Opinion
DOCKET NO. A-0383-12T2
09-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAYSON L. SERRANO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-02-0631. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by GRALL, P.J.A.D.
A jury found defendant Jayson L. Serrano not guilty of murder, N.J.S.A. 2C:11-3a(1)-(2), and of the crimes of aggravated manslaughter and reckless manslaughter, N.J.S.A. 2C:11-4a(1), b(1), which were submitted to the jurors for their consideration as lesser-included offenses. The jury, however, found defendant guilty of endangering the welfare of a child as a person having assumed responsibility for the child's care, which is a crime of the second degree. N.J.S.A. 2C:24-4a. The judge subsequently sentenced defendant to a seven-year term of imprisonment and imposed the mandated assessments and penalties, N.J.S.A. 2C:43-3.1 to -3.3.
A third count of the indictment charging defendant with cruelty and neglect of the child, N.J.S.A. 9:6-3, was dismissed on the State's motion.
Defendant raises these issues on appeal:
I. REGARDING THE ENDANGERING OF THE WELFARE OF A CHILD CHARGE, THE TRIAL COURT'S JURY INSTRUCTIONS DID NOT SUFFICIENTLY CONVEY THAT THE STATE NEEDED TO PROVE THAT THE NEXUS BETWEEN DEFENDANT'S CONDUCT AND THE HARM CAUSED MET THE CODE'S REQUIREMENT FOR CAUSAL RELATIONSHIPS; THE INSTRUCTIONS ALSO WERE DEFICIENT IN FAILING TO PROVIDE A DEFINITION OF "ABUSED AND NEGLECTED CHILD" AND A LIMITATION ON THE CONDUCT WHICH THE JURY COULD CONSIDER UNDER THAT ELEMENT AND IN FAILING TO REQUIRE JURY UNANIMITY AS TO THE HARM WHICH DEFENDANT ALLEGEDLY INFLICTED. (Not Raised Below).
II. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S EFFORT TO SEEK THE ADMISSION OF PRIOR INCONSISTENT STATEMENTS OF [M.C.], THEREBY DEPRIVING DEFENDANT OF HIS RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL.
III. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Because the jury was not given an instruction on an essential element of endangering, we reverse. The reversal makes it unnecessary to address defendant's other claims.
I
The child of defendant's girlfriend died of multiple physical injuries on May 21, 2009. At the time, defendant was twenty years of age and the child was sixteen months old.
Until a week before the child's death, defendant had been living with the child and its mother in the basement of the child's maternal grandparents' home for about six months. Defendant and the child's mother left the home and went to a motel on May 14, 2009, because the child's mother and grandfather had argued about defendant.
While defendant and the child's mother were living in the motel, the child's maternal grandmother, with her daughter's assistance during the day, was the child's primary caretaker. On the evening of May 20, the child's maternal grandmother delivered the child to her daughter. The child's mother then took the child to the motel, where she, defendant and the child slept that night.
At about 8:15 a.m. the next day, the mother left the child with defendant because she had an appointment. Defendant called her at 8:45 a.m. to report that the child was not breathing. The mother suggested he call for an ambulance, which he did. The child was declared dead at 10:00 a.m.
The child had been taken to the emergency room several times before May 21. The child's maternal grandmother testified that the child had been treated for what she thought was a "seizure" several weeks before the death, and the child had a spiral fracture that was partially healed. The medical examiner for Camden, Gloucester and Salem Counties did the post-mortem examination. He concluded that the child died of multiple blunt force injuries that had fractured the child's skull, crushed her brain and lacerated her liver. In his opinion, those injuries could have caused her death within an hour but no less than twenty-four hours.
II
Because there was no objection to the jury instruction at the time, defendant must establish plain error to obtain relief on that ground. R. 2:10-2. "In respect of a late claim of error in a jury instruction, 'plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970))).
"[F]ailure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986). Without an instruction on every element, it simply cannot be said that the jury has determined that the State proved "each and every material fact that makes up the crime" beyond a reasonable doubt. State v. Ragland, 105 N.J. 189, 195 (1986). The right to a "trial by jury . . . to which [a defendant] is entitled" requires that a jury "find that the State has proved each and every material element of the crime beyond a reasonable doubt." Id. at 193-94.
