Opinion
DOCKET NO. A-3364-13T3
02-08-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANYELL FUQUA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-05-0761. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
A jury convicted defendant Danyell Fuqua of second-degree endangering the welfare of a child and a judge imposed a six-year prison term concurrent to her sentence on a separate endangering count in an unrelated indictment. Defendant appeals, raising the following points for our consideration:
POINT I
THE LOWER COURT ERRED IN ITS DETERMINATION THAT SECOND-DEGREE ENDANGERING THE WELFARE OF A CHILD DOES NOT REQUIRE EVIDENCE OF ACTUAL HARM, BECAUSE SUCH A CONSTRUCTION IS CONTRARY TO THE PLAIN LANGUAGE OF THE STATUTE.
A. The Standard Of Review Of The Lower Court's Statutory Construction Is Plenary.
B. The Phrase "Causes The Child Harm" In The Endangering Statute Is Clear And Unambiguous; Situations Involving Only The "Risk Of Harm" Are Plainly Excluded From Prosecution Under N.J.S.A. 2C:24-4a.
C. Alternatively, If The Lower Court's Statutory Construction Is Correct — That Only Proof Of The Risk Of Harm Is Required — Then The Statute Is Void For Vagueness Because The Inconsistent Definitions Of Abuse Or Neglect Make Application Of The Statute Difficult Or Impossible.
POINT II
THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THERE WAS NO EVIDENCE ADDUCED TO PERMIT A REASONABLE FINDING THAT THE CHILDREN WERE IN IMMINENT DANGER OF HARM AT THE TIME OF TRIAL, AS REQUIRED BY TITLE 9 AND THE NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY V. M.C., 435 N.J. SUPER. 405 (APP. DIV. 2014), CERTIF. GRANTED, ___ N.J. ___ (2014).
A. The Standard Of Review Of A Motion For Judgment Of Acquittal.
B. There Was No Evidence Presented That The Children Were In Any Current Danger, As Required For A Finding Of Abuse Or Neglect Under Title 9.
POINT III
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
For the reasons that follow, we affirm.
A Middlesex County grand jury returned a thirteen-count indictment charging defendant's boyfriend, Tyrell Johnson, with twelve controlled dangerous substance (CDS) offenses, and Johnson and defendant with one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). During defendant's three-day trial, at the close of the State's case, defendant moved for a judgment of acquittal. The court reserved decision. Following the verdict, the court heard additional arguments on defendant's motion for a judgment of acquittal and denied it. The court sentenced defendant to a six-year custodial term concurrent to her sentence on an endangering offense charged in a separate indictment. The court also imposed appropriate penalties and assessments.
Johnson pled guilty to drug distribution charges. Defendant was tried alone on the sole child endangerment count.
The State developed the following proofs at trial. The Middlesex County Prosecutor's ongoing narcotics investigation of Johnson culminated at approximately 1:30 a.m. on December 10, 2011, when eight law enforcement officers forcibly entered and searched the East Brunswick hotel room where Johnson and defendant were residing. The officers entered the room after keeping it under surveillance for five or six hours. When the officers entered, they discovered defendant, Johnson, and six children ranging in age from one to thirteen years old. Three were defendant's children, another was Johnson's child, and two were defendant's relatives.
According to the trial judge's written opinion denying defendant's motion for acquittal, the officers entered the motel room to execute a search warrant for drugs.
The hotel room was small, approximately sixteen to eighteen feet long and approximately twelve feet wide. According to the hotel's general manager, as one enters the room, the kitchen is on the right, as is the kitchen table, dresser, and television. Two beds are on the left and the bathroom is located next to the front door. A window is located in the wall directly across from the door.
During the search, the officers found heroin, cocaine, raw marijuana, and currency. New Brunswick Police Officer Michael Coppola photographed and logged the evidence. According to his property log, the officers found on the kitchen table: one clear plastic bag and one grinder containing a green, leafy substance; an open box of clear plastic sandwich bags; a copper, silver-colored revolver chamber; and one white pill bottle containing three blue pills, four green pills, and four orange pills.
Between the beds, the officers found one black and silver "First-Alert" lock box with the key in the lock. The lock box contained jewelry, three packs of heroin, a William Patterson orange-colored plastic bag containing 653 smaller bags of heroin, and one large bag of cocaine. Near the rear wall, under the window, was a black plastic bag containing 201 packets of heroin and fourteen plastic bags containing "an off-white powdery substance." On the floor next to the bag was a pair of children's shoes and a small toy puppy dog. The officers also found a black-colored digital scale covered in white residue on the windowsill of the rear wall.
Three officers testified they smelled the odor of burnt marijuana when they entered the room. One officer also claimed to have seen a small cloud of smoke, leading him to believe that somebody was smoking marijuana in the room. Another officer explained that heroin, which is opiate-derived, depresses the central nervous system. Cocaine, on the other hand, stimulates the central nervous system.
In addition to the drugs, the officers found five cellular phones, Johnson's wallet, and miscellaneous documents between the beds. They also found more than $2000 located inside a purse on the kitchen table, and $1700 that one of the officers believed may have been on Johnson's person.
The State presented no direct evidence as to how long either Johnson or the children had been in the hotel room. Defendant's registration card noted she was given two keys, and she paid for the room in cash. Hotel records revealed she checked in on September 22, 2011, nearly three months earlier.
Defendant presented no evidence. According to the verdict form, the jury found the State proved beyond a reasonable doubt that at least one of the children were abused or neglected. Additionally, the jury found the abuse or neglect caused harm to at least one of the children. Consequently, the jury found defendant guilty as charged.
On appeal, defendant argues the trial court erroneously denied her motion for a judgment of acquittal because the State failed to prove the children were in imminent danger of harm. Defendant also argues the court erroneously determined the offense of second-degree endangering does not require actual harm.
The State disagrees with defendant's arguments. The State contends defendant misreads the second-degree endangering statute. The State also contends it proved, beyond a reasonable doubt, the children in the hotel room not only were placed in imminent danger of harm, but also suffered actual harm.
To provide context for the parties' arguments, we begin our analysis with the statute at issue and its interpretation by the courts. The statute provides in pertinent part:
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 [N. J.S.A. 19:6-1, [N. J.S.A.] 9:6-3 and [N. J.S.A. 9:6-8.21] is guilty of a crime of the second degree.
[N. J.S.A. 2C:24-4(a)].
The statute has since been amended by L. 2013, c. 51, § 13 and L. 2013, c. 136 § 1.
The statute incorporates three Title 9 statutes. N.J.S.A. 9:6-3 provides in pertinent part:
Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.N.J.S.A. 9:6-1 defines specific acts of child abuse, including "the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child[.]" N.J.S.A. 9:6-8.21 defines "abused or neglected child" and includes:
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of the excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
When construing N.J.S.A. 2C:24-4(a), as when construing any statute, "words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language." N.J.S.A. 1:1-1.
Applying this rule of construction would seemingly result in an uncomplicated interpretation of the statutory offense. Elements of the statutory offense for non-sexual violations would appear to be straightforward: (1) the accused either had a legal duty or had assumed responsibility for care of a child; (2) the accused caused the child harm; and (3) the harm would make the child an "abused or neglected child" as defined by N.J.S.A. 9:6-1, 9:6-3, or 9:6-8.21. In cases where the first element is undisputed, a court analyzing the adequacy of the State's proofs would begin by determining whether a defendant caused a child harm. If so, the court would have to determine whether the harm would make the child an "abused or neglected child" as defined in the Title 9 statutes.
As evident from Title 9 cases, one can cause a child harm that does not constitute abuse or neglect. See e.g., N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 39 (2011) (holding a mother occasionally slapping her teenage daughter in the face does not constitute abuse or neglect); N.J. Div. of Youth and Family Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App. Div. 2010) (holding an isolated incident of a mother repeatedly striking her young daughter with a closed fist hard enough to cause bruising did not constitute abuse or neglect), certif. dismissed as improvidently granted, 208 N.J. 355 (2011).
Such an interpretation of N.J.S.A. 24-14(a) would appear to be both logically correct and consistent with the legislative mandate in N.J.S.A. 1:1-1 that "words and phrases . . . be given their generally accepted meaning, according to the approved usage of the language." After all, the phrase "causes harm" has a generally accepted meaning, and the relative pronoun "that," which follows "causes harm" has an approved usage of beginning a restrictive clause that modifies the immediately preceding noun. See Bryan A. Garner, The Oxford Dictionary of American Usage and Style 330-32 (2000).
The foregoing interpretation of N.J.S.A. 2C:24-14(a), as it existed when defendant was prosecuted, is the interpretation defendant urges here. Although it has some appeal, two panels of this court have rejected the statutory interpretation defendant urges. In State v. M.L., 253 N.J. Super. 13, 17-18 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992), the defendant left her fifteen-month-old child alone in a playpen in her apartment while she went to a store where she was arrested for shoplifting. The child was found "in desperate need of a diaper change and was sweating in the 90 [degree] heat of the apartment." Id. at 18. "When arrested for shoplifting and unable to make bail, [the defendant] made no provision for that child. Several hours passed and [the] defendant maintained her silence." Id. at 30.
Rejecting the defendant's argument that N.J.S.A. 2C:24-4(a) "is vague on its face and in its application to her[,]" id. at 28-29, the court noted: "We do not read the Legislation as calling for demonstration of actual physical harm but, even if so required, we deem these circumstances to satisfy such a definition." Id. at 31.
Similarly, in State v. N.A., 355 N.J. Super. 143, 153 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003), the panel explained:
It is apparent that the Title 2C offense of endangering the welfare of children and the Title 9 offense of cruelty and neglect of children are the same offenses. The only difference is the degree of the offense and the penalty. Each offense criminalizes the same harm or risk of harm to the child. Each offense requires the same proof of "knowing culpability." [State v. Demarest, 252 N.J. Super. 323, 333 (App. Div. 1991).] Each offense also encompasses conduct by a parent. An instruction to the jury on each offense would be the same. Furthermore, unlike [State v. Whittaker, 326 N.J. Super. 252, 256-59 (App. Div. 1999)], the jury cannot make a finding, such as the instrumentality used in an attack, that will affect the gradation of the offense.
The conclusion that the offenses are identical is supported by the legislative history of Title 2C. The 1971 Commentary to what became the Criminal Code, specifically the section which was later codified as N.J.S.A. 2C:24-4, states "[t]his Section incorporates into the Code the existing law as to abuse, abandonment, cruelty and neglect of children by making such conduct criminal under the definitions of those terms in Title 9. The intent is to incorporate the crime now defined in N.J.S.[A.] 9:6-3 without substantial change except for the penalty provisions." Final Report of the New Jersey Criminal Law Revision Commission, Vol. II at 259 (1971). Although one commentator opines that N.J.S.A. 9:6-3 has been superseded, it has not been repealed. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:24-4 (2002). Indeed, amendments
to both statutes in the intervening years evince a legislative intent that both statutes are to be preserved perhaps to provide prosecutors the option of charging a lesser offense under appropriate circumstances. See State v. D.V., 348 N.J. Super. 107, 114-16 (App. Div.) (recognizing the inherent discretion of the prosecutor to select between a crime of the second degree and a crime of the fourth degree), certif. granted, 174 N.J. 39 (2002).
The panels in these two cases did not interpret the N.J.S.A. 2C:24-14(a) phrase, "that would make the child an abused or neglected child as defined in [the Title 9 statutes]" as modifying the "harm" a defendant causes a child. Rather, the panels essentially interpreted "causes the child harm that would make the child an abused or neglected child as defined in [the Title 9 statutes]" as synonymous with offenses constituting "abuse or neglect" as defined or identified in N.J.S.A. 9:6-1, -3, and -8.21. These definitions include placing a child at risk of harm. Thus, "causes harm" in N.J.S.A. 2C:24-4(a) means not only causes harm, but also unreasonably allows a substantial risk of harm.
Although defendant asserts the panel's analysis in N.A. is flawed, another panel reached the same result in State v. D.V., 348 N.J. Super. 107, 114 (App. Div. 2002): "we recognized the overlapping of the statutes in State v. Demarest, 252 N.J. Super. 323, 333 (App. Div. 1991), in which we held that the respective statutes criminalize the same conduct and require the same proof of 'knowing culpability'." The Supreme Court affirmed the panel's decision "substantially for the reasons expressed in Judge Collester's opinion of the Appellate Division, reported at 348 N.J. Super. 107 (2002)." State v. D.A.V., 176 N.J. 338 (2003).
We now return to and reject defendant's arguments concerning the trial court's denial of her motion for a judgment of acquittal. The standard for deciding a Rule 3:18-2 motion for acquittal after the jury is discharged is the same as that used to decide a motion for acquittal made at the end of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.We owe no deference to the trial court's legal conclusions concerning the interpretation of a statute. Our review of a question of statutory interpretation is plenary. See State v. Gandhi, 201 N.J. 161, 176 (2010).
[State v. Reyes, 50 N.J. 454, 459 (1967).]
In denying defendant's motion for acquittal, the trial court rejected the State's argument the children had been harmed by being exposed to marijuana smoke. The court concluded that without expert testimony, the State could not prove beyond a reasonable doubt any of the children were actually harmed. However, the court concluded the State had proved beyond a reasonable doubt defendant had subjected the children to a risk of harm. Accordingly, the court denied defendant's motion for acquittal.
Defendant's arguments the court erred in denying the motion for acquittal are unavailing. Defendant's argument that N.J.S.A. 2C:24-4(a) requires a defendant actually cause harm to a child is contrary to now established precedent, as we have previously discussed. Defendant argues, alternatively, that if the statute does not require actual harm, it is void for vagueness. Defendant did not make this argument to the trial court. In any event, we have previously rejected such an argument. M.L., supra, 285 N.J. Super. at 28-30.
We also reject defendant's argument that the State failed to prove the children were in imminent danger of harm. Six youngsters were confined to a small room where children's shoes and toddlers' toys shared floor space with accessible heroin and cocaine. The jury could have reasonably inferred from the small dimensions of the hotel room, the number of children present, and the large quantity of drugs accessible to the children, that any of the children could have accessed and ingested the drugs.
In her argument disputing the State proved the children were in imminent danger, defendant relies primary on N.J. Div. of Child Prot. and Permanency v. M.C., 435 N.J. Super. 405 (App. Div.), certif. granted, 220 N.J. 41 (2014). Although current when defendant wrote her brief, the panel's decision in M.C. is no longer good law. See N.J. Div. of Child Prot. and Permanency v. M.C., 223 N.J. 160 (2015); Dep't of Children & Families, Div. of Child Prot. and Permanency v. E.D.-O., 223 N.J. 166 (2015).
The cases defendant relies upon in her reply brief are also inapposite. N.J. Dep't of Children and Families, Div. of Youth and Family Servs. v. A.L., 213 N.J. 1 (2013) involved an expectant mother's ingestion of drugs, not the accessibility of drugs to children. Moreover, the Court stated:
In the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm. See N.J.S.A. 9:6-8.21(c)(4)(b). A court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Once again, the statutes direct that the Division must show imminent danger or a substantial risk of harm to a child by a preponderance of the evidence. N.J.S.A. 9:6-8.21(c)(4)(b), -8.46(b).
[Id. at 23.]Here, the State proved imminent danger and substantial risk of harm.
N.J. Div. of Youth and Family Servs. v. N.D., 435 N.J. Super. 448 (App. Div. 2014) also involved an expectant mother's ingestion of drugs. Finally, N.J. Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011) involved a father testing positive for drugs, id. at 330, rather than a situation where drugs were readily accessible to children.
In view of our conclusion concerning defendant's exposing the children to a substantial risk of harm, we need not decide whether the trial court correctly concluded that absent expert testimony the State could not prove the children's exposure to marijuana smoke harmed them. Nor need we decide whether the evidence was sufficient to prove the teenager or another child was exposed to unlawful behavior that might have tended to debauch or endanger their morals. --------
Lastly, we reject defendant's argument that her sentence is excessive. The minimum sentence for a second-degree crime is five years. The court sentenced defendant to six years with no mandatory minimum of parole ineligibility. Defendant's contentions the court did not properly weigh appropriate mitigating factors and could have sentenced defendant "one degree lower" are without sufficient merit to warrant further discussion. 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