STATE OF NEW JERSEY v. J.F.G.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1273-07T41273-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.F.G.,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-10-0720.

Wronko & Loewen, attorneys for appellant (Gilbert G. Miller, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant J.F.G. appeals from his March 20, 2006 conviction on thirteen counts of endangering the welfare of a child, consisting of: two first-degree convictions under N.J.S.A. 2C:24-4b(3) (counts one and two); two second-degree convictions under N.J.S.A. 2C:24-4b(3) (counts three and four); four second-degree convictions under N.J.S.A. 2C:24-4b(4) (counts five through eight); four second-degree convictions under N.J.S.A. 2C:24-4a (counts 9 through 12); and one fourth-degree conviction under N.J.S.A. 2C:24-4b(5)(b) (count thirteen). The first twelve counts of the indictment charged defendant with filming his nine and ten-year-old sons, as well their ten and twelve-year-old male friends, while the four children were naked, for purposes of defendant's own sexual gratification, and with causing the children to appear while naked. Count thirteen charged defendant with possession of a videotape that showed unidentified naked male children.

After appropriate merger of counts, the judge sentenced defendant on counts one and two to concurrent fifteen-year terms of imprisonment. On counts three through eight, the judge imposed concurrent seven-year terms of imprisonment, which were ordered to be served consecutively to the sentence imposed on counts one and two. On count thirteen, the judge imposed a one-year term of imprisonment concurrent to the sentence on count one. The aggregate sentence was therefore twenty-two years imprisonment.

On appeal, defendant asserts the judge erred when he: admitted N.J.R.E. 404(b) prior bad act evidence; issued confusing jury instructions and a faulty recharge of those instructions; failed to provide the jury with criteria to assess whether defendant's intention when photographing the children was prurient; and imposed a manifestly excessive sentence. Defendant also maintains his conduct fell outside the intended ambit of the relevant statutes, and asserts that the statutes in question are unconstitutionally vague and deprive him of his constitutional right to free speech and expression under the United States and New Jersey Constitutions. We affirm.

I.

In the fall of 1997, defendant and his wife adopted two half-brothers, ages three and two. As soon as the boys arrived, defendant took a leave of absence from his employment and stayed home to raise them, while his wife continued to work at a job that required her to leave the house at 6:00 a.m. and not return home until 6:00 or 7:00 p.m. On many occasions, she was away overnight on business trips. Defendant's wife testified that defendant began to videotape their sons at a young age, sometimes filming them running about the house unclothed. She testified she never observed any improper conduct between her husband and her sons and never received any complaints from the boys about their father.

In 2003, the older son became friendly with a classmate named Scott. Scott's brother David was nearly three years older, but the four boys got along well and frequently played together. David and Scott's mother testified that in the summer of 2004, three of the four boys went to summer school, and after the program ended for the day, the four would go to defendant's home to play. On those occasions, defendant was home while his wife was at work. In July 2004, defendant took the four boys to Great Adventure and because they returned home after 10:00 p.m., David and Scott slept over at defendant's house.

On August 11, 2004, David's mother asked him to go to defendant's house to mow the lawn. David, then age twelve, refused to go and started to cry. After some prodding from his mother, David told her that defendant had filmed him and Scott while they were naked. Speaking with Scott, she confirmed that defendant had filmed him as well. In particular, Scott described an incident in which defendant filmed the four boys while they were naked playing baseball in defendant's basement. She immediately called police.

David testified that during the trip to Great Adventure, defendant did not take any pictures of them at the amusement park, but when they returned to defendant's house, defendant insisted that all four boys get undressed to take showers. Defendant's wife was not home. David testified that defendant had a video camera in his hands right before the four boys began to undress. David was uncomfortable with standing in the hallway naked and used his hands to cover his penis. According to David's testimony, defendant "tried to pull [David's] hands away from his penis."

Scott's description of what occurred the night of the Great Adventure trip matched his brother's. He, too, described defendant forcing the four boys to line up in the hallway naked while defendant was holding a camera. Scott also testified that when he and David tried to cover their "private parts," defendant insisted they remove their hands. In fact, according to Scott, when he and David tried to retrieve their pants, defendant pushed the two boys so they were not able to do so. Scott also explained that on other occasions, defendant pulled down their pants and underwear. Last, Scott described playing baseball in defendant's basement, adding that defendant instructed them to place foam discs around their penises whenever they hit a home run with the foam baseball.

The prosecutor elicited little testimony from defendant's two sons, merely asking them to confirm that their father owned a video camera and that there were occasions when the four boys played naked in the basement of the house. Both of defendant's sons confirmed that their mother was not at home on those occasions. The older son was a bit more specific, testifying that his father had his camera with him while the four boys played in the basement unclothed.

The State's case included a seventy-four minute compilation of video footage seized from defendant's camera, as well as sixteen still photographic images depicting all four boys naked, as described by David and Scott. In one photograph, one of the boys is shown naked flexing his biceps while straddling another one of the four who was lying naked on the floor. The footage had an audio portion in which defendant could be heard directing the boys to adopt certain poses, such as "mooning" the camera. One scene depicted defendant essentially spying on David, the oldest boy, while he showered, and then directing David to smile and strike poses. On another occasion, defendant told the boys to thrust their pelvises forward and shake their "winkies." While the boys were playing the baseball game we have described, the camera was frequently focused on their genitals.

The State also presented video footage filmed in 1997 and 1999 depicting a seven-year-old boy naked in a second-floor bedroom of an adjacent house, and children removing their wet bathing suits after stepping out of a swimming pool. A man's heavy breathing could be heard during the videotape. The 1997 and 1999 videotapes had been the subject of a pretrial hearing, during which the State sought to introduce the 1997 and 1999 footage as other-crimes evidence under N.J.R.E. 404(b), arguing that the 1997 and 1999 films were probative of defendant's purpose of sexual gratification when he filmed the four boys naked in 2004.

Despite defendant's contention that the videos were not probative and highly prejudicial, that there was a lack of proof that defendant took the videos, that the videos did not demonstrate motive or intent, and that the videos were too old, Judge Edward Coleman in a comprehensive and well-reasoned oral opinion concluded that the 1997 and 1999 tapes at issue were admissible as other-crimes evidence under N.J.R.E. 404(b) and that their admission satisfied the four factors the Court identified in State v. Cofield, 127 N.J. 328, 338 (1992). The judge reasoned:

This is not a case where you have the children engaging in sexual conduct or acts of sexual conduct. Rather, you have young boys dancing around naked, playing basketball naked, . . . putting rings around their penis naked, and so there is a difficult issue to prove; that is, that the depiction here was for the purpose of sexual stimulation, gratification.

[T]he jury has to take into consideration the totality of the circumstances, and . . . it's important that the jury receive this background information about the pursuits of the defendant and his video camera . . . so they can make a decision, was this for . . . the purpose of sexual stimulation, gratification by any viewer? Obviously, disputed, hotly disputed issue in the case. And, the jury would need every piece of information available to assist them in making those decisions. And so it should be admissible.

The judge asked counsel for their input in developing the limiting instruction required by Cofield, and after a brief discussion, both sides agreed that the model jury charge on N.J.R.E. 404(b) evidence would be acceptable so long as "the knowledge part of it" was deleted. Before the State introduced the 1997 and 1999 videotapes pursuant to N.J.R.E. 404(b), the judge observed that the jury was about to view "photographs or videos of either [David and Scott] and/or young boys apparently in the neighborhood." Relying on Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2005), the judge instructed the jury that such evidence was being introduced "to demonstrate the defendant's motive in filming the children as alleged in the indictment with regard to his state of mind, his intent, absence of mistake or accident." Immediately thereafter, the judge twice used the term "those" or "these" "specific purposes" in referring back to the above exclusive reason for which the evidence could be considered. At the end of the limiting instruction, the judge reiterated that the evidence could only be used "to help decide the specific questions we just talked about: The defendant's motive, his intentions, his state of mind, absence of mistake or accident. You may not consider it for any other purpose."

Although defendant did not take the stand, he never denied having photographed his own children and Scott and David in July 2004 while the four boys were naked; however, he maintained that he had not done so for purposes of sexual gratification. In fact, he told police during a taped statement given on August 16, 2004, which the State presented to the jury, that the only reason he photographed the boys after their return from Great Adventure was because "they were so peppy" when they left in the morning "and now they're dragging," although he acknowledged that he never videotaped the boys before they left, and only videotaped them upon their return. When the detectives asked him whether any of the boys had objected to the videotaping or expressed embarrassment, he answered no. When asked why he had pulled the boys' underpants down, defendant stated that he had "depantsed" them because he objected to boys "go[ing] around with their boxers showing half their butt" because it made them "look like they're from the [']hood." Thus, throughout his statement, which was played for the jury, defendant denied that he videotaped the children for purposes of his own sexual gratification.

At neither the N.J.R.E. 104(a) hearing nor at trial did defendant ask the judge to sanitize the video clips by requiring the prosecutor to delete the audible heavy breathing. In fact, defense counsel acknowledged after the clips were played for the jury that he "had intended [but] simply neglected to make an application for the [c]ourt to exclude the sound of the neighborhood video." Defendant did not request a limiting instruction regarding the breathing and did not seek any additional instructions pertaining to the other-crimes evidence. Similarly, at the charge conference, the defense made no request for any additional limiting instruction.

During the charge conference, the parties and the judge also discussed the endangering the welfare of a child model jury charges for counts one through twelve. As the judge progressed through the counts, defendant voiced his agreement with each of the twelve proposed jury charges. Although there was no model jury instruction for count thirteen, which charged a violation N.J.S.A. 2C:24-4b(5)(b), defendant agreed with the State's proposed jury charge for that count. When asked whether he wanted the judge to modify the model charges by tailoring them to the facts alleged in the indictment, defendant said no. At the end of the charge conference, the defense agreed that the suggested charges on all thirteen counts were appropriate.

During his charge to the jury, the judge repeated his earlier limiting instruction, warning the jury that it could not use the 1997 and 1999 videotape evidence to find that defendant had a propensity to commit crimes. He explained that such evidence was "introduced to demonstrate the defendant's motive in filming the children named in the indictment in July of 2004, his state of mind, his intention, the absence of any mistake or accident."

During its deliberations, the jury sent a note advising the judge that it had several questions regarding the elements of, and the differences between, the offenses. Specifically, the jury asked three questions: (1) "the definition of knowing, four elements, [d]o all four have to be met?"; (2) "[l]ayman's terms of differences of three indictments"; and (3) "copy of the written transcript of video evidence." The judge and the parties agreed to bring the jury back into the courtroom to ask the jurors to clarify their requests.

The judge summoned the jury and told them he and the parties found it difficult to understand their requests. He did, however, explain that the transcript of the videos was not available because it was not introduced into evidence, but that the videotapes could be replayed. The judge then suggested that the jury consider breaking the jury instructions into sections and deal with one section at a time. The jury then returned to deliberate.

Fifteen minutes later, the jury returned a note that read: "A recap of New Jersey Statutes regarding charges 1 through 4, 5 through 8, 9 through 12 and 13." The note also read, "Definitions of: Prohibited sexual act, knowingly, and make available all videos to view." The jury returned to the courtroom, and the judge explained that he would address the request the next day.

The judge then advised counsel that the next day, he would ask the jurors whether they wanted him "to just give them the charges regarding counts 1 through 4, go back and deal with that, and then give them the charge on the next four, sort of break it up[.]" The defense objected to this proposed format because the State "decided what order those charges happened to flow in the indictment."

The next day, with the jury in the courtroom for clarification of the note it sent the previous day, the foreperson told the judge the jury was having difficulty not with the counts, but with "charges 1, 2 and 3, and they are very similar, and it's like we are having a hard time differentiating from each charge." The judge responded that he would recharge them on those counts, and asked if the jury wanted him to explain the first four counts and then allow the jury to deliberate, and then proceed to the next four counts, or if they preferred to hear all counts at once. The foreperson expressed a preference for the first option. None of the other jurors disagreed.

In keeping with the jury's expressed preference, the judge proceeded to recharge the jury at first only on counts one through four. The instructions given were very similar to the instructions on counts one through four given the previous day, except that this time the judge also explained that counts one and two pertained to defendant's own children, while counts three and four did not. The judge again defined the term "knowingly," using the same definition given the previous day. In his definition of "prohibited sexual act," the judge explained that under counts one through four "[t]he first element requires that the defendant act knowingly, knowingly cause or permit a child to engage in or simulate a prohibited sexual act." The judge also explained that the "prohibited sexual act referred to is nudity, but nudity if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction."

After recharging the jury on counts one through four, the judge suggested that the jury deliberate and then reconvene for the next portion of the recharge. Approximately an hour later, the jury asked to view the video "regarding Great Adventure and the basketball tapes." After watching the video, the jury deliberated for an additional twenty minutes, after which it returned a verdict of guilty on all thirteen counts.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRONEOUSLY RULED THAT HIGHLY PREJUDICIAL VIDEO FOOTAGE COMPILED ON A COMPOSITE DVD FROM VIDEO FOOTAGE SHOT FIVE TO SEVEN YEARS BEFORE THE TIME FRAME OF THE INDICTMENT WAS ADMISSIBLE AS OTHER-CRIMES EVIDENCE

A. Rule 104 hearing presentation

B. The State's failure to meet the standard for admission for other-crimes evidence

C. The court's failure to sanitize inflammatory extraneous details

D. The court's failure to provide adequate limiting instructions

II. THE TRIAL COURT ERRED IN RE-INSTRUCTING THE JURY AFTER THE JURY REQUESTED A RECHARGE ON THE ELEMENTS OF ALL OF THE OFFENSES IN THE INDICTMENT; MOREOVER, THE COURT'S JURY CHARGE IN ITS ENTIRETY WAS DEFICIENT

A. Offenses at issue and the court's initial instructions.

B. Jury questions and the court's attempts to resolve the confusion.

C. The court's piecemeal method of recharging the jury violated its duty to fully answer the jury's questions on the applicable law and deprived defendant of his right to a verdict based on the jury's adequate understanding of the law and right to have the jury properly consider less seriously punished offenses in the indictment.

D. The jury charge in its entirety was materially confusing and inadequate

III. DEFENDANT'S CONDUCT FELL OUTSIDE THE INTENDED AMBIT OF N.J.S.A. 2C:24-4b(3), N.J.S.A. 2C:24-4b(4) AND N.J.S.A. 2C:24-4b(5)(b) AND FAILED TO SATISFY AN IMPLIED ELEMENT IN THE FIRST TWO PROVISIONS THAT HE INTENDED TO DISSEMINATE THE NUDE DEPICTIONS OF CHILDREN AT ISSUE AND IN THE LAST PROVISION THAT THE NUDE DEPICTIONS HE POSSESSED WERE RECEIVED FROM A THIRD PARTY (Not raised below)

IV. N.J.S.A. 2C:24-4b(3), N.J.S.A. 2C:24-4b(4) AND N.J.S.A 2c:24-4b(5)(b) WERE UNCONSTITUIONALLY VAGUE; MOREOVER, THEIR APPLICATION DEPRIVED DEFENDANT OF HIS RIGHT TO FREE SPEECH AND EXPRESSION UNDER THE FEDERAL AND STATE CONSTITUTIONS; TO THE EXTENT THAT THE PROVISIONS WERE NOT UNCONSTITUTIONAL AS APPLIED, THEY WERE UNCONSTITUTIONALLY OVERBROAD (Not raised below)

A. Void for vagueness

B. First Amendment and Over Breadth

V. THE TRIAL COURT ERRED IN NOT PROVIDING THE JURY WITH CRITERIA TO ASSESS WHETHER DEFENDANT'S INTENTION IN TAKING VIDEOS AND PHOTOGRAPHIC IMAGES OF THE CHILDREN HAS PRURIENT (Not raised below)

VI. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

II.

N.J.S.A. 2C:24-4b(3), which is the section of the endangering the welfare of a child statute at issue in counts one through four, prohibits an adult from causing or permitting a child to engage in a "prohibited sexual act" if the adult knows that the prohibited act "may be photographed [or] filmed." If the defendant is a parent, he or she is guilty of a crime of the first degree. Otherwise, the crime is of the second degree. N.J.S.A. 2C:24-4b(3). The term "prohibited sexual act" is defined by N.J.S.A. 2C:24-4b(1)(i) as "[n]udity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction[.]" Counts five through eight charge a violation of N.J.S.A. 2C:24-4b(4), which prohibits photographing or filming a child in a "prohibited sexual act" when the actor "uses any device, including a computer, to reproduce . . . the image of a child in a prohibited sexual act . . . ."

Counts nine through twelve charge a violation of N.J.S.A. 2C:24-4a, which prohibits an adult from engaging in sexual conduct that "would impair or debauch the morals" of a child. If the defendant is the parent of the child in question, the offense is graded as a second-degree crime. Otherwise, it is a crime of the third degree.

Thus, the definition of a "prohibited sexual act" provides the intent element of counts one through eight, because filming nude pictures of a child is only a crime under these statutory provisions if the actor films the child for "the purpose of sexual stimulation or gratification of any person who may view such depiction[.]" N.J.S.A. 2C:24-4b(1)(i).

III.

Defendant argues in Point I that the trial judge abused his discretion when, pursuant to N.J.R.E. 404(b), he admitted video footage from 1997 and 1999 even though that footage was five to seven years old. N.J.R.E. 404(b) provides that:

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[Emphasis added.]

In Cofield, supra, 127 N.J. at 338, the Court established a four prong test for determining the admissibility of other crimes evidence under N.J.R.E 404(b). Specifically, the other crimes evidence must possess the following characteristics: (1) it "must be admissible as relevant to a material issue"; (2) "[i]t must be similar in kind and reasonably close in time to the offense charged"; (3) "[i]t must be clear and convincing"; and (4) its "probative value . . . must not be outweighed by its apparent prejudice." Ibid. Additionally, the rule is one of exclusion, rather than inclusion. State v. Nance, 148 N.J. 376, 386 (1997). The Court reaffirmed the four Cofield factors in its recent opinion in State v. Barden, 195 N.J. 375, 389 (2008).

In its evaluation of a trial court's determination on the admissibility of evidence of other crimes under N.J.R.E. 404(b), a reviewing court is obliged to "give great deference to the decision of the trial court." Id. at 390. "'Only where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.'" Id. at 391 (quoting State v. Marrero, 148 N.J. 469, 483 (1997)).

We are satisfied that Judge Coleman properly analyzed the four Cofield factors and did not abuse his discretion when he admitted the 1997 and 1999 videotapes. In particular, turning to the first prong, we agree with the judge's conclusion that evidence of the 1997 and 1999 videotapes was "admissible as relevant to a material issue." Cofield, supra, 127 N.J. at 338. Defendant did not deny filming the four boys in July 2004 while they were naked after returning from Great Adventure, and again the next morning while they played baseball naked in the basement. Thus, the central, and indeed only, issue at trial was whether he did so for the purpose of sexual stimulation or gratification. Because the 1997 and 1999 videotapes portrayed naked male children with a man's heavy breathing in the background, those videotapes had the capacity to aid the jury in resolving the question of defendant's intent in 2004, and were thus "relevant to a material issue." Ibid.

In cases such as this, where "an individual's state of mind is at issue, a greater breadth of evidence is allowed." State v. Williams, 190 N.J. 114, 125 (2007). Courts therefore "admit circumstantial evidence that has a tendency 'to shed light on [defendant's mental state] or which tend[s] fairly to explain [a defendant's] actions,' notwithstanding that the evidence relates to conduct that occurred before the offense." Ibid. (quoting State v. Rogers, 19 N.J. 218, 228 (1955)). Thus, the 1997 and 1999 footage satisfied the first Cofield prong.

The second prong requires an analysis of whether the N.J.R.E. 404(b) evidence was "similar in kind" and "reasonably close in time to the offense charged." Cofield, supra, 127 N.J. at 338. Judge Coleman correctly concluded that the 1997 and 1999 other crimes evidence was "similar in kind" to the crimes charged in the indictment because, like the 2004 videotapes, the 1997 and 1999 films depicted naked children who were the same age that defendant's sons and Scott and David were in 2004. Moreover, the N.J.R.E. 404(b) evidence, like the 2004 videotapes, focused on the children's genitalia. As in State v. Covell, 157 N.J. 554, 567 (1999), where both the trial evidence and the 404(b) evidence involved young girls, we conclude that the evidence satisfies the "similar in kind" portion of the second Cofield prong.

The "close in time to the offense charged" portion of the second prong presents a more difficult question, because the other-crimes evidence filmed in 1997 and 1999 occurred five to seven years before the events charged in the indictment. No reported decision has ever found the temporal requirement of the second prong satisfied where the other-crime evidence occurred in excess of two-and-one-half years prior to the events for which the defendant was indicted. Clearly, the evidence at issue here is far older than that approved by the Court in State v. Stevens, 115 N.J. 289, 295-96, 306-08 (1989) (holding evidence of the defendant's prior unauthorized searches of two women to be highly probative of his purpose in conducting the searches even though the prior incidents occurred more than two and one-half years earlier). No reported decision approves a greater time difference than the one in Stevens.

However, we need not tarry long in analyzing that time difference because, as the Court observed in Barden, supra, 195 N.J. at 389, "the second prong may be eliminated where it 'serves no beneficial purpose.'" (quoting Williams, supra, 190 N.J. at 131). In particular, the Court, relying on Williams, held that "where the other-crimes evidence [is] relevant only to the defendant's state of mind, . . . the test bec[o]me[s] a three-part test" by elimination of the second prong. Ibid.

Even if we were to require the State to satisfy the "close in time" portion of the second Cofield prong, it is undisputed that the 1997 and 1999 videos were seized from defendant's possession in 2004, which establishes that he continued to maintain these videos in his possession, thereby diminishing the significance of the five and seven-year intervals of time. Defendant's continuing possession of these videotapes portraying naked children therefore permits the reasonable inference that defendant maintained the films in his possession for the purpose of his own sexual stimulation or gratification. Therefore, we agree with Judge Coleman's conclusion that the second Cofield prong was satisfied.

The judge's application of the third Cofield prong -- evidence of defendant's prior bad acts was clear and convincing, 127 N.J. at 338 -- was also sound. There were sufficient facts before the judge at the N.J.R.E. 404(b) hearing to determine that defendant was the individual who took the videos and that defendant was the individual who possessed them. Specifically, the judge characterized the circumstantial evidence that defendant filmed the 1997 and 1999 videos as a "logical deduction, [and a] reasonable inference." In reaching that conclusion, the judge relied on evidence that the 1997 and 1999 videos were seized from the desk drawer in defendant's computer room, and pointed to defendant's wife's testimony that she had never used the video camera. The judge also reasoned that the children depicted on the footage were roughly the same age that defendant's sons and David and Scott were at the time he filmed them; the 1997 and 1999 footage, like the 2004 videotapes that were the subject of the trial, focused on the boys' penises; and the sound of a male breathing heavily could be heard on the audio portion, thereby dispelling the possibility that defendant's wife or sons shot the 1997 and 1999 videotapes. We have no quarrel with the judge's factual findings on the third prong, and agree with his conclusion that the evidence depicted in the 1997 and 1999 videos satisfied Cofield's clear and convincing requirement.

The fourth Cofield prong requires an analysis of whether the potential for prejudice arising from the admission of other crimes evidence outweighs its probative value. Cofield, supra, 127 N.J. at 338. We agree with Judge Coleman's conclusion that the heavy breathing that was audible in the 1997 and 1999 videos had significant probative value, because such breathing tended to show that defendant was sexually stimulated or aroused as a result of the depictions. The fact that the earlier videos were so similar to the 2004 videos also has significant probative value, especially when viewed against defendant's contention that he did not take the 2004 videos for the purpose of sexual stimulation or gratification.

Moreover, as Judge Coleman astutely observed, relying on Marrero, supra, 148 N.J. at 492, whether the proffered evidence is outweighed by its prejudice must be pragmatically evaluated. In conducting that "pragmatic" analysis, we concur in the judge's finding that the record is devoid of any "less inflammatory evidence" that would have aided the jury in its solemn responsibility of divining defendant's intent. As Judge Coleman observed, "the probative value [of the 1997 and 1999 videotapes] is enhanced by the absence of other evidence" on an issue that was "very difficult to prove." We also agree with his conclusion that because the nudity depicted in the 2004 videotapes arose in the context of otherwise innocuous activity -- showering and playing baseball -- the 1997 and 1999 "background information about the pursuits of the defendant and his videocam" became highly probative in the jury's evaluation of defendant's intent when he filmed the four naked boys in 2004.

"[U]nlike crimes such as homicide, where the perpetrator's intent may be inferred from the manner in which the offense was committed, the nature of the crimes of sexual assault and endangering the welfare of a child do not give rise to any such inference." State v. Cusick, 219 N.J. Super. 452, 466 (App. Div.), certif. denied, 109 N.J. 54 (1987). Therefore, determining the intent of a defendant charged with endangering the welfare of a child is often difficult. As we observed in State v. M.L., 253 N.J. Super. 13, 22 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992), "[w]here the proof of similar acts by a defendant tends to establish that the offense for which defendant presently is on trial was not inadvertent, accidental, unintentional, or without guilty knowledge, such evidence is almost universally admitted." Moreover, the probative value of other-crimes evidence is greater when an individual's state of mind is at issue. Williams, supra, 190 N.J. at 125. So viewed, we concur in Judge Coleman's conclusion that the probative value of the other-crimes evidence was so high as to outweigh any resulting prejudice.

Thus, because all four prongs of Cofield are satisfied, and because of the particular value of other-crimes evidence when state of mind is at issue, we reject defendant's challenge to the admission of the other-crimes evidence.

IV.

Defendant also argues that the judge erred by failing to order deletion of the heavy breathing that could be heard on the 1997 and 1999 videotapes. As we have observed, defendant failed to interpose a timely objection at either the pretrial hearing or at trial, and failed to request an appropriate limiting instruction. Therefore, we apply the plain error standard of review, and will disregard any such error unless it was "clearly capable of producing an unjust result." R. 2:10-2.

Defendant's reliance on State v. Collier, 316 N.J. Super. 181, 195 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999), is misplaced. There, the State prosecuted the defendant for robbery and attempted murder, seeking to prove that the defendant's motive was retaliation for the victim having implicated him in the burning death of a dog that belonged to the victim's cousin. Id. at 185. The court reversed and remanded because it found that only some of the evidence regarding the burning of the dog was admissible, and held that the "gruesome details surrounding the dog's death should not have been admitted since they were unnecessary to establish motive and were unduly prejudicial to defendant in terms of the crimes for which he was standing trial." Id. at 185-86.

Here, unlike Collier, both the audio and visual portions of the 1997 and 1999 videos were necessary to establish defendant's motive in taking the 2004 videos and photographs of the victims. Stated differently, the heavy breathing had great probative value on the question of defendant's purpose for taking the 2004 videos. Moreover, absent an abuse of discretion, which is not present here, we defer to the trial judge, whose "'intimate knowledge of the case'" put him "'in the best position to engage in this balancing process.'" Marrero, supra, 148 N.J. at 483 (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). We thus reject defendant's claim that the judge had an obligation to sua sponte delete the audible heavy breathing.

V.

Defendant also maintains that the judge failed to provide adequate limiting instructions concerning the N.J.R.E. 404(b) evidence. As we have already observed, the limiting instructions the judge gave when the evidence was admitted, and in his later final charge to the jury, followed, almost word-for-word, the model charges in effect at that time.

Defendant argues that, instead of a "cursory instruction on the permitted uses of the evidence," the judge should have referred to the facts of the case, and should have explained the elements of the offenses charged and the particular intent or motive that the other-crimes video clips could have established. We note that defendant failed to interpose an objection to the N.J.R.E. 404(b) instructions during trial. Defendant also failed to request any alternate charges. Therefore, we again apply the plain error standard, and evaluate whether the limiting instructions given to the jury were clearly capable of producing an unjust result. R. 2:10-2.

Unquestionably, proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). "Recognizing the special dangers posed by the conflicting impacts of other-crime evidence, th[e] Court has required that when a trial court admits such evidence, the court must specifically instruct the jury about that evidence's limited relevance." State v. G.S., 145 N.J. 460, 469 (1996). In providing "the prohibited and permitted purposes of the evidence" a court is required to include "'sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.' Mere reference to the illustrative exceptions contained in the Rule is not sufficient." State v. Hernandez, 170 N.J. 106, 131 (2001) (internal citation omitted). The adequacy of the instructions must be reviewed in the context of the entire record. G.S., supra, 145 N.J. at 476.

Contrary to defendant's argument, the judge did not issue a "cursory" instruction that merely parroted the language of N.J.R.E. 404(b). Instead, he twice advised the jury that it could only use the N.J.R.E. 404(b) evidence to "demonstrate the defendant's motive in filming the children named in the indictment in July of 2004, his state of mind, his intention, the absence of any mistake or accident." In both charges, the judge gave the specific instruction twice. The second charge also differentiated between the two types of video footage: the 2004 videotape that was the subject of the indictment, and the 1997 and 1999 footage that was subject to the limiting instruction. Both versions of the limiting instructions directed the jury that they were prohibited from using the N.J.R.E. 404(b) evidence to find that defendant had a propensity to engage in criminal behavior.

Moreover, the issue before the jury was straightforward: when defendant filmed the boys naked, did he intend his own sexual gratification? The jury had already heard defendant's opening and was well aware at this point in the trial that the only issue in counts one through eight was defendant's intent. Under those circumstances, the judge's instruction to the jury -- that their evaluation of the 1997 and 1999 videos must be limited to "demonstrat[ing] the defendant's motive" and "his state of mind and intention[s]" in 2004 -- was straightforward and clear. The jury could not have been confused about the limited purpose for which the 1997 and 1999 videotapes were shown. Thus, the limiting instructions were not error, much less error that was "clearly capable of producing an unjust result." R. 2:10-2.

VI.

Defendant also argues that he was denied a fair trial because: (1) the court erred in re-instructing the jury in a piecemeal fashion after it requested a recharge on the elements of all of the offenses in the indictment; and (2) the jury charge on the substantive offenses were, in their entirety, deficient. Defendant's two principal contentions regarding the initial jury instructions are that the court failed to tether the charges to the facts that the jury heard, and that the court gave abbreviated definitions for the term "knowingly" that "recited the Code's definition of the word but left out the Model Jury Charge's explanation that knowledge could be inferred from the totality of the circumstances surrounding conduct." Additionally, without relying on any authority from this jurisdiction, defendant asserts that the trial court erred because it failed to provide the jurors with any criteria to help them decide whether defendant's intention in taking the videos and photographs was prurient.

The State disagrees, and maintains that (1) the judge adhered to the model charge and properly instructed the jury on the crimes of endangering the welfare of a child, pursuant to N.J.S.A. 2C:24-4a, -4b, -4b(3), -4b(4) and -4b(5)(b); (2) defendant failed at trial to seek any instructions concerning his factual position or request an instruction on other jurisdictions' approach to their child pornography statutes involving nudity; (3) defendant's suggested instructions now presented on appeal concerning nudity do not accurately reflect the law in New Jersey; and (4) the court properly exercised its discretion and responded to the jury's request for clarification on the charges in a manner designed to eliminate any confusion. We now address defendant's contention that the substantive charges, as a whole, are deficient.

"The trial court must give a clear explanation of the applicable law to provide the jury with an adequate understanding of the relevant legal principles." State v. Hackett, 166 N.J. 66, 85 (2001). Model jury charges are often helpful to trial judges in performing the important function of charging a jury. State v. Concepcion, 111 N.J. 373, 379 (1988). However, courts have the "independent duty" of ensuring that "jurors receive accurate instructions on the law as it pertains to the facts and issues of each case . . . ." State v. Reddish, 181 N.J. 553, 613 (2004). When the charges are "clear and accurate," this court "generally must assume that the jury followed such a charge." State v. Davis, 390 N.J. Super. 573, 598 (App. Div.), certif. denied, 192 N.J. 599 (2007).

Furthermore, when reviewing the propriety of the trial court's charges, the charge should be examined in its entirety, rather than in isolation to determine the overall effect of the charge. State v. Delibero, 149 N.J. 90, 106-07 (1997). "[I]f on reading the charge as a whole, 'prejudicial error does not appear, then the verdict must stand.'" Ramseur, supra, 106 N.J. at 280 (1987) (quoting State v. Council, 49 N.J. 341, 342 (1967)).

Where, as here, a defendant fails to object to the charge at the time it was given, there is a presumption that the failure to object reflected the defendant's assessment that the charge was not erroneous and was unlikely to prejudice his case. State v. Macon, 57 N.J. 325, 333-34 (1971). Accordingly, in the absence of a contemporaneous objection, any claim of error concerning a jury charge is reviewed under the plain error standard and will be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

After reading aloud the pertinent count of the indictment, the judge then used the model jury charge to instruct the jury on the applicable statutory law pertaining to that count. As an example, for counts one through four, the judge read the indictment and then charged the jury on N.J.S.A. 2C:24-4(b)(3), explaining the difference between first-degree (having a legal obligation to care for the child) and second-degree endangering the welfare of a child. The judge followed the same procedure for the remaining counts, except for count thirteen, where he read the indictment and charged the jury in accordance with the agreed-upon instruction. Aside from the alterations that were agreed to at the charge conference to help explain the difference between first-degree and second-degree grading, and the agreed-upon charge concerning count thirteen, the court's entire instruction concerning the underlying offenses conformed to the model charges.

Moreover, for counts one through eight, consistent with the model charges on N.J.S.A. 2C:24-4b(3) and (4), the judge on two separate occasions instructed the jury that under the first element of the offenses in question, defendant must have knowingly committed a prohibited sexual act, which the judge defined as filming the boys while nude, "if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction." When he first defined the term "prohibited sexual act," the judge explained that "every time we talk about prohibited sexual act, we're talking about that definition: Nudity if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction."

We conclude that the judge's initial instructions were a "clear explanation of the applicable law" that "provide[d] the jury with an adequate understanding of the relevant legal principles." Hackett, supra, 166 N.J. at 85. Moreover, during the charge conference, defendant rejected the judge's offer to provide fact-specific jury instructions. We thus reject defendant's claim that the judge's charge to the jury was faulty.

Defendant also asserts that the trial court was required to sua sponte instruct the jury that defendant's child pornography charges contained an implied element that the nudity depicted must include a lewd display of the genitals. Defendant also lists a variety of factors he now claims the judge should have explained to the jury. In so doing, defendant urges this court to follow the approach of state courts in Ohio and Kentucky. He argues that the courts of these states "have construed an implied lewdness requirement for depicted child nudity to render the child pornography statute at issue constitutional[.]" Defendant fails to rely on any portion of New Jersey law. His arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

VII.

Defendant next asserts that the court's "piecemeal method of recharging the jury was a violation of its duty to fully answer the jury's questions on the applicable law," and that the court "deprived defendant of his right to a [fair] trial . . . by leading the jury to a verdict that was not based on the jury's adequate understanding of the applicable law." Defendant also asserts that the method of responding to the jury's recharge requests "violated his right to have the jury properly consider [the] less seriously punished charges in the indictment."

Once a clarification has been requested by the jury, "the trial court 'is obligated to clear the confusion.' Further, if the jury's question is ambiguous, the trial court must clarify the jury's inquiry by ascertaining the meaning of its request." State v. Savage, 172 N.J. 374, 394 (2002) (internal citation omitted). However, when the defendant was satisfied with the original jury instructions, the trial judge does not abuse his or her discretion "by repeating the instructions previously given." State v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). We reasoned in Scher that that there is "no more meaningful way to apprise the jury of the applicable legal principles than the terminology used in the trial judge's original instructions." Ibid.

Moreover, "[i]n furtherance of the trial court's responsibility, it is not uncommon for the trial court to suggest an order of deliberation as part of jury management." State v. Josephs, 174 N.J. 44, 91-92 (2002). "To be sure, a sequential jury charge can perform a useful function." Id. at 92. "However, a sequential jury charge can be problematic when that charge encourages the jury to convict on the first, and most serious, charge because the jury believes the defendant is guilty of 'some' crime." Ibid.

Seizing upon that last portion of Josephs, defendant asserts that "the trial court's piecemeal method of re-instruction, in which only a recharge on the alleged violations of N.J.S.A. 2C:24-4b(3) . . . was given, precluded the jury from simultaneously considering two less seriously punished offenses . . . N.J.S.A. 2C:24-4b(4) and N.J.S.A. 2C:24-4a."

Defendant's argument ignores the fact that counts one and two of the indictment were first-degree offenses only because they involved defendant's own children, while counts three and four were second-degree offenses only because defendant was not David's or Scott's "parent, guardian or other person legally charged with the care or custody of the child[.]" See N.J.S.A. 2C:24-4b(3). As the State correctly argues, counts five through twelve all involved second-degree offenses regardless of defendant's relationship with the victims. See N.J.S.A. 2C:24-4a, -4b(4). As such, because the degree of punishment was not specified in the indictment or in the jury verdict sheet, the jury had no idea that the first two counts were first-degree offenses and that they carried with them a higher degree of punishment. There was no noticeable difference between the first two counts and counts three and four, other than that counts one and two asked if defendant was the parent of the two children named on the verdict sheet. Unlike, for example, charges of murder and the lesser-included offense of aggravated manslaughter, here there was no distinguishable or obvious punishment factor between the first four counts.

We therefore conclude that Judge Coleman's handling of the jury's request for a recharge was appropriate. When requested to clarify the jury's confusion, he confronted the ambiguous nature of the jury's questions, asked for clarification, and adhered to the jury's desire to recharge the counts in a gradual fashion. Furthermore, in recharging the jury on counts one through four, the judge essentially reread the charge that he gave on the previous day. The record reflects that after being recharged on counts one through four and observing the July 2004 videos, the jury resolved any remaining questions pertaining to the other counts in the indictment on its own. The sequencing of the instructions did not unfairly encourage the jury to convict on the first and more serious offenses.

Last, we note that the facts of State v. V.R., 387 N.J. Super. 342, 346-47 (App. Div.), certif. denied, 189 N.J. 103 (2006), on which defendant relies, are distinguishable from the present facts. There, the judge failed entirely to charge the jury on the elements of N.J.S.A. 2C:24-4b(4), id. at 347 n.6, and we surmised that such a charge would have been appropriate because, N.J.S.A. 2C:24-4b(4), unlike N.J.S.A. 2C:24-4b(3), does not require that an individual "cause[] or permit[] a child to engage in a prohibited sexual act[.]" N.J.S.A. 2C:24-4b(3), -4b(4). In that case, it was unclear whether the defendant "caused" the prohibited sexual act, because he did not direct the victim to do anything; rather, he videotaped the victim nude while she was sleeping. Id. at 345-46 ("[The] defendant does not contest that he videoed [the victim] in the bathroom and bedroom and while she was naked and asleep, but there is no proof that he 'cause[d] or permit[ted]' [the victim] to disrobe or lie nude.") (Emphasis added). Here, in contrast, there is proof that defendant caused or permitted the victims to disrobe and remain nude. Consequently, V.R. is inapposite.

Accordingly, there was no error in the jury instructions, or in the recharge, much less plain error.

VIII.

In Point III, defendant argues that his conduct fell outside the intended ambit of the applicable statutes and "failed to satisfy an implied element [of the statute] that he intended to disseminate the nude depictions." In Point IV, he argues that the portions of the statute under which he was prosecuted are unconstitutionally vague and overbroad, and impermissibly deprive him of his protected rights to free speech and expression. Because these claims are devoid of merit, we decline to discuss them. R. 2:11-3(e)(2).

IX.

Last, we address defendant's claim that the sentence imposed was excessive. The twenty-two year sentence consisted of a fifteen-year term on count one, which is the middle of the first-degree range, and a seven-year term on count three, a second-degree crime, again the midpoint of the range, to run consecutively to count one.

Defendant asserts that "a 22 year aggregate sentence for this conduct shocks the conscience," as there was no basis for consecutive sentences, the crimes were not independent of each other, were committed closely in time and place to indicate a single period of aberrant behavior, and did not involve violence. The State contends that defendant's "sentence is amply justified by the record and should be affirmed."

The court found that aggravating factors three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3), and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9), outweighed mitigating factor seven, defendant's lack of a prior criminal record, N.J.S.A. 2C:44-1b(7). In his written statement of reasons, the judge justified the consecutive sentences, noting that defendant's conduct involved separate acts that occurred over a series of days, involved four victims, and "emotionally wrecked two families." The judge also determined that "defendant's crimes were independent from one another. These were separate acts of endangering the welfare of a child. Crimes committed in separate incidents over of series of days. . . . There should be no free crimes for [defendant's] conduct."

As the Court observed in State v. Roth, 95 N.J. 334, 363-64 (1984), when the sentencing court's findings of fact are grounded in competent, reasonably credible evidence and the court has applied correct legal principles in exercising its discretion, this court may modify the sentence imposed only if the application of the facts to the law is such a clear error of judgment that it "shocks the judicial conscience."

"The test . . . is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). Furthermore, the sentence imposed by the trial court "must reflect the Legislature's intention to focus on the degree of the crime itself as opposed to other factors personal to the defendant." State v. Hodge, 95 N.J. 369, 377 (1984). This court must also determine whether the judge's findings on aggravating and mitigating factors were "based on the evidence, and decide whether application of the guidelines makes a particular sentence clearly unreasonable." State v. Tarver, 272 N.J. Super. 414, 434 (App. Div. 1994).

In State v. Carey, the Court held that the sentencing judge must apply the following factors, originally set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 745 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), when deciding whether sentences should be concurrent or consecutive:

(a) the crimes and their objectives were predominantly independent of each other;
 
(b) the crimes involved separate acts of violence or threats of violence;
 
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
 
(d) any of the crimes involved multiple victims;
 
(e) the convictions for which the sentences are to be imposed are numerous[.]

[ 168 N.J. 413, 422-23 (2001).]

Judge Coleman focused on factors (b) and (c), that there were separate acts that endangered the welfare of each child, that the crimes were committed on separate incidents over a series of days, and factor (d), that the crimes involved multiple victims.

First, there is sufficient credible evidence in the record to support the judge's finding that the aggravating factors outweighed the lone mitigating factor. Of course, because the sentences imposed on counts one and three were at the midpoint of the range, those sentences are sustainable even if the aggravating and mitigating factors are only in equipoise. State v. Natale, 184 N.J. 458, 488 (2005). The aggravating factors need not outweigh any mitigating factor or factors. Ibid. Thus, we conclude that the fifteen-year sentence on count one and the seven-year sentence on count three were not excessive, defendant's claims to the contrary notwithstanding.

 
Second, as to the consecutive sentences imposed, we have no quarrel with Judge Coleman's application of the Yarbough factors. The record amply supports his conclusion that the crimes committed against David and Scott, as set forth in counts three and four, and later merged as count three, were separate and distinct from those committed against defendant's sons, as set forth in counts one and two, and later merged as count one. David and Scott were subjected to separate indignities when defendant pulled their hands from their penises, "depantsed" David and Scott, and prevented them from retrieving their clothes when they objected to being filmed naked. Under the circumstances presented here, neither the length of the sentence, nor its consecutive nature, "shocks [our] judicial conscience." Roth, supra, 95 N.J. at 364.

Affirmed.

To further protect the privacy of defendant's children, we will refer to them as the older son and the younger son.

We use fictitious names rather than initials.

The Model Charge was revised on June 4, 2007. Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2009). The judge used the 2005 version that was in effect at the time of the trial.

The reference to "three indictments" appears to signify the jury's recognition that with the exception of count thirteen, the indictment charged one form of endangering the welfare of a child in counts one through four, a second form in counts five through eight, and a third form in counts nine through twelve. Within each of those three groupings, the only differences in the language of the various counts were the identity of the particular child at issue.

In his opening, defense counsel argued that there was no "factual dispute." He commented that "[w]e could almost take the videotapes, hand them to you, send you into the jury deliberation room and let you watch them. The tapes speak for themselves. . . . You are going to hear [defendant's] voice. [Defendant] took those videotapes. There is no dispute [about that]." He argued that although the tapes were offensive and the jury might even "despise" defendant after viewing them, defendant's purpose in making those tapes was not sexual.

(continued)

(continued)

14

A-1273-07T4

RECORD IMPOUNDED

July 22, 2009