SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6415-93T1
STATE OF NEW JERSEY
IN THE INTEREST OF
S.M., a juvenile.
Argued September 28, 1995 - Decided October
27, 1995
Before Judges Landau,See footnote 1 Kleiner and Humphreys.
On appeal from the Superior Court of
New Jersey, Chancery Division, Family Part,
Somerset County.
Alan L. Zegas argued the cause for juvenile-appellant, S.M.
Karen J. Angelo argued the cause for the
respondent, State of New Jersey (Nicholas L.
Bissell, Jr., Somerset County Prosecutor; Ms.
Angelo, Assistant Prosecutor, on the letter
brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
S.M., a fifteen-year old juvenile, was convicted of two
counts of juvenile delinquency which, if committed by an adult,
would constitute: (1) first-degree aggravated sexual assault,
contrary to N.J.S.A. 2C:14-2a(1); and second-degree aggravated
sexual assault, contrary to N.J.S.A. 2C:14-2b. Both charges
relate to one event on December 3, 1993, when S.M. was employed
to baby-sit A.K., a five-year old male child.
A.K. informed his father that during the afternoon, S.M.
"blew through my penis." A.K.'s father immediately contacted
police authorities and a police investigator interviewed A.K. At
the subsequent trial, the court found A.K. competent to testify.
On direct examination, A.K. related that S.M. placed his mouth on
A.K.'s penis and instructed A.K. to touch S.M.'s penis while S.M.
remained fully clothed. The State presented the testimony of
A.K.'s father, who was permitted to repeat A.K.'s version of the
events as it had been stated when the incident was first
reported. The State also introduced the testimony of the police
investigator who repeated the version of the incident as told by
A.K. at the initial interview. The two prior statements were
consistent with A. K.'s trial testimony. In no rendition did
A.K. clearly indicate that his penis entered S.M.'s mouth.
S.M. testified on his own behalf. He admitted that the
incident occurred and indicated that although he did place his
mouth upon A.K.'s penis, he did not cause the penis to enter his
mouth. S.M.'s counsel vigorously argued that the proven facts
failed to establish a violation of N.J.S.A. 2C:14-2a(1), and that
S.M. should only be found guilty of two second-degree offenses in
violation of N.J.S.A. 2C:14-2b. The trial court rejected S.M.'s
argument, concluding that the act of "fellatio" does not require
proof of the insertion or attempted insertion of the victim's
penis into the mouth of the perpetrator.
On July 14, 1994, S.M. was sentenced to the Training School
for Boys at Jamesburg for a period not to exceed eighteen months
on each count of the juvenile delinquency complaint. The
sentence on count two was to be served concurrent with the
sentence on count one. The court also imposed a $30 penalty
payable to the Violent Crimes Compensation Board on each count.
On October 6, 1994, S.M. appeared before the Family Part
seeking reconsideration of his original sentence. On October 27,
1994, the trial judge granted S.M.'s motion for reconsideration
of sentence and placed S.M. under a two-year period of probation.
As conditions of that probation, the judge placed S.M. under
"house arrest" and required S.M. to obtain and complete
psychological counseling, to follow the recommendation of his
physician, and to attend and complete an educational program.
On appeal from both his conviction and his sentence, S.M.
raises three points of error:
POINT I
THE FEDERAL AND STATE DUE PROCESS AND FAIR
TRIAL RIGHTS OF JUVENILE S.M. WERE VIOLATED
BY THE TRIAL JUDGE'S APPLICATION OF AN
ERRONEOUS DEFINITION OF "FELLATIO" TO FIND
THAT S.M. HAD COMMITTED A FIRST DEGREE SEXUAL
OFFENSE.
A. THE TRIAL JUDGE ERRONEOUSLY HELD
THAT "FELLATIO", AS THAT TERM IS USED IN
THE SEXUAL ASSAULT STATUTE, DOES NOT
REQUIRE INSERTION OR ATTEMPTED INSERTION
OF THE PENIS INTO THE ORAL CAVITY.
B. S.M.'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BECAUSE THE SEXUAL ASSAULT STATUTE, AS APPLIED
TO DEFENDANT, WAS VAGUE. (Not Raised
Below)
POINT II
DEFENDANT'S SENTENCE IS LEGALLY IMPROPER
UNDER THE JUVENILE CODE AND VIOLATES HIS
STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO
DUE PROCESS.
POINT III
THE COURT'S UNFAIR QUESTIONING OF WITNESSES
AND ITS ADMISSION OF HEARSAY EVIDENCE
VIOLATED S.M. [SIC] STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A
FAIR TRIAL.
In its brief and at oral argument, the State admitted that
the trial judge, when resentencing S.M. on October 27, 1994,
improperly imposed a probationary term of two years, as S.M.'s
original sentence encompassed an eighteen-month period of
incarceration. Additionally, the State recognizes that the trial
court failed to give S.M. credit against his sentence for the
time spent at Jamesburg between July 14, 1994 and the date of
resentencing.
At oral argument, we learned that S.M. is no longer under
"house arrest" and has been permitted to re-enter the public
school system.
The substantial change in facts since the date of original
sentencing and the State's admission that the sentence imposed at
resentencing was constitutionally impermissible render the issues
posed in Point II respecting the "legality" or "propriety" of
S.M.'s original sentence moot. On remand, S.M. shall be entitled
to a resentence. If again placed on probation, the term of
probation may not exceed eighteen months retroactive to July 14,
1994. See N.J.S.A. 2A:4A-44d(2).
We conclude that S.M.'s conviction was correct and
accordingly, we affirm that conviction.
The New Jersey Criminal Code defines sexual assault as follows:
N.J.S.A. 2C:14-2 Sexual Assault
a. An actor is guilty of aggravated sexual
assault if he commits an act of sexual
penetration with another person under any one
of the following circumstances:
(1) The victim is less than 13
years old.
"Sexual Penetration" is defined, N.J.S.A. 2C:14-1c as:
[V]aginal intercourse, cunnilingus, fellatio
or anal intercourse between persons or
insertion of the hand, finger or object into
the anus or vagina either by the actor or
upon the actor's instruction. The depth of
insertion shall not be relevant as to the
commission of the crime.
S.M. contends that the State failed to prove that A.K.'s
penis ever penetrated S.M.'s mouth and that, without proof of
penetration, S.M. could only be found guilty of violating
N.J.S.A. 2C:14-2b. The trial court, relying upon our decision in
State v. C.H.,
264 N.J. Super. 112 (App. Div. 1993) and by
analogy, our decision in State v. Fraction,
206 N.J. Super. 532
(App. Div. 1985), certif. denied,
104 N.J. 434 (1986), rejected
that contention. We agree.
In Fraction, we were required to determine whether the State
proved an act of cunnilingus when the victim testified that
defendant "`licked [her] outer labia' but did not insert his
tongue into her vagina." Id. at 535. After quoting N.J.S.A.
2C:14-1c, we concluded:
By its very terms, therefore, the phrase
"sexual penetration" includes the act of
cunnilingus. Although the word "cunnilingus"
is not defined in the Code of Criminal
Justice, we are in accord with the trial
judge's determination that it must be given
its ordinary and well understood meaning.
(citation omitted). It is generally defined
as "oral stimulation of the vulva or
clitoris." Webster's Ninth New Collegiate
Dictionary 315 (1985). (citations omitted).
Thus, by definition cunnilingus constitutes a
form of "sexual penetration" under the
statute notwithstanding the fact that the
actor's tongue is not inserted into the
vagina.
[Id. at 535-36.]
Fraction provides an appropriate analogy to the case before
us. The word "fellatio" is not defined by N.J.S.A. 2C:14-1c.
Webster's Third New International Dictionary, 836 (3d ed. 1981)
defines "fellatio" as "the practice of obtaining sexual
satisfaction by oral stimulation of the penis." Thus, by
definition, fellatio constitutes a form of "sexual penetration"
under the statute notwithstanding the fact that the victim's
penis does not enter the actor's mouth. Placement of the actor's
mouth on the victim's penis is sufficient to prove a violation of
N.J.S.A. 2C:14-1a.
In State v. C.H., the child victim stated that defendant
tried to put his penis in her mouth and when she resisted,
defendant held her nose to force her mouth open and defendant
ejaculated. C.H., 264 N.J. Super. at 129. Although there had
not been penetration, we concluded that C.H. was guilty of
attempted fellatio and thus aggravated sexual assault. Id.
Although neither Fraction nor C.H. relied upon decisions in
other jurisdictions, the State has properly argued that the view
which we have previously adopted is consistent with conclusions
reached in those jurisdictions in which the question has been
posed. In Thomas v. State,
483 A.2d 6, 20 (Md. 1984), cert.
denied,
470 U.S. 1088,
105 S. Ct. 1856,
85 L.Ed.2d 153 (1985),
the court concluded that kissing a penis constituted an act of
fellatio, as contact between the mouth and the penis without
penetration was sufficient to constitute an act of fellatio. See
also State v. Phillips,
365 So.2d 1304, 1308 (La. 1978), cert.
denied,
442 U.S. 919,
99 S. Ct. 2843,
61 L.Ed.2d 287; McDonald v.
State,
513 S.W.2d 44, 46-47 (Tex. Crim. App. 1974); State v.
Childs,
430 N.W.2d 353, 355 (Wis. 1989), cert. denied,
489 U.S. 1025, 109 S. Ct. 1154,
103 L.Ed.2d 213 (1989); Murray v. State,
770 P.2d 1131, 1139 (Alaska Ct. App. 1989).
State v. Childs provides an excellent example of similar
analysis undertaken by our sister States on facts strikingly
similarly to those before us. Childs involved an appeal from the
defendant's conviction for second-degree sexual assault. Childs,
430 N.W.
2d at 354. The defendant contended that the trial court
erred in instructing the jury that "fellatio is the oral
stimulation of the penis." Id. at 355. The defendant argued
that this instruction relieved the State of its burden of proving
penetration as an essential element of the crime charged. Ibid.
The Court of Appeals of Wisconsin considered, as we do here,
that in the absence of a statutory definition, a court should
rely on the common and ordinary meaning of a word in examining a
statute. Ibid. This meaning may be determined by "the
definition of a recognized dictionary." Ibid. The court of
appeals found that the trial court's instruction comported with
the definition of fellatio as found in Webster's New Collegiate
Dictionary. This definition "includes oral stimulation of the
penis without penetration into the mouth." Ibid. The court
therefore upheld the instruction and affirmed the defendant's
conviction. We agree with this method of analysis.
We acknowledge that the word "fellatio" may be traced to the
past participle of the Latin word "felare" which translated means
"to suck." Webster's Third New International Dictionary, 836
(1971). However, the origin of a word does not necessarily
dictate its present meaning. Our legislature has not limited
"fellatio" to a specific definition but has used that term in its
broadest sense. We conclude that placing one's mouth on the
penis of a male victim without inserting the victim's penis into
the mouth falls within the legislature's proscription of
prohibited acts. We conclude that the public is reasonably
apprised of the legislative intent based upon concepts of common
intelligence and ordinary human experience. See State v.
Lachinsky,
81 N.J. 1, 15-16 (1979).
The concept of vagueness or
indefiniteness rests on the constitutional
principle that procedural due process
requires fair notice and proper standards for
adjudication. The primary issues involved
are whether the provision of a penal statute
are sufficiently definite to give reasonable
notice of the prohibited conduct to those who
wish to avoid its penalties and to apprise
judge and jury of standards for the
determination of guilt. If the statute is so
obscure that men of common intelligence must
necessarily guess at its meaning and differ
as to its applicability, it is
unconstitutional.
[Id. (quoting Landry v. Daley,
280 F. Supp. 938, 951-52 (N.D. Ill), appeal dismissed
393 U.S. 220,
89 S. Ct. 455,
21 L.Ed.2d 392
(1968), rev'd on other grounds, sub. nom.
Boyle v. Landry,
401 U.S. 77,
9 S. Ct. 758,
27 L.Ed.2d 696 (1971)).]
We accordingly reject S.M.'s contention that N.J.S.A. 2C:14-2 is
constitutionally vague as written or as applied.
S.M. contends that the use at trial of A.K.'s statement to his father as to the particulars of S.M.'s conduct and the subsequent statement of A.K. to the investigating police officer violated N.J.R.E. 803(c)(27) requiring a reversal of S.M.'s adjudication of delinquency. We disagree.
We note that N.J.R.E. 803(c)(27) provides:
A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet
it; (b) the court finds, in a hearing
conducted pursuant to Rule 104(a), that on
the basis of the time, content and
circumstances of the statement there is a
probability that the statement is
trustworthy; and (c) either (i) the child
testifies at the proceeding, or (ii) the
child is unavailable as a witness and there
is offered admissible evidence corroborating
the act of sexual abuse; provided that no
child whose statement is to be offered in
evidence pursuant to this rule shall be
disqualified to be a witness in such
proceeding by virtue of the requirements of
Rule 601.
Our review of the record demonstrates that S.M.'s counsel
objected to the testimony of A.K.'s father, not because it was
offered without a prior evidentiary ruling as to trustworthiness,
but due to the fact that the prosecutor did not comply with
subsection (a) of the rule, which requires notification by the
State of its intent to use the prior statement of the victim.
Unquestionably, the State had provided defense counsel with a
copy of the statement in pretrial discovery. The State failed to
specifically inform defense counsel that it intended to present
that statement through the testimony of A.K.'s father. We
conclude that from the facts of this case, it would be self-evident to defense counsel that the State would call as a witness
a five-year old victim's father, when discovery reflected that
the victim revealed the act of delinquency to his father a few
hours after the event allegedly occurred. S.M.'s objection at
trial, without any demonstration of prejudice, was properly
overruled.
Our review of the record reveals that the recorded version
of A.K.'s statement to his father and thereafter to the
investigating police officer was provided in advance of trial to
S.M. through pretrial discovery. Although N.J.R.E. 803(c)(27)(b)
requires the court to "find, in a hearing conducted pursuant to
Rule 104(a), that on the basis of the time, content and
circumstances of the statement that there is a probability that
the statement is trustworthy," we do not conclude that the
failure of the court, sitting as the trier of fact, to conduct a
hearing pursuant to Rule 104(a) is so violative of N.J.R.E.
803(c)(27) as to warrant reversal.
Here, the statement of A.K. to his father occurred the very
evening of the alleged delinquent conduct and was then briefly
repeated in the presence of the investigating officer while
A.K.'s father was also present in the room. Here, S.M.'s counsel
did not request a Rule 104(a) hearing; S.M. has failed to
articulate any prejudice resulting from the court's alleged
dereliction in this non-jury proceeding. By the court's findings
at the conclusion of this trial, it is clear that the court was
fully aware of its responsibility to determine trustworthiness as
outlined in Idaho v. Wright,
497 U.S. 805, 822,
110 S. Ct. 3139,
111 L.Ed.2d 638 (1990), and as discussed in State v. D.R.,
109 N.J. 348, 371-77 (1988). The court considered A.K.'s in-court
statement but also considered: (1) the circumstances under which
the same statement was made to his father; (2) its spontaneity;
(3) the mental state of the declarant; (4) the terminology
attributed to the declarant; and (5)the declarant's lack of
motive to fabricate.
Additionally, S.M.'s contention that reversal is mandated
due to the fact that the trial judge asked several questions of
A.K.'s father in order to clarify the testimony is without merit.
See R. 2:11-3(e)(2).
Defendant's conviction is affirmed. Defendant's sentence is
vacated and this matter is remanded to the Family Part for the
imposition of sentence in accordance with this opinion.
Footnote: 1 Judge Landau did not participate in oral argument. Counsel have waived any objection to Judge Landau's participation in this decision.