RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0216-15T2

APPROVED FOR PUBLICATION STATE IN THE INTEREST OF D.M., a juvenile. August 9, 2017 _________________________ APPELLATE DIVISION

Submitted May 16, 2017 — Decided August 9, 2017

Before Judges Reisner, Koblitz and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-209-15.

Joseph E. Krakora, Public Defender, attorney for appellant D.M. (Seon Jeong Lee, Designated Counsel, on the briefs).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

D.M.,1 appeals from a May 29, 2015 adjudication of

delinquency for acts which, if committed by an adult, would

constitute third-degree endangering the welfare of a child,

1 We use initials and pseudonyms to protect the identity of the juvenile and minors involved in these proceedings. R. 1:38- 3(d). N.J.S.A. 2C:24-4(a). The dispositional order imposed a three-

year probationary term, N.J.S.A. 2A:4A-43(b)(3), treatment at an

outpatient residential placement program, and full compliance

with sex offender requirements pursuant to Megan's Law, N.J.S.A.

2C:7-1 to -11.2 The trial judge found that the State did not

prove the sexual behavior between fourteen-year-old D.M. and his

eleven-year-old alleged victim, "Zane," involved sexual

penetration. Coercion was not alleged or found. Based on those

findings, using the appropriate principles of statutory

construction, an adjudication of delinquency against a child for

endangering the welfare of another child less than four years

younger based on sexual contact is not sustainable and we

therefore reverse.

2 Because D.M. was over the age of fourteen when the incident occurred, he must report for at least fifteen years. N.J.S.A. 2C:7-2(f); In re Registrant J.G.,

(2001) (holding that in the case of a ten-year old adjudicated delinquent for aggravated sexual assault of his eight-year-old cousin, Megan's Law applies until age eighteen if the juvenile offender is under the age of fourteen and is determined by clear and convincing evidence to be unlikely to pose a threat to the safety of others); State ex rel. J.P.F.,

, 38- 39 (App. Div.), certif. denied,

(2004) (declining to extend the holding in J.G. regarding termination of Megan's Law requirements to a seventeen-year-old juvenile offender adjudicated delinquent for fourth-degree criminal sexual contact of another seventeen year old, as juvenile was over fourteen years of age). Cf. State ex rel. C.K.,

(2016) (granting certification on the issue of whether lifetime registration requirements imposed on juveniles is constitutional).

2 A-0216-15T2 D.M. was charged with delinquency for conduct occurring

between April 1 and August 20, 2014, which, if engaged in by an

adult, would constitute first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1).

After conducting an N.J.R.E. 104(a) hearing, the trial

judge admitted into evidence Zane's out-of-court disclosures

pursuant to N.J.R.E. 803(c)(27) (permitting hearsay testimony by

a child under the age of twelve "relating to sexual misconduct

committed with or against that child" if the court finds "there

is a probability that the statement is trustworthy"). The following

facts were developed at the hearing3 and subsequent trial.

Eleven-year-old Zane and his younger brother, Za.Y., who

was nine years old, spent time when not in school in the area

where their mother, L.Y., operated her hair salon. Zane and

Za.Y. played across the street from the salon in the playground

behind a school with their friend, R.R., who was fifteen years

old at the time and lived a few doors away from the salon. R.R.

and D.M. had been friends for several years. R.R. introduced

D.M. to Zane at the playground. D.M. is approximately three and

one-half years older than Zane. During April 2014, D.M. was

fourteen years old.

3 By consent, testimony from the hearing was incorporated into the bench trial. See State v. Gibson,

(2014) (allowing that procedure in a drunk-driving prosecution).

3 A-0216-15T2 L.Y., her adult daughter, N.C., N.C.'s boyfriend, Zane,

Za.Y, and E.B., L.Y.'s boyfriend's seven-year-old son were at

L.Y.'s house one evening in August 2015. Zane and Za.Y. were in

their shared upstairs bedroom with E.B. L.Y. went to "check on

the boys." Upon entering the room, she observed Za.Y. sleeping

on the top section of the bunkbed, and Zane and E.B. sitting

together on the bottom bed in an odd arrangement. Although she

initially left, L.Y. shortly returned and observed that Zane's

shorts were "twisted." L.Y. angrily asked Zane "what [were] you

doing?" Zane initially denied any wrongdoing. L.Y. then asked

E.B. what was going on. E.B. told L.Y. that "[Zane] was doing

nasty things" including "rubbing his penis on him." L.Y. yelled

at Zane, "popped" Zane on the buttocks, and asked him repeatedly

where he learned this behavior. Zane answered, "the boy did it

to me."

