STATE OF NEW JERSEY VS. DAVID ALCANTARA (14-12-3450, ATLANTIC COUNTY…

                                      RECORD IMPOUNDED

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5199-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID ALCANTARA,

     Defendant-Appellant.
_______________________

                   Submitted September 22, 2020 – Decided October 9, 2020

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 14-12-3450.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Amira R. Scurato, Designated Counsel, on
                   the brief).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (John J. Lafferty, IV, Assistant
                   Prosecutor, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.

PER CURIAM
      In 2018, a jury convicted defendant of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a), which criminalizes "sexual conduct

which would impair or debauch the morals of" a child for whom defendant had

assumed responsibility. In appealing, defendant argues: (1) the indictment was

defective; (2) the phrase "sexual conduct" in N.J.S.A. 2C:24-4(a) is void for

impermissible vagueness; (3) the jury instructions were erroneous because they

allowed the jury to consider non-criminal conduct, did not contained appropriate

limiting instructions, lacked special interrogatories to guarantee jury unanimity,

and offered the jury no lesser-included options; and (4) the seven-year prison

term, subject to an eighty-five percent period of parole ineligibility, was

excessive.

      We reject defendant's first two points but agree with one aspect of his third

point: the judge's general unanimity instruction was erroneous in this

circumstance and deprived him of a fair trial. Consequently, we vacate the

judgment of conviction and remand for a new trial without reaching the other

aspects of defendant's third point, his fourth point regarding the sentence




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imposed, or the cumulative error argument contained in defendant's pro se

supplemental brief.1

                                        I

      Defendant was indicted in 2014 and charged with second-degree

endangering the welfare of a child, his stepdaughter. The indictment asserted

that the alleged sexual conduct occurred between October 1, 2005, and June 1,

2012. During that six-year, seven-month time period, N.J.S.A. 2C:24-4's reach

covered only children under sixteen years of age.             Since defendant's

stepdaughter, the alleged victim, turned sixteen on October 4, 2011, defendant

now argues – for the first time – that the indictment was defective because it

charged him, in part, with victimizing a child over the age of sixteen. Although

N.J.S.A. 2C:24-4(a) was amended in 2013 to include victims between sixteen

and eighteen under its umbrella, see L. 2013, c. 51, the amendment came after

the conduct alleged in the indictment. As a result, the indictment charged

defendant with violating N.J.S.A. 2C:24-4(a) for conduct that, at least partially,



1
 In his pro se supplemental brief, defendant presents similar arguments to those
posed in his attorney's first and second points. In his third point, defendant
argues that "the massive and cumulative number of errors in the jury instructions
and prosecution renders the verdict, sentence and trial unconstitutional in
violation of due process." In light of our disposition of the appeal, we need not
reach this third pro se argument.
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was not made unlawful by the statute, nor could the Legislature criminalize his

alleged conduct between the stepdaughter's sixteenth birthday and June 1, 2012,

through its 2013 amendment. See generally State v. Hester, 233 N.J. 381 (2018).

      The unartful nature of the indictment generated a problematic specter for

this prosecution. It raised the potential for the jury to hear evidence that was

both covered and uncovered by N.J.S.A. 2C:24-4(a), to defendant's prejudice.

But our careful reading of the trial transcript reveals that the State offered no

evidence about what defendant may have done after his stepdaughter's sixteenth

birthday. Moreover, the stepdaughter testified that the things of which she

complained had ended around the time she was fourteen.

      Yet, defendant argues for the first time here that the indictment was

defective and should have been dismissed. The problem to which we h ave

alluded, however, should have been raised prior to trial. Defendant waived this

argument by failing to raise it until now. R. 3:10-2(c); State v. Spano, 128 N.J.

Super. 90, 92 (App. Div. 1973), aff'd, 64 N.J. 566 (1974).

                                        II

      Defendant argues in his second point that N.J.S.A. 2C:24-4(a) "is facially

vague as to its criminalization of what constitutes 'sexual conduct.'" To put this




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argument in its proper setting, we initially consider the evidence adduced by the

State at trial.

       In her testimony, defendant's stepdaughter related how, starting when she

was nine-years old, defendant would play a "game" with her that involved his

patting her buttocks as she walked by; she testified this continued until she was

approximately eleven-years old. The stepdaughter also recounted how, when

she was between nine and twelve, defendant would call her and her friend

"lesbians." When his stepdaughter entered puberty at twelve, which continued

until she was fourteen, defendant made comments about her body, saying things

like: "oh God, your boobs are getting big"; "you're really developing into a

woman"; "your boobs are getting huge"; and "you have juicy lips." She also

testified that during the same general time frame when defendant was making

these types of comments about her body, defendant would

                  • lie with her in a position she referred to as
                    "spooning" – with his body behind her, his chest
                    to her back, facing in the same direction – while
                    watching television;

                  • on many occasions and on "the silliest of
                    excuses," enter the bathroom while she was
                    showering, the shower curtain being partly
                    transparent; and

                  • attempt to lay down next to her in her bunkbed at
                    night.

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Defendant's stepdaughter testified that, when she was thirteen or fourteen,

defendant's conduct discontinued because she "finally" "stood up for [her]self"

and told him to stop.

      In considering defendant's vagueness argument, we recognize that the

Legislature provided no great specificity about what was being criminalized by

N.J.S.A. 2C:24-4(a) beyond the general description contained in the statute

itself. The term "sexual conduct" is not defined by N.J.S.A. 2C:24-4(a) or

elsewhere in the Criminal Code, but the Supreme Court has held that the phrase

includes sexual assaults and sexual contacts, State v. Perez, 177 N.J. 540, 553

(2003), as well as conduct that does not constitute an assault or contact, State in

Interest of D.M., 238 N.J. 2, 20 n.6 (2019), limited only by the modifying phrase:

"which would impair or debauch the morals of a child."

      But the absence of greater definition does not render this statute

impermissibly vague.      The void-for-vagueness doctrine is "essentially a

procedural due process concept grounded in notions of fair play." State v.

Lashinsky, 81 N.J. 1, 17 (1979). Because, in the criminal context, statutes must

be given "sharper scrutiny," State v. Afanador, 134 N.J. 162, 170 (1993), a

statute is understood to be impermissibly vague if it leaves persons "of common

intelligence" to "necessarily guess as to its meaning and differ as to its

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                                        6
application," ibid. (quoting Connally v. General Constr. Co., 269 U.S. 385, 391

(1926)).

      Despite the absence of further definition, the challenged phrase "sexual

conduct"2 has been applied in numerous instances that reach beyond "assaults"

and "contacts" and has long been understood as encompassing broader conduct.

In considering this very subject, the Supreme Court has held that juries are

"well-equipped" to find the statute's "sexual conduct" element, as well as the

"impair/debauch" element, by drawing on their own knowledge, experience and

common sense. State v. Hackett, 166 N.J. 66, 81-82 (2001). Adhering to this

approach, courts have held that N.J.S.A. 2C:24-4(a) permissibly criminalizes a

variety of conduct constituting neither a sexual assault nor sexual contact, such

as an offender: showing nude photos to a child, State v. White, 105 N.J. Super.

234, 237 (App. Div. 1969); being nude in a window where he could be seen by

children, State v. Hackett, 323 N.J. Super. 460, 472 (App. Div. 1999), aff’d as

modified, 166 N.J. 66 (2001); engaging in a telephone conversation with

children about their private parts, oral sex, and other similar topics, State v.

Maxwell, 361 N.J. Super. 502, 517-18 (Law Div. 2001), aff’d o.b., 361 N.J.



2
 Defendant does not argue that the "impair/debauch" element is impermissibl y
vague.
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Super. 401 (App. Div. 2003); offering to pay children to report their sexual

activities, State v. McInerney, 428 N.J. Super. 432, 451 (App. Div. 2012); and

asking a child to send a photo of her breasts, State v. Johnson, 460 N.J. Super.

481, 494-95 (Law Div. 2019).

