STATE OF NEW JERSEY VS. D.C.(12-04-0882, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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