Opinion
DOCKET NO. A-3089-10T4 DOCKET NO. A-3169-10T4
01-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.M., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-06-1047.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant R.M. was found guilty of counts one through five of Middlesex County Indictment No. 08-06-1047, charging him with: first-degree aggravated sexual assault of N.S., N.J.S.A. 2C:14-2a (count one); second-degree sexual assault of N.S., N.J.S.A. 2C:14-2b (count two); second-degree endangering the welfare of N.S., N.J.S.A. 2C:24-4a (count three); second-degree sexual assault of D.S., N.J.S.A. 2C:14-2c (count four); and second-degree endangering the welfare of D.S., N.J.S.A. 2C:24-4a (count five). Thereafter, before a different judge, defendant pled guilty to counts seven and eleven of the indictment, charging him with: second-degree sexual assault of K.A., N.J.S.A. 2C:14-2b; and, second-degree sexual assault of M.M., N.J.S.A. 2C:14-2b. Pursuant to the plea bargain, the State agreed to recommend two, consecutive ten-year sentences to run concurrent with the sentences imposed on counts one through five. The balance of the indictment was to be dismissed.
A prior court order had the effect of severing the indictment into three parts, each with discrete groups of alleged victims. Counts one through five were severed from counts six through twelve, and, in turn, counts six through ten were severed from counts eleven and twelve.
The trial judge sentenced defendant to a fifteen-year term of imprisonment on count one, with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive seven-year term of imprisonment on count four. Concurrent sentences were imposed on counts two, three and five, and run concurrently to the sentence on count one. The second judge sentenced defendant to two, consecutive eight-year terms, with NERA parole disqualifiers, and ran those sentences concurrently with the sentences imposed on counts one through five. The remaining counts of the indictment were dismissed.
Defendant filed separate appeals from the two judgments of conviction, which we then consolidated. Defendant raises the following arguments for our consideration:
POINT IAlthough these arguments relate solely to the trial on counts one through five, defendant contends that if we reverse those convictions, he should be re-sentenced on counts seven and eleven because "the sentence[s] imposed" were predicated on receiving a "concurrent sentence." We have considered these contentions in light of the record and applicable legal standards. We affirm.
THE ERRONEOUS ADMISSION OF TESTIMONY THAT DEFENDANT SHOWED N.S. AND D.S. "CHILD PORNOGRAPHY" DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL
A. The State Committed Prosecutorial Misconduct in Eliciting the Testimony Because the State Possessed Affirmative Evidence That Any Such Pornography Depicted Young-Looking, but Legal-Age Models
B. The Allegation That Defendant Possessed "Child Pornography" Was Other Crimes Evidence Neither Admitted Nor Admissible Pursuant to N.J.R.E. 404(b) and 403
POINT II
INTRODUCTION OF HEARSAY TESTIMONY OF D.S. THROUGH H.S. THAT DETAILED THE ALLEGATION OF ABUSE, AND DID NOT FIT WITHIN THE "TENDER YEARS" OR "FRESH COMPLAINT" EXCEPTIONS WAS PLAIN ERROR MANDATING REVERSAL
POINT III
THE COURT IMPOSED A MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE SENTENCE, WHICH SHOULD BE REDUCED
We have eliminated two sub-points that introduced the arguments and provided a conclusion.
I.
At the time of the alleged incidents, June 1 through August 31, 2004, defendant resided with his girlfriend, H.S. (Harriet), along with their two children and N.S. (Norman), who was nine-years old and Harriet's son by a prior relationship. Norman and D.S. (Dennis), then thirteen-years old, were cousins.
We have supplied fictionalized first names to protect the privacy of those involved.
Prior to trial, the judge conducted a N.J.R.E. 104(b) hearing to decide the admissibility of a CD-RW found among defendant's possessions in the apartment he once shared with Harriet and the children but had since vacated. The CD-RW contained pornographic material downloaded from a website called "teenflood.com." In prior statements he made to law enforcement, Dennis claimed to have viewed child pornography with defendant on defendant's computer.