      And so, in light of this history, we find no merit in defendant's void-for-

vagueness argument. We are satisfied that if the stepdaughter's testimony was

credited, the jury could have found that defendant engaged in some act of

"sexual conduct." In light of this and our holding in section III of this opinion,

we need not further consider whether all the things of which defendant was

accused constitute "sexual conduct" or whether all would "impair or debauch"

the child's morals. N.J.S.A. 2C:24-4(a).

                                        III

      An essential ingredient of fair trials is the obligation placed on trial judges

to accurately and adequately instruct juries on how to apply the law. State v.

Maloney, 216 N.J. 91, 104-05 (2013); State v. Green, 86 N.J. 281, 287 (1981).

Defendant claims the jury instructions were erroneous in a number of ways.

Because we agree the judge's unanimity instructions were insufficient and

deprived defendant of a fair trial, we need not address the other related

arguments about the charge.


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      Rule 1:8-9 requires that "verdicts shall be unanimous in all criminal

actions." That rule-based requirement – as the Court held in State v. Parker, 124

N.J. 628, 633 (1991) – was also "presuppose[d]" by Article I, paragraph 9 of our

State Constitution. As a result, courts must be vigilant in ensuring that guilty

verdicts are not rendered on a jury's "patchwork" view but on a "shared" view

of the evidence. Parker, 124 N.J. at 636-37. In this regard the Parker Court

relied on United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977), which

declared, in quoting the reasonable-doubt holding expressed in In re Winship,

397 U.S. 358, 364 (1970), that "the unanimous jury requirement 'impresses on

the trier of fact the necessity of reaching a subjective state of certitude on the

facts in issue.'" 124 N.J. at 633.

      While providing a broad rule that a specific instruction on unanimity

should be given "in cases where there is a danger of a fragmented verdict," State

v. Frisby, 174 N.J. 583, 597-98 (2002), the Court provided examples, advising

that this danger might arise when:

            (1) a single crime could be proven by different theories
            supported by different evidence, and there is a
            reasonable likelihood that all jurors will not
            unanimously agree that the defendant's guilt was
            proven by the same theory; (2) the underlying facts are
            very complex; (3) the allegations of one count are either
            contradictory or marginally related to each other; (4)


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                                        9
            the indictment and proof at trial varies; or (5) there is
            strong evidence of jury confusion.

            [State v. Cagno, 211 N.J. 488, 517 (2012) (quoting
            Parker, 124 N.J. at 635-36).]

      A relatively simple example is that of an alleged robbery, a charge

requiring a finding that the defendant, in the course of committing a theft,

inflicted bodily injury or used force "upon another." N.J.S.A. 2C:15-1(a)(1). In

State v. Gentry, 370 N.J. Super. 413, 416 (App. Div. 2004), we considered the

inquiry of jurors, during deliberations, whether they could convict the defendant

of robbery if one group of jurors thought force was used on one person inside

the store while another group thought force was used on some other person in

the vestibule and outside the store. The trial judge instructed that if all jurors

found that force was used it didn't matter if they disagreed about which person

was victimized by that force. Id. at 417. A majority of this court held that the

jury was not required to agree on that fact, id. at 425, but the Supreme Court

reversed, adopting the dissenting judge's view, id. at 426, in holding the jury

was required to agree on the identity of the victim of the defendant's use of force,

State v. Gentry, 183 N.J. 30, 33 (2005).

      Unlike Gentry – where the operative facts occurred in a short span of time

in the same vicinity and provided a clear choice for the jury between two


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possible events – prosecutions under N.J.S.A. 2C:24-4(a) present their own

difficulties about unanimity. In Frisby, 174 N.J. at 587, the defendant was

convicted of second-degree endangering under N.J.S.A. 2C:24-4(a), in

connection with the death of her son. At trial, the State offered two theories:

the defendant inflicted the injuries or she abandoned her son. Id. at 598-99. In

recognizing that the jury was asked to consider "[d]ifferent theories . . . based

on different facts and entirely different evidence," the Court concluded that the

absence of a specific unanimity charge allowed for "a non-unanimous patchwork

verdict." Ibid. The Court concluded that even in the absence of evidence that

the jury reached a patchwork verdict, the argument that such evidence is

required "dices the notion of jury confusion referred to in our unanimity case

law too finely." Ibid.

