Court: New Jersey Superior Court Appellate Division; July 26, 1999; New Jersey; State Appellate Court
Defendant Charles G. Hackett was convicted by a jury of fourth-degree lewdness and third-degree endangering the welfare of children. The victims included three girls, ages eleven and thirteen, who observed Hackett nude in his home near their school bus stop. He received a four-year sentence for endangering the welfare of children and an eighteen-month concurrent sentence for lewdness. On appeal, Hackett raised four points: insufficient evidence for the endangerment conviction, improper admission of prior bad act evidence, inadequate jury instructions on prior bad acts, and ineffective assistance of counsel. The court requested supplemental briefs to determine whether conduct defined as fourth-degree lewdness could also support a third-degree endangerment charge. The court concluded that both statutes describe independent offenses, allowing for prosecution under both. However, it found the evidence insufficient for the endangerment conviction and reversed that charge. It also stated that the lewdness conviction should merge with the endangerment conviction, had both been upheld. The court dismissed the remaining points raised by Hackett as meritless. Testimony revealed that victim M.M. observed Hackett nude multiple times and reported these incidents, while M.R.K. also confronted him about his behavior after several observations.
A.S. testified about witnessing the defendant standing naked on October 2, 1996, while he was on the phone with his back turned to her. T.W. confirmed A.S.’s account, noting there were no curtains on the defendant’s front window at that time, but blinds were closed after M.R.K. confronted the defendant. Following T.W.'s report to the police, Detective Loefflad interviewed both girls and the defendant, who admitted he might have answered the phone without clothes but denied any wrongdoing, promising to keep his curtains closed in the future. Prior to trial, the State sought to introduce evidence of two of the defendant's prior lewdness convictions: a 1977 conviction deemed too remote and a 1996 conviction allowed under N.J.R.E. 404(b). Testimony from Officers McNulty and Porch during the trial indicated they observed the defendant engaging in masturbation under a boardwalk. The defendant, who did not testify, called only his wife and a private detective as witnesses. The wife detailed her daily routine and confirmed the location of the telephone in their home, while the detective presented photographs taken at their residence on the morning of October 2, 1996. The defendant argued his conviction for endangering the welfare of children should be reversed, claiming the statute targets individuals who are not parents or guardians. However, the law specifies that any person causing harm to a child under 16 is guilty of a third-degree offense. The court also examined whether the defendant could be prosecuted under both lewdness and endangering statutes.
N.J.S.A. 2C:14-4 initially classified all lewdness acts as disorderly persons offenses, defining a disorderly persons offense as any flagrantly lewd act likely to be observed by nonconsenting individuals who may be affronted. Lewd acts included exposing genitals for sexual arousal. In 1992, the statute was amended to categorize certain lewd acts as fourth-degree crimes, specifically when committed in the presence of a child under 13 or a mentally disabled person unable to understand the sexual nature of the act. The amendment aimed to address lewdness involving vulnerable individuals.
The separate statute, N.J.S.A. 2C:24-4, addresses child endangerment, making it a second-degree crime for caregivers to engage in sexual conduct that could harm a child's morals, with third-degree penalties for others causing similar harm to minors under 16. While the statute prohibits "sexual conduct" or "conduct," it does not define these terms. The inquiry is whether nudity constitutes such conduct. The annotations suggest "sexual conduct" is not limited to specific actions, and past cases, such as State v. White, indicate that actions impairing a child's morals can fall within this scope, as demonstrated by a conviction involving exposure to nude photographs.
