at trial, whether she and defendant set a time and place
for him to meet with her daughter.
Defendant called J.R. the next day, and again they spoke
about him having sex with J.R.'s daughter. Over the next two
days, defendant placed twenty-three unanswered calls to J.R. and
three calls in which he spoke with J.R. J.R. informed her husband
and her daughter about defendant's proposition. J.R. stated she
informed her daughter so "she wouldn't be alarmed like what was
going on" but J.R. never asked whether her daughter was willing
to participate, and never intended to follow through with
defendant's plan.
J.R. did not report the incidents to the police, and conceded
she was using multiple drugs, including Xanax, Oxycodone,
Methadone, OxyContin, and marijuana. She also testified she was
afraid of retaliation against her and her family.
On March 23, 2011, A.H. called the Division of Child
Protection and Permanency (Division). The Division contacted the
Warren County Prosecutor's Office detectives, who notified the
Pohatcong Police Department. A detective went to defendant's
house, but he was not home. Defendant later went to the
Phillipsburg Police Department on his own volition. Defendant was
3 A-5174-14T1
informed of his Miranda1 rights. He made a knowing and voluntary
waiver of his rights, and thereafter provided a different, but
ultimately incriminating, account of what occurred.
Defendant told the police he met J.R. in the park with her
children and boyfriend. His daughter contacted J.R. and invited
her and her children to a picnic at his house. While there, he
gave J.R. twenty dollars for gas. After the picnic was over, J.R.
called defendant at approximately 2:00 a.m., and asked him to meet
her at the Quick Chek.
At the Quick Chek, J.R. asked defendant for $150 so she could
move to her mother's house. During the encounter, J.R. ingested
four or five pills from her purse, and defendant was drunk.
Defendant said when he refused to give J.R. the $150, J.R. offered
that she and a friend would have sex with him for $160. She
repeatedly said, "I'll do anything please help me out." Defendant
gave her the money, they parted ways, and both of them went home.
After that, J.R. did not call defendant, but he "called her
a few times." Eventually, J.R. called back and told him she had
been in the hospital. She also said her friend wanted $200 instead
of an additional $10. They met again, in a Hess Station parking
lot, where J.R. asked again for $200, which he refused to pay.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4 A-5174-14T1
The detectives questioning defendant told him J.R. alleged
the conversation with him was for "you to have sexual relationship
with her ten-year-old daughter, which you were, you were [sic]
aware of[.]" Defendant said, "maybe, maybe" when the detectives
stated "you obviously knew that you were talking about her young
daughter, correct?" Defendant then acknowledged he "got a little
out of control that night." In response to the detectives stating,
"you heard it on the tape, you know what happened" and "you avoided
telling us all about this conversation because you know it was
wrong deep down inside," defendant responded "yep." Defendant
said, "she kept on pushing things to me, trying to make, I guess
get the money" and "like I told you, she said she'll do anything"
and "I guess she pushed . . . her daughter." At this point,
defendant stated he was under the impression the daughter was
fourteen or fifteen.
The detectives asked, "did you want to have sex with . . .
[J.R.'s] daughter?" Defendant responded, "I guess I did[.]" The
detectives then proposed a different version of event where "[J.R.]
said I'll do whatever you want or I'll give you whatever you want
and that's when you took the opportunity and you struck."
Defendant responded "yeah probably."
5 A-5174-14T1
Following this statement, police again informed defendant of
his Miranda rights, and he was arrested. On September 19, 2012,
defendant was indicted for third-degree attempted endangering the
welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4(a); first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a); second-
degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree
promoting prostitution, N.J.S.A. 2C:34-1(b)(7).2 Prior to trial,
the State moved for and obtained dismissal of all counts except
attempted endangering the welfare of a child and promoting
prostitution.
Defendant was tried on various days between February 18 and
25, 2015. On February 24, 2015, the trial judge held a final jury
charge conference with counsel. The judge reviewed the charges
in depth with counsel, including how he would explain the elements
of the crimes charged to the jury. At no point during the charge
conference did defendant's trial counsel object or propose changes
to the jury instructions.
The judge charged the jury that same day. The parts of the
jury instruction pertinent to this appeal are excerpted below.
For the definition of attempt:
2
More specifically, defendant was charged with soliciting a child
under the age of eighteen to engage in sexual acts.
6 A-5174-14T1
The law provides that a person is guilty of
an attempt to commit a crime if the person
purposely does anything which[,] under the
circumstances a reasonable person would
believe them to be[,] is an act constituting
a substantial step in the course of conduct
planned to culminate in the commission of the
crime.
. . . .
The substantial step taken must strongly show
the defendant's criminal purpose. That is,
the step taken must be substantial, and not a
very remote, preparatory act, and must show
that the accused had a firmness of criminal
purpose in order to decide whether the State
has proven a crime of . . . attempt to engage,
or attempt to endanger the welfare of a child.
For the definition of endangering the welfare of a child:
[I]n order to find a defendant guilty of
endangering the welfare of a child . . .
requires two elements to be shown . . .: [t]hat
[the daughter] was a child; and that the
defendant knowingly engaged in sexual conduct
with the child which would impair or debauch
the morals of a child.
. . . .
The second element the State must prove beyond
a reasonable doubt is that defendant knowingly
engaged in sexual conduct which would attempt
-- which would impair or debauch the morals
of a child, and this is conduct which tends
to corrupt, mar or spoil the morals a child
under the age of . . . 16.
