                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5121-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

SAMUEL G. CARUTHERS,

          Defendant-Appellant/
          Cross-Respondent.


                   Submitted April 30, 2020 – Decided July 23, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Indictment No. 16-06-0243.

                   George T. Daggett, attorney for appellant/cross-
                   respondent.

                   Francis A. Koch, Sussex County Prosecutor, attorney
                   for respondent/cross-appellant (Shaina Brenner,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      A jury convicted defendant Samuel G. Caruthers of third-degree

endangering the welfare of a child by a non-caretaker, N.J.S.A. 2C:24-4(a)(2)

(count one); disorderly persons simple assault, a lesser-included, N.J.S.A.

2C:12-1(a)(1) (count two); and fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d) (count five). Defendant had been originally charged with

third-degree aggravated assault by attempting to cause significant bodily injury,

N.J.S.A. 2C:12-1(b)(7). The jury acquitted him of third-degree aggravated

assault by attempting to cause injury with a deadly weapon, N.J.S.A. 2C:12-

1(b)(2) (count three); and third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count four).

      Defendant unsuccessfully sought admission into the pretrial intervention

program (PTI). Defendant was sentenced, on June 26, 2019, to a three-year

probationary term subject to conditions. 1 He now appeals his convictions,

asserting that the child endangering verdict, when juxtaposed to the disorderly

persons simple assault, means the indictable offense must be dismissed as

internally inconsistent, that the unlawful possession of a weapon should be

dismissed because it is inconsistent with his acquittal on the possession of a



1
  An amended judgment was entered on July 9, 2019, to include a no contact
provision.
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                                       2
weapon for unlawful purpose, and that the trial judge erred in instructing the

jury that defendant need not be aware of the age of the assault victim in order

for him to be convicted of child endangering. For the reasons that follow, we

affirm.

      The circumstances leading to the charge can be briefly summarized. On

February 14, 2016, twelve-year-old J.A. and his family were on the beginner's

slope of a ski resort. J.A. was learning how to snowboard; the rest of the family

to ski. As J.A. came down the slope, he saw a skier in front of him, but could

not stop. He accidentally collided with the skier, causing him to fall. It was the

second time J.A. had attempted to snowboard. When he tried to stand, he

struggled to release his feet from the snowboard straps when he felt pain in his

stomach from someone jabbing a ski pole into him. The assailant then punched

him five or six times in the face and his left side while he lay curled up in the

snow. The subsequent hospital visit record reflected that J.A. suffered a facial

contusion, lip contusion, and a bruised lip. He complained of soreness to his

torso. Hospital records indicated that J.A. was five foot six and weighed 114

pounds.

      The State also presented several eyewitnesses who corroborated J.A. and

his family's account, as his parents witnessed the incident from the bottom of


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                                        3
the ski slope.   One eyewitness, an employee of the resort, said defendant

purposely skied into the snowboarder, striking him with the curved front of his

skis in the torso, and "aggressive[ly]" punching J.A. several times in the face.

      Defendant testified that he and his family were also enjoying a holiday on

the ski slopes. He was teaching his ten-year-old son how to navigate the

beginner's slope when he saw J.A., on the snowboard, strike his child. He

claimed he grabbed at J.A.'s jacket after seeing him collide with his son while

traveling at a high rate of speed, to prevent him from crashing into his son again.

Defendant said J.A. took a swing at him, he automatically swung back, and hit

him once while J.A. was on the ground. He admitted denying to police that he

had struck J.A., had not realized J.A. was a child, and saw no injuries on him.

Defendant said his intent "was trying to preserve [his] son's life."

      The judge instructed the jury in accord with the proposed charge,

discussed during the charge conference. After the jury was charged, defendant

objected to the instruction that defendant need not know the age of the child.

The basis for his objection, then and now, is that if there was a legitimate reason

defendant could not have perceived J.A.'s age because of his clothing, his

position in the snow, the fact the child had facial hair, and that he swore when

struck, the jury could convict only if it found defendant knew the child's age.


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                                        4
The judge responded that he took the relevant language from the model charge.

He refused to dismiss the endangerment charge.

      On appeal, defendant raises the following points:

            POINT I

            N.J.S.A. 2C:24-4(a)(2) DOES NOT APPLY TO A
            SIMPLE ASSAULT.

            POINT II

            THE JURY’S VERDICT OF GUILTY AS TO
            POSSESSION OF A WEAPON IS INCONSISTENT
            WITH ITS OTHER FINDINGS.

            POINT III

            THE COURT BELOW ERRED IN TELLING THE
            JURY THAT THE DEFENDANT DID NOT HAVE
            TO KNOW THE AGE OF THE JUVENILE.

      By way of cross-appeal, the State raises the following issue:

            POINT I
            THE LOWER COURT ERRED WHEN IT RULED
            THAT THE STATE COULD NOT USE THE
            STATEMENTS MADE BY THE DEFENDANT
            DURING   HIS   PRETRIAL INTERVENTION
            INTERVIEW FOR IMPEACHMENT PURPOSES.

                                         I.

      "Clear and correct jury charges are essential for a fair trial, and the failure

to provide them may constitute plain error." State v. Gonzalez, 444 N.J. Super.


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                                         5
62, 76 (App. Div. 2016). "The proper standards of review of jury instructions

are well-settled: if the party contesting the instruction fails to object to it at trial,

the standard on appeal is one of plain error; if the party objects, the review is for

harmless error." Willner v. Vertical Reality, Inc., 235 N.J. 65, 80 (2018); see

also Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 17-18 (2000).                 "[I]n

reviewing any claim of error relating to a jury charge, the 'charge must be read

as a whole in determining whether there was any error'. . . ." Gonzalez, 444 N.J.

Super. at 70-71 (quoting State v. Torres, 183 N.J. 554, 564 (2005)). In addition,

"the effect of any error must be considered 'in light of the overall strength of the

State's case' . . . ." Id. at 71 (quoting State v. Walker, 203 N.J. 73, 90 (2010)).

      Here, defendant objected to the child endangerment instruction, albeit

after the judge charged. Giving him the benefit of the doubt, we review use of

the charge for harmless error. Defendant contends that the jury's conviction of

a disorderly persons simple assault is inherently inconsistent with the child

endangering conviction, compelling dismissal of that count of the indictment.

      Child endangerment occurs when "[a]ny person [other than a

caretaker] . . . who causes the child harm that would make the child an abused

or neglected child as defined in R.S.9:6-1, R.S.9:6-3, and section 1 of P.L.1974,

c. 119 (C.9:6-8.21) is guilty of a crime . . . of the third degree." N.J.S.A.


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                                           6
2C:24-4(a)(2) (emphasis added). The statutory elements the State must prove

beyond a reasonable doubt are that the victim was a child, defendant caused the

victim harm that would make him abused or neglected, and that defendant knew

the conduct would make the child abused or neglected. N.J.S.A. 2C:24-4(a)(2).

The judge's instruction tracked the relevant model jury charge. See Model Jury

Charge (Criminal), "Endangering the Welfare of a Child, Abuse or Neglect

(Third Degree) (N.J.S.A. 2C:24-4(a)(2))" (rev. March 9, 2015).      Defendant

anchors the argument on the fact no mention is made in those portions of Title

9 which encompass the conduct in this case.

      There is no question that confusion arises with reference to child

endangerment when the conduct refers back to definitions found in Title 9.

However, we have previously stated that "[t]he drafters of N.J.S.A. 2C:24-4(a)

of the Criminal Justice Code expressed the intention to 'incorporate the crime

now defined in N.J.S.A. 9:6-3 without substantial change except for the penalty

provision.'" State v. D.V., 348 N.J. Super. 107, 114 (App. Div. 2002) (quoting

Final Report of the New Jersey Criminal Law Revision Commission, Volume

11 at 259 (1971)). We have also said that terms, such as abuse, are defined in

N.J.S.A. 9:6-1, and incorporated into 9:6-3. State v. Demarest, 252 N.J. Super.

323, 328 (App. Div. 1991). In State v. N.A., 335 N.J. Super. 143, 153-54 (App.


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                                       7
Div. 2002), we characterized the offenses of endangering the welfare of children

and Title 9 offenses related to cruelty and neglect of children as the same—the

only difference being the degree of the offense and the penalty.          See also

Demarest, 252 N.J. Super. at 329-33. Each criminalizes the same harm or risk

of harm to the child; each requires the same proof of "knowing culpability."

N.A., 355 N.J. Super. at 153 (quoting Demarest, 252 N.J. Super. at 333).

      The statute encompasses the harm inflicted in this case, albeit minimal,

by a stranger. J.A.'s swollen and bruised lip, laceration to the face, and sore and

bruised torso is the type of harm proscribed in Title 9. No precedent leads us to

conclude that because the conduct in this case was a simple and not an

aggravated assault, the conduct is excluded from child endangering. The statute

has consistently been held to incorporate all the definitions included in Title 9 ,

and the assault in this case falls within that category. Ultimately, the wrongful

conduct was an assault upon a child. Thus, the court did not err in failing to

dismiss the child endangering charge.

      Furthermore, defendant's argument that he was improperly charged with

endangering as opposed to a Title 9 offense also lacks merit. In State v. Fuqua,

234 N.J. 583, 596 (2018), among other things, the court explained that the

interplay between the statutes gives a prosecutor's office discretion to decide


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                                        8
under which to proceed.     The legislative intent appears to be to defer to the

discretion of a prosecutor regarding what charges are presented to a grand jury.

In that fashion, there is judicial oversight through the grand jury and the petit

jury of charging decisions. N.A., 355 N.J. Super. at 153-54. Thus, the court did

not err in both charging the jury in accord with the Model Jury Charge as to

child endangerment and refusing to vacate the conviction even though the jury

convicted defendant of simple assault.

                                         II.

      Defendant further contends that the jury verdict was internally

inconsistent because the jury acquitted him of third-degree assault with a deadly

weapon and possession of a weapon for unlawful purposes, instead finding him

guilty of unlawful possession of a weapon. This point also lacks merit.

      First, even if we agreed that the verdicts are internally inconsistent, which

we do not, inconsistent verdicts are permissible in this state. State v. Grey, 147

N.J. 4, 11 (1996). In reviewing an inconsistent verdict, the only question is

whether the charge on which the jury convicted had sufficient support in the

record. See State v. Banko, 182 N.J. 44, 56 (2003). That is true in this case,

where eyewitnesses corroborated J.A.'s version of events.




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                                         9
      The argument that the jury finding was inconsistent is not necessarily

accurate. N.J.S.A. 2C:39-5(d) states that any person "who knowingly has in his

possession any other weapon[, such as a ski pole,] under circumstances not

manifestly appropriate for such lawful uses as it may have is guilty of a

crime . . . ." That means the jury credited the fact that the ski pole was being

used for its lawful purpose up until defendant assaulted J.A. Once he made the

decision to strike the child, then the pole became a weapon and became an object

being used inappropriately. This argument lacks merit.

                                       III.

      Finally, defendant contends that the judge erred by instructing the jury

that the State need not prove that defendant knew J.A.'s age in deciding whether

he was guilty of child endangering. The judge analogized the charge to sexual

assault cases in which knowledge of the victim's age is irrelevant—the

significant factor being the victim's actual age. In this case, the analogy seems

quite apt. But the State should not have to present proof of knowledge, an

elusive task involving many subjective factors. A victim who looks like a child

to one person may not to another. Defendant's claim that J.A. looked like an

adult is not supported by the hospital record of the victim's size and weight.




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                                      10
      And, by immediately attacking J.A., as opposed to going to the aid of his

own child, defendant lost the opportunity to assess the characteristics—the

age—of the victim. In any event, the judge's charge tracked the model jury

instruction. It required the State to prove beyond a reasonable doubt only that

the victim was a child, that defendant knowingly caused him harm that would

make the child abused or neglected, and that defendant knew such conduct

would cause the victim harm. Model Jury Charge (Criminal), "Endangering the

Welfare of a Child, Abuse or Neglect (Third Degree) (N.J.S.A. 2C:24-4(a)(2))"

(rev. March 9, 2015). In any event, a jury charge is presumed to be proper if it

tracks the model jury charge. See State v. R.B., 183 N.J. 308, 325 (2005).

Nothing requires the State to prove that defendant could not be convicted unless

he knew the child's age.

                                      IV.

      The State argues by way of cross-appeal that the trial court should not

have barred the use of defendant's PTI interview statements for impeach ment

purposes. Since we affirm the conviction, we do not reach the moot cross-

appeal.

      Affirmed.




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