According to N.C., she came upstairs and her mother, L.Y.,

sounded "furious." N.C. found her mother in her bedroom crying

and yelling at her brother, Zane. N.C. took Zane to the

downstairs bathroom, hugged Zane as he was crying, and told him

he "shouldn't be in bed with another little boy." N.C. asked

him three times, "where did he get that from?" Zane responded,

"someone did that to him." Zane then told N.C. that D.M. "made

him suck his penis . . . and [D.M.] told [Zane] to put his penis

4 A-0216-15T2 in his anus." Zane said he had not told his family because "he

was scared of what everyone would think." L.Y. testified, and

N.C. confirmed, that Zane stated he was afraid "daddy's going to

kill me" and his brothers and father "would think he was gay."

Sergeant Walter Johnson of the Union County Prosecutor's

Office, Special Victims Unit, testified that he conducted a one-

on-one video-recorded interview with Zane sometime mid-morning

on the day following this incident.

On the video recording,4 Johnson asked Zane "do you know why

you're here today?" Zane responded, "Yeah" and, "[c]ause I did

something." Zane was initially unresponsive, until Johnson

assured Zane that he was "not in any trouble[,]" after which he

asked Zane "what happened?"

Zane revealed two interactions two weeks apart with D.M.

while they were at the playground. Zane said that, at D.M.'s

request, Zane "sucked [D.M.'s] thingy." Zane further stated to

Johnson that the sexual activity with D.M. occurred at the

playground in a stairwell after it "got dark" and their friends

and Za.Y. left. According to Zane, both he and D.M. were

standing while Zane performed fellatio on D.M. for only "two

seconds." Zane also claimed he did not know any other name for

the part he referred to as "thingy," and that D.M. did not touch

4 We were provided with the transcript but not the recording.

5 A-0216-15T2 any other part of Zane's body. Zane said, "[i]t made [him] feel

weird."

Although Zane originally denied that D.M. had touched him

during this second incident, he later stated that D.M. "touched

[him] on [his] butt" with D.M.'s "thingy." Zane stated that

D.M. told him to take off his clothes and he tried to put it in,

but Zane told him to stop because "[i]t kind of hurt." At

trial, Zane testified that it was during the first incident that

D.M. attempted to anally penetrate him.

Johnson asked Zane if "something like [the D.M. incident]

happened with anyone else[,]" and Zane confirmed that it

happened with E.B., his mother's boyfriend's seven-year-old son,

after Zane asked E.B. "to suck his thingy[,]" and E.B. complied.

Zane told Johnson that "[l]ast night" was the only time that

Zane had ever done that with E.B., and that nothing else

occurred between them.

Zane told Johnson that he told both L.Y. and his father,

"everything [he] told [Johnson]."

Zane's father was in the courtroom as a "support person"

during Zane's testimony. In addition to his disclosures

regarding the two incidents with D.M. in the playground

stairwell, Zane testified at trial about another incident when

he and D.M. walked to D.M.'s house. The first time he told

6 A-0216-15T2 anyone about this third incident was one week before trial

"because [he] didn't remember it" before then. According to

Zane, D.M. asked Zane if he could "[p]ut his thing in [Zane's]

mouth again," for which Zane complied. Zane did not recall when

this occurred. When questioned about the incidents in the park,

and asked whether D.M. told him or "politely ask[ed]" him to

stay, Zane responded: "He asked me." Zane denied D.M. forced

him or threatened him, although he said the interaction made him

feel uncomfortable and "weird" and he did not like it.

On cross-examination, Zane admitted that he used the video

and messaging chat application, "Oovoo," to contact D.M. Zane

confirmed that one night at 10:29 p.m. he messaged D.M.

Although he refused to read the message aloud, he acknowledged

he wrote to D.M., "So 69, let me C-U-R cock." D.M. did not

respond, although Zane tried to call him again. Zane also

testified on cross-examination that he knew what "cock" and "69"

meant, and that his older friend R.R. had previously shown him

"dirty" pictures on R.R.'s smartphone. Zane also said that when

discovered with E.B., his mother "popped" him for the first time

in his life.