During their deliberations, the jury did not express any
confusion about the meaning of "attempt" or "conduct which would
impair or debauch the morals of a child." Of the four notes
7 A-5174-14T1
submitted to the judge by the jury,3 two were requests to review
taped evidence and transcripts, and two were regarding the
solicitation charge. Defendant was acquitted of promoting
prostitution but convicted of attempted endangering.
Defendant was sentenced to 364 days in county jail, parole
supervision for life, Megan's Law consequences, Nicole's Law
requirements, and fined. This appeal followed.
Defendant raises the following issues on appeal:
POINT I.
THE TRIAL COURT'S FINAL JURY INSTRUCTIONS WERE
DEFICIENT IN THEIR FAILURE TO DEFINE CONDUCT
WHICH WOULD IMPAIR OR DEBAUCH THE CHILD'S
MORALS, DEPRIVING DEFENDANT OF A FAIR TRIAL
(not raised below).
POINT II.
THE STATE FAILED TO ESTABLISH THAT DEFENDANT
COMMITTED A CRIMINAL ATTEMPT TO ENDANGER THE
WELFARE OF A CHILD, REQUIRING THE ENTRY OF A
JUDGMENT OF ACQUITTAL IN THIS CASE (not raised
below).
When an error not brought to the attention of the trial court
is the basis of an appeal, we will not reverse unless the appellant
can show "plain error." R. 2:10-2. Plain error is one that is
"clearly capable of producing an unjust result." Ibid. Not any
possibility of an unjust result will suffice. State v. Macon, 57
3
There was a fifth note notifying the court the jury reached a
verdict.
8 A-5174-14T1
N.J. 325, 336 (1971). The possibility must be "sufficient to
raise a reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached." Ibid.
Defendant argues the jury instructions were inadequate to
explain the definition of conduct that would impair or debauch the
morals of a child. He argues his acquittal on the solicitation
charge meant the jury "reached its decision to convict on a vague
feeling that defendant did an act which he planned would be a
substantial step[.]" However, defendant's counsel did not object
to the jury charges at trial, which follow the model jury charges
for the charged offenses.
Viewing these arguments under the plain error standard,
defendant provides no basis to conclude the jury was misled and
came to an unjust result. We reject defendant's argument that the
jury could not rationally acquit on the solicitation charge and
convict on the attempt endangering charge.
"Jurors are free to accept or reject, in part or in whole,
any aspect of testimonial evidence based on credibility." State
v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990). An
appellate court reviews a jury verdict "under an extraordinarily
lenient standard of review," and "a conviction should not be
disturbed on appeal unless it clearly appears that there was a
miscarriage of justice under the law." R. 2:10-1; State v.
9 A-5174-14T1
Jackson, 211 N.J. 394, 413-14 (2012). "There is no miscarriage
of justice when any trier of fact could rationally have found
beyond a reasonable doubt that the essential elements of the crime
were present." Ibid. The jury could rationally have chosen to
accept defendant's assertions that he was not the instigator of
the solicitation, and to reject J.R.'s assertions. This would not
bar the jury from convicting defendant on the attempt charge, if
the jury determined the evidence showed defendant still attempted
to have sex with J.R.'s daughter once J.R. offered him the
opportunity.
Defendant argues it was incumbent upon the court to advise
the jury as to the specific sexual conduct the State alleged
defendant intended to do with J.R.'s daughter. We disagree.
Whatever "sex" defendant intended when he agreed to pay J.R. to
have sex with her minor daughter satisfies the elements of
endangering.
Defendant argues the trial court erred in not entering a
judgment of acquittal because the State failed to establish that
defendant committed a criminal attempt to endanger the welfare of
a child. However, defendant's counsel did not move at the close
of the State's case, at the close of evidence, or after the jury
verdict for a judgment of acquittal. Furthermore, the court did
10 A-5174-14T1
not abuse its discretion by not granting the judgment of acquittal
sua sponte.
Rule 3:18-1 provides "[a]t the close of the State's case or
after the evidence of all parties has been closed, the court shall,
on defendant's motion or its own initiative, order the entry of a
judgment of acquittal . . . if the evidence is insufficient to
warrant a conviction."
At the close of the State's case on February 24, 2015,
defendant's counsel reserved the right to make a motion under Rule
3:18-1 until the conclusion of trial. Despite the reservation,
defendant's counsel never moved for a judgment of acquittal.
Even if no motion is made during the pendency of trial, under
Rule 3:18-2, "[i]f the jury returns a verdict of guilty . . ., a
motion for judgment of acquittal may be made . . . or it may be
renewed within 10 days after the jury is discharged or within such
further time as the court fixes during the 10-day period." If the
court grants this motion, it "may set aside a verdict of guilty
and order the entry of a judgment of acquittal[.]" Ibid. However,
after the jury returned its verdict, defendant's counsel did not
move under Rule 3:18-2.
Under both Rule 3:18-1 and 3:18-2, a court has discretion to
enter a judgment of acquittal sua sponte, regardless of whether a
party makes a motion. To determine if the trial judge should have
11 A-5174-14T1
acquitted defendant, we apply the same standard as the trial court.
State v. Moffa, 42 N.J. 258, 263 (1964).
Here, viewing the evidence in a light most favorable to the
State, the court did not abuse its discretion in not granting a
judgment of acquittal because "a reasonable jury could find guilt
beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59
(1967). The State presented testimony that defendant asked to
have sex with J.R.'s daughter, he followed up on the plans to have
sex with the daughter by making numerous phone calls, and he
exchanged money with J.R. A reasonable jury could have found
these actions were a substantial step in furtherance of the crime
of endangering the welfare of a child.
Affirmed.
12 A-5174-14T1