STATE OF NEW JERSEY v. JEROME AUSTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1685-08T41685-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME AUSTIN,

Defendant-Appellant.

________________________________

 
Telephonically argued October 9, 2009 -

Decided

Before Judges Carchman, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment

No. 06-04-0445.

Richard W. Berg argued the cause for appellant (Law Offices of Robin Kay Lord, attorneys; Mr. Berg, of counsel and on the brief; Ms. Lord, on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant Jerome Austin appeals his conviction and sentence for sexual assaults of a teenage relative. We affirm defendant's convictions; however, we vacate the aggregate sentence of thirty-five years in prison and remand for re-sentencing.

I.

Defendant is the great uncle of J.M., who lived with her mother in New York State. In the summer of 2000, when J.M. was fifteen years old, she stayed at defendant's home in New Jersey because she and her mother were not getting along. Defendant was forty-nine years old and lived alone. At the end of the summer, J.M. returned to New York, but the situation with her mother had not improved. Defendant and J.M.'s mother agreed to have her live with him and go to school in New Jersey.

J.M. lived with defendant from the time she was fifteen until a few months after her nineteenth birthday. During that time, defendant cared for her like a father. He registered her for school, paid all her expenses, and made a home for her such as she did not have with her mother. J.M. called defendant "dad" so that she would not have to explain the relationship to others. In her high school yearbook, she wrote a glowing and grateful dedication to "dad," meaning defendant.

According to J.M.'s testimony at trial, soon after she moved into defendant's home permanently, he began to assault her sexually. She testified that the first time occurred in the late summer of 2000 shortly before she started school as a tenth-grader. Defendant was playfully teaching her how to box in a bedroom. She fell on the bed. He got on top of her and pinned her down. He took her clothes off and had oral sex and vaginal intercourse with her. She did not resist, but she began crying immediately afterwards. He assured her that the incident was not her fault.

J.M. testified that the sexual activity continued regularly during the next several months through her sixteenth birthday in December. It included oral sex by each on the other, digital penetration, and vaginal intercourse.

After her sixteenth birthday, the sexual activity occurred almost on a daily basis, and defendant also occasionally engaged in anal intercourse with her. Defendant never used force or threats of violence. J.M. did not tell him that his conduct was unwelcome because she feared that she would become homeless. She testified that she resigned herself to the sexual activity but often cried alone in her bedroom. As the months passed, defendant grew remorseful about his conduct. He told her it was wrong and they should go to church and seek forgiveness. Nevertheless, the sexual activity did not stop, although its frequency decreased.

After J.M. graduated from high school, she took a job, and she developed a relationship with a boyfriend. Defendant helped her buy a car. She became more independent and spent most of her time out of the house. She got into the habit of staying out late at night without telling him where she was. As a result, arguments escalated to the point in January 2004 of defendant ordering J.M. to leave the house. They both relented the following day, and defendant took J.M. back demanding that she live by his "house rules," such as maintaining a curfew and keeping her room neat.

Despite her promise, J.M. continued to stay out late. A second serious argument occurred in March 2004, and defendant again ordered her to leave his house. She called her boyfriend to come for her because defendant's truck was blocking her car in the driveway. She stayed at her boyfriend's house that night and never went back to live with defendant again.

The day after defendant ordered her out in March 2004, J.M. went to the police and reported that he had sexually abused her for several years. The police contacted the Prosecutor's Office, and they took a statement from J.M. On April 13, 2004, a detective arranged for a consensual interception and recording of a telephone call between J.M. and defendant.

In the recorded conversation, about seven minutes long, defendant was speaking on his cell phone while driving home from work. Following the instructions of the detective, J.M. feigned having received a positive test for a sexually transmitted disease, and she questioned defendant about whether he could have transmitted it to her. She discussed at length that she and her boyfriend were sexually active, but that her boyfriend was denying that he could be responsible. She made ten or more references to her engaging in sex with defendant and stated several times that her only sexual partners were her boyfriend and defendant.

Defendant never denied or questioned J.M.'s references to having sex with him. At one point she said, "nothing happened with us when we had unprotected sex for all this time. I mean it's been like what? Three, four years ain't nothing happened. So why would it happen with him?" Defendant said that she should not rely on her experience with him. He said he was an older man and might be sterile. He advised her always to use protection when engaged in sex with her boyfriend.

About nine months after the telephone recording, defendant was arrested and charged. A grand jury returned a ten-count indictment in April 2006. The indictment divided the charges into two time periods and five kinds of sexual activity. Counts one through four charged first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(2)(c), between August 2000 and J.M.'s sixteenth birthday in December 2000. Those counts charged separately that the sexual assaults had occurred by cunnilingus, vaginal intercourse, digital penetration, and fellatio. Count five charged second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, during the same time period before J.M.'s sixteenth birthday. Counts six through ten charged second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c(3)(c), from J.M.'s sixteenth birthday until December 2002 when she turned eighteen. The kinds of sexual assault charged separately in those counts were cunnilingus, vaginal intercourse, anal intercourse, fellatio, and digital penetration.

Defendant was tried before a jury in October 2007. Only two witnesses testified, J.M. and the detective who intercepted and recorded the telephone conversation. Defendant elected not to testify and did not present any witnesses or exhibits in evidence.

Deliberating during a full afternoon session, the jury asked no questions except to request that the recorded conversation be replayed. It returned a verdict of not guilty on the first four counts charging aggravated sexual assault before J.M.'s sixteenth birthday. It found defendant guilty of the endangering count and all five sexual assault charges for the time period between J.M.'s sixteenth and eighteenth birthdays.

In November 2008, defendant was sentenced to five consecutive seven-year terms of imprisonment on each of counts six through ten. The court did not impose a period of parole ineligibility. Count five, the endangering count, was merged into the other counts. The court also sentenced defendant to community supervision for life, compliance with Megan's Law, and monetary penalties.

On appeal, defendant raises the following arguments:

POINT I THE PROSECUTOR'S MISCONDUCT IN HIS OPENING AND

SUMMATION WENT SO FAR BEYOND THE BOUNDS OF

FAIRNESS AND PROPRIETY THAT DEFNDANT WAS THEREBY

DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE

PROCESS AND A FAIR TRIAL (Not Raised Below).

A. THE PROSECUTOR'S FALSE FACTUAL ASSERTIONS.

B. THE PROSECUTOR['S] REPEATED COMMENTS ON

DEFENDANT'S DECISION NOT TO TESTIFY OR

CONTRADICT THE EVIDENCE PRESENTED INFRINGED

DEFENDANT'S CONSTITUTIONAL RIGHTS.

C. OTHER IMPROPER PROSECUTORIAL OPENING AND

SUMMATION COMMENTS.

POINT II DEFENDANT'S ACQUITTAL ON THE FOUR COUNTS CHARGING

FIRST DEGREE AGGRAVATED SEXUAL ASSAULT OFFENSES WHEN THE COMPLAINANT WAS UNDER 16 YEARS OLD PRECLUDED HIS CONVICTION FOR CHILD ENDANGERMENT AS A MATTER OF LAW.

POINT III THE TRIAL COUT ERRED IN DENYING DEFENDANT'S

MOTION FOR JUDGMENT OF ACQUITTAL.

A. CUNNILINGUS & FELLATIO

B. ANAL SEX

POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

FACTOR 3

(a) THE CRIMES AND THEIR OBJECTIVES WERE NOT

PREDOMINANTLY INDEPENDENT OF EACH OTHER

(b) THE CRIMES DID NOT INVOLVE SEPARATE ACTS OF

VIOLENCE OR THREATS OF VIOLENCE

(c) THE CRIMES WERE NOT COMMITTED AT SEPARATE

PLACES; THERE WAS A QUESTION WHETHER THE

SEPARATE FORMS OF PENETRATION OCCURRED AT

DIFFERENT TIMES; AND THE TESTIMONY INDICATED

THAT THE RELATIONSHIP WAS CONSENSUAL AND THAT

DEFENDANT ENGAGED IN A SINGLE PERIOD OF

ABERRANT BEHAVIOR

(d) THE CRIMES DID NOT INVOLVE MULTIPLE VICTIMS

(e) THE CONVICTIONS FOR WHICH THE SENTENCES WERE

IMPOSED WERE NOT NUMEROUS

FACTOR 4 THERE SHOULD BE NO DOUBLE COUNTING OF

AGGRAVATING FACTORS

FACTOR 5 SUCCESSIVE TERMS FOR THE SAME OFFENSE

SHOULD NOT ORDINARILY BE EQUAL TO THE

PUNISHMENT FOR THE FIRST OFFENSE

THE SENTENCING JUDGE ERRED IN FINDING AGGRAVATING

FACTORS a(1), a(2), AND a(4), AND IN WEIGHING a(9)

THE SENTENCING COURT ALSO ERRED IN FAILING TO CONSIDER

AND WEIGH APPLICABLE MITIGATING FACTORS

We find no merit in defendant's first three points and, therefore, affirm the jury's verdicts of guilty. We agree with defendant that the trial court did not adequately state reasons for imposing five consecutive sentences and also erred in finding two aggravating factors. We remand to the trial court for reconsideration of the sentence.

II.

Defendant argues that the prosecutor made prejudicial comments in his summation and opening statement requiring that the jury's verdict be reversed. Because defendant's attorney at trial did not object to any part of the prosecutor's summation or opening statement, the plain error standard of review applies to these arguments. R. 2:10-2; State v. Papasavvas, 163 N.J. 565, 626 (2000); State v. Macon, 57 N.J. 325, 337 (1971). The alleged error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Kuchera, 198 N.J. 482, 497 (2009); State v. Branch, 182 N.J. 338, 353 (2005). Absence of contemporaneous objection at trial may lead to a fair inference that "in the context of the trial the error was actually of no moment." State v. Nelson, 173 N.J. 417, 471 (2002) (quoting Macon, supra, 57 N.J. at 333).

Defendant contends first that the prosecutor made false representations of the evidence by misleading the jury to consider non-criminal acts referenced in the tape recording, namely, sex with J.M. after she turned eighteen. Specifically, defendant points to J.M.'s reference to having sex with defendant in January 2004. He argues that she was nineteen years old at the time and the alleged sexual activity was not criminal. Defendant points to the prosecutor's reference to J.M. as a "child" at that time to show that the summation misled the jury to consider a non-criminal act as part of the charges in this case.

When discussing the recorded conversation in his summation, the prosecutor argued that any reasonable adult who hears his surrogate daughter say repeatedly that they had sex together would naturally question or deny the statements if they were not true. His objective was to refute the defense argument in summation that defendant had been distracted during the phone call because he was driving and, therefore, his failure to deny J.M.'s references to sex should not be viewed as admissions by him. The prosecutor argued that driving distractions could not explain the number of such references by J.M. that defendant failed to challenge while otherwise engaged in a coherent conversation.

The recording was crucial evidence in the case to corroborate J.M.'s accusations. The prosecutor had a right to argue forcefully that the defense's attempt to explain the incriminating nature of the recording was not credible. See State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). Since defense counsel did not object to the prosecutor's references to J.M. as a "child" or "young girl," we may infer that those references were not as misleading or significant in the course of the entire summation as defendant now argues. See State v. Ingram, 196 N.J. 23, 42 (2008); Engel, supra, 249 N.J. Super. at 377. The reference to "child" was a passing remark that in the context of the summation as a whole meant the time period that the sexual assaults had occurred, not January 2004.

Moreover, the jury was well aware of the time periods of the alleged crimes. Throughout the trial in opening statements, in the testimony of J.M., in counsel's summations, and in the judge's final instructions the jury was reminded of the time periods related to specific charges. There was no realistic danger that the jury would be misled by the prosecutor's summation in convicting defendant because of sexual activity with J.M. that occurred only after her eighteenth birthday.

In fact, the jury appears to have analyzed the credibility and weight of the evidence with respect to the specific time periods charged in the indictment. It acquitted defendant of all aggravated sexual assault charges arising before J.M.'s sixteenth birthday but convicted him of similar conduct after she turned sixteen.

We find no plain error in the factual accuracy of the prosecutor's arguments related to the recorded telephone conversation.

Next, defendant alleges prosecutorial misconduct in that the summation suggested the jury could consider the fact that defendant did not testify or present other exculpatory evidence. In Griffin v. California, 380 U.S. 609, 613-14, 85 S. Ct. 1229, 1232-33, 14 L. Ed. 2d 106, 109-10 (1965), the Supreme Court held that reference to a defendant's election not to testify is a violation of the Fifth Amendment right against self-incrimination.

Defendant cites a number of cases applying the holding of Griffin to prosecutor's remarks that may have subtly suggested that the jury should consider the defendant's silence at trial. See State v. Gosser, 50 N.J. 438, 452-53 (1967) (holding that prosecutor's remark that defense offered "no explanation" was at most harmless error), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968); State v. Sinclair, 49 N.J. 525, 549 (1967) (on retrial, prosecutor should refrain from repeatedly arguing that the State's evidence was "uncontradicted" where only defendant could contradict the evidence); Engel, supra, 249 N.J. Super. at 381 (deplorable, but harmless error, for prosecutor to argue that "jury might wish to 'ask' defendant why he would kill his former wife"); State v. McElroy, 96 N.J. Super. 582, 584-85 (App. Div. 1967) (violation of defendant's Fifth Amendment right to argue "[t]here hasn't been one scintilla of evidence on behalf of the defendant to contradict" the State's proofs); State v. Persiano, 91 N.J. Super. 299, 301 (App. Div. 1966) (reversible error to argue, "Normally, we have two sides to a story. Here we have one side. There is no defense."). In Engel, supra, 249 N.J. Super. at 382, we said that a "prosecutor should not either in subtle or obvious fashion draw attention to a defendant's failure to testify."

In this case, the prosecutor commented that J.M.'s testimony was uncontradicted or unchallenged in the course of discussing the internal consistency and credibility of that testimony. He said that J.M. did not change her allegations although three and a half years had passed since her initial reporting of the sexual abuse to the police, and that she did not need to review her prior statement in preparation for trial because it is easier to remember the truth than prior false statements. These were acceptable arguments addressed to J.M.'s credibility, not to defendant's failure to testify or present evidence to challenge or contradict the State's case. The fact that defense counsel did not object to these comments suggests that they were "of no moment" in the constitutional sense. See Engel, supra, 249 N.J. Super. at 377.

We reject without discussion, R. 2:11-3(e)(2), the following additional arguments of defendant alleging prosecutorial misconduct: (1) beginning summation by stating that the jury should now agree with the State's position at the start of trial that defendant had repeatedly sexually abused J.M.; (2) urging the jury either to convict or acquit on the charges in the indictment, rather than convict defendant on lesser-included offenses, because the essential issue in the case was the credibility of J.M.'s testimony; and (3) use of "pejorative language" in the opening statement, such as describing defendant's actions as "horrific" and "horrendous."

III.

Count five of the indictment charged second-degree endangering the welfare of a child. By its terms, count five applied to the time period from August 2000 to December 2000, when J.M. was less than sixteen years old. In direct examination of J.M., the prosecutor asked her to state separately what sexual activity had occurred at the ages of fifteen, sixteen, and seventeen. In his charge to the jury, the trial judge instructed that count five applied to the time when J.M. was under the age of sixteen. He also told the jury that "the State must prove beyond a reasonable doubt . . . that defendant knowingly engaged in sexual conduct. Here, the State alleges that the sexual conduct committed by the defendant consisted of the allegations that I have previously described for you in Counts One through Four." The judge repeated this limitation on the predicate sexual conduct the jury could consider when he gave instructions on a third-degree lesser-included offense of endangering the welfare of a child.

The jury found defendant not guilty of all the predicate sexual acts charged in counts one through four but guilty of second-degree endangering the welfare of a child charged in count five. Defendant contends his conviction on count five must be vacated because the jury acquitted him of all the predicate sexual acts that the State charged.

The United States and the New Jersey Supreme Courts have held repeatedly that inconsistency in the jury's verdict on multiple counts is not a ground to set aside a guilty verdict. United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932); State v. Banko, 182 N.J. 44, 55 (2004); State v. Grey, 147 N.J. 4, 11 (1996). In Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468, the United States Supreme Court said:

[E]ven verdicts that acquit on a predicate offense while convicting on the compound offense should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.

In Banko, supra, 182 N.J. at 54, the Supreme Court of New Jersey quoted Powell with approval and held that "the Dunn/Powell rule controls inconsistent verdicts in this State." It said further that inconsistent "verdicts are permitted . . . 'so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" Id. at 55 (quoting State v. Petties, 139 N.J. 310, 319 (1995)). Here, J.M.'s testimony was sufficient evidence to prove all the elements of endangering the welfare of a child during the time period charged in the indictment.

The cases cited by defendant are not to the contrary. Either they declined to vacate a guilty verdict on the basis of inconsistency, see State v. Mieles, 199 N.J. Super. 29, 40-41 (App. Div.), certif. denied, 101 N.J. 265 (1985); State v. Peterson, 181 N.J. Super. 261, 265-67 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982), or they found fault with the jury instructions rather than the inconsistent verdicts in themselves, see State v. Branch, 155 N.J. 317, 329 (1998); Grey, supra, 147 N.J. at 17; see also Petties, supra, 139 N.J. at 319-21; State v. Jenkins, 234 N.J. Super. 311, 314-16 (App. Div. 1989).

In this case, the jury instructions were clear and correct. The inconsistency is not a ground for reversal of count five. See State v. Burnett, 245 N.J. Super. 99 (App. Div. 1990), certif. denied, 126 N.J. 340 (1991).

IV.

Before summations and the court's final instructions to the jury, defendant moved for a judgment of acquittal on all counts under Rule 3:18-1. On defendant's motion under that rule, the trial court must determine:

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

The trial court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." Papasavvas, supra, 170 N.J. at 521 (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

On appeal, we apply the same standard of review. State v. Kittrel, 145 N.J. 112, 130 (1996); State v. Martinez, 97 N.J. 567, 572 (1984).

Defendant was convicted in counts six through ten of sexual assault under N.J.S.A. 2C:14-2c(3)(c). That statute provides in relevant part:

An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under . . . the following circumstances:

. . . .

(3) The victim is at least 16 but less than 18 years old and:

. . . .

(c) The actor . . . stands in loco parentis within the household . . . .

The Criminal Code defines "sexual penetration" as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina." N.J.S.A. 2C:14-1c.

Defendant raises no arguments concerning count seven, charging vaginal intercourse, and count ten, charging digital penetration, except generally that the State failed to prove that he stood in loco parentis to J.M. We reject that argument without comment. See R. 2:11-3(e)(2).

Defendant argues that the counts charging cunnilingus, fellatio, and anal intercourse were not adequately supported by the evidence because J.M.'s testimony was not specific enough regarding the nature of those acts and the fact of penetration. He argues that, without more detailed description than "oral sex" and "anal sex," J.M. might have meant something less than sexual penetration as defined in the Criminal Code, such as kissing her breasts or even "telephone sex."

Defendant acknowledges that under State v. Fraction, 206 N.J. Super. 532, 535-36 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986), and State in the Interest of S.M., 284 N.J. Super. 611, 616-19 (App. Div. 1995), cunnilingus and fellatio do not require actual penetration of the victim's vagina or mouth; contact of the mouth with the vagina or penis is sufficient. Concerning anal intercourse, defendant cites State v. Gallagher, 286 N.J. Super. 1, 13 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996), in support of his argument that the State failed to prove penetration of the anus.

When asked on direct examination to describe what happened between August and December 2000, J.M. testified: "He constantly has sex with me. Such as his penis penetrating my vagina and I had performed oral sex on him. He had performed it on me. And he had just he had put his mouth on my breasts. That was it." Defendant argues that J.M. could have equated oral sex with defendant putting his mouth on her breasts. The more reasonable understanding of J.M.'s testimony is that she was listing types of sexual activity, and she distinguished oral sex as separate from contact with her breasts.

After testifying that this conduct occurred frequently during the months up to her sixteenth birthday in December 2000, J.M. was asked what happened after that. She testified: "Well, the same actions. The sexual actions that happened when I was 15 occurred. But one other thing happened was he had given anal sex during that year." In describing how anal sex came about, J.M. testified that defendant told her "to take a deep breath and to relax and it won't hurt." She further testified that it did hurt, and she started "spotting . . . blood . . . out of my behind." During cross-examination, she testified that defendant used Vaseline during anal sex.

The jury could assess J.M.'s sophistication about sexual activity through her entire testimony. The jury could infer that J.M. was not na ve or mistaken in her descriptions of the sexual activity. At the time of trial, J.M. was almost twenty-three years old and the mother of a one-year-old child. Through her own statements in the recorded conversation with defendant, she revealed that she had been sexually active with someone other than defendant, a boyfriend, at least as early as the age of nineteen. She was not a young child who might misunderstand the meaning of oral sex by one person upon another. We reject defendant's contention that the State is required in every case to elicit testimony from the victim describing with anatomical detail criminal acts of sexual penetration.

Read as a whole, J.M.'s testimony was sufficient to establish the elements of all the counts of sexual assault.

V.

Defendant challenges his sentence as excessive. He contends that the trial court failed to consider all the factors listed in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in imposing consecutive sentences, and it erroneously assessed aggravating and mitigating factors under N.J.S.A. 2C:44-1. We agree that the trial court did not adequately explain its reasons for imposing five consecutive sentences of seven years each on counts six through ten. We also agree that the trial court mistakenly found that aggravating factors one and four, N.J.S.A. 2C:44-1a(1) and (4), were applicable in the circumstances of this case. We reject defendant's contention that the sentencing court erred in finding aggravating factors two and nine, N.J.S.A. 2C:44-1a(2) and (9).

Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.

The trial judge explained his reasons for imposing five consecutive sentences as follows:

State v. Carey . . . permits the court to consider separate sexual crimes against a youthful victim as mandating a consecutive sentence, being as they are, independent acts of violation of a sexual nature and I do intend on imposing a consecutive sentence.

. . . .

It is my view that [Carey] at page 423, a 2001 case which cites State versus Yarb[]ough . . . to the extent that no one gets a free pass at a crime, that the act of cunnilingus upon J.M. being less that 18 and more that 16 is a separate, definable invasion upon her.

The court's citation to Carey, supra, 168 N.J. 413, overstates the relevance of that decision to the crimes here. Carey did not involve sexual crimes but convictions for vehicular homicide where two passengers died as a result of a single accident. Id. at 418-21. Carey reinforced the guidelines established in Yarbough for deciding whether to impose consecutive or concurrent sentences. Id. at 422-24.

In sentencing defendant to a term of seven years' imprisonment on each count of second-degree sexual assault, the trial court repeated that each type of sexual assault charged in counts six through ten was a "separate, definable act of invasion of J.M." by defendant. See Fraction, supra, 206 N.J. Super. at 536-40. The court then concluded its statement of reasons for imposing consecutive sentences:

It is my considered judgment that a 35 year flat sentence which carries with it real time consequences of approximately 11 years and eight months is an appropriate sentence in this case, recognizing your age, the fact that you had not committed any prior offenses . . . .

The court's reasons do not include findings with respect to all the relevant factors listed in Yarbough, supra, 100 N.J. at 643-44, that the sentencing court must consider. The Yarbough factors relevant to the issues in this case are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

. . . .

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(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;

(4) there should be no double counting of aggravating factors;

. . . .

[Ibid.]

The trial court considered the first factor, that there be no free crimes, and otherwise described each type of sexual assault as a separate invasion of J.M. It did not refer to the other factors, such as (a) that defendant's crimes and their objectives were not independent of each other, (b) defendant did not use physical violence other than the sexual conduct itself in the commission of his crimes, (c) the crimes were committed at many different times but all in defendant's and J.M.'s home, (d) there was only one victim, and (e) the five convictions "approach the numerous range" but are not obviously so. See Carey, supra, 168 N.J. at 424. The court's emphasis upon "no free crimes," without making and applying findings with respect to the other important factors, may have led it improperly to a sentence that on further reflection may seem overly severe.

Besides not articulating its findings as to all relevant considerations under Yarbough, the trial court double counted two aggravating factors. Double counting occurs when the evidence supporting an aggravating factor is necessary to establish an element of the offense. State v. Kromphold, 162 N.J. 345, 353 (2000); Yarbough, supra, 100 N.J. at 633, 645; State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984), certif. denied, 101 N.J. 234 (1985).

The court found that aggravating factor one, "the nature and circumstances of the offense, and the role of the actor," N.J.S.A. 2C:44-1a(1), applied because defendant was about fifty-one years old and J.M. sixteen and seventeen at the time of the sexual assaults. Defendant argues correctly that disparity in age arises out of an element of the sexual assault where, to be guilty, defendant must have been in loco parentis. That disparity in age cannot be double counted in finding an aggravating factor.

Although State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988), held that the extreme youth of the victim could support a finding of an aggravating factor, the victim in that case was four years old when defendant attempted vaginal intercourse with her. In this case, J.M.'s age cannot be described as "extreme youth," and defendant's age was not so extreme, considering that the statute required that he be in the position of a parent to J.M. See Yarbough, supra, 100 N.J. at 645.

Also, the court found that aggravating factor four applied, "the defendant took advantage of a position of trust or confidence to commit the offense," N.J.S.A. 2C:44-1a(4). Again, because defendant's relationship with J.M., in loco parentis, was a necessary element of the convictions for second-degree sexual assault, aggravating factor four could not be considered a second time in determining the appropriate sentence.

On remand, the trial court must reconsider defendant's sentence within the entire framework of Yarbough, without weighing aggravating factors one and four in the balance.

Finally, the sentencing hearing included oral statements in support of defendant's character and attitude, and the court also acknowledged having received some twenty-seven character letters on behalf of defendant. Defendant had no prior contacts with the criminal justice system and had worked steadily in his own business for many years before his conviction. On remand, the sentencing court should consider whether mitigating factors eight and nine, "circumstances unlikely to recur" and "character and attitude of defendant," N.J.S.A. 2C:44-1b(8) and (9), apply and should be weighed in determining the appropriate sentence.

 
We affirm defendant's convictions but vacate the aggregate thirty-five year sentence of imprisonment and remand to the sentencing court for reconsideration of the sentence.

Count five, endangering the welfare of a child, was merged into counts six through ten. The merger was improper both because count five charged a different time period and because endangering is a separate offense with an additional element. See State v. Miller, 108 N.J. 112, 120-21 (1987). The State did not cross-appeal, and so, we leave the ruling on count five undisturbed.

(continued)

(continued)

2

A-1685-08T4

RECORD IMPOUNDED

February 5, 2010