STATE OF NEW JERSEY, Plaintiff–Respondent, v. STEPHEN J. BEHNKE, a/k/a STEVEN J. BEHNKE, Defendant–Appellant.
DOCKET NO. A–1711–11T2
-- September 13, 2013
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
Tried before a jury for molesting a teenager, defendant Stephen J. Behnke was convicted of criminal sexual contact, sentenced to a four-year probationary term conditioned upon his serving 364 days in county jail, and ordered to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7–2. Defendant contends that, separately and cumulatively, a witness's improper testimony, the prosecutor's misconduct during his closing argument, and four mistakes the judge made when charging the jury, require a new trial. Having considered defendant's arguments in the context of the record and controlling law, we reject them and affirm his conviction and sentence.
A Hunterdon County Grand Jury charged defendant in a four-count indictment with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14–3b (Counts One and Two), third-degree criminal restraint, N.J.S.A. 2C:13–2b (Count Three), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4a (Count Four). During a pre-trial status conference, the court dismissed Count Four on defendant's uncontested motion.1
During the five-day trial the State developed the following proofs. On October 18, 2008, seventeen-year-old Diane (a pseudonym) answered an employment ad, interviewed with defendant, and accepted a job at his garage. Her mother's next-door neighbor drove her to the interview. Following the interview, as Diane walked back to the neighbor's car, defendant asked who her “hot friend” was and commented that the woman had “big boobs.” The neighbor was sixty-five years old.
Diane worked the next morning in jeans and a t-shirt after changing from dress slacks and a “nice shirt.” While she was kneeling in the garage, cleaning up oil with a rag, defendant remarked that she had a nice pink thong. Later, while Diane was leaning against a backhoe and writing down measurements that defendant was taking “for [the] backhoe,” defendant came around and put his hands on Diane's forehead, put his forehead against Diane's forehead, and then kissed her on the cheek. Diane pushed him away.
A short time later, defendant called Diane into his office and started popping the pimples on her cheeks and forehead, which scared and hurt her. Diane testified that defendant “was just squeezing them and kind of like holding my head so I wouldn't move.” When she told him to get off her and stop, he told her “to hold still because [she had] a pretty face and the pimples [didn't] need to be there.”
When defendant stopped, he scrubbed her face with acne pads that had been in the sink. Diane told defendant to leave her alone, but he told her to hold still. He said that he wanted to marry her and that she had “pretty deep eyes.” When defendant finished, he went outside to work on a truck and Diane began cleaning the grease-stained walls in the garage. She was unable to leave the building, because he had locked the outside door.
Approximately one-half hour later, when defendant left the garage and drove a truck to a customer's house, he had Diane follow in his Ford Explorer. Before leaving, she changed back into dress clothes. The ride took fifteen or twenty minutes. At the customer's house, after defendant dropped off the truck, Diane “got out of the driver's seat and when [she] was coming around he slapped [her] butt.” She got into the passenger side of the front seat and he drove her back to his shop.
On the return trip, when he stopped in front of a high school, defendant started rubbing Diane's inner thigh and he tried to put his hand down her shirt. He continued until they reached the next road, while she attempted to move his hand away. At first, she was unsuccessful, because he was much bigger and stronger. He also threatened her, telling her that if she “wasn't a good girl, he would [take her] to the abandoned house and do bad things to [her].” He continued to grab and rub her breasts.
Defendant stopped molesting Diane when he stopped to buy gas. After getting gas, defendant drove back to his garage, and Diane left. Defendant told Diane he would see her tomorrow and that he loved her. That night, Diane drove to her mother's next-door neighbor's home and told the neighbor what defendant had done to her. The neighbor called Diane's mother. After telling her mother what happened, Diane and her mother drove to a State Police station where Diane reported the entire incident to the State Police.
New Jersey State Police Detective Justin Blackwell, who at the time was assigned to the Perryville Station, became involved in the investigation of Diane's complaints on Monday, October 20, 2008. The detective explained to the jury that after reviewing audio and videotaped statements that Diane had given the previous day, and a statement her mother's neighbor had given the previous day, he spoke to Diane's mother and then to Diane, “who is the victim in this case.” A week later, he interviewed defendant, recorded the interview, and had it transcribed.
In a lengthy interview at the Perryville Station, defendant confirmed where Diane worked and what she did on her first day, including following him in a Ford Explorer to a house where he delivered a customer's truck. Although he admitted helping Diane pop some of the pimples on her face, he repeatedly and adamantly denied touching her in any inappropriate manner. Defendant told the detective she was a young, mixed up kid who had a “psychological thing going on.” Defendant made some derogatory comments about Diane's appearance, insisted that he had no sexual interest in Diane, suggested that she was lying to get some attention, and repeated that nothing had ever happened between him and her.
Detective Blackwell concluded his direct testimony by stating that he believed he had probable cause to charge defendant:
[Prosecutor]: Now, sir, based upon the information from your investigation, everybody that you spoke with, ․ in addition to the contents of this statement, ․ did you feel that you had probable cause to move forward with a criminal charge?
[Detective]: Yes, sir. I did.
[Prosecutor]: And did you refer that matter to the Prosecutor's Office for charges?
[Detective]: Yes, sir. I did.
Detective Kristin Larsen, an eleven-year veteran with the Hunterdon County Prosecutor's Office, was in charge of the Special Victims Unit. She became involved in Diane's case after the State Police contacted her to assist in the investigation. She met with Detective Blackwell and they “picked up the victim in this case.” They returned to the Perryville Station where Detective Larsen interviewed Diane. Detective Larsen recorded the interview and had the recording transcribed. After interviewing Diane, the detective drove her along the route she had taken when she followed defendant to return the truck to a customer.
Defendant testified. He described his building and identified photographs of its interior. In one of the photographs, he pointed out the “hard line” telephone on his desk that had “always been wired there.” He also identified photographs of the locks on the garage doors to corroborate his testimony that he could not lock someone inside the building.
Defendant stated that he hired Diane to clean, not to do anything else, including computer work. He recounted Diane's first day of work, described what she did, and steadfastly denied that he molested her. According to defendant, Diane talked quite a bit about her personal life, particularly about her father treating her like a slave, and her parents disowning her for moving in with an older man.
Defendant denied, explicitly, ever being forehead-to-forehead with Diane or making comments about her underwear. He admitted that he helped Diane remove a pimple from her face. According to him, she was upset about a sizeable pimple on the side of her lip by her chin, and he saw her trying to cover it with makeup. He had some facial wipe cleansing pads and asked if she would like to use one to try to remove the pimple. He told her she had to soften the pimple up before removing it with the pad. Diane said her father had not explained to her how to remove a pimple, and she had dropped out of school before taking health class. He asked if she wanted him to help her, and she said yes, so he used the pad and began massaging the pimple. When she said it hurt, he squeezed lightly and popped it. He told her to clean up with the pad. Defendant insisted that he helped her “as a fatherly thing[.]” He had done the same thing with another woman who worked with him before Diane. Defendant characterized Diane's version of the incident as “total embellishment.”
Defendant also denied smacking Diane on the buttocks when they delivered the truck to his customer. He testified there was absolutely no physical contact between him and Diane when he drove back to his garage in his Ford Explorer. Upon their return to the garage, defendant paid Diane, and she thanked him and left.
Defendant presented the testimony of four witnesses to support his defense. The first was Lindsey Podpora, who had worked for him for nearly eight years and testified that they were the best of friends. She confirmed that the doors and locks in his office had not changed, that there was a working telephone in the office, and that defendant often popped her pimples. She did not consider that offensive, but rather a matter of hygiene, and she did not think that it had any sexual overtones. She believed that Diane's allegations against defendant were false. He had never directed any sexually aggressive conduct at her or anybody else who walked into his shop.