Defendant was convicted of second-degree endangering as then defined in N.J.S.A. 2C:24-4a(1). Prior to the Legislature's amendment of N.J.S.A. 2C:24-4 by L. 2013, c. 136 and at the time when the conduct with which defendant was charged could have occurred, N.J.S.A. 2C:24-4a(1) in pertinent part provided:
a. (1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child . . . who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and section 1 of P.L. 1974, c. 119 (C.9:6-8.21) is guilty of a crime of the second degree. . . .Quite obviously, "harm that would make the child an abused or neglected child" within the meaning of the statutes cited in this definition is a "material element of the crime" that the jury must find the State has proven beyond a reasonable doubt.
The instruction given by the trial court provided no guidance on that element. It was as follows:
The defendant is charged with endangering the welfare of a child. The statute upon which this is based, in pertinent parts, reads as follows:
Any person having a legal duty for the care of a child or assume responsibility for the care of the child who causes the child harm that would make the child an abused or neglected child is guilty of a crime." To find defendant guilty of this crime, the State must prove beyond a reasonable doubt the following elements:
1. That [the victim] was a child.
2. The defendant knowingly caused the child harm that would make the child abused or neglected.
3. The defendant knew that such conduct would cause a child harm that would make the child abused or neglected; and,
4. The defendant had a legal duty for the care of the child or had assumed responsibility for the care of that child.
The first element the State must prove beyond a reasonable doubt is that [the victim] was a child. A child defined under this statute means a person age of — 18 years of age or younger at the time of the offense.
The State must prove only the age of [the victim] at the time of the offense beyond a reasonable doubt. It does not have to prove the defendant knew or reasonably should have known that [the victim] was under the age of 18.
The second element the State must prove beyond a reasonable doubt is the defendant knowingly caused the child harm that would make the child abused or neglected. Again, a knowing standard for the second count.
Three — I'm Sorry. Again, I'll — the definition for knowingly. A person acts knowingly with respect to the nature of his conduct or any attendant circumstances if he's aware of that conduct is of that nature, or that circumstances exist, or the person is aware of the high probability of their existence.
A person acts knowingly with respect to the result of his conduct if he's aware that it's practically certain his conduct will cause such a result. In other — he knows what he's doing.
Knowledge is a condition of the mind that cannot be seen and can only be determined by inferences from the defendant's conduct, words or act.
A state of mind is rarely susceptible of direct proof and must ordinarily be inferred from the facts. Therefore, it's not necessary that the State produce a witness to testify that an accused said he
had a certain state of mind when he did a particular thing.
It's within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of his acts and conduct and all he said and did at a particular time and place and from all the surrounding circumstances established by that evidence.
The third element the State must prove beyond a reasonable doubt is the defendant knew that his conduct would cause the child harm or would make that child abused or neglected. I have previously defined knowingly for you. The same definition would apply.
The fourth element the State must prove beyond a reasonable doubt is that the defendant had a legal duty for the care of the child or assumed responsibility for the care of that child. A person having a legal duty for the care of the child who has assumed responsibility for the care of the child includes a natural parent, adoptive parent, foster parent, step-parent or any other person who has assumed responsibility for the care, custody or control of the child or upon whom there's a legal duty for such care.
A person who assume[s] responsibility for the care of their child includes any person who assumes a general and ongoing responsibility for the child and who establishes a continuing and regular supervisory or caretaker relationship with the child. Again, I've defined knowingly for you. The same definition would — would apply.
If the State has proven each of these four elements to you beyond a reasonable
doubt, then you must [find] the defendant guilty of endangering the welfare of a child. If the State has failed to prove any one of those elements to you, beyond a reasonable doubt, you must find the defendant not guilty of that charge.
The inadequacy of the foregoing instruction is so apparent that it requires no further explanation. In urging us to infer from the jury's verdict on the homicide charges that it found defendant guilty based on medical neglect, the State overlooks the fact that defendant's right to a trial by jury entitled him to have the jury decide whether defendant neglected the child on a proper explanation of neglect within the meaning of the law, not on the basis of the jurors' individual or collective understanding of "neglect." For that reason, defendant's conviction is reversed and the matter is remanded for further proceedings on the charge of second-degree endangering.
In the event of another trial, the judge should consider the propriety of a special instruction on unanimity and admissibility of the inconsistent statement proffered by defense counsel in light of evidence presented.
Reversed and remanded for further proceedings.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION