Opinion
DOCKET NO. A-2870-12T1
07-14-2014
STATE OF NEW JERSEY IN THE INTEREST OF A.T.
Joseph E. Krakora, Public Defender, attorney for appellant A.T. (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent State of New Jersey (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FJ-14-1118-12 and FJ-14-1237-12.
Joseph E. Krakora, Public Defender, attorney for appellant A.T. (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent State of New Jersey (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Following a bench trial, juvenile A.T. (Alex) appeals from the Family Part order adjudicating him delinquent for conduct, which, if committed by an adult, would constitute the disorderly persons offense of lewdness, N.J.S.A. 2C:14-4(a). On appeal, Alex raises the following contentions for our consideration.
We use pseudonyms to protect the privacy of the juvenile.
POINT I: A.T.'S LEWDNESS CONVICTION MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE ALL THE ELEMENTS OF THE OFFENSE. (U.S. Const., V and XIV Amend.; N.J. Const. (1947), Art. 1, par. 9).Having considered these arguments in light of the record and applicable legal standards, we affirm.
POINT II: THE DOCTRINES OF DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS PRECLUDE A SECOND PROSECUTION OF A.T. BASED ON THE SAME FACTS.
We derive the following facts from the record. In March 2012, Alex, then a sixteen year-old boy, was attending a transitional school for students with behavioral difficulties. M.D.V. (Mary) was a licensed social worker at the school, where she provided individual and group counselling. Mary was Alex's counselor and worked with him for about two years. She had recently become uncomfortable around Alex and concerned with his contact with her at times. She noticed that in some group counseling sessions, Alex had an erection and she discussed this with her colleagues.
Shortly thereafter, Alex and several other students had a group session with Mary, where she again noticed Alex had an erection. At the end of the session, Alex told her that he cut his finger and needed a band-aid. She walked with Alex to her office and put a band-aid on his finger. She noticed Alex still had an erection, which made her uncomfortable, so she tried to rush him out of the office. At that point, Alex lifted his sweatshirt with one hand, pulled his sweatpants down with his other hand, and exposed his erect penis to her.
Mary stated, "What are you doing? What are you doing? . . . This can't happen[.]" Alex replied, "What? What?" Mary told Alex to leave immediately. Alex apologized, pulled his pants back up, and left her office. Mary immediately reported the incident to her supervisor and to the school principal. Mary was required to file a juvenile complaint against Alex.
On December 7, 2012, Judge Michael Paul Wright held a bench trial wherein Mary was the sole witness. In his oral opinion, Judge Wright found Mary's testimony to be credible stating, "There is no doubt in this Court's mind . . . that the events happened in precisely the fashion that she described[.]"
The judge reviewed the statutory definition of disorderly persons lewdness under N.J.S.A. 2C:14-4(a), which states the actor is guilty of such offense if he "does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed." The judge found that Alex "exposed his erect penis" and he "did have to know that [Mary] was non-consenting and would be affronted or alarmed."
The judge also found that Alex exposed himself "for the purposes of arousing and gratifying the sexual desire of the actor," as set forth in N.J.S.A. 2C:14-4(c). The judge stated:
Rarely in a case such as this . . . is any finder of fact going to have necessarily proof of arousal[.] [T]here is not often going to be ejaculate . . . , [nor] moaning or any other type of indicia of arousal[.] I find by the very nature that . . . the affirmative step of the juvenile to drop his trousers, raise his shirt and make his penis evident to the non-consenting person, who was both affront[ed] and alarmed, makes this an act that was done for the purpose of gratification and sexual desire.
The judge found that proof of sexual desire was essential to an adjudication of disorderly persons lewdness, and rejected Alex's counsel's argument that the State failed to prove that element beyond a reasonable doubt. Judge Wright entered an order adjudicating Alex delinquent.