The State's forensic computer expert, Investigator Gary Charydzak, testified, however, that the particular file on the CD-RW was not "kiddie porn." The judge decided to exclude the CD-RW, concluding essentially that, pursuant to N.J.R.E. 403, its potential prejudice to defendant outweighed its probative value.
At trial, Harriet testified that, during the summer of 2004, Dennis lived with her parents in New Jersey. On occasion, Dennis would play with Norman, and she would sometimes leave the boys alone with defendant in the couple's apartment. In March 2006, Harriet received a call from Dennis, now fifteen and living in Colorado with his mother.
The following exchange took place between Harriet and the prosecutor:
[Harriet]: I got a call from my nephew [Dennis]. . . . He . . . asked me how things were, how things were going, just a normal conversation. And then he got into the fact that I was going to get back with [defendant]. And I told him I didn't know. And he said, well, there's some things I need to tell you regarding [Norman] and me that happened with [defendant].There was no objection to the testimony.
Q: And what did he tell you?
A: He told me that . . . they would watch porn on the couch. While they were watching the porn, [defendant] told them it was okay for them to take out their penises and jerk off. Supposedly they were all doing it. Then after that incident with the pornos he took my son into the bathroom, sat him down on the toilet bowl and asked him if he wanted to know what it felt like to have a blow job.
Q: And did [Dennis] say anything occurred and what happened at that point? Did [Dennis] tell you anything else?
A: Yeah. I asked him if anything happened. He said he did not know. But then he said that [defendant] took him into the bedroom.
Q: Took [Dennis] into the bedroom?
A: Into the bedroom.
Q: And what happened?
A: The same thing. Asked him if he wanted to know what if felt like to have a blow job.
Q: And did [Dennis] tell you what happened?
A: No.
. . . .
Q: How was [Dennis's] demeanor when he was telling you this?
A: He - I don't know. I mean . . . he was just like kind of scared to say anything in a roundabout way. But he came out and told me.
Norman was sitting across the kitchen table from Harriet as she spoke to Dennis over the phone. She asked Norman if Dennis's account was true. Norman told his mother that it was. Harriet and defendant were not living together in March 2006, when she received Dennis's call. She reached defendant by phone and told him of the boys' account. Defendant did not deny that the incident occurred and "said nothing except[,] 'I'm not gay.'"
Harriet testified about the conversation she had with Dennis in a generally consistent manner during a pre-trial hearing to determine the admissibility of Norman's statement pursuant to N.J.R.E. 803(27), the so-called tender years exception to the hearsay rule.
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T.N. (Terry), Dennis's mother, was the next witness called by the State. When the prosecutor asked if Dennis ever told her that he had been sexually abused, defense counsel objected. He argued Terry's anticipated testimony was not "fresh complaint" because the conversation took place "two years" after the alleged incident. Defense counsel also contended that Terry's testimony was an attempt "to get a story repeated as many times as [the State] can." Ibid. After an apparent break in the trial during which both attorneys reviewed relevant case law, defense counsel indicated that his objection was limited, stating, "What I don't want . . . is repetitive testimony about the details of the allegation."
Without objection, Terry then testified that in March 2006, Dennis told her that defendant had sexually abused Norman, prompting her to call Harriet. Terry also testified that Dennis admitted he was also sexually abused by defendant. There was no objection to Terry's testimony, and after she finished, the judge immediately instructed the jury in accordance with Model Jury Charge, Criminal, "Fresh Complaint" (Revised 2/5/07).
Norman and Dennis were both called as witnesses, and each testified about the events in 2004. Both indicated that defendant had actually performed fellatio on them, albeit for only a brief period of time. Defendant extensively cross-examined each about inconsistencies between their accounts, and between prior statements and their trial testimony.
Dennis described three incidents. The first, when defendant put a "DVD" in the television and masturbated to the pornography displayed along with the two boys. The second time defendant displayed pornography from a VHS recording on a television in his bedroom. Dennis could not remember whether anyone masturbated during this incident. On the third occasion, defendant "brought pornography up on his [laptop] computer." Regarding this third incident, the direct examination proceeded as follows:
Q: What kind of pornography was it?There was no objection to this testimony.
A: Child pornography.
