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State v. Zeidell6/4/1998
Argued February 17, 1998
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 299 N.J. Super. 613 (1997).
The opinion of the Court was delivered by
The issue raised in this appeal is whether a defendant who has criminal sexual contact with himself that is observed by two children of eight and ten years from a distance of approximately seventy-five feet has committed second-degree sexual assault. In a reported opinion, a divided panel of the Appellate Division reversed two convictions for sexual assault. The majority concluded that because no specific victimization and aggressive assaultive conduct had been established, the necessary relational component for sexual assault had not been proven. State v. Zeidell, 299 N.J. Super. 613, 619-20 (1997). The dissenting Judge believed that no specific victimization was required and that all of the statutory elements of sexual assault had been established. Id. at 624-27.
The State appeals as of right because of the Dissent below. R. 2:2-1(a)(2). We reverse and hold that the specific intent to victimize an observer is not an element of sexual assault involving a child who is less than thirteen years old (referred to as a tender-years-sexual assault).
I.
-A-
Defendant was convicted of the following offenses: two counts of second-degree sexual assault upon K.B. and E.B., who were ten and eight years old, respectively; two counts of endangering the welfare of those two children; and two counts of fourth-degree lewdness based on exposing his intimate parts to the same children. After merging the endangerment and lewdness counts with the sexual assaults upon each child, the court sentenced defendant to concurrent ten year terms with five years of parole ineligibility to the Adult Diagnostic and Treatment Center.
-B-
The evidence presented by the State that tended to establish the elements of the charged offenses consisted of what follows. On June 18, 1994, Carol S., an adult, took her friend's two young children, K.B. and E.B., and their two cousins, J.F. and C.F., to a beach area located on the border of Asbury Park and Ocean Grove. The beach area was approximately fifty yards wide and was situated between buildings located to the north and south. To the west, there was a boardwalk that extended in a northerly direction.
Although the beach was crowded earlier in the day, at the time of the alleged criminal conduct only Carol and the children were present. After the four children had been playing in the water for awhile, K.B. and E.B. exited the water to talk and play with Carol, who was sitting on a towel near the center of the beach. J.F. and C.F. remained in the water. Carol faced the water and K.B. sat facing her as they spoke. E.B. sat to Carol's right side and stared out at the water.
Shortly after 8:00 p.m. while patrolling the beach areas, Officer Frederick Jenkins observed an adult female with two young children playing in the middle of the beach; two other children were swimming in the water. Officer Jenkins also observed defendant and a couple at the beach area. Defendant was standing at the end of the boardwalk nearest the ocean, approximately seventy-five feet from where Carol and the children were playing. According to Officer Jenkins, there were no obstacles blocking defendant's view of the beach. Eventually, both the officer and the couple left the beach, leaving defendant on the boardwalk standing beside a bicycle.
Approximately two minutes later while Carol, K.B. and E.B. were still on the beach, Carol exclaimed "look at that man jerking off over there." K.B. and E.B.
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