Defendant's second witness, Terrance Tlumac, worked for defendant for approximately six years and was working at defendant's shop on October 19, 2008. During that day, he was in and out of the garage and saw Diane outside the building. He confirmed the condition of the entrance door to the shop, and that its locks had never been changed.
Steven Chorazak, the customer to whom defendant delivered the truck, was defendant's third witness. When Chorazak first saw Diane driving defendant's Explorer, Chorazak thought she was “his girlfriend, Lindsey.” Chorazak was talking with defendant when Diane got out of the driver's side of the Explorer, walked around, and got into the passenger seat. Defendant did not smack her. When Chorazak finished speaking to defendant, defendant got into the driver's side of the Explorer and drove away.
Defendant's last witness, Scott Simmons, was the shop foreman for a Ford dealership and was familiar with Ford motor products, which he had worked with for thirty-one years. He had been a senior master technician for more than ten years. Specifically, he had experience “regarding the mechanical or electrical operation of safety devices, window devices, power locks, [and] power seats for Ford Motor vehicles,” including the Ford Explorer. Simmons had inspected defendant's Ford Explorer and all locks were functioning normally, although there was a lock button on the driver's side that, if depressed, would prevent a passenger from opening the passenger window. However, neither the lock button on the window nor any other device would prevent a passenger from opening a passenger door and exiting the Explorer.
The court dismissed Count Two of the indictment (criminal sexual contact) following Diane's testimony. The jury found defendant guilty of Count One, criminal sexual contact, and not guilty of Count Three, criminal restraint. Thereafter, the court sentenced defendant to a four-year probationary term conditioned upon defendant serving 364 days in the Hunterdon County jail. The court also ordered defendant to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7–2, and imposed appropriate fines and assessments. Because defendant's conviction violated his probation for a previous third-degree theft offense, the court continued and extended his probationary sentence for two years, conditioned upon him serving 364 days in the Hunterdon County jail, concurrent with his sentence on the first count of the indictment. This appeal followed.
Defendant presents the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LESSER–INCLUDED OFFENSE OF HARASSMENT
(NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INCLUSION OF A THEORY OF LIABILITY FOR WHICH THERE WAS NO SUPPORT IN THE EVIDENCE
(NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT DURING SUMMATION
(NOT RAISED BELOW)
A. THE PROSECUTOR DISPARAGED TRIAL COUNSEL
B. THE PROSECUTOR MISREPRESENTED THE LAW
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO REQUIRE THE JURY TO BE UNANIMOUS WITH RESPECT TO THE FINDINGS OF THE PREDICATE FACTS UNDERLYING THEIR VERDICT
(NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND THE PRESUMPTION OF INNOCENCE AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTIONS DIRECTING THE JURORS TO FIND THAT [DIANE] WAS A “VICTIM” OF THE DEFENDANT'S CONDUCT
(NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN STATE WITNESSES USURPED THE ROLE OF THE JURY BY RENDERING OPINIONS AND CONCLUSION[S] THAT [DIANE] WAS A VICTIM OF THE DEFENDANT'S CONDUCT AND THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT HAD COMMITTED THE CRIME
(NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS
(NOT RAISED BELOW)
Defendant made none of these arguments to the trial court. When a party argues for the first time on appeal that an error occurred during trial, we analyze the argument under a plain error standard. R. 2:10–2. Under that standard of review, we disregard any error or omission “unless it is of such a nature as to have been clearly capable of producing an unjust result [.]” Ibid. The error must have been “ ‘sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]’ ” State v. McGuire, 419 N.J.Super. 88, 106–07 (App.Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011).
Defendant contends in his first point that even though he did not ask the trial court to instruct the jury on the disorderly persons offense of harassment as a lesser included offense to criminal sexual contact, the court erred by not doing so on its own. He argues that a trial court is required to instruct the jury on all lesser included offenses for which there is a basis in the evidence. He also argues that the jury could have found he commented about Diane's thong, and touched her on the face and thigh but nowhere else, thus harassing her but not committing criminal sexual contact.2
The State responds that harassment is not a lesser included offense to criminal sexual contact; though the evidence may have supported a harassment conviction, harassment was not a lesser included offense, but rather an alternative unrelated offense.
A trial court must instruct a jury on an offense not charged in the indictment, even if a defendant does not request such an instruction, when the uncharged offense is “(1) ‘included’ in the offense actually charged and not simply related to the pattern of events that give rise to the offense charged, and (2) such that ‘the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.’ ” State v. Thomas, 187 N.J. 119, 136 (2006) (emphasis added) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004). N.J.S.A. 2C:1–8d explains that an offense is included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
To determine whether the uncharged offense is included in the charged offense, a court must compare the offenses' statutory elements. Thomas, supra, 187 N.J. at 129. “On the other hand, whether offenses are related is not a function of a comparison of statutory elements. Instead, the focus is whether the offense charged and the related offense share a common factual nucleus.” Id. at 130.
Harassment is not a lesser included offense to criminal sexual contact, N.J.S.A. 2C:14–3b, the offense charged in the indictment. Under N.J.S.A. 2C:14–3b, “[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14–2c. (1) through (4).” The circumstance charged in the indictment was that “[t]he victim is at least 16 but less than 18 years old and: (b) the actor has supervisory or disciplinary power ․ over the victim [.]” N.J.S.A. 2C:14–2c(3)(b). “ ‘Sexual contact’ means 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:14–1d (emphasis added).
On the other hand, the harassment statute requires that the accused act with the purpose to harass another. The statute provides in pertinent part:
a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
[N.J.S.A. 2C:33–4 (emphasis added).]
The offense of harassment thus includes an element – purpose to harass – that is not an element of criminal sexual contact. Harassment is therefore not a lesser included offense to criminal sexual contact under N.J.S.A. 2C:1–8d(1). Defendant was not charged with attempt or conspiracy, so N.J.S.A. 2C:1–8d(2) is not implicated. And N.J.S.A. 2C:1–8d(3) “applies to offenses differing only in the seriousness of the injury, e.g., serious bodily injury rather than bodily injury; the seriousness of the risk of injury; or the degree of culpability, e.g., purposeful and knowing rather than merely reckless.” State v. Queen, 221 N.J.Super. 601, 607 (App.Div.), certif. denied, 110 N.J. 506 (1988). No such offenses are implicated here.
Defendant wrongly contends that if the jury believed he touched only Diane's face and outer thigh, they were obligated to convict him of harassment. He had not been charged with harassment. If the jury found that he touched only Diane's face and outer thigh, not her intimate parts, they would have acquitted him of criminal sexual contact. But the court was not required to charge on an unindicted, related offense, simply because it was supported by some of the facts that were developed during trial.
The arguments defendant raises in Points II, IV, V and VI do not warrant discussion in a written opinion. R. 2:11–3(e)(1)(E). We add only the following comments. Defendant's second and fourth points involve the mental element of sexual contact, namely, that the actor intended to degrade or humiliate the victim or sexually arouse or sexually gratify himself. Defendant maintains there was no proof that defendant intended to degrade or humiliate Diane, and the court should have instructed the jurors their verdict had to be unanimous as to which of the four objectives defendant intended to accomplish; degradation, humiliation, arousal, or gratification. We reject both arguments.
While reviewing the elements of criminal sexual contact, the court explained that the State alleged “defendant committed an act of sexual contact by fondling the breasts of [Diane] and touching her inner thigh.” The court further instructed the jury that the term sexual contact meant “an intentional touching by [defendant], either directly or through clothing, of [Diane] for the purpose of degrading or humiliating [Diane] or sexually arousing or gratifying defendant.” When applying those instructions to the facts, the jury was entitled to consider not only defendant's conduct throughout the day as described by Diane, including her account of the manner in which he grabbed her face and popped her pimples, but also the derogatory comments about her appearance he made to Detective Blackwell. Contrary to defendant's argument, the evidence considered in its entirety amply supported a finding that defendant groped Diane to degrade or humiliate her, or to sexually arouse or gratify himself, or to accomplish a combination of all of those things.
