STATE IN THE INTEREST OF D.M.(FJ-20-209-15, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
168 A.3d 1185
| N.J. Super. Ct. App. Div. | 2017Background
- Juvenile D.M. (14) was charged with acts that, if by an adult, would be first-degree aggravated sexual assault; the court admitted out-of-court statements by the alleged 11-year-old victim, “Zane.”
- Zane disclosed multiple incidents of fellatio and an attempted anal penetration by D.M. at a playground and at D.M.’s house; Zane also admitted sexual activity with a seven-year-old and sent a sexual message to D.M. via Oovoo.
- The trial judge found Zane credible but concluded the State did not prove sexual penetration or coercion; D.M. was nevertheless adjudicated delinquent of third-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)).
- At disposition the court imposed three years probation, outpatient residential treatment, and Megan’s Law registration; D.M. appealed only some grounds, and the Court of Appeals asked supplemental briefing on whether lack of penetration or coercion undermines a child-endangerment adjudication when a four-year age difference is required for sexual-assault liability.
- The central legal question: can conduct that fails to meet child sexual-assault elements (specifically the statutory four-year age difference or penetration/coercion) be prosecuted as child endangerment based on "sexual conduct"?
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zane’s out-of-court statements were admissible under N.J.R.E. 803(c)(27) | State: statements are trustworthy and admissible under the child-hearsay exception | D.M.: statements were coerced/self-serving and unreliable | Not reached on appeal (court addressed statutory-construction issue and reversed on other grounds) |
| Whether evidence supported a finding of sexual penetration or coercion | State: facts and testimony sufficiently showed penetration/coercion | D.M.: no penetration proved; no coercion; some testimony supports consensual or fabricated acts | Trial judge found no penetration or coercion; appellate court accepted those findings |
| Whether a juvenile may be adjudicated for child endangerment for nonpenetrative sexual contact when the sexual-assault statute requires a 4-year age gap | State: child endangerment covers "sexual conduct" regardless of the 4-year rule | D.M.: Legislature exempted same-age juvenile sexual contact from criminal liability; specific sexual-assault statute governs | Held: Reverse adjudication — specific sexual-assault statute (and rule favoring accused) precludes using general child-endangerment statute to criminalize nonpenetrative sexual contact between juveniles less than four years apart absent penetration or coercion |
| Whether appellate court can overturn trial judge’s factual findings (penetration) based on disposition comments | State: appellate court should find penetration despite judge’s written finding | D.M.: judge’s written finding of no penetration controls; appellate court cannot reweigh facts | Held: Appellate court will not reweigh; judge’s written finding of no penetration stands and bars sexual-assault conviction |
Key Cases Cited
- State v. Thomas, 187 N.J. 119 (recognizing lesser-related charges may be considered)
- State v. Perez, 177 N.J. 540 ("sexual conduct" in child-endangerment statute includes sexual assaults and contact)
- State v. Robinson, 217 N.J. 594 (specific statute overrides a general statute in cases of ambiguity)
- State v. Reiner, 180 N.J. 307 (ambiguities in penal statutes construed in favor of defendant)
- State ex rel. J.P.F., 368 N.J. Super. 24 (appellate limits on making new factual credibility findings)
- State in Interest of J.O., 242 N.J. Super. 248 (double jeopardy bars appeal of a not-delinquent finding)