Q: Why do you say it was child pornography?
A: Because . . . the girls that are on there look a lot younger than what they should have looked of what we seen on the DVD.
Q: And how did they look compared to your age at the time?
. . . .
A: To my age, 14 years old. And --
Q: They looked about that age?
A: Yes.
. . . .
A: . . . [T]hey looked like maybe up to 17 year olds.
Q: And what were they doing?
A: It was just pictures.
Q: So you didn't see any sex?
A: No.
Q: . . . [In] what state of dress were they?
A: They were naked.
Q: And why do you think they looked about your age?
A: Because like the girls that I went to school with were younger. And I know what the girls look like.
Sergeant George Trillhaase of the Middlesex County Prosecutor's Office conducted an interview of Norman recorded on a DVD that was played for the jury. The VHS recording of a second interview Trillhaase conducted with Norman was also played for the jury. On cross-examination, Trillhaase testified as to various inconsistencies contained in Norman's recorded statements.
Defendant did not testify. Detective Addie Spinola, called as a defense witness, acknowledged that the incident report, prepared in response to Harriet's initial complaint, lacked any reference to masturbation.
II.
A.
Defendant contends that the testimony elicited from Dennis regarding defendant's possession of "[c]hild pornography" was plain error requiring reversal. His challenge is two-fold. First, defendant contends the prosecutor committed misconduct in soliciting the information from Dennis because she knew the CD-RW did not contain child pornography. Second, defendant argues that the testimony was evidence of other, uncharged bad acts or crimes, inadmissible under N.J.R.E. 404(b).
The State contends that the question posed to Dennis did not reference the specific CD-RW previously excluded by the judge after the N.J.R.E. 104 hearing, and Dennis's description of the images was properly admitted for the jury to consider. Soliciting the information was, therefore, not "prosecutorial misconduct." The State also argues that the evidence was not "other crimes" evidence subject to a Rule 404(b) analysis because defendant was charged with endangering the welfare of Norman and Dennis. The evidence was admissible as proof of the crimes charged. Lastly, the State contends that, because there was no objection, even if the evidence was inadmissible it did not result in plain error. See R. 2:10-2 (allowing an appellate court to "notice plain error" if it was "clearly capable of producing an unjust result").
Dennis did not testify during the N.J.R.E. 104 hearing, but, at trial in describing the third incident, he made no mention of any CD-RW. Instead, Dennis claimed that defendant simply "brought [the pornography] up on his [laptop] computer." We agree with the State that the question posed to Dennis did not directly relate to or implicate the suppressed CD-RW. Had defendant objected, the judge could have provided a curative instruction impressing this fact upon the jury, but no objection was made.
We also reject the argument that the testimony should have been subjected to a Rule 404(b) analysis. Evidence that is "intrinsic" to the charged crime, is not "other crimes" evidence, and therefore not subject to Rule 404(b). State v. Rose, 206 N.J. 141, 179 (2011). "[E]vidence is intrinsic if it 'directly proves' the charged offense." Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010)). Even if the evidence is "intrinsic," however, it is subject to analysis under N.J.R.E. 403 (permitting exclusion of "relevant evidence . . . if its probative value is substantially outweighed by the risk of . . . undue prejudice"). Rose, supra, 206 N.J. at 177.
A person is guilty of endangering the welfare of a child if he "engages in sexual conduct which would impair or debauch the morals of the child. . . ." N.J.S.A. 2C:24-4a. The focus of the statute is on "the potential effect that such conduct may have on the morals of the child or children who are witness to the conduct." State v. Hackett, 166 N.J. 66, 77 (2001).
In this case, we are convinced that showing Dennis images of young, naked women, whether child pornography or not, was evidence proving defendant's guilt of the crime of endangering. It was intrinsic evidence of the crime, not subject to a Rule 404(b) analysis. We also conclude that it was not subject to exclusion under Rule 403 because it was highly probative of a course of conduct defendant engaged in with Norman and Dennis.
Lastly, even if our assessment of the evidence is incorrect, its admission was not plain error requiring reversal of defendant's convictions. To justify reversal, there must be "some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. R.B., 183 N.J. 308, 330 (2005) (citation omitted). Given the fleeting reference to the phrase "child pornography," the further testimony that questioned such a characterization and the quantum of other evidence adduced by the State, any error was harmless.
