The New Jersey Supreme Court continued in relevant part: In a written decision, the court made detailed credibility findings. The court found that the State failed to prove sexual penetration and accordingly declined to adjudicate D.M. delinquent on the charge of first-degree aggravated sexual assault. The court found, however, that the State had satisfied its burden of proof with respect to the lesser-related offense of third-degree endangering the welfare of a child. The court found beyond a reasonable doubt that D.M. “exposed his penis to Z.Y., sought Z.Y. to touch his penis with his mouth, and had his penis physically touch Z.Y.’s buttocks.” The court found that these acts “would tend to debauch and impair the morals of a child” within the meaning of N.J.S.A. 2C:24-4(a)(1), and adjudicated D.M. delinquent as to that offense.
At a disposition hearing, the court stated, in part: “I adjudicated D.M. to a third degree, but quite frankly, the elements of the first-degree offense were met.” The court noted that it had “considered a lesser-related offense really as a humanitarian gesture to D.M. . . . in light of his lack of a prior record, his extremely devoted grandmother, his trials and tribulations, and his active and noble extracurriculars,” but that, “if one were to really look at the evidence that was presented and one were to be honest about assessing that evidence, there is no doubt in the eyes of the court that the elements of the first-degree offense have been made and surely an attempt.”
D.M. appealed his juvenile adjudication and disposition. The State and D.M. briefed the issues raised. Neither party requested oral argument. The Appellate Division panel sua sponte ordered the parties to submit supplemental briefs on “whether the lack of a finding of penetration or coercion undermines the delinquency finding of endangering the welfare of a child, in light of the four-year age difference required for a delinquency finding of sexual assault” under N.J.S.A. 2C:14-2(b). 451 N.J. Super. 415, 423 (App. Div. 2017). The State then requested oral argument, and D.M. did not oppose that application. The panel, however, denied the State’s request.
Double jeopardy principals prevent the State from appealing the juvenile’s acquittal on the first degree. Thus, the trial court’s statements at sentencing that a first-degree offense was met could not be used to overturn the acquittal on appeal.