Zane stated that the night he was discovered having E.B.

perform fellatio on him was not the first time he engaged in

that behavior with E.B. Zane admitted to three sexual

7 A-0216-15T2 encounters with the seven-year-old. Zane said he told the

younger child he had learned the behavior from pornography.

D.M. presented B.V., aged seventeen, and B.C., aged

eighteen, as defense witnesses. Both were in the Junior Reserve

Officer Training Corps with D.M. B.V. testified he was "best

friends" with D.M. and that they would "hang out" together at

the playground behind the school. B.V. stated that he sometimes

saw Zane, who frequently urinated in public and "cursed a lot."

B.C. testified he also went to the playground with D.M., who he

described as "committed, hardworking, outgoing, [and]

outspoken." B.C. stated that Zane acted inappropriately at the

playground by "piss[ing] on a tree." He stated Zane made

statements to R.R., B.V., and B.C., like: "Can I suck your

dick?"

D.M. denied any sexual contact with Zane. D.M. testified

that Zane asked to "suck [D.M.'s] dick" or if D.M. "would suck

[Zane's] dick." D.M. corroborated B.C.'s and B.V.'s testimony

that Zane urinated on the playground in public. D.M. testified

that he received the "Oovoo" message from Zane, and was annoyed

with Zane "[b]ecause he kept calling." On cross-examination,

D.M. admitted someone from his school called D.M.'s mother about

D.M.'s "gay bashing" during a verbal altercation with another

student, resulting in a "Saturday detention."

8 A-0216-15T2 The parties agreed that the court could consider the

lesser-related charge of third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a), as provided in State v. Thomas,

(2006). In summation, D.M.'s counsel argued

that he was not guilty of any offense, and the prosecutor argued

that the juvenile had committed acts that would constitute

aggravated sexual assault if committed by an adult and would

also support a finding of third-degree endangering the welfare

of a child.

The judge rendered a written opinion finding D.M. committed

third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a). The judge found D.M.'s testimony was "inauthentic" as it

"could more aptly be described as a job interview, where [D.M.]

was trying to sell himself." The judge determined D.M.'s

witnesses, B.V. and B.C., were "earnest" but both lacked

specific relevant information. The judge found Zane was a

credible witness who provided consistent and specific testimony

on all three incidents with D.M. The judge, however, found

insufficient proof of penetration.5 The judge held the evidence

5 According to N.J.S.A. 2C:14-1(c):

'Sexual penetration' means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or

9 A-0216-15T2 adduced at trial proved that D.M. knowingly engaged in sexual

conduct that would impair or debauch the morals of a child.

Three months later, when imposing a disposition, the judge

commented that he had found no penetration only for

"humanitarian reasons," and in spite of the strength of the

proofs.

D.M. raised the following issues on appeal:

POINT I: THE COURT ERRED IN RULING THAT [ZANE'S] SELF-SERVING OUT-OF-COURT STATEMENTS MADE UNDER DURESS AND COERCION BY ADULT FAMILY MEMBERS WERE TRUSTWORTHY AND ADMISSIBLE UNDER N.J.R.E. 803(c)(27), DEPRIVING D.M. OF A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. 1, PAR. 10.

POINT II: THE COURT'S FINDING OF DELINQUENCY WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE AND MUST BE REVERSED.

POINT III: THE ADJUDICATION OF DELINQUENCY SHOULD BE REVERSED BECAUSE D.M.'S PREDISPOSITION REPORT WAS NOT PROVIDED AT THE DISPOSITION HEARING AND D.M. DID NOT EXPRESSLY WAIVE THIS MANDATORY REQUIREMENT. R. 5:24-2.

POINT IV: THE COURT'S IMPOSITION OF THE MAXIMUM SENTENCE OF 3 YEARS' PROBATION WAS EXCESSIVE AND SHOULD BE REDUCED.

vagina either by the actor or upon the actor's instruction. The depth of penetration shall not be relevant as to the question of the commission of the crime.

