Opinion
DOCKET NO. A-2012-12T4
06-03-2019
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GUILERMO SANTAMARIA, a/k/a WILLIAM J. SANTAMARIA, BILL SANTAMARIA, and GHILERMO SANTAMARIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-1436. Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Defendant Guilermo Santamaria, a former middle school science teacher, was tried before a jury and convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), two counts of second degree sexual assault, N.J.S.A. 2C:14-2(c), and two counts of second degree official misconduct, N.J.S.A. 2C:30-2. Defendant began a sexual relationship with the victim, H.B., in 1997, when she was a fourteen-year-old middle school student, and continued even after she began attending college in 2002. In his direct appeal to this court, defendant argued, inter alia, that the trial court committed plain error under Rule 2:10-2 by admitting into evidence numerous sexually explicit photographs of H.B. after she had reached the age of majority. He also urged us to vacate his conviction of second degree official misconduct in count four of the indictment because it was based on conduct that occurred outside the relevant seven-year statute of limitations. N.J.S.A. 2C:1-6(b)(3).
In State v. Santamaria, No. A-2012-12 (App. Div. June 30, 2017), this court reversed defendant's conviction and remanded the matter for a new trial because the trial court's admission into evidence "of over fifty sexually explicit photographs of defendant and H.B. had minimal probative value that was substantially outweighed by the risk of undue prejudice and . . . constituted the needless presentation of cumulative evidence under N.J.R.E. 403 and N.J.R.E. 404(b)." Id. at 14-15. We also vacated the second degree official misconduct conviction in count four of the indictment because it was based on facts outside the seven-year statute of limitations. Id. at 9-14; N.J.S.A. 2C:1-6(b)(3).
The Supreme Court granted the State's petition for certification, State v. Santamaria, 232 N.J. 153 (2018), limited to the following questions:
Did the State's introduction of more than fifty sexually explicit photographs, which were taken after the victim turned eighteen, for the purpose of establishing the existence of a sexual relationship between defendant and the victim when the victim was a minor, constitute plain error that required the reversal of defendant's convictions for sexual assault; and was it reversible error for the State to comment in summation on defendant's silence when he was confronted by the victim during a recorded conversation?
Statements on Issues on Appeal Prepared by the Office of the Clerk, NEW JERSEY COURTS, https://www.njcourts.gov/courts/supreme/scappeal.html (search "Santamaria").
In State v. Santamaria, 236 N.J. 390, 396-97 (2019), the Court reversed this court's decision and found "neither error in the admission of the photographs under N.J.R.E. 403 nor reversible error concerning the prosecutor's closing comments regarding the defendant's silence when [the victim] made her recorded accusations." The Court thereafter remanded the matter to this court "for consideration of defendant's remaining arguments." Id. at 413.
Defendant argued on direct appeal to this court that: "[t]he State committed reversible error by commenting in summation on defendant's silence when H.B., acting as an agent of the police, confronted [defendant] with her accusations during their recorded dinner conversation." Santamaria, slip op. at 9. In light of our decision to reverse defendant's conviction and remand for a new trial based on the inadmissibility of the photographs, this court did not decide whether the prosecutor's comments constituted independent grounds for reversal. We only offered guidance to the parties and the trial court, in the form of a brief summary of the leading cases from our Supreme Court that have discussed the role of the prosecutor. Id. at 30. However, the Court made clear in Santamaria that "[t]he Appellate Division's guidance on the prosecutor's comments on silence should not be adopted." 236 N.J. at 413. --------
We incorporate by reference the salient facts and procedural history the Supreme Court described at length, id. at 396-402, and limit the scope of our review to the following two remaining arguments:
ABSENT A QUID PRO QUO AND NOTWITHSTANDING THAT ONE OR BOTH OF THE PARTICIPANTS IS A PUBLIC SERVANT, CONSENSUAL SEXUAL CONDUCT BY TWO
ADULTS ON SCHOOL PROPERTY DOES NOT CONSTITUTE THE CRIME OF OFFICIAL MISCONDUCT FOR WHICH A POTENTIAL MAXIMUM SENTENCE OF TEN YEARS WITH A FIVE YEAR PAROLE BAR COULD BE IMPOSED. (Partially Raised Below).
