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NOT FOR PUBLICATION WITHOUT THE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-2825-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.C.,
Defendant-Appellant.
_________________________
Argued May 2, 2017 – Decided June 19, 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.
Peter Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Mr. Blum,
on the brief).
William Kyle Meighan, Senior Assistant
Prosecutor, argued the cause for respondent
(Joseph D. Coronato, Ocean County Prosecutor,
attorney; Samuel Marzarella, Chief Appellate
Attorney, of counsel; Mr. Meighan, on the
brief).
PER CURIAM
Defendants D.C. and M.E.D.1 were convicted at separate jury
trials of crimes connected with sexual assaults against M.E.D.'s
younger sister, K.B. The two defendants were sexually involved
with each other at the time of the assaults. Both gave videotaped
confessions to at least some of the activity. Although both were
charged with three separate incidents in Lakewood, D.C. was
convicted of only one while M.E.D. was convicted of all. D.C. 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 reverse D.C.'s conviction due to the lack of
specificity of the verdict and due to double jeopardy concerns,
we remand for the entry of an order dismissing the indictment as
to D.C.
K.B. testified to the following. At the time of trial, K.B.
was sixteen years old. In the summer of 2010, K.B. was twelve
years old and lived with her "surrogate grandmother" in Jackson.
During that time, K.B. visited her sister M.E.D., who was about
thirteen years older, in Lakewood once or twice a week, sometimes
on the weekend and during school breaks. She said, "I was very,
1
We use initials to preserve the confidentiality of the victim.
R. 1:38-3(c)(12).
2 A-2825-14T4
very close to [M.E.D.] at the time. She was more of a mother than
my own . . . ."
While visiting M.E.D., K.B. met D.C., M.E.D.'s thirty-year-
old boyfriend. During one visit, D.C. and M.E.D. began drinking
alcohol and shared it with K.B. D.C. touched K.B.'s crotch over
her clothes. Interactions between D.C. and K.B. became more
sexual. The first time D.C. engaged in sexual intercourse with
K.B. was in the car in a "secluded parking lot" in Pine Park in
Lakewood. Thereafter, D.C. would pick K.B. up from her residence
at her grandmother's house and bring her back to M.E.D.'s apartment
in Lakewood, where they would have sexual intercourse when M.E.D.
was not home.
K.B. also became involved in the sexual activity between D.C.
and M.E.D. on three occasions at M.E.D.'s Lakewood apartment. The
first sexual encounter between D.C., M.E.D. and K.B. lasted an
hour and was at M.E.D.'s house. D.C. and M.E.D. began having
sexual intercourse on the bed while K.B. sat in a chair facing the
bed and watched. D.C. and M.E.D. instructed K.B. to take her
pants off and insert her fingers into her vagina while they had
intercourse. K.B. followed their directions. K.B. said, "I went
with it because they told me to and I believed what they said was
good."
3 A-2825-14T4
K.B. joined D.C. and M.E.D. in the bed during the second and
third group sexual encounters she had with them. During those
encounters, D.C. and M.E.D. engaged in anal intercourse. They
gave K.B. a sex toy, commonly referred to as a "rabbit" that was
"a dildo as well as a vibrator" to use on herself. D.C. and M.E.D.
instructed K.B. to insert the sex toy into her vagina. K.B.
complied. While M.E.D. held K.B.'s legs open, D.C. inserted the
sex toy into K.B.'s vagina and rubbed and touched her with it.
K.B. also testified that she and M.E.D. took turns performing oral
sex on D.C.
After that, in the late summer and fall of 2010, K.B. had
vaginal intercourse with D.C. outside of M.E.D.'s presence "three
[or] four times" while in Jackson. The encounters occurred in
D.C.'s car, while parked close to "Dunkin' Donuts" in a lot near
the apartment complex where K.B. lived with her grandmother.
D.C. and M.E.D. told K.B. that she was not allowed to tell
anyone about the sexual encounters or they would stop seeing or
speaking to her. K.B. testified that she agreed to not disclose
the activities because "[she] loved them. They were [her] only
stability at the time." K.B. nevertheless told her best friend
and her mother. K.B. testified that her mother "completely
disregarded it and shot [her] down," accusing K.B. of lying.