10 A-0216-15T2 At our request, the parties also submitted supplemental

briefs expanding the issue the juvenile raised in Point II to

encompass the question of whether the lack of a finding of

penetration or coercion undermines the delinquency finding of

endangering the welfare of a child, in light of the four-year

age difference required for a delinquency finding of sexual

assault. Because we reverse the adjudication on this issue, we

do not address the other points raised by D.M. on appeal.

When reviewing the result of a bench trial, we do not make

factual findings. "We must give deference to those findings of

the trial judge which are substantially influenced by his or her

opportunity to hear and see the witnesses and have the 'feel' of

the case, which we do not enjoy upon appellate review." State

ex rel. S.B.,

(App. Div. 2000). We

do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence. We are not in a good position to judge credibility and ordinarily should not make new credibility findings. However, our review of the sufficiency of the facts to satisfy an applicable legal standard is a question of law.

[Mountain Hill, L.L.C. v. Twp. of Middletown,

(App. Div. 2008) (internal quotation marks and citations omitted).]

The potential lesser-included crime of first-degree

aggravated sexual assault of a child, fourth-degree criminal

11 A-0216-15T2 sexual contact through force or coercion, N.J.S.A. 2C:14-3(b),

was expressly excluded from consideration by the judge.

Coercion was not charged in the complaint and the judge found no

evidence of coercion, force or an attempt to commit an

aggravated sexual assault. The judge stated he made findings

consistent with Zane's testimony, writing "at no time did [D.M.]

use force or threaten him to perform the charged sex acts, and

in fact, was rather polite in his requests." Coercion as used

in N.J.S.A. 2C:14-3(b) is defined the same way as criminal

coercion in N.J.S.A. 2C:13-5(a). N.J.S.A. 2C:14-1(j).

A person is guilty of criminal coercion if, with purpose unlawfully to restrict another's freedom of action to engage or refrain from engaging in conduct, he threatens to:

(1) Inflict bodily injury on anyone or commit any other offense, regardless of the immediacy of the threat;

(2) Accuse anyone of an offense;

(3) Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

(4) Take or withhold action as an official, or cause an official to take or withhold action;

(5) Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for

12 A-0216-15T2 the benefit of the group in whose interest the actor acts;

(6) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(7) Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

[N.J.S.A. 2C:13-5(a).]

Although the judge found D.M. was larger and older than Zane,

the judge found a lack of coercion or threat.

In an adult criminal case where no penetration is found,

the factfinder could consider the lesser-included second-degree

crime of sexual assault of a child under the age of thirteen,

N.J.S.A. 2C: 14-2(b). The definition of sexual contact is:

an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.

[N.J.S.A. 2C:14-1(d).]

Sexual assault of a child by sexual contact, however,

requires a four-year age difference between the actor and the

victim. N.J.S.A. 2C:14-2(b) states: "An actor is guilty of

sexual assault if he commits an act of sexual contact with a

13 A-0216-15T2 victim who is less than 13 years old and the actor is at least

four years older than the victim." Logically, the purpose of

this section is to avoid criminalizing non-coercive sexual

contact between two juveniles who are less than four years apart

in age.6 See Assembly Judiciary, Law and Public Safety, and

Defense Committee Statement to Assembly Bill No. 3279, at 78-79

(June 28, 1979) (indicating that the Legislature did not intend

to criminalize sexual experimentation between juveniles of

similar ages).

As the judge stated in his opinion, because he did not find

sexual penetration or coercion, and D.M. was less than four

years older than Zane, the judge did not consider lesser-

included sexual crimes. He considered only the lesser-related

third-degree crime of endangering the welfare of a child. Both

the State and juvenile had agreed to that possible disposition

when the issue of penetration was alleged and unresolved.

Once the judge found insufficient evidence of sexual

penetration, the question became whether a juvenile who is not

guilty of sexual assault due to an insufficient age differential

could nonetheless be adjudicated delinquent of child

endangerment for that same behavior. In other words, did the

6 No adult could be less than four years older than a child twelve years old or younger.

14 A-0216-15T2 Legislature particularly exempt sexual contact between two

children close in age from delinquent liability only to

criminalize that same conduct under the more general rubric of

child endangerment? The State argues that even without the

four-year age difference, D.M.'s behavior constitutes "sexual

conduct" and thus fits the definition of endangerment. As our

Supreme Court has stated, however, when a clear ambiguity exists

"a canon of statutory construction directs that a specific

statute generally overrides a general statute." State v.

