STATE OF NEW JERSEY v. D.M

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3407-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.M.,

Defendant-Appellant.

______________________________

Submitted May 4, 2011 Decided May 24, 2011

 

Before Judges Axelrad,Lihotz andJ.N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-0050.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

 

Robert D.Bernardi, BurlingtonCounty Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant now sixty-four years old appeals from his 2009 conviction and fifty-five-year sentence for numerous sexual offenses involving three children: his two granddaughters Eve and Meg ages eight and nine, and their neighborhood friend May age nine.1 He claims entitlement to a new trial based upon alleged evidentiary errors, a failure to charge a putative lesser-included offense, and prosecutorial misconduct. He also claims that his sentence is excessive. We affirm.

I.

A.

The following facts are gleaned from the trial record as the State's version, which convinced the jury of defendant's guilt. On Monday, March 13, 2006, Susan Norton, a school social worker assigned to then nine-year-old Eve's child study team, received information about allegations that had been made over the prior weekend to Eve's and Meg's father concerning their grandfather, the defendant in this case. Arrangements were made for Eve and Meg to speak with counselors at their respective elementary schools the next day.

Because one counselor had taken a sick day, school counselor Kerry DeSimone spoke to both girls. After assuring Meg that representatives of the New Jersey Division of Youth and Family Services (DYFS) were not at the school building, DeSimone engaged in a conversation with her for about ten minutes. When the subject of her grandfather was broached, Meg "became very closed up, her body language went from sitting in the chair to folding up her hands across her and just seeming to tighten up." Meg was willing to share information concerning things she saw with respect to Eve, but not regarding herself. Thereafter, DeSimone traveled to Eve's school, where she spoke to Eve for about twenty minutes. Eve relayed information similar to that given by her sister.

Since Eve's allegations involved a fellow student, May, DeSimone also spoke with her. She met with May for about ten minutes in the presence of Eve who was asked to remain silent during the conversation. When DeSimone raised the subject of defendant, May "became very tense also, quiet, her responses became very quiet, and when [DeSimone] had asked her about [defendant's] van, she immediately started crying."

After DeSimone finished speaking with the three girls, she phoned their parents and the police. Police officers soon arrived, and they met with Norton and DeSimone in a conference room to learn what the children had said, while the girls remained elsewhere. When the girls' mothers arrived, they met with the police officers, Norton, and DeSimone.2

Two days later, Detective Robert Hageman interviewed the girls at the Child Advocacy Center in the Burlington County Prosecutor's Office. At defendant's trial, without objection, jurors watched edited versions of the videographed interviews and received copies of redacted transcripts in order to follow along.

Meg told Detective Hageman that she understood why she was talking to him. In her own words, she was being interviewed because her grandpa "used to rape little kids." She learned that information from family members, but she did not know what it meant.

Both Eve and Meg described a number of incidents of sexual abuse by defendant at his home in Woodbridge, in his van, and at their home in Cinnaminson, although their accounts differed. For example, Meg denied that defendant had ever touched her, while Eve claimed she had observed defendant touching Meg underneath her clothing, and one time she observed defendant force Meg to touch his genitals. Detective Hageman asked Meg about the latter incident, and she explained that one time she had touched defendant's penis by accident, because Eve pushed her into him. According to Meg, defendant was undressed at the time and his penis was erect. Defendant told Meg "that felt good," but she expressed disgust.

Another point of disagreement came with respect to whether defendant showed the girls pornographic images. Meg denied that defendant ever showed her photos or videos of persons not wearing clothes. However, Eve claimed that defendant had shown her computer images of young girls without clothes, and that he showed her and her sister videotapes he kept hidden at his house of people having sex. Eve further claimed that during one viewing of a movie, defendant had his hands "in [her] sister" and another time Eve saw defendant's genitalia.

The girls' statements were consistent insofar as defendant's conduct toward Eve. Both Meg and Eve told Detective Hageman that defendant had touched Eve's private parts. Meg said she witnessed defendant touching Eve in his van, and defendant threatened to hurt the girls if they told anyone. Eve told Detective Hageman that, both at his house and at her house, defendant had touched her vagina with his hand, which her sister once observed. She further claimed that once defendant made her and her sister watch him shower, and his penis was erect at the time. Meg denied observing defendant take a shower, claiming that only Eve was present.

Finally, all three girls described disparate incidents that occurred in defendant's van while it was parked outside the granddaughters' home in Cinnaminson. As described at trial, the vehicle was a large, red conversion van, with a bed in the back, carpeting, and curtained windows.

Eve told Detective Hageman that the three girls were in defendant's van about twenty times. In the van, defendant forced the girls to disrobe, and he touched their private parts.

May stated that on ten or twenty occasions, defendant forced her into his van, made her take off her clothes, and stared at her. Defendant attempted to touch her chest and vagina with his hand, but she would not let him. She tried to escape, but said defendant prevented her from leaving by "pull[ing] [her] leg and he would hit, slap [me] in the face." May also said defendant cursed at her, and "said he would come to my house and choke me, he would kill everybody in my family, and he would kill everybody on our street" if she told anyone what had happened. She claimed defendant did the same things to Eve and Meg, who also were "trying to find a spot to escape," except that he actually touched Meg's chest and vagina.

Meg's statement denied that anything had ever happened to her in the van, or that she had witnessed defendant doing anything bad to Eve or May in the van. On the other hand, she described an incident in which she observed Eve and May "acting really strange" after she had returned to the van from getting a drink, and she described incidents in which she observed Eve and May in the van with no clothes on. She stated that defendant had told the girls to remove their clothes and to not tell anyone about it. Meg also stated obliquely that her cousin Karen3 had the "same problem" with defendant as did May.

In a subsequent search of defendant's home, on March 20, 2006, the police seized computers and computer-related devices and media, on which were found images of adults and children, both clothed and unclothed. Nine of those images were admitted into evidence at trial.

On March 21, 2006, defendant voluntarily appeared at the Burlington County Prosecutor's Office, where he was interviewed by detectives. An edited videographed statement was played for the jury during trial.

In his statement, defendant referenced his status as a sex offender, and his attraction to children. He also mentioned that he had served fifteen years in prison for incestuous conduct and three years, consecutive, for impairing the morals of a minor; he was released in 1996.

Defendant admitted possessing a collection of images of children. He kept the pictures, in his words, for the purpose of "if I felt that I needed to do something without bothering a kid, a live kid and I haven't used them in years. That's what about the pictures."

With respect to his granddaughters, defendant maintained that for about five or six years, starting when Eve was about three or four years old, the girls began acting out sexually in his presence. He acknowledged Eve as "the kind of sexual leader."

According to defendant, the girls asked him questions about sex. For example, Meg asked him "what does sex look like?" and his answer was "it's not important what it looks like, it's important how it feels between two people." They also made "knock, knock" sex jokes, and asked to see pictures on his computer of "girly stuff," naked girls and people having sex, which he "wasn't gonna go for."

Defendant told the detectives that the girls made sexual remarks to him. For example, Eve said she wanted to be a stripper, and she once asked to "suck [his] dick," which "hurt [his] feelings." His response to her was, "as nice as it might feel there's no way that it's gonna happen." He recounted another incident where Eve asked, "would you touch my pussy," to which "[he] said no."

He said his granddaughters would barge in on him while he was in the bathroom, pulling the shower curtain aside so they could see him unclothed, and one time they attempted to watch him urinate against a wall at a park. On multiple occasions, Eve also attempted to touch his penis, but according to defendant, "I always pushed, I always push[ed] her away."

Defendant stated that the girls would put on "shows" for him, occasionally with their friend May. They would sing and dance, and then it would become sexual. Defendant claimed that the granddaughters mostly Eve would take their clothes off, spread their legs, and touch themselves and each other's private parts. Claiming initially that "[t]hese are things that they wanted to do to make [him] happy because they love [him]," defendant later claimed that the girls' performances may have been done "out of hostility." In either event, defendant admitted, as "a human being," he enjoyed the performances "to a certain extent." Nevertheless, he claimed that all he was "guilty of . . . [was] watching and enjoying" their shows.

With respect to his van, defendant explained that he allowed his granddaughters and May to use it as a "clubhouse." The girls also would "[w]restle" in the van, and simulate sexual activity. Sometimes he was present and observed their antics, and sometimes he was not.

Defendant denied that he ever initiated an inappropriate touching of the girls: "It didn't happen with me. If anybody got touched, they were touching each other. I didn't have anything to do with it." He claimed the girls wanted him to touch them, but he "wouldn't do it." However, he admitted that Eve "tricked" him into putting his hand on her vagina, and he pulled his hand away as soon as he realized what had happened. He contended, "if my finger went in her body, she put it [t]here, that's what I'm trying to say."

Defendant claimed his granddaughters fabricated their extreme allegations against him because their father and aunt did not like him, and because of bad influences in the children's lives. He believed somebody had "bothered them," causing them to retaliate against their grandfather.

In support of defendant's theory, at trial, defense counsel elicited testimony showing that Eve and Meg had a troubled family life, including prior involvements with DYFS, and prior living arrangements where they were exposed to sexual talk, sexual programming on television, and sexual acts, including Eve witnessing her mother's paramour's teenage son having sexual relations with a girl, and Eve and Meg being sexually abused by their cousin Karen. Eve also admitted that her aunt had said "[b]ad things" about defendant, and that her father asked her whether defendant had touched her vagina, as did another cousin.

At trial, the three girls repeated their allegations of sexual abuse, albeit presenting somewhat different versions of events from each other, and from the versions they had presented in their videographed statements to Detective Hageman.

Eve, almost twelve years-old at the time of trial, claimed that defendant had touched her vagina between fifty and eighty times, in his van parked outside her house, and in the living room of his house. He had touched her only on the top of her clothes, not underneath; she denied that his fingers ever penetrated her vagina. She further stated that more than once, defendant had touched her chest, sometimes on top of her clothes, and sometimes underneath. This happened at defendant's house and in his van.

Eve also claimed that in the van, defendant touched Meg and May on their vaginas, on top of their clothes. She testified that defendant forced her and her sister to put on shows for him in the van, dancing around without their clothes on and "shaking [her] butt and stuff." May was sometimes present as well.

Eve claimed that when she sat on defendant's lap, she would feel his penis moving on her buttocks. She once observed defendant force Meg to touch his penis in the living room of his house. However, she had never touched defendant, and he never asked her to touch him. She denied that defendant had ever shown her pornography or sexual images on his computer. However, he told her he had "pornography videos."

On cross-examination, Eve admitted that she cursed in front of defendant, and that she purposely urinated in defendant's bed while he was in it. However, she stated that defendant cursed "really loud and mean" in front of her, and she urinated in his bed because she was angry at him.

Meg, ten years-old at the time of trial, testified that at her grandfather's request, she and her sister would put on shows and dance for him, including lifting up their shirts and taking off some of their clothes. He told them not to tell their parents about the shows, threatening them in a mean way, "[l]ike he would do something."

Defense counsel confronted Meg with her statement to Detective Hageman, in which she had denied that anything happened in the van. She explained that she had lied to the detective because she felt pressured and was nervous speaking with a police officer. Nevertheless, she then proceeded to testify that she never took her clothes off in the van.

Meg did not recall defendant trying to touch her private parts, but she remembered him touching her arms, legs, and stomach, both over her clothes and under. She testified that defendant once forced her hand to touch his "private part," under his clothes. When she was reminded on cross-examination that she had told Detective Hageman she touched defendant's private part by accident, she explained that it was both an accident and on purpose.

Finally, twelve-year-old (at the time of trial) May testified that defendant pushed her into his van and told her to take her clothes off, and she complied. Eve was present, and Meg was sometimes present too, and they would take their clothes off as well. When the girls were undressed, defendant would look at them; one time May saw defendant touch Meg, but she could not recall the details.

According to May, defendant would lock the doors to the van and not let her leave until it was time for her to go home. He also threatened to kill her and her family if she ever told what happened. May did not remember how often this happened, but it was at least three times. She recalled telling Detective Hageman that it had happened ten or twenty times, but conceded that she was exaggerating.

B.