      In State v. T.C., 347 N.J. Super. 219, 223, 241 (App. Div. 2002), which

preceded the Court's holding in Frisby,3 we concluded that a specific unanimity

charge was not required where the defendant was charged with abusing or

neglecting her child, over the course of sixteen months, in three ways: hitting

him with a belt; restraining him through installation of an alarm on the door to



3
  The Frisby Court neither endorsed nor rejected T.C., holding only that it was
factually distinguishable. 174 N.J. at 599-600.
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his room; and withholding food. We viewed these three categories of abuse as

"conceptually similar" because they all "degrad[ed]" the child and were all

"'parts of defendant's plan to abuse and torture'" the child. Id. at 243. We thus

harmonized that conclusion with Parker, 124 N.J. at 639, where a teacher was

charged with official misconduct based on allegations that: "she had exhibited

sexually explicit magazines to students"; "caused her students to make collages

from photographs in those magazines"; and "discussed her own and others'

sexual proclivities with her students." T.C., 347 N.J. Super. at 242-43 (citing

Parker, 124 N.J. at 631-32).

      Despite the many attempts to categorize cases in which specificity is

required, the Supreme Court has recognized that, in the final analysis, juries

must be unanimous on the "material facts" and "only common sense and

intuition can define the specificity with which the jury must describe the

defendant's conduct before it may convict." Parker, 124 N.J. at 634 (quoting

Note, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson,

91 Harv. L. Rev. 499, 502 (1977)). In adhering to the letter and spirit of the

Supreme Court's unanimity jurisprudence, we agree with defendant that there




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was a grave potential that – unlike T.C.4 – the heaping together of a variety of

factual contentions, allegedly occurring over the course of many years, into a

single count, could have led to a conviction without the jury's unanimous

agreement on the material facts.

      As observed in Section II of this opinion, the allegations not only differed

as to time and place but also in nature. There were allegations of: unwanted

physical contact (spooning while watching television and pats on the buttocks);

impertinent comments (about the size of the stepdaughter's breasts and other

physical attributes, as well as references to the stepdaughter and a friend as

"lesbians"); peeping (repeated entries into the bathroom while the stepdaughter

was in the shower); and attempts at physical contact (requests to join the

stepdaughter in her bunkbed). Despite this variety, and the span of years over

which these events were alleged to have occurred, the judge's instructions

allowed the jury to lump everything together; he advised the jury that

            you may consider the totality of all the facts and
            circumstances regarding the defendant's alleged
            conduct toward [his stepdaughter] which you find to be
            credible and which you find that the State has proven
            beyond a reasonable doubt. All jurors do not have to
            agree unanimously concerning which act allegedly
            committed by the defendant constituted sexual conduct

4
  Neither party cited T.C. or, for that matter, Frisby, possibly because they
believed neither controls our disposition of this issue.
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            which tends to corrupt, mar or spoil the morals of a
            child under the age of 16 so long as all jurors believe
            that in the totality of the defendant's behavior, that one
            or more of his alleged acts constitute sexual conduct.

            [Emphasis added.]

These instructions – as the emphasized portions reveal – did not sufficiently

impress on the jurors that they were required to share a common view of the

material facts. Without clearer instructions about unanimity, this charge made

possible a guilty verdict even if some jurors believed the only sexual conduct

was defendant's entering into the bathroom while his stepdaughter showered,

while others believed the only sexual conduct was defendant's constant patting

of his stepdaughter's buttocks.

      As the Supreme Court has held, whenever "a conviction may occur as the

result of different jurors concluding that defendant committed different acts, the

general unanimity instruction" – like that given here – "does not suffice."

Parker, 124 N.J. at 636. We, thus, conclude that the judge was required to give

greater specificity in instructing the jury about the requirement that they be

unanimous as to the sexual conduct underlying their guilty verdict.

                                      ***




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      Because the judge's unanimity instruction was insufficient under the

circumstances and deprived defendant of a fair trial, we reverse the judgment of

conviction and remand for a new trial.

      Reversed and remanded. We do not retain jurisdiction.




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