Robinson,

(2014); see also State ex rel.

J.P.F., supra,

("Under usual rules of

statutory construction, the more specific law must be

interpreted as prevailing over the more general one.").

The pertinent part of the child endangerment statute,

N.J.S.A. 2C:24-4(a), states:

(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 engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

[(Emphasis added).]

"Although the term 'sexual conduct' is not defined [in the

child endangerment statute], clearly included are sexual

15 A-0216-15T2 assaults and sexual contact[.]" State v. Perez,

(2003) (quoting State v. Perez,

(2002)) (second alteration in the original). To ascertain

Legislative intent we "read words and phrases in their context

and apply their 'generally accepted meaning.'" N. Jersey Media

Grp., Inc. v. Twp. of Lyndhurst, __ N.J. __, __ (2017) (slip op

at 39-40) (quoting N.J.S.A. 1:1-1). "[W]e can also draw

inferences based on the statute's overall structure and

composition." State v. S.B., __ N.J. __, ___ (2017) (slip op.

at 6).

The Legislature did not intend sexual behavior between

children close in age not involving penetration, which it

specifically exempted from the criminal statutes, to nonetheless

be included within the crime of child endangerment. Our Supreme

Court has told us to analyze ambiguous statutes in a criminal

context in favor of the accused:

Like all matters that require interpretation of a statute, our goal of implementing the Legislature's intent begins with the text of the statute. If the meaning of the text is clear and unambiguous on its face, we enforce that meaning. If the language admits to more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature's intent. When extrinsic sources cannot clarify the meaning of ambiguous language, we employ the canon of statutory construction that counsels courts to construe ambiguities in penal statutes in favor of defendant.

16 A-0216-15T2 [State v. Reiner,

(2004) (citations omitted).]

Although D.M. engaged in behavior that would generally be

considered sexual conduct with another child, the sexual contact

was exempted from criminal liability by a specific statute.

The State argues we should determine that sexual

penetration was proven in spite of the judge's findings to the

contrary. The judge found an absence of sexual penetration in a

written opinion issued two weeks after the trial ended,

concluding that Zane's testimony was not sufficiently specific

or persuasive on this issue. Three months later, when imposing

a disposition, he described his failure to find penetration as a

"humanitarian gesture." When a court does not find facts

legally sufficient to adjudicate the accused delinquent, that is

the end of the matter with respect to that charge. We cannot,

as the State here urges, change the original adjudication based

on comments the court made in the course of imposing a

disposition. We are not fact-finders. See State ex re.

. The judge articulated the

insufficiency of the evidence as to penetration. Whether he was

motivated to make this finding in part by mercy is not legally

relevant. Double jeopardy prevents the State's appeal of a not-

delinquent finding in a juvenile trial. State in Interest of

17 A-0216-15T2 J.O.,

(App. Div.), certif. denied,

(1990).

We need not reach the issue of whether the Legislature

intended a juvenile to be found delinquent for endangering the

welfare of another child under any circumstances. State in

Interest of A.B.,

(Ch. Div. 2000)

(determining that juveniles were subject to the child

endangerment statute, in particular with respect to the

prohibition against distribution of child pornography, N.J.S.A.

2C:24-4(b)); see also In re Civil Commitment of R.F.,

(2014) (affirming the denial of civil commitment as

a sexually violent predator of a juvenile who pled guilty in

adult court to endangering the welfare of a child after being

charged with first-degree aggravated sexual assault of two

children aged twelve and thirteen); State ex rel. D.A.,

(App. Div.), certif. denied,

(2006)

(involving a juvenile who entered a guilty plea to endangering

the welfare of his six-year-old half-sister).

Neither penetration nor coercion was found by the trial

judge. The Legislature expressly stated its intent not to

criminalize sexual contact between children less than four years

apart in age absent either penetration or coercion. We must

honor that Legislative expression. To the extent that the child

18 A-0216-15T2 endangerment statute might nonetheless be thought to include

behavior of the nature found by the judge in this case,

ambiguity in the construction of the statute must be resolved in

favor of the juvenile both because the specific statute trumps

the general statute and because ambiguous criminal statutes must

be interpreted favorably to the accused. See

;

.

Reversed.

19 A-0216-15T2