IN RE: REGISTRANT W.P. (2011)

Appellant W.P. was convicted by a military court of indecent conduct in the presence of two males under the age of sixteen with the intent to gratify his sexual desire.   The Ocean County Prosecutor advised W.P. he was required to register as a sex offender pursuant to N.J.S.A. 2C:7–2. W.P. contended that his convictions did not qualify as sex offenses within the meaning of New Jersey's registration law and moved for a court order so providing.   The motion was denied, and he appeals.

Following a bench trial before a military judge in a general court-martial proceeding, W.P. was found guilty on a charge of conduct unbecoming an officer and a gentlemen, 10 U.S.C.S. § 933, with two separate specifications alleging that he had engaged in indecent conduct with two boys under the age of sixteen, T.M. and A.C., with the intent to gratify his sexual desire, 10 U.S.C.S. § 920.¹  The allegations were that he sucked on the children's toes with the intent to gratify his sexual desire and that the conduct was unbecoming an officer under the circumstances.

Our statement of facts is based on the military judge's findings at the conclusion of W.P.'s trial, at which the boys and W.P. testified.

W.P. did not deny sucking on the toes of T.M. and A.C. and admitted that toe sucking was, for him, customary “foreplay” to marital intercourse.   He testified, however, that with T.M. and A.C. his conduct was done in the course of “roughhousing” and was not sexual.   At W.P.'s request, the military judge's verdict included special findings addressing his intent in engaging in the conduct.   See 10 U.S.C.S. § 851(d) (providing for a military judge to issue specific findings, rather than a general verdict, upon a defendant's request).

On the specification charging conduct with T.M., the judge found that W.P. licked T.M.'s foot, put T.M.'s toe in his mouth and sucked it.   He did this after his own son, T.M.'s friend, had fallen asleep.   T.M. felt uncomfortable and “texted” his father immediately after the incident, but he “was too uncomfortable to share the details.”   In T.M.'s view, the incident was different than W.P.'s usual roughhousing and he told W.P. that he had made him uncomfortable.

As to A.C., the military judge found that W.P. sucked on A.C.'s toe the first day they met.   The incident took place after T.M. had told W.P. that having his toe sucked made him uncomfortable.   W.P. sucked A.C.'s toe when his son left the room and took a picture of himself engaging in the act.   He stopped when he heard his son returning.   According to A.C., W.P.'s actions made him “feel weird” and he “thought it was strange.”

Relying on the testimony, the dates of the incidents and W.P.'s admissions, the military judge disbelieved his claim that he was merely roughhousing with the boys.   The judge found, beyond a reasonable doubt, that defendant was guilty of each and every element of the charge alleged in the two specifications, including the elements that his conduct was “indecent” and that it was his intent to gratify his sexual desire.

Pursuant to N.J.S.A. 2C:7–2, persons convicted of a “sex offense” enumerated therein must register with the local police and their names are added to the state-wide sex-offender database.   In addition to persons convicted under the laws of this State, those convicted “under the laws of the United States” for an offense “similar to any offense enumerated” are also required to register.  N.J.S.A. 2C:7–2b(3).

“[E]ndangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of [N.J.S.A.] 2C:24–4,” is among the enumerated sex offenses.  N.J.S.A. 2C:7–2b(2).   The Ocean County Prosecutor contends that W.P.'s military conviction is for offenses similar to endangering as defined in N.J.S.A. 2C:24–4a.   We agree.

In determining whether a conviction under federal law is “similar” to an enumerated offense, our courts have recognized that N.J.S.A. 2C:7–2 is remedial legislation “ ‘designed simply and solely to enable the public to protect itself from the danger posed by sex offenders, such offenders widely regarded as having the highest risk of recidivism.’ ”  In re Registrant R.B., 376 N.J.Super. 451, 460 (App.Div.2005) (quoting Doe v. Poritz, 142 N.J. 1, 73 (1995)).   For that reason, the statute is construed “ ‘broadly to achieve its goal of protecting the public.’ ”  Ibid. (quoting State v. S.R., 175 N.J. 23, 36 (2002)).

An offense under federal law is “similar” to an enumerated offense for purposes of N.J.S.A. 2C:7–2b(3) when it “contains the same essential elements” as an enumerated offense “and the underlying purposes of the crimes are consonant.”  Id. at 464.   To determine whether two offenses are similar, the court may consider not only the statutory elements of the crimes but also the facts underlying the offense as charged.  Ibid. We have rejected an “elements only” test.  Id. at 463–64.

In this case, the question is not close.   The elements of endangerment under N.J.S.A. 2C:24–4a are:  (1) that the defendant engaged in sexual conduct;  (2) that the defendant engaged in the sexual conduct knowingly;  (3) that the sexual conduct was with a child under the age of sixteen;  and (4) that the conduct had the capacity to debauch or impair the morals of the child.   N.J.S.A. 2C:24–4a;  State v. Hackett, 166 N.J. 66, 80 (2001);  State v. Bryant, 419 N.J.Super. 15, 17–18 (App.Div.2011) (mens rea under N.J.S.A. 2C:24–4(a) is “knowingly” but that mens rea only applies to the engaging in sexual acts element of the offense;  State need not prove that defendant knew his conduct had the capacity to debauch the morals of the child).   For W.P.'s military offense, both specifications alleged “indecent conduct in the physical presence of ․, a male, under 16 years of age, ․ with intent to gratify the sexual desire of W.P.” Thus, it is clear that W.P.'s military offense satisfies the second and third elements of endangerment.

W.P. argues that the specifications do not expressly allege and the judge did not find that his conduct affected the morals of T.M. and A.C. He therefore claims that his military conviction does not encompass the fourth element of endangerment.   However, the specifications alleged “indecent conduct,” which is defined as “that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.”  10 U.S.C.S. § 920(t)(12).   Similarly, under N.J.S.A. 2C:24–4a, the question of impairing morals is whether the act has that tendency;  proof of actual impairment is not required.  Hackett, supra, 166 N.J. at 80.

In Hackett, the Court found that the defendant's actions had the capacity to endanger the welfare of children and focused on the fact that defendant's purpose in exposing himself was sexual gratification and evidence that tended to show the children who witnessed the repeated incidents “sensed a sexual element to defendant's conduct.”  Id. at 81.   Here, the military judge found that the purpose behind W.P.'s toe sucking was to gratify his sexual desire and that T.M. and A.C. both sensed the sexual element to W.P.'s conduct.   The two cases are analogous and show that W.P.'s conduct fulfills the first and fourth elements of child endangerment.

W.P. also contends that because the military judge found that his conduct was done with the purpose of self-gratification but did not expressly state his conduct was of a sort that would impair morals, the judge did not find his conduct had that capacity.   We disagree.   True, the judge did not directly discuss that aspect of indecent conduct focusing on capacity to affect morals, but W.P.'s request was for findings relevant to his intention, not the capacity of his conduct.   Nevertheless, the military judge could not have found W.P. guilty of the specifications if she did not find that his conduct was indecent — that is, that it “tend[ed] to excite lust and deprave the morals with respect to sexual relations.”  Manual for Courts–Martial, supra, part IV, ¶ 45(c)(3).²  As a result, the mere fact that the military judge did not make special findings regarding his conduct's capacity does not preclude us from concluding that the military judge found that he engaged in conduct that satisfied all four elements of endangerment.

We also find the underlying purposes behind endangering and specifications for which W.P. was found guilty are the same.  R.B., supra, 376 N.J.Super. at 464.   Just as in Hackett, W.P. was charged because his bizarre and sexually-motivated conduct had a capacity to impair morals that was perceived by the boys who were the victims.   We therefore conclude that W.P.'s military conviction is “similar” to a conviction for endangering under N.J.S.A. 2C:24–4a, and that he is required to register under N.J.S.A. 2C:7–2.

Affirmed.

FOOTNOTES

FN1. Under military law, an investigating officer drafts “charges and specifications.”   See 10 U.S.C.S. § 830.   They serve as the pleadings, and akin to an indictment, provide the accused notice of the crimes and protection against multiple prosecutions for the same conduct.  United States v. Williams, 21 M.J. 330, 331 (C.M.A.1986).   The “charge” designates the military offense alleged, and the “specification” sets forth the acts or omissions alleged to prove it.  Carter v. McClaughry, 183 U.S. 365, 386, 22 S.Ct. 181, 189, 64 L. Ed. 236, 247 (1902).Where an officer is charged with conduct unbecoming for acts punishable as a separate offense, “the elements of proof are the same as those ․ [of] that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.”   Manual for Courts–Martial, United States, part IV, ¶ 59(c)(2) (2008 ed.).  FN1. Under military law, an investigating officer drafts “charges and specifications.”   See 10 U.S.C.S. § 830.   They serve as the pleadings, and akin to an indictment, provide the accused notice of the crimes and protection against multiple prosecutions for the same conduct.  United States v. Williams, 21 M.J. 330, 331 (C.M.A.1986).   The “charge” designates the military offense alleged, and the “specification” sets forth the acts or omissions alleged to prove it.  Carter v. McClaughry, 183 U.S. 365, 386, 22 S.Ct. 181, 189, 64 L. Ed. 236, 247 (1902).Where an officer is charged with conduct unbecoming for acts punishable as a separate offense, “the elements of proof are the same as those ․ [of] that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.”   Manual for Courts–Martial, United States, part IV, ¶ 59(c)(2) (2008 ed.)

FN2. While this definition is slightly different than the statutory definition of “indecent conduct,” the military's Court of Appeals for the Armed Forces has held that a military jury was instructed appropriately when charged with this definition.  United States v. Rollins, 61 M.J. 338, 344 (C.A.A.F.2005).   We therefore regard the statutory and Manual definitions as the same;  as one commentator has remarked, the definition is “not ․ an explanation, but ․ a string of synonyms.”   Maj. Steve Cullen, Prosecuting Indecent Conduct in the Military:  Honey, Should We Get a Legal Review First?, 179 Mil. L.Rev. 128, 131–32 (2004)..  FN2. While this definition is slightly different than the statutory definition of “indecent conduct,” the military's Court of Appeals for the Armed Forces has held that a military jury was instructed appropriately when charged with this definition.  United States v. Rollins, 61 M.J. 338, 344 (C.A.A.F.2005).   We therefore regard the statutory and Manual definitions as the same;  as one commentator has remarked, the definition is “not ․ an explanation, but ․ a string of synonyms.”   Maj. Steve Cullen, Prosecuting Indecent Conduct in the Military:  Honey, Should We Get a Legal Review First?, 179 Mil. L.Rev. 128, 131–32 (2004).

PER CURIAM