The judge sentenced Alex to one year of probation, and ordered a psychosexual evaluation, restitution, and fines. The judge further ordered that if Alex successfully completed all terms and conditions of his probation he would be permitted to apply to have his adjudication retroactively vacated. This appeal followed.
This sentence encompassed two complaints. Alex also pled guilty to another complaint, based on a separate incident, charging him with acts, which, if committed by an adult, would constitute a disorderly persons offense of criminal mischief, N.J.S.A. 2C:17-3(a).
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Alex's primary contention on appeal is that the State failed to prove the lewdness statute's sexual gratification element beyond a reasonable doubt. Specifically, Alex argues the State failed to produce any evidence or identify any testimony establishing that Alex exposed himself for the purposes of sexual arousal, and therefore his delinquency should be reversed. We disagree.
Our scope of review of a Family Part judge's factual determinations is limited, and we will not disturb them unless a finding is clearly mistaken and the interests of justice require our intervention and correction. In re S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). "We defer to those findings, which are substantially influenced by the judge's feel of the case." In re J.P.F., 368 N.J. Super. 24, 31 (App. Div.), certif. denied, 180 N.J. 453 (2004). We do not, however, defer to the judge's legal conclusions drawn from those factual findings. S.B., supra, 333 N.J. Super. at 241.
More than nudity is required to be adjudicated guilty of disorderly persons lewdness, N.J.S.A. 2C:14-4(a). Under the lewdness statute, whether the act constitutes a disorderly persons offense or a fourth-degree crime, lewd acts "include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person." N.J.S.A. 2C:14-4(c); see also State v. Friedman, 209 N.J. 102, 117 (2012) ("We must . . . read [a] statute as a whole and not seize upon one or two words as a fixed guide to the meaning of the entirety."). Thus, the actor's purpose in exposing his genitals — sexual gratification — is an essential element of lewdness. See State v. Hackett, 32 3 N.J. Super. 460, 474 (App. Div. 1999), aff'd, 166 N.J. 66 (2001); but see State v. Zeidell, 154 N.J. 417, 430 (1998) (stating in dicta that disorderly persons lewdness includes "exposing the actor's own genitals regardless of whether done for the actor's sexual arousal or gratification").
"A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2(b)(1). An actor's purpose is "the most difficult [mens rea] to establish," and therefore may be inferred "from the evidence presented and from common sense and experience[.]" State v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005) (internal quotation marks and citation omitted).
In other words, it may reasonably be inferred from the nature of the act itself, and the circumstances under which it was committed, that an actor exposed his or her genitals for the purpose of sexual gratification in contravention of N.J.S.A. 2C:14-4(a). See Hackett, supra, 323 N.J. Super. at 477 (finding sufficient evidence for a jury to convict defendant of fourth-degree lewdness where three pre-teen girls observed a man standing naked in front of his living room window near their school bus stop).
Here, the judge's finding that that Alex exposed his genitals for the purpose of his sexual gratification is well supported by the record. The trial judge based his conclusion on the uncontroverted testimony of Mary, which he found to be highly credible. The judge properly determined that sexual gratification was an essential element of disorderly persons lewdness, N.J.S.A. 2C:14-4(c), and it could be inferred by the nature of the act and the circumstances in which the it took place. See Hackett, supra, 323 N.J. Super. at 477. The judge appropriately considered that Alex's affirmative actions of pulling down his sweatpants and pulling up his sweatshirt in order to make his erect penis directly visible to Mary established the requisite purpose. We find no basis to support the assertion that the trial judge's findings were clearly mistaken, and we are convinced that sufficient credible evidence supports the conclusion that Alex engaged in conduct, which, if committed by an adult, would have constituted the disorderly persons offense of lewdness, N.J.S.A. 2C:14-4(a). See S.B., supra, 333 N.J. Super. at 241.
Because we are affirming Alex's adjudication of delinquency, we need not reach his remaining argument that double jeopardy would prevent re-prosecution if we had determined the adjudication was made in error.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION