STATE OF NEW JERSEY v. R.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7133-03T17133-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.L.,

Defendant-Appellant.

______________________________________________________________

 

Submitted January 31, 2006 - Decided August 21, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 03-01-00099.

Nathan Kittner, attorney for appellant.

John J. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A Bergen County jury found defendant, R.L., guilty of second degree sexual assault upon a victim less than thirteen years old at the time, N.J.S.A. 2C:14-2(b), and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The court sentenced defendant to seven years in prison on each count, to be served concurrently.

On this appeal from the conviction and sentence, defendant makes the following assertions of error:

POINT I: TRIAL COURT IMPERMISSIBLY ALLOWED TESTIMONY OF DEFENDANT'S CHARACTER INTO EVIDENCE.

POINT II: TRIAL COUNSEL'S PERFORMANCE FELL BELOW THAT OF REASONABLY COMPETENT COUNSEL AND CREATED REASONABLE PROBABILITY THAT THE DEFICIENCIES MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTION.

POINT III: TRIAL COURT'S DETERMINATION OF TWO AGGRAVATING FACTORS WAS INCORRECT AND NOT BASED ON SUFFICIENT, CREDIBLE EVIDENCE IN THE RECORD.

POINT IV: TRIAL COURT IMPERMISSIBLY CONSIDERED AN ELEMENT OF THE OFFENSE OF ENDANGERING THE WELFARE OF A CHILD AS AN AGGRAVATING FACTOR FOR SENTENCING PURPOSES.

We have considered defendant's arguments in light of the facts and applicable law, and we find them to be without sufficient merit to require reversal or remand.

In 1996, defendant married I.L., and one daughter, J.L., was born of their union. In addition, I.L. had two children from her prior marriage, a daughter, H.S., and a son, J.S. H.S. and J.S. visited their biological father on weekends and certain holidays.

On July 4, 2002, while H.S. and J.S. were visiting with their father, defendant, I.L., and J.L. went to a fireworks show. I.L. and J.L. returned home without defendant so that I.L. could put J.L. to bed. After she did so, I.L. went into the kitchen, where she noticed defendant's laptop bag, which she opened. She found four photographs. One photograph depicted H.S., J.L. and defendant sitting at the dining room table. The other three photographs were of H.S. by herself. One showed H.S. holding a stuffed animal while sitting on her bed. She was wearing a blouse and a short skirt. Another showed H.S. sitting on some rocks in Brazil. The last photograph showed H.S. wearing a bikini on the beach at the ocean. I.L. was concerned and surprised when she saw the photographs.

When defendant returned home that evening, I.L. asked him why he had such photographs in his laptop bag and why there were no photographs of her. Defendant told her the photographs were not his and that he did not put them in his bag. These were photographs H.S. had kept in her room.

Subsequently on or about July 19, 2002, I.L. spoke to H.S., then fourteen, about the photographs she had found. H.S. started to cry and told I.L. she did not want to discuss it with her, but that she would speak to a judge or lawyer. However, a few days later on July 23, 2002, H.S. initiated a conversation with I.L. in which she told I.L. that defendant had tried to kiss her and had touched her. H.S. told her mother defendant tried to violate her sexually and make her do other things she did not want to do. The next morning, I.L. took H.S. to the police department. After speaking with detectives there, I.L. and H.S. went to the Bergen County Prosecutor's Office, where they both gave sworn statements that led to defendant's arrest.

At trial, H.S., who was born on November 2, 1987, testified that defendant touched her on two separate occasions and perpetrated various other inappropriate acts. The first incident involving contact took place when H.S. was ten, while she was wrestling with defendant in the family room. Defendant "slipped his hands over [her] clothes, [and her] vagina." H.S. thought it was unintentional because they were wrestling and "it [had] never happened before." Defendant's actions, however, caused H.S. to stop wrestling and sit on the couch. Defendant then made H.S. sit on his lap and he put his hand underneath her shirt and touched her breast.

The second incident occurred in the basement. Again, H.S. and defendant were wrestling, when defendant put his hand over H.S.'s vagina.

One or two years after the two touching incidents, H.S. and defendant were playing a game and defendant went into his bedroom. H.S. closed the door from outside the bedroom and would not let defendant open it. Defendant asked her to open the door, but in the context of their game, H.S. refused. This game continued for a couple of minutes and suddenly defendant was silent. H.S. opened the door and saw defendant naked, with an erection. Defendant continued to stand there and H.S. ran upstairs.

There were other actions by defendant that caused H.S. to feel uncomfortable. For example, when she was about eleven years old, H.S. was going to the basement to do her laundry, and she observed defendant watching a pornographic video there. She told him to turn it off, but defendant refused. Defendant told H.S. that watching such a video was normal and she was just being immature about such things.

When H.S. was eleven or twelve years old and riding with defendant in his truck, she looked through his laptop bag and found a pornographic magazine. Defendant went through the magazine with H.S., against her wishes, telling her there was nothing wrong with such a magazine. H.S. turned around and went inside her home.

Another uncomfortable situation for H.S. occurred when she and defendant were driving back from Sears. The two had gone there because H.S. needed to purchase something for school and her mother would not take her. On the ride home, defendant asked H.S. if she masturbated. H.S. replied "no," but defendant persisted in the conversation. Defendant told H.S. that masturbation was normal and everyone does it. Defendant then asked H.S. why she was being so immature about it.

On several occasions, defendant tried to kiss H.S. Also, defendant repeatedly told H.S., in a perverted way, that he wanted to make love to her. Defendant often made statements to H.S., such as, "Oh, I picture myself making love to you, I love you, your mom is jealous of you." According to H.S., whenever defendant talked to her "it always . . . include[d] something sexual." Defendant continued to bother and harass H.S., without touching her, until she was fourteen years old.

H.S. described at trial two specific incidents when the defendant tried to kiss her inappropriately. On one occasion H.S. was sitting on the kitchen counter and defendant attempted to kiss her on the mouth. Because H.S. moved her lips in a certain way, defendant kissed her but not on the lips. On another occasion H.S. was leaving for the weekend to go to her father's house and defendant pushed her in the corner next to the front door as she attempted to exit. Defendant's arms were holding H.S. back in the corner, which kept H.S. from leaving the house. Defendant tried repeatedly to kiss H.S., but she puckered her lips inward to prevent it. Defendant then stated, "Almost got you," and left. The habit in the family included kissing on the cheek, but never kissing each other on the mouth.

H.S. did not tell anyone about the two incidents or defendant's other inappropriate actions when they occurred. She did not have a good relationship with her mom; she saw her biological father only on weekends; and her siblings were too young. Also, being a child of divorce herself, H.S. did not want to cause J.L. to be subjected to the consequences of a divorce.

Defendant testified at trial on his own behalf. He denied intentionally touching H.S. in any intimate area, denied kissing her in a romantic or sexual way, and denied telling her that he loved her in a sexual way. He asserted that he had no sexual intentions toward H.S., never discussed masturbation with H.S., never showed H.S. pornographic videos, and he had no memory of any incident where he stood naked in front of H.S. when she opened his bedroom door. He testified he loved H.S. like his own child and had provided for her. Defendant stated that he did not put the photographs in his laptop bag and that, to his knowledge, the photographs were not in his bag. Defendant admitted that he watched a pornographic video in the basement once, in about 1999-2000, but after his wife told him she did not want the kids to see the tape, he got rid of it. He never showed the tape to H.S. or let her view it.

Defendant denied being secretive about finances, citing the joint bank account as supporting evidence. He admitted that he and the children did engage in horse play, and it was possible he and H.S. had wrestled. But while there would be physical contact on occasion, he insisted none of the contact had sexual overtones.

Defendant's boss, D.M. testified as a character witness on defendant's behalf. D.M. testified that he knew R.L. for fifteen years and that R.L. had been working for him since 2001. D.M. described defendant as an honest and sincere person and that he never heard anything bad about R.L.

Following its deliberations, the jury found defendant guilty of the charges brought against him. Defendant contends on appeal that I.L. testified improperly about defendant's secretive nature. He argues the photographs of H.S. that I.L. found in his laptop bag should have been excluded as inadmissible character evidence against him.

"The trial court is granted broad discretion in determining the relevance of evidence." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). "Whether the probative value of the evidence is outweighed by the potential prejudice is a decision left to the discretion of the trial judge." State v. Carter, 91 N.J. 86, 106 (1982). See also N.J.R.E. 403. "On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." Ibid. We discern no such abuse of discretion in this case.

The testimony regarding defendant's secretive nature was offered to explain why I.L. opened defendant's laptop bag. As such, it is relevant evidence. N.J.R.E. 401. This testimony was not offered to suggest that defendant's secretive nature about the family's finances meant he was likely or more likely to be a sex offender. Hence, it does not offend N.J.R.E. 404(a).

To the extent defendant's arguments may be understood to contend that the photographs were improper character evidence, we reject that contention. The State was not offering them to prove that defendant had sexually assaulted H.S. and it advanced no such argument. Indeed, as the court reasoned, the jury could have inferred that defendant carried the photos out of paternal love for H.S.

The photographs and defendant's secretive nature were relevant to demonstrate how the case came into existence, particularly since the events alleged were not reported until two years after they occurred. I.L.'s description of why she looked in the bag, its contents and subsequent questioning of H.S. about the bag's contents provided a logical explanation of why H.S. came forward at this time.

Prejudice did not substantially outweigh the probative value. Indeed, though I.L. expressed shock, her description of the photographs did not appear to have been unduly suggestive or provocative. N.J.R.E. 403. The discovery of the photographs was the catalyst for the communication between I.L. and H.S. that led H.S. to reveal defendant's actions. Assuming these photographs are, in some way, prejudicial to defendant, we do not perceive any undue prejudice nor such substantial prejudice that all evidence of them should have been barred. Moreover, the photographs were not shown to the jury and they were not available to the jurors during their deliberations.

As to defendant's remaining arguments under his first point heading, our review of the record in the light of the arguments advanced by the parties discloses that those issues are without sufficient merit to warrant discussion. See R. 2:11-3(e)(2). The plain error standard is implicated and defendant has not shown how any error had the clear capacity to produce an unjust result. See R. 2:10-2.

Defendant's next contention is that he was denied the effective assistance of counsel. Specifically, defendant contends that his attorney failed to do the following things: (1) request a Bill of Particulars; (2) file a motion with the court to exclude the photographs; (3) request an adjournment after he received further details concerning the description of the allegations against defendant; (4) select appropriate character witnesses; (5) contact an expert witness; (6) call defendant's mother and sister as witnesses; and (7) request that the court charge lewdness as a lesser included offense of count two. In order to show ineffective assistance of counsel, defendant must demonstrate acts or omissions that reflect unreasonable professional performance by the attorney, as well as a showing that those acts or omissions prejudicially affected the judgment. Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 699 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

There is "a strong presumption that counsel's performance [fell] within the wide range of reasonable" representation, State v. Norman, 151 N.J. 5, 38 (1997), and defendant has not satisfied the two-part Strickland test adopted by Fritz, supra, 105 N.J. at 52. We make only the following brief comments as to defendant's various assertions.

A request for a Bill of Particulars as to the specific dates of defendant's offenses was unnecessary. "[A] young victim will not have to be as exacting when specifying dates of abuse." State v. C.H., 264 N.J. Super. 112, 125 (App. Div. 1993); State v. K.A.W., 104 N.J. 112, 123-24 (1986). See also State v. L.P., 338 N.J. Super. 227, 238, (App. Div.) certif. denied, 170 N.J. 205 (2001) (concluding in a case alleging sexual assault of a child under thirteen years old, that evidence of prior assaults must be considered res gestae because "young children often 'do not think in terms of dates or time span'"). Similarly, the failure to file a motion to exclude the photographs of H.S. found in defendant's laptop bag was inconsequential since they were not admitted into evidence. An adjournment would not have changed the outcome of the trial and, even without an adjournment, defense counsel was able to attack the victim's credibility based on assertions of inconsistencies between her sworn statement and her testimony in court.

As for failing to call other witnesses, strategic decisions are within the range of adequate representation. See, e.g., State v. Drisco, 355 N.J. Super. 283, 290-91 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003); State v. Sheika, 337 N.J. Super. 228, 242-44 (App. Div.), certif. denied, 169 N.J. 609 (2001). Moreover, a parade of other character witnesses would not have changed the outcome since the jury was able to evaluate H.S. and defendant and it obviously found H.S. to be more credible. Similarly, the attorney's failure to call an expert witness to testify that it would be unlikely for a sex offender to remain for years in the same home with his victim and not continue abusing his victim did not fall outside of acceptable representation.

Additionally, defendant did not disclaim, and could not have credibly disclaimed, that he occupied a position of supervisory responsibility over H.S. Consequently, there was not a rational basis for the jury to acquit defendant of the charged offense, endangering the welfare of his stepdaughter, yet find him guilty of lewdness. See State v. Brent, 137 N.J. 107, 113-14 (1994). Thus, any request by defense counsel for a charge of lewdness as a lesser included offense of endangering the welfare of a child would have been denied.

Next, in challenging the sentence, defendant contends the trial court improperly based two of the aggravating factors on a duration of harm to H.S. of five years and that such a duration was not supported in the record. It is well established that "[a]n appellate court may modify a sentence only if the sentencing court was 'clearly mistaken.'" State v. Kromphold, 162 N.J. 345, 355 (2000). A court is clearly mistaken "'if the sentencing guidelines were not followed or applied' or 'if the aggravating and mitigating factors found by the sentencing court were not based on sufficient [credible] evidence in the record.'" Ibid. (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). "Consideration of an inappropriate aggravating factor violates the guidelines and thus is grounds for vacating [a] sentence." Ibid. (quoting State v. Pineda, 119 N.J. 621, 628 (1990)).

In determining defendant's sentence, the court found three aggravating factors: the gravity and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1a(2); the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); and that defendant took advantage of his position of trust, N.J.S.A. 2C:44-1a(4). The court also found two mitigating factors: no prior criminal record, N.J.S.A. 2C:44-1b(7); and that defendant is likely to respond affirmatively to probation, N.J.S.A. 2C:44-1b(10).

At issue are certain statements by the trial judge regarding the duration of harm imposed by defendant. In finding aggravating factor (2), the trial judge stated:

Beyond the tender age of the victim, which of course is an essential element of the offense, there was the duration of the offenses of some five years. The victim, the stepdaughter, looked to the defendant Mr. . . . as a father figure, as someone she could trust. Once the sexual assaults and other acts began, the victim no longer felt safe and secure in her own home. Instead of viewing [defendant] as a protector, she saw him as a tormentor.

[(Emphasis added).]

Similarly, finding applicable aggravating factor (3), the judge stated, "the nature and duration of the acts support the application of that factor." Further in weighing the aggravating and mitigating factors, the judge stated, "In balancing all the circumstances, particularly the protracted harm to this young victim, I find the aggravating factors far outweigh the mitigating factors."

Defendant contends those statements, indicating that the offenses took place over a five-year period, are not factually supported in the record. Defendant emphasizes the two incidents of sexual contact and his standing naked in front of the victim allegedly occurred when H.S. was eleven, twelve and thirteen, that is during a three-year period -- not a five-year period. Alternatively, defendant argues that the indictment on both counts alleged a time frame of four years, October 1996 through November 1, 2000 for count one and October 1996 through July 2002 for count two.

Any error or misstatement of the span of time was harmless. First and most fundamental, the court's reliance upon the period of time during which the sexual acts were committed was not used as a basis to increase the sentence above a term which would not be appropriate since the presumptive term was utilized and the terms run concurrent. See Blakely v. Washington, 542 U.S. 296, 126 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); State v. Natale, 184 N.J. 458, 466 (2005); State v. Abdullah, 184 N.J. 497, 499 (2005).

Second, a duration of three years, instead of five years, still evidenced that defendant committed the offenses over a long period of time. The judge may have merely misstated the duration, but the overall premise of his findings is the same. The offenses took place over a three-year period followed by an additional two years when the victim continued to live in the household with defendant. There is sufficient credible evidence that defendant's offenses took place over a long period of time to support aggravating factors (2) and (3). Likewise, sufficient credible evidence exists to find that the aggravating factors substantially outweigh the mitigating factors due to the "protracted harm" defendant caused to H.S., since, in all likelihood, defendant's offenses will be with her forever.

Lastly, defendant argues he was entitled to a more lenient sentence because the trial court improperly considered an element of the offense of which defendant was convicted as an aggravating factor in determining his sentence. "[F]acts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." Kromphold, supra, 162 N.J. at 353 (citing State v. Yarbough, 100 N.J. 627, 633 (1985)). Where a court sentences on multiple charges, however, inherent elements of one charge may be used as aggravating factors for another. See State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987).

In finding aggravating factor (4) the court stated that defendant "was a father figure to this child and he exploited the trust that she had in him." Defendant contends, and the State agrees, that it was inappropriate for the court to consider aggravating factor (4) with regard to the endangering the welfare of a child conviction since being a father figure is a necessary element of making that crime a second degree offense pursuant to N.J.S.A. 2C:24-4a.

On the other hand, the application of aggravating factor (4) to the second degree sexual assault was not improper. Second degree assault pursuant to N.J.S.A. 2C:14-2(b) does not require as an element to convict that the defendant be a father figure or hold a similar position of trust. N.J.S.A. 2C:14-2(b) provides that, "An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less that 13 years old and the actor is at least four years older than the victim." There are no other requirements as to the status of the actor.

Thus, in this case, the trial court assessed an aggravating factor that was proper for count one but inapplicable for count two. The court's assessment, therefore, was not inappropriate and a remand is not warranted.

In the future, we recommend that sentencing judges assess the aggravating and mitigating factors separately for each count.

Affirmed.

 

I.L. explained that she wondered what was in the bag because she felt defendant was very secretive about the money he earned. There were arguments about money during their marriage. Although they had a joint checking account, defendant handled the payment of all the bills.

The photos were marked by the State for identification, but were not entered into evidence. However, I.L. did describe the photographs to the jury.

(continued)

(continued)

18

A-7133-03T1

RECORD IMPOUNDED

 

August 21, 2006