B.
Defendant argues that Harriet's testimony regarding her phone conversation with Dennis included hearsay not admissible under any exception to the hearsay rule. He further contends that the testimony was duplicative of Norman's and Dennis's trial testimony, and the videotaped statement of Norman which was admitted pursuant to the "tender years" exception to the hearsay rule. N.J.R.E. 803(c)(27). Defendant also argues that even if admissible as "fresh complaint," the detail provided in Harriet's account far exceeded the narrow parameters of admissibility.
Once again, since there was no objection, we consider whether Harriet's testimony as to her phone conversation with Dennis was plain error. We conclude it was not.
"'[T]o qualify as fresh complaint, the victim's statements to someone [he or] she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary.'" State v. W.B., 205 N.J. 588, 616 (2011) (quoting State v. Hill, 121 N.J. 150, 163 (1990)). "Whether these criteria for admissibility are satisfied is committed to the sound discretion of the trial judge." Ibid. (citing State v. Bethune, 121 N.J. 137, 147-48 (1990)).
Fresh complaint evidence serves "a narrow purpose . . . 'to prove only that the alleged victim complained [at a particular time], not to corroborate the victim's allegations concerning the crime.'" Id. at 616-17 (quoting State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006) (citation omitted)). A fresh complaint witness may testify regarding "the general nature of the [victim's] complaint" without providing "unnecessary details of what happened. . . ." Id. at 617 (citations omitted).
Defendant does not question that Harriet was someone in whom Dennis would confide, nor does he challenge the timing, spontaneity or voluntariness of the statements made. Instead, defendant argues that Harriet's testimony was prejudicially detailed and "needlessly cumulative."
As noted, there was no objection to Harriet's testimony. While it provided more than the "general nature" of Dennis's complaint about defendant, any error in admitting the testimony was harmless beyond a reasonable doubt because Dennis testified and was subjected to cross-examination before the jury. See State v. Queen, 221 N.J. Super. 601, 608-09 (App. Div.) (holding that allowing a police detective to provide fresh complaint evidence "in detail" was harmless error "in view of the victim's own detailed and substantially identical narrative in her own testimony"), certif. denied, 110 N.J. 506 (1988).
Furthermore, we are certain that the jury understood the limited purpose of Harriet's testimony because Terry, who testified immediately thereafter, also provided a fresh complaint account of Dennis's statements. Defense counsel objected beforehand, but conceded the evidence was admissible, subject to limitations and a proper instruction from the judge. After Terry's testimony, the judge immediately charged the jury as to the limited purpose for which it could consider Dennis's statements. In his final instructions, the judge reissued the charge as it pertained to Dennis's statements to Terry.
We also conclude that in the absence of any objection, admitting Harriet's testimony was not plain error on the grounds that it was "needlessly cumulative." That argument lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
III.
At sentencing, the trial judge found aggravating sentencing factors three, four, and nine. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (4) (defendant took advantage of a position of trust or confidence to commit the offense); (9) (the need to deter defendant and others from violating the law). The judge found mitigating factor eleven. See N.J.S.A. 2C:44-1(b)(11) (imprisonment would entail excessive hardship to dependents).
On appeal, defendant argues that his sentence is manifestly excessive and should be reduced to below the midpoint of the authorized range. He contends that the judge did not engage in any weighing of the aggravating and mitigating sentencing factors.
In reviewing a "sentence challenged for excessiveness[,] [t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, an appellate court will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
At sentencing, a judge "shall state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence . . . ." R. 3:21-4(g). "That explanation is important for meaningful appellate review of any criminal sentence challenged for excessiveness." Bieniek, supra, 200 N.J. at 608. Although the trial judge did not provide a lengthy explanation, the aggravating and mitigating factors he found are amply supported by the record. It is clear that when "read in its totality," id. at 611, the sentencing transcript reveals that the judge understood and considered the various arguments made at the time of sentencing, and we find no abuse of the broad discretion accorded to him.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION