Opinion
DOCKET NO. A-5260-14T4
11-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RONALD BROWN, a/k/a RONALD JEROME BROWN II, RONALD J. BROWN, RONALD J. II, RONALD J. BROWN II, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-05-1342. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). We affirm.
This case involves 205 text messages between defendant, a high-school teacher, and his seventeen-year-old student, D.H. In the course of the communication during a twenty-four-hour period, defendant propositioned D.H. In particular, he pursued whether D.H. would have sex with him.
Late in the evening, defendant texted D.H. asking "[what are you doing]?" D.H. informed defendant that he was "surfing the web," bored, and home because he was not yet eighteen years old. Defendant replied that if D.H. was eighteen years old he could "come out and chill" at defendant's "crib." Defendant asked are "[y]ou playing games," and stated "[y]ou [are] not ready for real games lol." D.H. asked "what games," and defendant responded "[b]ig boy games lol." D.H. asked defendant what "big boy games" meant, and defendant responded, "I [don't know,] lol. You [are] not [trying to] come outside [and] find out, [laughing mad loud]."
Defendant called D.H.'s cell phone number, and then texted D.H. saying "I just tried to call you but you didn't answer." D.H. asked why he called, and defendant responded "[bec]ause I forgot to tell you something[,] but come on[,] let's put on our thinking caps, [laughing my ass off], what would I not want to . . . text you." D.H. then asked defendant about the first letter of what it was he needed to tell him. Defendant told D.H. to "[g]uess." After a few more exchanges, defendant told D.H. that the first letter was "S." D.H. responded "[o]h, lol. So I'm not ready for that[,] Lol." Defendant replied "I [don't know], are you?" Defendant concedes he confirmed the last letter was "X."
Defendant then stated that he "refuse[d] to text it," asking D.H, "[b]ut can I trust you?" After D.H. responded "[y]eah," defendant continued "the first letter for big boy games is S. [B]ut it's really not a game . . . [and] I don't know if you're ready to chill." D.H. asked what constituted "chilling," and defendant responded "[w]hatever." Defendant then asked, "[s]o do you want to come outside?" The following morning, D.H. texted defendant asking defendant not to text him again.
A grand jury indicted and charged defendant with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant moved to dismiss the indictment and argued the facts presented to the grand jury did not contain the requisite element of "sexual contact" which would "impair or debauch the morals of the child." The court denied the motion and rendered an oral opinion.
Defendant pled guilty to an amended third-degree offense of endangering the welfare of a child. In accordance with the plea agreement, defendant received a five-year suspended sentence, along with the imposition of Megan's Law, parole supervision for life, and restrictions against contact with the victim or his family.
On appeal, defendant raises the following arguments:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.
POINT II
N.J.S.A. 2C:24-4(a) IS UNCONSTITUTIONALLY VAGUE AS APPLIED IN THIS CASE AND THUS REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS.
"A trial court's decision on a motion to dismiss an indictment involves an exercise of discretion." State v. L.D., 444 N.J. Super. 45, 55 (App. Div. 2016). The trial court's discretion to dismiss an indictment "'should not be exercised except on the clearest and plainest ground and an indictment should stand unless it is palpably defective.'" State v. Luzhak, 445 N.J. Super. 241, 244 (App. Div. 2016) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18 (1984)); see also State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004) (stating that "[d]ismissal is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake"). "As long as the State presents 'some evidence establishing each element of the crime to make out a prima facie case,' a trial court should not dismiss an indictment." State v. Feliciano, 224 N.J. 351, 380 (2016) (quoting State v. Saavedra, 222 N.J. 39, 57 (2015)).
Pursuant to N.J.S.A. 2C:24-4(a), a defendant is guilty of second-degree endangering the welfare of a child if the State proves the following elements: (1) the victim is a child, (2) the defendant knowingly engaged in sexual conduct which would impair or debauch the morals of the child, and (3) the defendant had a legal duty for the care of the child or had assumed responsibility for the care of the child. Prongs one and three are not at issue on this appeal.
Defendant focuses on prong two of the statute. He contends that his conduct was not capable of damaging D.H.'s morals because there was no physical conduct, nudity, sexually explicit pictures, or detailed discussions of sexual acts. Defendant argues therefore that his communications with D.H. did not amount to sexual conduct.
A review of the text message exchange between defendant and D.H. establishes a prima facie case for child endangerment. See State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) (stating that an indictment will not be dismissed as long as there is at least "some evidence" as to each element of the State's prima facie case). For example:
Defendant: Ok. What I was saying was if you could come out and chill, and play big boy games, would you?While the term "sexual conduct" is not defined in N.J.S.A. 2C:24-4, it is well-recognized that the statute does not require direct sexual contact. See State v. McInerney, 428 N.J. Super. 432, 451 (App. Div. 2012) (holding that a defendant's encouragement of sexual conduct is sufficient), certif. denied, 214 N.J. 175 (2013). Therefore, the trial judge did not abuse his discretion in denying defendant's motion to dismiss the indictment. Construing the facts in the light most favorable to the State, the denial of defendant's motion to dismiss was not a clear abuse of discretionary authority.
D.H.: And big boy games [are] considered something to do with [sex] correct?
Defendant: What do you think? Yes.
We have considered defendant's remaining contention, that N.J.S.A. 2C:24-4(a) is unconstitutionally vague as applied, and conclude it is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We add the following brief remarks.
It is well-settled that "[a] presumption of validity attaches to every statute." State v. Lenihan, 219 N.J. 251, 266 (2014) (citations omitted). The Court determined that "any act of the Legislature will not be ruled void unless its repugnancy to the Constitution is clear beyond a reasonable doubt." Ibid. (quoting State v. Muhammad, 145 N.J. 23, 41 (1996)). "The Legislature has considerable latitude in addressing criminal conduct. It can either prepare a detailed catalogue of proscribed activities or, within constitutional limits, address the problem more generally." State v. Lee, 96 N.J. 156, 166 (1984). As such, "[t]he determination of vagueness must be made against the contextual background of the particular law and with a firm understanding of its purpose." State v. Cameron, 100 N.J. 586, 591 (1985).
A statute may be void if it is "so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." Lenihan, supra, 219 N.J. at 267 (internal quotation marks omitted) (quoting Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 279-80 (1998), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770 (1999)). In the context of criminal law,
the principle requires that [c]riminal statutes should be clear and understandable . . . [to give] notice of illegality and clear standards for enforcement. Thus, the vagueness doctrine sets forth the principle that the law must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.Here, the text messages were not merely an "ambiguous text message conversation," as defendant suggests. We conclude N.J.S.A. 2C:24-4(a) gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.
[State v. Lisa, 391 N.J. Super. 556, 578 (App. Div. 2007) (first alteration in original) (citations and internal quotation marks omitted), aff'd, 194 N.J. 409 (2008).]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION