STATE OF NEW JERSEY v. ERIC ARELLANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3003-08T43003-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC ARELLANO,

Defendant-Appellant.

_______________________________

 

Argued: June 3, 2010 - Decided:

Before Judges Stern, Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0298.

S. Emile Lisboa, IV, argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel; Mr. Lisboa and Jane M. Personette, of counsel and on the brief).

Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

PER CURIAM

Defendant was convicted of luring or enticing a child, N.J.S.A. 2C:13-6 (count one), attempted child endangerment, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count four), and endangering the welfare of a minor, N.J.S.A. 2C:24-4(b)(5)(b) (count five), and sentenced to eight years in the custody of the Commissioner of the Department of Corrections on count one (luring or enticing) and a consecutive fifteen months on count five (endangering). A concurrent five-year sentence was imposed on count four (attempted endangering). However, the judgment notes an aggregate sentence of twenty-three years (that would be right if it were eight years plus fifteen years, not eight years plus fifteen months) and must be corrected.

Counts one through four, including the two counts on which defendant was found not guilty, were alleged to occur in Wayne, Passaic County during July through September 2005. Count five alleged possession of photos, film, videotapes or a computer program "which depicts a child engaging in a prohibited sexual act or in the simulation of such an act." This count relates to conduct occurring in Bayonne, Hudson County, and detected on September 1, 2005, following defendant's arrest and the execution of a consent warrant to search his basement apartment.

Defendant argues his convictions must be reversed because he was denied a fair trial by virtue of the introduction and "utilization of the alleged child pornography," in violation of N.J.R.E. 404(b), and its admission without a limiting instruction; the court erred in not dismissing count five (endangering) "due to lack of evidence"; counts one through four "should have been dismissed for due process entrapment"; count five (endangering) charging possession of pornography "should have been severed"; the internet conversations should have been excluded as they were "not properly presented"; the verdict is against the weight of the evidence; the "cumulative trial errors" require reversal; an ex parte communication between the judge and the Avenel evaluator warrants rejection of the Avenel report; and the judge improperly found aggravating factors and failed to find mitigating factors (except seven no prior record). We disagree and affirm.

I.

Detective Juan Passano (Passano) of the Passaic County Sheriff's Office investigates "crimes against children, child pornography, and luring and enticing of minors by adults." In July 2005, Passano created Vivalagirl12 as a "screen name" and a "member profile." Vivalagirl12's profile indicated that she was female, her name was "Sarah," she was located in New Jersey, she was single and that she was Italian and Spaniard. During the trial, Passano testified as to the nature of the internet conversations he had with defendant.

The first conversation occurred on July 14, 2005. Defendant initiated that conversation using the screen name LAtnLvR321. During that first conversation, defendant asked "Sarah" her age and where she was from. "Sarah" responded that she was a twelve-year-old female from Wayne, New Jersey. "Sarah" also told defendant that she was in the sixth grade. Defendant then told "Sarah" that he was eighteen years old and he lived in Bayonne, New Jersey. Thereafter, defendant asked "Sarah" if she had a picture. When she said she did not, defendant asked her to describe herself. After describing herself, defendant asked "Sarah" if she "got a man?" "Sarah" replied that she did and that he seventeen years old. Defendant then asked "Sarah" if she "like[d] older guys." "Sarah" answered in the affirmative and asked defendant if he "like[d] younger girls." Defendant responded, "[w]ell, I don't care about age so long as you don't act like six, you know." Thereafter, defendant asked "Sarah," "Do you [want to] meet?" Sarah responded that she did not know defendant well enough to meet him. Then defendant asked, "You wanna be my girl." "Sarah" responded, "I don't know you yet, damn." Defendant then asked, "You think maybe tomorrow morning maybe I can see you?" "Sarah" indicated that it was too early to meet defendant.

However, defendant persisted in arranging a meeting and tried to find ways in which he could meet "Sarah." Defendant then asked "Sarah" if her current boyfriend was the oldest boyfriend she had had, how long she had been with him, and if she loved him. "Sarah" responded that her current boyfriend was the oldest person she had dated, that she had not been with him for long, and that she did not love him. Subsequently, defendant asked to be excused from the conversation.

When defendant returned, few minutes later, defendant initiated a rather graphic and sexually explicit conversation with "Sarah." The relevant portions of the conversation are as follows:

A. Missed me, . . . .

Q. Yeah. You.

A. Of course. So what do you like to do, . . . .

Q. I like hanging with my friend, go to the malls, movies.

A. Drive around, . . . .

Q. I . . . [don't] have a car.

. . . .

A. I mean would you like that, . . . .

Q. Yeah.

A. Just you and me, . . . .

Q. Yeah.

. . . .

A. How do you dress, . . .

Q. I like Bebe stuff . . . .

A. Tight clothes, right

Q. Yeah.

. . . .

Q. You like that.

A. Well, I have to see you in them first. LOL

. . . .

A. So you don't kiss or anything like that.

Q. I'm only 12, daaa. Haven't done that yet. Virgin, too.

A. You haven't kissed yet, . . . .

Q. Like a little kiss.

A. Well, I love kissing.

. . . .

A. So since you haven't kissed or anything, I guess I might be your first for everything, right. LOL.

Q. Yeah, . . . . [sorry]

. . . .

A. Don't be sorry. I wanna teach you, as long as you wanna learn, . . . .

Q. Yeah. What you gonna teach me.

A. Well, it depends on what you gonna let me teach you.

. . . .

Q. I don't know that much.

A. So then I can teach you everything.

Q. Yeah.

. . . .

A. What's the farthest you done, . . .

Q. Huh?

A. Like have you touched a guy or a guy touch you, . . .

Q. No, [I] haven't gotten touch yet.

A. Okay, I can teach you that too. Okay.

. . . .

A. You have a big booty, . . . .

Q. Yeah, I do. I mean [it] is kinda big for my age.

A. Like J-Lo big . . . .

. . . .

A. How about your chest, . . .

Q. 32b

A. Nice.

. . . .

A. You ever seen a guy's you know what.

Q. What

. . . .

A. A penis. LOL

. . . .

Q. No, I get in trouble with my [pa]rents, . . . .

A. Okay. So if I show you mine, you not gonna tell them, right.

Q. No.

A. Okay. You gonna show me yours too, . . . .

Q. It'll be the one time I'll show somebody.

. . . .

A. You gonna touch it, . . .

Q. Touch what?

A. My penis

. . . .

A. I can touch yours too, right.

Q. If you wanna.

A. I wanna kiss it too

Q. Yeah.

A. I'll let you - - I'll tell you what I wanna do, and you tell me if it's okay. Okay?

Q. K.

A. Can I kiss yours.

Q. My what?

A. Coochie

Q. Yeah.

A. Your tits, . . . .

A. Do you wear thongs?

. . . .

Q. No, don't have those.

A. You wear skirts, . . .

Q. Yeah, short

A. Can you wear one for when we meet?

Q. Yeah.

A. Do you have hair down there, . . .

. . . .

Q. No.

A. You had your period yet. . . .

Q. I don't have hair in my legs, no.

A. Will you kiss mine?

Q. Kiss what?

A. Penis.

. . . .

Q. It'll be my one time I do that.

A. You wanna put it in your mouth, . . . .

Q. What you gonna put?

A. My penis in your mouth.

Q. Is it gonna fit because I got a little mouth.

A. Yeah. Do you have a small coochie too?

. . . .

A. I think seven inches could fit in . . . .

Q. I mean am I gonna still breath[e].

A. I mean in your coochie.

. . . .

Q. My friend, she[']s 16, got a baby.

A. Well, I won't get you pregnant, especially since you haven't had your period.

. . . .

A. Baby, I G-T-G for now, okay. What's your name. . . .

Q. Sarah, and yours.

A. Eric.

On July 25, 2005, defendant initiated another conversation with "Sarah" using the screen name LAtnLvR321. In that conversation, defendant asked when he could see "Sarah" and she indicated that she would let him know. Defendant also asked, "[y]ou still mine, right" and "Sarah" replied in the affirmative. Defendant then told "Sarah" not to cheat on him or "[he]'ll chop . . . [her] head off." Additionally, defendant asked "Sarah" where she lived so that he could make arrangements to see her. "Sarah" told defendant that she lived in Wayne, but they could not meet at her house. She suggested that they meet at a Kohl's department store near Ratzer Road on Route 23. Defendant also told "Sarah" to call him "papi."

The next conversation between defendant and "Sarah" occurred on July 28, 2005. Defendant again used the LAtnLvR321 screen name and initiated this chat. In that conversation, defendant, once again, sought to arrange a meeting. "Sarah" indicated that her parents were going to Atlantic City. Defendant stated, "[s]o we got lots of time to - - well, you know, be with each other." Defendant then asked, "You want to" "[b]e with me as bad as I wanna be with you[?]" Defendant also inquired about what "Sarah" had "done" with her ex-boyfriend. "Sarah" responded that she had only kissed and there had been "[n]o touching or anything." Defendant indicated he "wan[ted] [to] be . . . [her] first for everything." Additionally, defendant stated that he wanted to take a shower with her in her house. Also, defendant asked if "Sarah" liked being his girlfriend. The conversation ended with defendant saying, "Bye, baby. I love ya."

The fourth conversation occurred on August 8, 2005. Defendant again used the LAtnLvR321 screen name and initiated the conversation. In this conversation, defendant, like the previous conversations, sought to meet "Sarah" and she told him that they could not meet because she was at summer camp. Thereafter, the conversation took a graphic and sexually explicit turn.

A. You still mine, right.

Q. Yeah. A[nd] [yo]u.

A. Always. I been thinking about you every day. . . .

. . . .

A. I wanna make you mine already.

Q. What do you mean like?

. . . .

A. Sex, Mami.

. . . .

A. You still my virgin, right?

Q. Yeah.

A. And I can do anything with you, right?

Q. If you wanna. I don't wanna get preg[nant] though.

. . . .

A. You won't, I promise.

Q. K.

. . . .

A. So you never gave head, right.

Q. No.

A. Okay. You gonna do it then.

Q. You want me [to].

A. Yeah, I want you to do everything with me.

Q. But like I dunno much.

A. I'll teach you, okay, I promise. Just do what I tell you to do. Okay.

Q. K. Kwool.

On August 11, 2005, defendant initiated another conversation with "Sarah." Defendant, once again, sought to meet with "Sarah" and got frustrated when she told him they could not meet because her mother was home. The conversation ended shortly thereafter, and both said they could not wait to meet.

On August 17, 2005, defendant contacted "Sarah" using a different screen name: NeNeD908. This conversation is also quite explicit and graphic.

A. This is ur man Eric; this is your man Eric.

. . . .

Q. [H]i papi; did not know who u were; got a diff screen name.

A. Yea mami did I scare u?

Q. Yea yo; don't do that again.

A. Y R U home? Can I come over?

Q. Not home at camp . . . .

A. Touchin urself? Thinkin bout me?

Q. No almost got caught by mom . . . yest; r u do u."

A. Caught doing wat baby give me details.

Q. Was tryin to play with me in the shower mom almost caught me.

A. Wow wat she said? N I didn't give u permission to touch that pussy Mami it is mine.

Q. I know' it's all urs; papi; . . . .

. . . .

A. Mami I wanna eat u.

Q. I know u do.

. . . .

A. But Mami you got my heart.

Q. I know.

A. N my dick is all yours too.

. . . .

A. Wanna marry me?

Q. Lik wen.

A. I told u B4 that I loved you Mami.

Q. I know; i'll marry u; do you really luv me eric.

A. The first day we me[e]t. After we finish fucking; yes I do baby.

. . . .

A. Can I see u tomorrow?

Q. I don't wanna tell ya yes cause my mom is gonna be here; I promise u next week papito.

A. Swear?

Q. I swear papi; I'm not going anywhere. I'll always be here for u.

A. K. Remember to shave everything k.

Q. Shave?

A. Yea Mami; don't u have hair on ur pussy.

Q. I don't have hair down there yet.

A. Oh ok so I can eat it for hours with no worries; have u had your period yet?

Q. No worr - - no.

A. That means I can cum in u too.

Q. cum? Dunno what that means.

A. LOL yea u know when we have sex the stuff that comes out of my dick is sperm N it's also called cum.

Q. Oh that stuff.

A. yea N when you give me head it's gonna be in your mouth too N u can swallow it.

Q. u gonna get me pregnant? my friend got pregnant last year.

A. No Mami u can't get pregnant if u haven't had ur period.

Thereafter, on August 30, 2005, defendant had another conversation with "Sarah" using the screen name NeNeD908. The purpose of this conversation was to arrange a meeting between defendant and "Sarah," which was to occur in two days. Defendant told "Sarah" he was "dying to be with" her. Defendant also stated, "Sarah baby I want u bad." He also asked "Sarah" to email him the address to the Kohl's near her house. Defendant further stated

A. K mami this is what I want u to wear on Thursday ok: a short skirt with either thongs on or no panties on at all, and a loose shirt with no bra on. N I'm gonna take pix of u ok.

. . . .

A. Also be ready . . . to give me head N shave it all off cause I'm gonna munch on ur pussy . . . .

On August 31, 2005, someone using the screen name Latnkreation contacted "Sarah." The person indicated that his name was Jose and he was seventeen years old. The person also asked "Sarah" if she had a boyfriend and she indicated that she did. After learning that "Sarah" was Colombian, the person stated "colombian girls got nice bodies but since u r only 12 I guess its not all there yet right." After the conversation ended, Passano checked Latnkreation's profile and there were three photographs in the profile. All three photographs were of defendant. In his post arrest statement defendant indicated that Latnkreation was one of his screen names.

On that same day, defendant used the screen name NeNeD908, another one of his screen names, to contact "Sarah." Defendant told "Sarah" that he would be able to meet her the next day. Once again the conversation took a sexual turn.

A. Te quiero comer toda.

. . . .

Q. Si papi.

A. U shaved yet?

Q. I told you b4 I don't hav 2.

A. Mani wat grade r u in again?

Q. Six; u forgot papi.

A. Oh u don't have hair there yet right.

A. So u didn't get ur period yet either right.

Q. no I told u b4.

. . . .

A. Do you have boobs?

Q. Yea.

A. How big N I know u have a nice ass u told me that . . .

Q. 32b.

A. Remember I'm gonna do u in the ass too.

Q. Is it gonna hurt?

A. Yea but ur pussy is gonna hurt too so its the same.

Q. k papi.

A. r u gonna take it or u gonna make me stop?

Q. I guess is k.

A. Can u handle pain?

Q. I dunno I never been pain; no 1 has done that to me b4.

A. Well do you think u can be able to tolerate it?

Q. ohh; I dunno; u sound like u gonna hurt me or sumthin . . .

A. Baby, I wanna pop ur cherry really good, I wanna start N not stop till I'm done.

A. Remember wear a skirt for easy access . . .

Q. k; I'll wear a skirt.

A. I can't wait till tomorrow baby I'm hard right now . . .

. . . .

A. You gonna give me head while I'm drivin? It's called road head.

Q. yea.

A. U gonna swallow?

Q. ye if u wanna me 2.

A. I do N I wanna cum in ur pussy and ass too.

Q. k papi.

A. I can't wait.

On the day of the meeting, September 1, 2005, defendant contacted "Sarah" using NeNeD908. Defendant told "Sarah" to wear a thong or not to wear any underwear if she did not have a thong. Additionally, he told her to bring some vaseline. He also told her that she should wait by the computer because he would let her know when he was almost at Kohl's. He further stated that he would be waiting for her outside Kohl's and he would be wearing "[s]horts N a shirt."

While Passano and other law enforcement officers were waiting at Kohl's for defendant to show up he received some instant messages from defendant inquiring whether "Sarah" liked kissing. Subsequently, defendant told "Sarah" to "meet . . . [him] by the entrance" of Kohl's.

Defendant was apprehended by the police as he was waiting for "Sarah" and the police read him his Miranda rights and searched his car pursuant to a search warrant. Thereafter, defendant was taken to the Sheriff's Department. Defendant was read his Miranda rights again, and was interviewed, which was videotaped. During the interrogation, defendant admitted that he had sexual conversations with "Sarah" and that he initiated these sexual conversations. He also indicated that he did not know the "exact age" of the person he was talking to but he knew the person was a minor and the person he was talking to told him "a few times" that she was twelve years old. However, he said he never met with a minor he had chatted with on the internet. Moreover, during the videotaped interrogation, the police asked defendant if he had any child pornography on his computer; however, the police did not define what constituted "child pornography" under New Jersey law. Nevertheless, defendant admitted that he had child pornography on his computer. Additionally, while at the headquarters, defendant consented to the police searching his basement apartment. During the search of defendant's basement, the police recovered two computers.

During the trial, Detective Jason Anderson was designated as an expert and he testified as to the information found on the hard drive of the defendant's computers. About thirteen pornographic videos were found on the hard drive. Defense counsel conceded that at the very least two of the girls, "Dee and Desi," appearing in three of the videos were under sixteen years old. Additionally, Anderson testified that some of the actors in the videos were under sixteen; however, his opinion was offered for the limited purpose of "understanding the flow of the testimony and understanding why he selected the videos" he did. The State played two of the videos to the jury following redaction. However, he excluded related documents and titles of the video.

Subsequently, both sides presented their summations and the jury was charged. However, the jury was not given a limiting instruction on the use of the N.J.R.E. 404(b) evidence. Additionally, the charge did not include the defense of entrapment because, while defendant wanted to cross examine on the issue and the governing manual, defense counsel specifically indicated during the trial that he did not want the jury to be given an instruction on entrapment.

There can be no doubt that, had "Sarah" been a female minor, the online conversations by themselves satisfied the elements of the crimes for which defendant was convicted in counts one and four. We have detailed the conversations to demonstrate that fact. Defendant, however, raises some issues which warrant review, particularly as they relate to the trial of count five with the other counts of the indictment.

II.

Defendant maintains that the utilization of the alleged child pornography videos pursuant to N.J.R.E. 404(b), combined with the court's failure to instruct the jury on the permitted use of such evidence, resulted in undue prejudice to defendant and deprived him of a fair trial, thus requiring reversal of his conviction. On the other hand, the State asserts that the trial court did not err in utilizing evidence of the pornographic videos.

N.J.R.E. 404(b) provides that

Except as otherwise provided by Rule 608(b) 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.

Although evidence of such crimes or wrongs may be admitted for any of the purposes listed in the rule, it may be excluded if the potential for prejudice outweighs its probative value. Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 404(b) (2010). However, in those instances where the evidence concerning the other crime is admitted because it is similar to the crime in issue and of recent vintage, the probative weight of the other crime may be high. State v. Stevens, 115 N.J. 289, 300 (1989). Therefore, in State v. Cofield, 127 N.J. 328, 338 (1992), the Supreme Court articulated the four-part test to be used in deciding whether to admit evidence under N.J.R.E. 404(b). According to the Court,

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Ibid.]

In allowing the State to show the pornographic videos, the judge in this case indicated that at least three of the thirteen videos depicted girls under sixteen and these videos were relevant in proving defendant's state of mind with respect to his intentions with "Sarah." In fact, as the judge noted, he had denied a severance because of admissibility of the evidence in the trial on the other counts. Additionally, the trial court found that all of the pornographic videos could be admitted in a separate trial for count five. As to the balancing test, the trial court stated

So because the State has to prove an attempt, because nothing was consummated as I said because the child is in effect fictional, it seems to be that motive evidence is more relevant to the case. There is a count for this charge itself, and it seems to me that this evidence I'm satisfied following the case law and the COFIELD standards would be admissible even if that count, even if there were not a count for that and consequently for that reason that count five can be tried along with the other counts of the indictment.

I'm satisfied that this is relevant to the charges here, the child pornography evidence is relevant to the attempted sexual offenses. I'm satisfied that there is, let's assume that there's no problem with admissibility, that the evidence is relevant to these charges. I'm satisfied as well that they deal with motive and I'm satisfied that because we're dealing with attempted offenses, the probative value is rather substantial and is not outweighed by the undue prejudice.

We find no abuse of discretion in this determination. See State v. Covell, 157 N.J. 554, 564 (1999); State v. Erazo, 126 N.J. 112, 131 (1991). See also State v. Reddish, 181 N.J. 553, 608-09 (2004). The trial court indicated that at least three of the videos depicted two children under sixteen years of age, and defendant agreed they presented a jury question "that Dee and Desi are under 16." The fact that the trial court was doubtful about the ages of some of the girls in the other videos does not make the evidence any less probative. See State v. Williams, 190 N.J. 114, 125 (2007) (noting that New Jersey courts admit "greater breadth" of evidence in criminal prosecutions when the defendant's intent or motive is a material fact); State v. Castagna, 400 N.J. Super. 164, 178 (App. Div. 2008).

However, defendant maintains that the child pornography videos do not meet three of the four prongs of the Cofield test. According to defendant, possession of child pornography is not relevant to any of the offenses with which he was charged.

The facts in State v. Davis, 390 N.J. Super. 573 (App. Div.), certif. denied, 192 N.J. 599 (2007) are similar to those here. In Davis, two undercover police officers had conversations with the defendant over the internet and telephone. The defendant believed that he was talking to Krissy, a fourteen year old girl. The defendant and Krissy talked about sex and the defendant tried to teach her how to masturbate. He also had some sexually explicit conversations with Krissy. Id. at 581-584. We found that the defendant had placed his motive and intent in issue because he maintained that he believed he was talking to an adult. Id. at 590-91. Thus, the court stated that such evidence could "be admitted as probative of whether defendant intended to engage in sexual acts with Krissy." Ibid. Additionally, we indicated that "the evidence tended to illuminate defendant's intention." Id. at 591. Like the facts in this case, defendant was involved in similar conversations and claimed through counsel that he did not believe "Sarah" was twelve years old. Hence, his possession of child pornography points to his intention and his desire to have sex with an underage girl.

Additionally, as the State points out, the child pornography could have been admitted as res gestae evidence, at least if count five was properly joined. In State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995), the court determined that N.J.R.E. 404(b) "does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered" "if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." Here, the child pornography was found on the same computer defendant used in his conversations with "Sarah" and they were on defendant's computer at the time he had been chatting with "Sarah." Thus, this evidence could have been admitted as res gestae and the trial court would not have had to provide a limiting instruction to the jury. Ibid. Therefore, independent of the severance issue, we find no basis to reverse because no limiting instruction was given.

In any event, the trial court's failure to provide an N.J.R.E. 404(b) limiting instruction does not constitute "plain error." In Stevens, supra, 115 N.J. at 309, the Court cautioned that evidence admitted under N.J.R.E. 404(b) was "inherently prejudicial" and "casts doubt on a jury's ability to follow even the most precise limiting instruction." For this reason, the Court indicated that the trial court "should state specifically the purposes for which the evidence may be considered and, to the extent necessary for the jury's understanding, the issues on which such evidence is not to be considered." Ibid. Although a limiting instruction is important, the trial court's failure to provide one does not automatically necessitate a reversal of the conviction.

In State v. Krivacska, 341 N.J. Super. 1, 11 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), the defendant had been convicted of two counts of endangering the welfare of child, among other things. The defendant appealed his conviction using the trial court's failure to provide a limiting instruction on the use of N.J.R.E. 404(b) evidence as one of his grounds for appeal. Id. at 20. In finding that the trial court did not err, we stated:

It is fundamental in our practice that a claim of error which could have been but was not raised at trial will not be dealt with as a timely challenge. The reasons are several. It is certainly possible that in the context of the entire trial, the failure to object signifies that the error belatedly claimed was actually of no moment. Moreover, to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal.

[Id. at 42-43.]

Additionally, as in Krivacska, the trial judge instructed the jury to "deliberate the charges separately" and stated that "there must be individual, separate deliberations as to each of the five charges in the indictment so that you come to an independent verdict as to each of the charges after separate deliberations for each of the charges." Thus, "[t]he charge given by the judge clearly conveyed the principle that the jury was prohibited from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven." Krivacska, supra, 341 N.J. Super. at 43. In fact, this jury acquitted defendant on counts two and three of the indictment. See ibid.; see also State v. Moore, 113 N.J. 239, 276 (1988). Accordingly, we conclude that the trial court's failure to provide a limiting instruction does not constitute "plain error" requiring the reversal of defendant's conviction.

III.

Defendant maintains that counts one, two, three and four should have been dismissed for due process entrapment.

We initially note that there was no motion to dismiss on this basis. Nor was there any pretrial notice that the defense would be asserted, as required by Rule 3:12-1. In addition, had the issue been raised, the State would have had the opportunity to make a record to show predisposition as to this issue. See Davis, supra, 390 N.J. Super. at 596-97. We also reject the claim on the merits.

"Entrapment exists when the criminal design originates with the police officials, and they implant in the mind of an innocent person the disposition to commit the offense and they induce its commission in order that they may prosecute." State v. Dolce, 41 N.J. 422, 430 (1964). In State v. Johnson, 127 N.J. 458, 469 (1992), the Court noted that "objective entrapment principles remain[ed] relevant and instructive with respect to any inquiry into constitutional due process entrapment." According to the Court, due process entrapment is similar to "traditional objective entrapment in that it concentrates on government conduct." Id. at 470. However, the Court indicated that due process entrapment differed from objective or subjective entrapment because it "is an 'involvement-based' doctrine, which focuses on the extent of the government's involvement in the crime, not merely on whether that conduct objectively or subjectively induced or caused the crime." Ibid. This defense focuses on the "egregious or blatant wrongfulness of the government conduct." Ibid. See also State v. Rockholt, 96 N.J. 570, 580-81 (1984) (holding that the constitutional defense of entrapment could be based on police conduct that was "so egregious" as to offend due process).

According to the Court, "[d]ue process entrapment requires a comprehensive approach encompassing careful scrutiny of the nature of the governmental conduct in light of all the surrounding circumstances 'and in the context of proper law enforcement objectives.'" Johnson, supra, 127 N.J. at 474 (citations omitted). The Court also provided some factors to be used when determining if the defense is applicable. These factors are:

(1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime.

[Ibid. ]

An application of these factors shows that defendant is not entitled to a due process entrapment defense. Defendant was not lured into any conversation or encouraged to remain online against his will. He was the first party to bring up the subject of sex, and he initiated the sexual conversations. Certainly, he is responsible for the scope and details of his conversations and inquiries. Nor did he resume his communications, or lead the conversation about sex with "Sarah" against his will.

Thus, the record clearly shows that defendant was the party who was "primarily responsible for creating and planning the crime" and he "primarily controlled and directed the commission of the crime." Johnson, supra, 127 N.J. at 474. In any event, defendant asked that the jury not be charged on entrapment, and we reject the contrary argument here. See State v. Ramsey, ___ N.J. Super. ___ (App. Div. 2010) (reversal inappropriate where defendant requested charge of lesser included offense not be given).

IV.

Defendant argues that count five of his indictment should have been severed as it was highly prejudicial. Conversely, the State maintains that the trial court properly denied the severance motion as evidence of the pornographic videos would have been admissible under N.J.R.E. 404(b) had the counts been severed. With or without evaluation of the above noted res gestae principle, we find no abuse of the trial court's "ample discretion." State v. Pitts, 116 N.J. 580, 601 (1989). The trial court's decision should not be disturbed absent a showing of abuse of such discretion. Ibid. Rule 3:15-2(b) provides that

If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

Although the court may order separate trials if there is a likelihood of prejudice, severance is not required just because such a likelihood exists. As the Court noted in Pitts, supra, 116 N.J. at 601-02, "[a] critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under" what is now N.J.R.E. 404(b). As previously developed, in this case, even if the offenses had been severed, the child pornography found on defendant's computer would have been admissible in the trial for counts one and four because it proved defendant's motive and intent. Because the evidence would have been admissible anyway, the trial court did not err in denying defendant's motion for severance.

Defendant also argues that failure to sever the counts infringed on his constitutional rights to remain silent because if he had taken the stand he would have been questioned as to all the counts. This argument lacks merit. Even if the counts had been severed, defendant could still have been questioned about the evidence relating to count five because it would have been admissible under N.J.R.E. 404(b) to show his intent to have sex with a minor.

V.

According to defendant, the trial court's ex-parte communication with the Avenel evaluator was inappropriate, had undue influence on the evaluator, and warrants the rejection of the evaluator's second report, recusal of the judge and a remand for resentencing. The State responds that the trial court's decision to contact the Avenel evaluator to request that he conduct another examination that took into consideration previously omitted discovery materials was an appropriate exercise of discretion, does not warrant recusal and did not render the proceedings unfair.

On September 24, 2008, defendant was examined by an Avenel psychiatrist, Dr. Donald Moorehead (Moorehead), pursuant to N.J.S.A. 2C:47-1 to -10, the Sex Offender Statute. After the examination, Moorehead produced a report dated September 29, 2008. In his report, Moorehead noted that the presentence report indicated that "the details of the case were not available because '. . . attempts were made to obtain discovery, however, the prosecutor's file could not be located.'" Hence, Moorehead reached his conclusions based on the information defendant had given him and the information in the pre-sentencing report. According to the report, defendant's account of the facts were as follows:

One time I was in a regular adult chat room and a female contacted me. She never mentioned her age, and I assumed that she was an adult because she was using an adult chat room. The conversation quickly turned sexual, and she introduced the topic. After I was arrested, they took my hard drive, and they said in court that I had child pornography, but I didn't, and they produced nothing indicating that I did. I went to trial to try to demonstrate my innocence. They convinced the jury with no discovery and no hard evidence that I was guilty.

Based on the information defendant had provided him Moorehead stated, "from reviewing the accompanying documents, and evaluating the psychological testing, it became apparent that the case presents diagnostic difficulty." Hence, Moorehead concluded that

there is insufficient evidence that Mr. Arellano was compelled to perform the behavior. He vehemently denied engaging in the behaviors; he denied any history of sexual misconduct; there is no documented history of sexual misconduct; and he denied being obsessed with, or having sexual fantasies about underage children. . . . .

Given the absence of a clear finding of repetitive and compulsive sexual pathology, Mr. Arellano is not eligible for sentencing under the purview of the New Jersey Sex Offender Act.

On October 10, 2008, the scheduled date for sentencing, the State objected to the Avenel report because Moorehead reached his conclusions based solely on defendant's account of the facts and without the benefit of the discovery materials. The trial judge also expressed concern that Moorehead based his conclusions on defendant's inaccurate version of the facts and without the benefit of discovery. To ensure that the report was accurate, the trial judge, after a lengthy discussion with both counsel advised he would "make a telephone call" to Avenel to inquire if Moorehead would re-evaluate defendant if he was given the discovery.

After a break, the judge reported that he "called Avenel and, fortunately, was able to get hold of Dr. Moorehead and he agreed" "to see the defendant" again. The judge also stated that was the "intelligent" approach to take because there were important policy concerns at stake. Defense counsel voiced no objection about the judge's report regarding the conversation, and asked only for information about the discovery the prosecutor was to send to Avenel.

Thereafter, defendant was re-examined and Moorehead issued another report on October 30, 2008. Unlike the previous report, this report indicated that defendant had initiated contact, that "Sarah" had identified herself as a twelve-year old, that defendant had initiated the sexual conversations, and that defendant had continuously sought to meet "Sarah." Furthermore, the report took into account defendant's admissions to the police and the titles of the pornographic videos found on defendant's computer. Moreover, Moorehead noted that defendant denied downloading child pornography on his computer, he also denied knowing the age of the "decoy" he was talking to, or having "sex talk with someone he knew to be a minor." Moorehead also noted that defendant had stated that he did not use the computer to entice minors into sexual activity and that the evidence had been tampered with.

Based on the discovery materials provided to Moorehead, the pre-sentence report, the psychological testing and his notes from the prior and recent interviews he reversed his previous opinion and concluded that

the content of the Discovery materials overrides [defendant's] statements and points to Mr. Arellano being a predatory pedophile who is obsessed with juvenile females and is compelled to take a young girl's virginity and teach her everything about sex. Within the transcripts he repeatedly asked for her to affirm that she belongs exclusively to him, and he used two screen names to try to lure the target into meeting for the purpose of having sex. The obsession with minors is also supported by the collection of pornographic materials whose titles indicate sexual activity with children that includes masturbation with objects, rape, bondage, and torture. Despite Mr. Arellano's assertions that he is innocent, the evidence is overwhelmingly conclusive that he was repetitive and compulsive in his behavior. There were at least 12 chat sessions with many containing descriptions of sex acts he would like to perform with her, and he repeatedly pleaded for her address and begged her to meet him. Consequently, Mr. Arellano is eligible for sentencing under the purview of the New Jersey Sex Offender Act.

However, Moorehead also stated that "because he insists that he is innocent," "he would not be amenable for treatment."

According to defendant, the trial court should have recused himself because he had an ex-parte communication with Moorehead. We disagree. Not only did the trial judge put on the record what had transpired in his conversation with Moorehead, but he advised counsel without objection that he was going to make the call. Moorehead testified and was cross-examined about the conversation. When asked to recount the conversation, Moorehead stated

A. Well, it wasn't much of a conversation. It was more information sharing, but His Honor called me . . . to inform [me] that indeed there is discovery material and he would like a follow up interview that included review of that material and for me to render a second opinion.

. . . .

A. The phone call lasted about a minute and again, it was very straightforward, just informing me of the existence of the material and his desire to have a follow up interview.

Additionally, Moorehead testified that the trial judge did not suggest, pressure or imply that he had to reach a different conclusion after reviewing the additional materials. He also stated that the phone call did not "influence" his second opinion, and that he based his conclusion on the discovery materials.

Under these facts there is no appearance of impropriety or prejudice to defendant, and no need for the judge to disqualify himself. See R. 1:12-1(d), (e), and (f). Hundred East Credit Corp. v. Shuster, 212 N.J. Super. 350, 358 (App. Div. 1986). See also DeNike v. Cupo, 196 N.J. 502, 517 (2008). The trial judge clearly outlined the reasons he believed a second examination was necessary and precisely what he did, after discussing the matter on the record. Moreover, Moorehead's testimony detailed the conversation he had with the trial judge and we find nothing to warrant recusal or reversal.

Defendant also argues that he was subjected to interrogation for uncharged acts and thus sentenced for uncharged acts. After defendant was convicted, it was discovered that he had been writing letters to a girl discussing sexual acts he had committed with her when she was underage. During Moorehead's testimony, he specifically stated that he "excluded any of the material in the letters, because it did not seem to be part of the internet case." He also stated "I reviewed the materials, but I worked exclusively from what I understood the information to be that was part of the discovery package presented in court." Hence, defendant's assertion is not supported by the record because Moorehead did not consider those letters in reaching his conclusion.

VI.

To the extent defendant's other arguments are not expressly discussed in this opinion, we find no need for discussion. R. 2:11-3(e)(2).

 
The judgment is affirmed. The matter is remanded for correction of the judgment.

Defendant was found not guilty of attempted aggravated sexual assault and attempted sexual assault, as alleged in counts two and three.

A profile contains certain information about the individual, such as name, age, sex, location, race, marital status, pictures, hobbies, interests, etc.

At a pretrial hearing Passano testified as to how the conversations were preserved and transcripts were produced and verified. The trial judge found him credible and that the internet conversations were admissible.

Defendant lied about his age because he was born on September 17, 1976; therefore, he was about twenty-nine years old at the time of this conversation.

"A" represents defendant's part in the conversation and "Q" represents "Sarah's."

"LOL" is short for "laugh out loud."

"G-T-G" means I have got to go.

"A" represents defendant's words and "Q" are the victim's as stated in the transcript.

"Sarah" explained they could go to her house because she lived with her mother who would not be home at the time of the meeting.

According to Passano, who is fluent in Spanish, this means "I love to eat you whole."

However, during the deliberations, the jury asked for all of the videos to be played. In the two transcripts involving discussion related to the request, we find no objection by defendant. The jury was advised by the judge:

All right, we have the deliberating jury and the alternates in the jury box. The videos are going to be played.

Ladies and gentlemen, just one thing. Both the attorneys have agreed that the videos that are captioned just with letters and numbers and don't have a title . . . [are] exactly the same video and it is going to be played for you once. Both sides agree that's what it is and so you are not looking at the same thing twice.

Okay, go ahead.

The details, and who said what and when, are also highly relevant to the entrapment argument.

Indeed, we are not sure there is a true N.J.R.E. 404(b) issue at all, as opposed to a question of proper joinder.

The judge stated they were in the two videos shown to the jury during the State's case.

The fact that, unlike in Davis, an expert was not provided to testify as to the ages of the girls in the pornographic videos on defendant's computer does not mean that age was not established beyond a reasonable doubt. In State v. May, 362 N.J. Super. 572, 593-95 (App. Div. 2003), we indicated that age does not have to be based on expert testimony and is a question for the jury to decide.

Defendant was acquitted on counts two and three, and we cannot conceive that the trial on these counts, if erroneous, adversely impacted on the counts on which he was convicted.

Defendant had an opportunity to challenge the contents of the reports given to Moorehead and his conclusion. See State v. Horne, 56 N.J. 372 (1970); State v. Kunz, 55 N.J. 128 (1969).

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September 1, 2010