THE COURT'S INSTRUCTION TO THE JURY REGARDING THE DESTRUCTION OF POLICE NOTES BY M.D. WAS INFIRM AND THEREFORE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
We reject these arguments and affirm. We first address defendant's argument attacking his conviction of second degree official misconduct, which the Legislature defined as follows:
A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:
a. He [or she] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized or he [or she] is committing such act in an unauthorized manner; or
b. He [or she] knowingly refrains from performing a duty which is imposed upon him [or her] by law or is clearly inherent in the nature of his [or her] office.
Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree.
[N.J.S.A. 2C:30-2.]
The State presented evidence that defendant committed this offense when he engaged in sexual activity with H.B. on school property after she was over the age of eighteen and was no longer a student at the school where defendant was a teacher. The sexual activity consisted of H.B. performing fellatio on defendant in a room adjacent to a classroom located in the school H.B. once attended. Defendant argues that since H.B. was over the age of eighteen and was not under defendant's care or supervision as a teacher at the time, this conduct cannot support a conviction of official misconduct as a matter of law.
The State argues engaging in sexual activity on school property by teachers employed by the school is per se an unauthorized exercise of the teacher's official functions. Furthermore, the sexual activity at issue here is inextricably linked to defendant's sexual abuse of H.B. when she was a minor and a student in that same school.
The factual underpinnings supporting defendant's conviction of official misconduct in this setting are set out by the Supreme Court in the following factual recitation:
H.B. started college in the fall of 2002. Her liaisons with the defendant continued while she was in college. Their relationship became tense. He quizzed her on
whether she was dating anyone and what she was doing in her free time. He occasionally visited her at her college. While on break, H.B. returned home and visited her old middle school to see her former teachers. She found defendant in his classroom and ultimately performed oral sex on him in an adjoining room.
[Santamaria, 236 N.J. at 398 (emphasis added).]
A trial judge must deny a motion for judgment of acquittal under Rule 3:18-1, if
the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt.
[State v. Fuqua, 234 N.J. 583, 590-91 (2018) (citations omitted).]
Here, the State needed to present evidence from which a jury could find that at the time he engaged in this sexual activity with H.B. defendant: (1) was a public school teacher; (2) committed an act relating to his office knowing that it was unauthorized; and (3) his purpose in committing this unauthorized act was to benefit himself. N.J.S.A. 2C:30-2(a). The facts the Supreme Court described in Santamaria provide a sufficient evidential basis for a jury to find all three statutory elements. While serving as a teacher, defendant engaged in sexual activity in a room located in the school, with a former student he had been sexually molesting since she was a fourteen-year-old student at that school. Defendant knowingly engaged in this unauthorized act for the purpose of fulfilling his sexual gratification.
We now review defendant's last remaining argument. For the first time on appeal, defendant argues the trial judge's jury instructions concerning police officer M.D.'s failure to preserve his contemporaneous notes of interviews he conducted with witnesses amounted to plain error under Rule 2:10-2. M.D. testified at trial he destroyed these notes after he prepared and submitted his formal report. At a charge conference held pursuant to Rule 1:8-7(b), defense counsel requested the trial judge instruct the jurors that they may draw an adverse inference against the State based on the officer's failure to preserve his contemporaneous interview notes. The prosecutor did not object. Counsel's request was grounded in State v. W.B., in which the Supreme Court held:
[I]f notes of a law enforcement officer are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded, after conference with counsel, to the facts of the case. Although our holding regarding the discovery obligation is merely a reiteration of existing law, because defendant neither requested an adverse inference charge before the final jury instructions
were given, nor raised the issue before filing his motion for new trial, we decline to hold he was entitled to such an instruction in this case.
[205 N.J. 588, 608-09 (2011).]
The Court deferred the implementation of its holding for thirty days "in order to allow prosecutors sufficient time to educate police officers accordingly." Ibid. Thereafter, in State v. Dabas, 215 N.J. 114, 138 (2013), the Court made clear "that the note-retention requirement would apply prospectively to pre-indictment cases beginning after the thirty-day grace period in W.B." The Court decided W.B. on April 27, 2011. Defendant was indicted on October 1, 2010. Pursuant to the Court's clear admonition in Dabas, the W.B. adverse inference charge was unavailable to defendant. Defendant's argument attacking the constitutionality of the trial judge's instructions to the jury lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION