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CRIMINAL PRACTICE — Child Victims — Mental States — Prosecutors — Sleepwalking A-4827-00T3; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication February 7, 2003. Before Judges Pressler, Ciancia and Axelrad. On appeal from the Law Division, Atlantic County, 99-02-0173C. DDS No. 14-2-2787 Richard Overton was convicted of second-degree endangering the welfare of a child, a 7-year-old girl (I.T.), and fourth-degree child abuse. His motion for acquittal notwithstanding the verdict (n.o.v.) was denied. The court sentenced him to three years’ imprisonment, with appropriate monetary penalties and Megan’s Law community supervision for life. Defendant was admitted to bail pending appeal. I.T. is the granddaughter of defendant’s girlfriend, Brown. On November 28, 1998, I.T. and her 5-year-old brother slept at their grandmother’s house. I.T. awoke with her pants down around her ankles to find the 41-year-old defendant, smelling of alcohol, naked on top of her, moving around with his penis pressed against her vagina. When she screamed, he stopped moving and asked her what she was doing in his bedroom; she explained he was in hers. Defendant then covered himself with the bedspread and dashed out of her room, leaving her in tears. The children had slept at Brown’s house on numerous occasions while their mother worked the night shift. The house was a ranch with three bedrooms. The master bedroom, where Brown and defendant slept, was at the other end of the house from the room where the children slept. On the night of the incident, after the children were in bed, Brown and defendant shared one or two beers. They went to bed naked. They intended to have sexual relations the next morning and Brown reminded defendant that they would need to get the baby oil, which was in the back bedroom or the bathroom across from the children’s bedroom. He said he would get it later. They went to sleep; Brown was awakened to defendant’s crying and yelling while standing in front of their bedroom window naked and covered in baby oil. In response to her repeated demands as to what had happened, he stated that “he woke up naked next to [I.T].” Brown found I.T. and her brother sitting on the floor in their room playing a video game. I.T. told her “Big Ricky [tried] to put his thing . . . in [her] private parts,” pointing to her genital area. Brown called defendant’s sister, Grace Green, who lived nearby and arrived a few minutes later. I.T. told her “Ricky tried to pull her pants down” and she “told him to stop.” The women phoned I.T.’s mother and took I.T. to the hospital. The examination did not reveal any evidence of penetration. Defendant testified; his defense, corroborated by Brown, Green, and a former girlfriend, Maria Rodriquez, was that he had a sleep disorder that, on numerous occasions, caused him to wake up in a place other than his bed with no recollection of how he got there. Green testified that while growing up, he would occasionally be found sleeping in different areas of the house, such as under the dining room table. According to Rodriguez, during her 10-year relationship with defendant in the 1980s, while he was sleeping he would wander into another room and often put food in his mouth and lie back down to sleep, when she had to wake him so he would not choke. Brown testified that she had awakened on several occasions to find defendant “balled up naked and in front of the basement door” or in the kitchen, or lying across the bed “covered from head to toe with baby powder,” or lying in the bathroom “with his long johns wrapped around his neck.” One time he turned on all the burners on the stove and fell asleep on the floor. Defendant presented the testimony of Dr. Doghramji, a psychiatrist with additional board certifications in sleep medicine, who was qualified as an expert witness in the field of sleep disorders. Doghramji treated defendant after his arrest, and opined that he was a sleepwalker, based on the information he had received, and that erratic sleep patterns, the amount of caffeine defendant consumed, and psychological distress were consistent with, and contributed to, a sleeping disorder. Held: Since N.J.S.A. 2C:24-4a, which pertains to child endangerment, and N.J.S.A. 9:6-3, which governs child abuse, are both silent regarding the required mental state, the gap-filler provisions of 2C:2-2c(3) come into play, requiring the state to prove that defendant acted “knowingly.” State v. Demarest, 252 N.J. Super. 323, 327 (App. Div. 1991). To act knowingly, a person must be aware of the nature of his conduct or the presence of such circumstances, or of a high probability that they are present, 2C:2-2b(2). To act knowingly with respect to a result of one’s conduct, a person must be aware that that conduct is practically certain to cause such a result. Ibid. To convict defendant of child endangerment, the state had to prove beyond a reasonable doubt that he knowingly engaged in sexual conduct that would impair or debauch I.T.’s morals, or knowingly caused I.T. harm that would make her an abused or neglected child. To convict him of child abuse, the state had to prove beyond a reasonable doubt that he knowingly performed any indecent, immoral or unlawful act or deed that may have tended to debauch or degrade I.T.’s morals. Thus, he had to be aware of performing such an act. The state’s position was that the jury should not believe defendant’s claim of sleepwalking, but that: Defendant told us . . . how much he cares about the welfare of these children, then [that] he goes to sleep naked knowing that he gets up and walks around the house, knowing there’s no lock on his door, knowing those children don’t have a lock on their door . . . . It’s endangering the welfare of those children, even if you believe everything that he said . . . . (Emphasis added.) There was no objection by defense counsel to those comments and no curative instruction was given at that time. In the charge, the judge defined “knowingly” several times, properly noting that the state had the burden of proving that the offense was the result of a voluntary act, and discussing defendant’s “parasomnia or sleepwalking” claim: Although this may be characterized as a defense . . . [o]nce any credible evidence has been raised placing the defendant’s mental state in question, the State must disprove such evidence beyond a reasonable doubt . . . . The charge might have been adequate to guide the jury if it were not for the prosecutor’s comments: the judge failed to instruct the jury in accordance with the model charge that it must disregard any statements by the attorneys as to the law that conflict with the judge’s charge. The prosecutor misstated the law when he told the jury it could find defendant guilty based solely on his “act” of going to bed naked with no lock on his bedroom door, with two children sleeping in the house, knowing he had a propensity to sleepwalk. That is not so. It could, at best, constitute recklessness, namely, a conscious disregard of a substantial and unjustifiable risk that the prohibited sexual contact would result, 2C:2-2b(3). Such reckless conduct cannot support a conviction for child endangerment or child abuse. It cannot be discerned with confidence whether the jury rejected the sleepwalking evidence and found that defendant knowingly and voluntarily engaged in the improper acts, or accepted that he was sleepwalking and did not act knowingly and voluntarily, but had created a risk that the acts might occur. This conclusion is bolstered by the colloquy during the motion for judgment of acquittal n.o.v. Defense counsel, acknowledging that he had not realized the implications of the prosecutor’s comments during trial, argued that they “could have easily steered some of the jurors” in a way inconsistent with the court’s instructions. The judge agreed, but denied the motion. The jury returned the guilty verdicts despite acquitting defendant of attempted aggravated sexual assault and sexual assault. His inconsistent-verdicts argument is not persuasive. Courts are cautioned against setting aside inconsistent or illogical verdicts, and from speculating whether such inconsistencies resulted from jury lenity, compromise, or mistake not adversely affecting the defendant, when the reason for their inconsistency cannot be determined. United States v. Powell, 105 S.Ct. 471, 476 (1984). The first two counts required a finding of purposeful conduct, a higher mental state than knowing conduct. This alone could explain the different results. Criminal liability is conditioned, at a minimum, on a voluntary act and a culpable state of mind. If the act was committed by defendant in a sleepwalking state, it was not voluntary and cannot underpin his convictions. Under such circumstances, he could not have known what he was doing. On retrial, the jury should be clearly instructed on this point. Reversed and remanded for a new trial. — Digested by P.R. Chenoweth [The slip opinion is 15 pages long.] For appellant — Mark E. Roddy. For respondent — David Samson, Attorney General (Kristen McKearney, Deputy Attorney General, on the brief).

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