4 A-2825-14T4
In February 2012, a Division of Child Protection and
Permanency (Division) worker visited K.B.'s school to speak with
K.B. about an unrelated matter. During their meeting, K.B.
disclosed "that she had been raped multiple times by her sister's
boyfriend." The worker contacted the police. K.B. testified she
told the caseworker, "more out of desperation to get away from my
mother at the time. I just wanted to get everything out that had
ever happened to me, and that's how everything came out."
D.C. admitted on videotape that he had a sexual encounter
with K.B. on one occasion. He admitted having intercourse with
M.E.D. on the bed while K.B. used a vibrator next to them. D.C.
stated that he held the vibrator and showed K.B. how to use it by
touching K.B.'s vaginal area with it. D.C. initially denied
inserting the vibrator into K.B.'s vagina, but later admitted that
he did.
D.C. stated that K.B. put her mouth on his penis, but she did
not perform oral sex on him. He denied having vaginal sex with
K.B. D.C. told the detectives he had only one sexual encounter
with K.B and M.E.D.
D.C. was charged in three identical 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). Counts six
5 A-2825-14T4
through eight charged defendant with three identical 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 fourteen through
sixteen charged D.C. with three identical counts of third-degree
endangering the welfare of K.B. between June and August 2010 in
Lakewood, and counts seventeen through nineteen charged D.C. with
three identical counts of third-degree endangering the welfare of
K.B. between September and October 2010 in Jackson, N.J.S.A. 2C:24-
4(a). In counts twenty through twenty-two, D.C. was charged with
three identical counts of first-degree aggravated sexual assault
against K.B. between September and October 2010 in Jackson,
N.J.S.A. 2C:14-2(a)(1). The counts in the indictment did not
particularize the behavior charged beyond the town where it
occurred and range of dates, nor did the court's instruction or
the verdict sheet add specificity to the charges.
Defense counsel argued in summation that K.B. was not
credible. The State responded in its summation by exhorting the
jury to vindicate K.B. Neither attorney discussed the charges
with specificity.
D.C. was convicted only of counts one, four and seven: between
June and August 2010 in Lakewood, on one occasion, committing the
crimes of aggravated sexual assault, sexual assault and
endangering the welfare of a child against K.B. The jury acquitted
6 A-2825-14T4
defendant on the other nineteen counts of the indictment, including
all of the sexual conduct that K.B. alleged occurred in Jackson.
D.C. raises the following issue on appeal:
POINT ONE: A NEW TRIAL SHOULD BE GRANTED
BECAUSE DC'S RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM WAS VIOLATED WHEN THE JURY WAS
SHOWN THE VIDEO OF A DETECTIVE TELLING DC
ABOUT THE NON-TESTIFYING CO-DEFENDANT'S
STATEMENT INCRIMINATING HIM. U.S. CONST.
AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 10.
(not raised below)
POINT TWO: DC WAS DEPRIVED OF DUE PROCESS AND
THE CERTAINTY OF A UNANIMOUS VERDICT BECAUSE
THE COURT FAILED TO INSTRUCT THE JURY TO FIND,
BEFORE CONVICTING, THAT DC COMMITTED A
SPECIFIC ONE OF THE VARIOUS SEXUAL ACTS
ALLEGED. U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. ART. I, PARAS. 1, 9, 10. (not raised
below)
POINT THREE: A NEW SENTENCE SHOULD OCCUR
BECAUSE THE COURT FAILED TO EXPLAIN WHY IT
FOUND AGGRAVATING FACTOR NINE (NEED FOR
DETERRENCE) AND WHY IT PLACED "MAXIMUM WEIGHT"
ON THAT FACTOR.
In Point Two, D.C. argues that he was deprived of his due
process right to a unanimous jury verdict because of the lack of
specificity in the counts of the indictment, verdict sheet and
charge to the jury. Because defense counsel did not object to the
jury charge, defendant must demonstrate plain error, i.e., that
the error was "clearly capable of producing an unjust result." R.
2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Under
that standard, "Reversal of defendant's conviction is required
7 A-2825-14T4
only if there was error 'sufficient to raise a reasonable doubt
as to whether [it] led the jury to a result it otherwise might not
have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App.
Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)); see
also Macon, supra, 57 N.J. at 333; R. 2:10-2.
"Clear and correct jury instructions are essential for a fair
trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div.
2015) (quoting State v. Brown, 138 N.J. 481, 522 (1994)), aff'd
by, ___ N.J. ___. "'[E]rroneous instructions on material points
are presumed to' possess the capacity to unfairly prejudice the
defendant." State v. Baum, 224 N.J. 147, 159 (2016) (quoting
State v. Bunch, 180 N.J. 534, 541-42 (2004)). The plain error
analysis of an erroneous jury charge mandates that the reviewing
court examine the charge as a whole to determine its overall
effect. State v. McKinney, 223 N.J. 475, 494 (2015).
The court gave the jury the following instruction about the
separate counts in the indictment:
The defendant, [D.C.], is charged with various
offenses in 15 counts of the indictment. They
are separate offenses, alleged by separate
counts in the indictment. In your
determination of whether the State has proven
the defendant guilty of the crimes charged in
the indictment beyond a reasonable doubt, the
defendant is entitled to have each count
considered separately by the evidence which
is relevant and material to that particular
charge based on the law as I will give you.
8 A-2825-14T4
The court then gave the jury the following instruction about
the requirement of a unanimous verdict:
Now, ladies and gentlemen of the jury, your
verdicts must be unanimous. In order to
return a verdict on a particular count, or in
order to answer any other question of the
verdict sheet, it is necessary that each
juror, that all 12 of you agree thereto.
During deliberations, the jury sent a note to the court
asking: "Do the multiple counts mean separate acts or separate
incidents?" The court responded:
I have discussed this with counsel and in
trying to answer your question, I'm going to
try to answer it briefly. If you have any
further questions about that, you know, please
let me know.
The multiple acts that you're speaking of in
the question, multiple acts mean three
separate acts that occurred in Lakewood and
three separate acts that occurred in Jackson.
The three sexual assault charges and the three
endangering charges refer to those above
incidents that occurred, allegedly occurred
both in Lakewood and in Jackson.
D.C. admitted in his videotaped statement to having sexual
contact with K.B. using a vibrator, which she testified happened
both the second and the third time they engaged in sexual activity
in Lakewood. Nonetheless, the jury convicted D.C. of the first
count alleging aggravated sexual assault. Thus, if the jury
intended to convict D.C. of only what he admitted to, and if the
jury believed the counts were ordered chronologically, it is
9 A-2825-14T4
curious that the jury did not convict him of the second or third
charge of aggravated sexual assault. In any event, it is pointless
to engage in speculation. Because neither the indictment nor the
verdict sheet specified any facts distinguishing the incidents,
it was not clear for which incident the jury found defendant guilty
beyond a reasonable doubt, or if the jury agreed unanimously on
which assault D.C. committed. If the jurors agreed that one of
the incidents occurred, but disagreed as to which one, the jury
had the obligation to consider each charge separately and acquit
on each charge if it could not reach a unanimous guilty verdict
on any one charge.
The court never told the jury what specific acts were
connected with which charges in the indictment. The verdict sheet
did not distinguish at all between the identically-worded counts.
Thus the jury was left on its own to decide which count applied
to what behavior. The danger thus existed that the jurors were
not unanimous in finding guilt on one particular incident. That
is, some of the jurors may have thought defendant committed the
first assault K.B. related, and others thought he committed the
second or third.
"[A]ny double jeopardy concerns, or issues of non-unanimous
guilty verdicts, may be addressed with carefully tailored jury
instructions, a detailed verdict sheet or both." State v. Salter,
10 A-2825-14T4
425 N.J. Super. 504, 516 (App. Div. 2012). "Courts should remain
alert to the necessity of tailoring jury instructions to the facts
and of utilizing a specific unanimity charge in any case in which
the danger of a fragmented verdict is even reasonably debatable."