Additionally, the jury's verdict was required to be unanimous as to each element of the offense, including that defendant committed an act of sexual contact. As to that element, it was sufficient that the jury unanimously agreed defendant touched Diane's intimate parts for the purpose of degrading or humiliating Diane or sexually arousing or sexually gratifying himself, and not for some other purpose. The statute requires nothing more. The court properly instructed the jury.
Equally unavailing are defendant's arguments in Points V and VI that he was deprived of due process when Detectives Blackwell and Larsen referred to Diane as a victim, when Detective Blackwell stated his belief that there was probable cause to charge defendant, and when the court referred to the “victim” when instructing the jury. Defendant's argument about testimonial references to the “victim” and the inclusion of that term in the model jury charges overlooks its definition in N.J.S.A. 2C:14–1b: “[A] person alleging to have been subjected to offenses proscribed by this act” (emphasis added). Considering the court's preliminary and final instructions on presumption of innocence and burden of proof, the factual issues framed by the attorneys in their opening statements, and the contradictory version of events recounted by the witnesses, it is inconceivable the jury would have interpreted references to the “victim” to mean anything other than the alleged victim.
That is not to suggest that a timely request that the term not be used, made under appropriate circumstances, should never be granted. Here, however, where defendant made no such request and the credibility issues presented by defendant and Diane were patently obvious, we find that no error occurred, let alone plain error, when the witnesses and the court used the term.
Lastly, we conclude that Detective Blackwell's singular and fleeting reference to having probable cause to charge defendant was not plain error. The opinion was irrelevant, but Diane's statement provided the basis for charging defendant. The error was not “ ‘sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached [.]’ ” McGuire, supra, 419 N.J.Super. at 106–07 (quoting Taffaro, supra, 195 N.J. at 454).
Defendant argues in Point III that the prosecutor's misconduct in his closing argument deprived him of a fair trial. He cites as misconduct the prosecutor's statement, “You are the finders of the fact and one thing I've learned in my years of doing this is that lawyers are the only creatures on the earth that can turn black into white.” Defendant also cites as misconduct and a misstatement of the law the prosecutor's remarks about the civil lawsuit Diane filed against defendant:
And the fact that a person chooses to pursue a civil remedy is of no moment in this case because that ․ happened well after this criminal process started and people have a right to do that and I told you that in my opening. It was right to do that.
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the “misconduct was so egregious that it deprived the defendant of a fair trial.” State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must “consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.” State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed.2d 89 (2001). The absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. See id. at 576. We so conclude here.
The prosecutor's description of all lawyers as “the only creatures on earth that can turn black into white” was unnecessary. But the prosecutor made the comment in the context of talking about the jury's role as factfinder. Fairly construed, the comment was nothing more than a way of telling the jury that the lawyers' views of the facts meant little, but the jury's view of the facts determined the truth. The court reinforced that concept when, shortly after the prosecutor made the remark, it instructed the jury that the attorneys' comments were not evidence and were not to be treated as such.
Contrary to defendant's characterization, the prosecutor's statement about Diane's civil lawsuit was not a misstatement of the law, but rather an argument that the jury should not consider the civil suit because Diane had a right to file it. The comment did not constitute misconduct and was not prejudicial.
In his final point, defendant argues that the cumulative prejudice of the errors deprived him of a fair trial. Having rejected defendant's argument that more than one error occurred during his trial, we also reject his cumulative error argument.
1. FN1. The court also amended Count Three of the indictment to correct an incorrect statutory reference.
2. FN2. “ ‘Sexual contact’ means an intentional touching ․ of the victim's or actor's intimate parts ․ [,]” N.J.S.A. 2C:14–1(d), and “intimate parts” do not include one's face or outer thigh. See N.J.S.A. 2C:14–1(e).
The opinion of the court was delivered by NUGENT, J.A.D.