'Sexual conduct' under N.J.S.A. 2C:24-4 includes showing nude explicit photographs to children, and the defendant's nudity in this case is considered to fall within this definition. Prosecutions under N.J.S.A. 2C:24-4a for endangering the welfare of a child often accompany other sexual conduct charges. A notable case, State v. Zeidell, involved a defendant convicted of sexual assault, endangering the welfare of a child, and lewdness after being observed performing a sexual act in view of children. The initial conviction was reversed by the Appellate Division, which found a lack of specific victimization and necessary relational elements for sexual assault. However, the Supreme Court reinstated the conviction, identifying three key elements of tender-years sexual assault: a victim under thirteen, a defendant at least four years older, and intentional sexual contact with the victim. Such contact includes various forms of touching, aimed at either humiliating the victim or sexually gratifying the defendant. The Court further clarified that lewdness can be a disorderly persons offense or a fourth-degree crime, depending on the context of exposure and the victim's age or mental capacity. The discussion also noted that the trial court had merged the endangering convictions with the sexual assault convictions.
Several court cases are noted where defendants were charged with endangering the welfare of a child under N.J.S.A. 2C:24-4, alongside sexual assault charges. These include State v. D.R., State v. Miller, State v. Still, and State v. Davis, where the defendants faced various convictions related to sexual offenses and endangerment. The case of Zeidell is highlighted for its examination of the relationship between the sexual assault statute and the lewdness statute, suggesting a similar analysis could apply to the interplay between the lewdness statute and the endangering statute in the current appeal.
Nudity is not illegal in New Jersey when in private, but it becomes an offense if it is intended to arouse sexual desire in the presence of a nonconsenting observer. The severity of the offense escalates based on the age of the observer, particularly if they are under 13 or 16 years old, and if the conduct harms or debauches the morals of the child. The act of nudity by a parent or guardian is treated as a more serious second-degree offense if it negatively impacts the child.
In this matter, the court examines whether the defendant’s nudity constitutes a distinct offense under both the lewdness and endangering statutes. The indictment includes two behaviors: the lewd act and the endangerment that impacts the child's morals. A fourth-degree conviction requires that a child observes the lewd act, while a third-degree conviction necessitates proof that the child’s morals were impaired. The court concludes that a defendant can be prosecuted under both statutes if the evidence supports the distinct charges. The dissenting opinion argues that if the conduct fits solely under the lewdness statute and the state fails to prove moral impairment, a conviction for endangerment should not stand.
A jury may reasonably find that indecent exposure, as defined by the lewdness statute, constitutes third-degree endangering a minor due to its inherent tendency to impair a minor's morals, regardless of specific proof of such impairment. However, legislative intent from the 1992 amendment of N.J.S.A. 2C:14-4 indicates that mere exposure observed or likely to be seen by a child under thirteen is classified as a fourth-degree crime, not a third-degree crime. For an indecent exposure act to be considered third-degree endangering, there must be evidence showing the act exceeded mere exposure or had a significant capacity to impair a child's morals. Any other interpretation could undermine the statute's purpose and allow for excessive prosecutorial discretion.
The Criminal Code stipulates that a defendant cannot be convicted of two offenses based solely on the same conduct if one offense represents a general prohibition and the other pertains to a specific instance of that conduct. The relevant issue is whether the third-degree charge should have been presented to the jury at all, as the State did not provide sufficient evidence to support a conviction under the endangerment statute (N.J.S.A. 2C:24-4a). While a conviction for lewdness (N.J.S.A. 2C:14-4b(1)) could be supported, the State failed to demonstrate that the defendant’s actions were likely to debauch children’s morals. Testimony from one victim's mother indicated that the children saw the defendant naked and posing but did not substantiate that this act had a moral debauching effect on them.
The witness confirmed having spoken with M.M. and M.R.K. to verify their account before involving the police. They stated that the defendant had been posing and waving at them for several weeks. The judge instructed the jury on the elements necessary to establish the charge of third-degree endangering the welfare of children under N.J.S.A. 2C:24-4a. The elements included: (1) the victims were under 16 years old, (2) the defendant knowingly engaged in sexual conduct, and (3) such conduct would impair or debauch the morals of a child. The law does not require proof that the conduct actually impaired the morals of the children. The evidence presented did not support the claim that the defendant's act of standing nude in front of a window would corrupt the morals of the victims. Consequently, the trial judge erred by not dismissing this count of the indictment. The jury was instructed that the State must prove each element beyond a reasonable doubt, and if any element was unproven, a not guilty verdict must be rendered.
The judge's jury charge, which partially follows the Model Jury Charge for endangering the welfare of a child, is found to lack clarity and conflict with legal analysis. The Model Jury Charge inaccurately describes 'sexual conduct' by referencing nudity as defined in N.J.S.A. 2C:24-4b(1)(i), which pertains to child pornography, without acknowledging the distinctions among sections N.J.S.A. 2C:24-4a and N.J.S.A. 2C:24-4b(2) to (5). The latter specifically prohibits causing or permitting a child to engage in prohibited sexual acts, whereas the definition of 'prohibited sexual act' is not found in N.J.S.A. 2C:24-4a. The definition of nudity applies only to a child's nudity, complicating cases where the charge involves the defendant's own nudity. Clear jury instructions are essential for a fair trial, and model charges may not always suit specific cases. Tailoring the Model Jury Charge could avoid confusion regarding nudity in the context of 'sexual conduct.' The conviction for endangering the welfare of a child is deemed subject to reversal, and there is also consideration of merger between convictions for endangering a child's welfare (N.J.S.A. 2C:24-4a) and lewdness (N.J.S.A. 2C:14-4b(1)). Previous case law indicates that convictions may merge when the statutes protect different interests, highlighting the unique duty a parent has toward a child.
The principles established in Miller are applicable to this case, preventing the merger of the conviction under N.J.S.A. 2C:24-4(a). The same conclusion arises from N.J.S.A. 2C:1-8(a) of the Code of Criminal Justice. In contrast, a previous court in Still determined that if a defendant is neither a parent nor a babysitter and has no legal duty to the victim, convictions for sexual assault and fourth-degree endangering the welfare of a child do merge. In this case, the jury convicted the defendant on both counts, resulting in a four-year sentence under N.J.S.A. 2C:24-4(a) and an eighteen-month concurrent term under N.J.S.A. 2C:14-4(b)(1). The conviction for violating N.J.S.A. 2C:24-4(a) is reversed due to insufficient evidence, but even if affirmed, the lewdness conviction should merge with the endangerment conviction, following Still's reasoning.
The court reviewed the defendant’s second and third points of error, concluding they lacked merit and did not necessitate a written opinion. Regarding admissibility of prior offenses, N.J.R.E. 404(b) prohibits using evidence of other crimes to imply a defendant's character but allows it for other relevant purposes. Such evidence must satisfy a four-prong test: relevance, similarity and proximity in time, clarity and convincing nature, and a balance of probative value against potential prejudice. The trial judge correctly evaluated previous lewdness convictions, ruling the earlier conviction from 1977 was too remote for use, while the 1996 conviction met all admissibility criteria. Additionally, the jury instructions followed the proper legal standards, as established in Cusick and approved in G.S., with no errors found.
Defendant claims ineffective assistance of counsel, which requires proving two elements: 1) that counsel's performance was deficient, and 2) that this deficiency caused prejudice sufficient to create a reasonable probability that the outcome would have been different. This standard is established in Strickland v. Washington. Despite trial counsel potentially failing to object to hearsay evidence, this was deemed harmless due to the victims' ages and the sensitive nature of their testimonies. Overall, trial counsel is considered to have provided a vigorous defense during pre-trial motions and sentencing, leading to the rejection of the defendant’s claim. The ruling affirms the conviction on count one but reverses the conviction on count two, citing possible influences on the sentencing for count one. The case is remanded for reconsideration of the sentence on count one and correction of the judgment. The appellate counsel replaced trial counsel, and although the State provided sufficient evidence for conviction, jury instructions on statutory conduct under N.J.S.A. 2C:24-4a were found inadequate. The judge's reading of the Model Jury Charge clarified definitions of "sexual conduct" and "intentional touching" relevant to the charges. The excerpt emphasizes the legal standards for ineffective assistance and the implications for the defendant’s convictions and sentencing.