State v. Frisby, 174 N.J. 583, 600 (2002); see also State v.
Parker, 124 N.J. 628, 637 (1991), cert. denied, 503 U.S. 939, 112
S. Ct. 1483, 117 L. Ed. 2d 625 (1992). "The necessity for a
specific unanimity instruction arises, too, when the jury poses a
question to the court showing 'their confusion regarding the
unanimity issue.'" State v. Gentry, 370 N.J. Super. 413, 426
(App. Div. 2004) (Coburn, J., dissenting) (quoting Parker, supra,
124 N.J. at 639), rev'd on dissent, 183 N.J. 30 (2005) (reversing
defendant's robbery conviction and finding that the trial court
erred in concluding that the jury had reached a unanimous decision
when during deliberations, the jury sent a note indicating that
all jurors agreed that the defendant used force but were divided
about which victim force was used against). "Additionally,
pursuant to Rule 3:7-5, the judge may, sua sponte or upon
defendant's request, order the State to furnish a bill of
particulars." Salter, supra, 425 N.J. Super. at 516.
In Salter, the grand jury returned a seven-count indictment
against defendant for crimes related to the sexual assault of a
minor. Id. at 509. In identical language, counts three and four
11 A-2825-14T4
charged defendant with first-degree aggravated sexual assault by
oral penetration "on or about the 2nd day . . . and the 5th day
of September[] 2006." Id. at 509. "Neither the jury instructions
nor the verdict sheet isolated which incident corresponded to each
count." Id. at 521. The jury found defendant not guilty of count
three and guilty of count four. Id. at 512. We affirmed the
dismissal of count four of the indictment, in spite of the
conviction on that count, noting that "it has long been recognized
that 'the language of [the indictment] must be sufficiently
detailed to avoid the risk of double jeopardy, successive
prosecutions for the same transgression.'" Id. at 522 (quoting
State v. Wein, 80 N.J. 491, 497 (1979)). We found that retrial
on count four would amount to double jeopardy as defendant would
be prosecuted for the same offense, count three, for which he was
acquitted. Id. at 522. We reasoned that the not guilty verdict
on count three did not serve to eliminate any specific alleged
criminal conduct from the jury's consideration on retrial. Id.
at 521. Therefore, "all of defendant's alleged conduct can serve
as the basis for sexual assault by oral penetration in count four."
Ibid.
Here, although no request for such a charge was made, the
failure to explain to the jury by way of indictment, verdict sheet
or jury charge which count related to which activity that occurred
12 A-2825-14T4
in Lakewood was a fatal defect in the proceedings. The jury
should have been tasked with determining which, if any, incidents
were proven, with the assistance of a charging document or verdict
sheet that distinguished factually and specifically among the
three counts charged.
When considering whether we should remand for a retrial, the
difficulty in determining what the jury intended to acquit
defendant of became apparent. Of course, defendant cannot be
tried again for the behavior encompassed by the not guilty
verdicts. Unfortunately, we can discern no way of determining
what behavior was encompassed by those counts, except to say D.C.
was clearly acquitted of all behavior alleged to have occurred in
Jackson: counts seventeen through twenty-one. But as to the
behavior in Lakewood between June and August 2010 we can only say
that he was acquitted of some allegations and convicted of others.
Defendant cannot constitutionally be required to stand trial again
for a charge after an acquittal. N.J. Const. art. I, ¶ 11; Salter,
supra, 425 N.J. Super. at 515-16.
Given the seriousness of the charges for which defendant was
convicted, the decision to dismiss the indictment without a retrial
is not made lightly. Unfortunately, the failure in the charging
document, verdict sheet and jury charge mandates this result. We
need not consider the other points raised by D.C. on appeal.
13 A-2825-14T4
Reversed and remanded for the entry of an order dismissing
the indictment against defendant with prejudice.
14 A-2825-14T4