This post examines an opinion from the Superior Court of NewJersey – Appellate Division: State v. Brown, 2016 WL 6694616
(2016). The court begins by noting that
[d]efendant appeals from his conviction
for third-degree endangering the welfare of a child, New Jersey Statutes Annotated 2C:24-4(a)(1). We affirm.
State v. Brown, supra.
The opinion goes on to explain how, and why, the prosecution
arose:
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.
State v. Brown, supra.
The goes on to note that a
grand jury indicted and charged defendant with second-degree endangering
the welfare of a child, New Jersey Statutes Annotated 2C:24-4(a)(1). 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.
State v. Brown, supra.
In his appeal, Brown made two
arguments:
POINT I
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.
State v. Brown, supra.
The Appellate Division addressed the issues in this
order. State v. Brown, supra.
As to whether the trial judge erred in denying Brown’s
motion to dismiss the indictment, the charges, against him, the court began its
analysis by explaining that 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.
State v. Brown, supra.
The opinion goes on to explain that 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?’
`D.H.: And big boy games [are]
considered something to do with [sex] correct?
`Defendant: What do you think? Yes.’
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.
State v. Brown, supra.
The court then took up Brown’s second argument on appeal,
which was 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).
State v. Brown, supra. In this argument, Brown is
relying on what is known as the “vagueness doctrine” in United States law. You can read more about the doctrine here.
The opinion then goes on to explain that 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.’
[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).]
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. Brown, supra.
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