As a result of the investigation, defendant was indicted by a Burlington County grand jury in a twenty-one count indictment. Before trial, the Law Division dismissed counts nine (first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1)) and seventeen (second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b)), and defendant pled guilty to count twenty-one (fourth-degree endangering the welfare of a child by possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b)). The remaining counts were submitted to the jury, which convicted defendant of the following crimes:

Count one: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1).

 

Counts two, ten, and eleven: second-degree sexual assault, N.J.S.A. 2C:14-2(b).

 

Count three: second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b).

 

Counts four, five, six, seven, twelve, thirteen, fourteen, and fifteen: second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

 

Counts eight, sixteen, and eighteen: third-degree luring of a minor, N.J.S.A. 2C:13-6.

 

Counts nineteen and twenty: third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

The trial court imposed an aggregate sentence of fifty-five years and six months, with more than twenty-eight years of parole ineligibility. This appeal followed.

II.

In his initial brief, defendant raises the following points for our review:

POINT I: THE TRIAL COURT ERRONEOUSLY ADMITTED NINE HIGHLY PREJUDICIAL DEPICTIONS OF PREPUBESCENT GIRLS IN PROVOCATIVE POSES DISCOVERED ON COMPUTER DISKS IN DEFENDANT'S HOUSE AS OTHER CRIMES EVIDENCE AND FAILED TO REDACT DEFENDANT'S PREJUDICIAL REFERENCES TO IMAGES OF NAKED CHILDREN IN HIS POSSESSION AND HIS USE OF THOSE IMAGES FROM HIS STATEMENT.

 

POINT II: THE TRIAL COURT ERRONEOUSLY FAILED TO CHARGE PETTY DISORDERLY PERSONS OFFENSE HARASSMENT BY OFFENSIVE TOUCHING AS A LESSER-INCLUDED OFFENSE OF THE CHARGE THAT HE SEXUALLY ASSAULTED [MEG] BY HAVING SEXUAL CONTACT WITH HER.

 

POINT III: THE PROSECUTOR MADE REMARKS ON SUMMATION WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)

 

POINT IV: HEARSAY WAS ADMITTED CONTRARY TO OUR STATE'S HEARSAY RULE AND PROSCRIPTION AGAINST OTHER BAD ACTS EVIDENCE AND IN VIOLATION OF THE FEDERAL CONSTITUTIONAL PRECLUSION OF TESTIMONIAL HEARSAY IN WHICH THE DECLARANT WAS NOT PREVIOUSLY CROSS-EXAMINED. (Not Raised Below)

 

POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

Additionally, by permission granted, defendant's counsel filed a supplemental brief raising the following point:

POINT I: THE STATEMENTS OF [EVE], [MEG], AND [MAY] WERE NOT TRUSTWORTHY AND THUS DID NOT QUALIFY FOR ADMISSION UNDER THE TENDER-YEARS HEARSAY EXCEPTION; ALTERNATELY, THE COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE IF THE STATEMENTS WERE TAINTED BY OUTSIDE INFLUENCES.

 

From our review of the extensive record in this case together with the comprehensive briefs of the parties, we are unpersuaded by defendant's arguments.

A.

Defendant's first argument relates to his possession of images of child pornography, and the use of such information by the State during trial. Defendant claims the trial court erred by admitting into evidence nine images depicting child pornography, and by failing to redact references to those images from his statement to the police, in violation of N.J.R.E. 404(b).

We review these evidentiary rulings for an abuse of discretion. State v. Hernandez, 170 N.J. 106, 128 (2001); State v. Marrero, 148 N.J. 469, 483 (1997). We find no abuse of discretion in these determinations. 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).

When the trial court accepted defendant's plea to count twenty-one's charge of fourth-degree possession of child pornography, it advised him that his plea would not necessarily result in the images being declared inadmissible. The court declared that it would consider arguments as to their admissibility at a later date, and it would rule based upon its understanding of the governing law. Defendant nevertheless chose to plead guilty.

When the State presented defendant's statement to the police, defense counsel objected to the inclusion of statements defendant had made about his possession of child pornography. Counsel argued that the evidence should be excluded under N.J.R.E. 403 and 404(b) because it had no probative value and was extremely prejudicial because it would alert the jurors that defendant had a prior conviction for assaulting a child. The court overruled the objections and allowed the evidence, ruling that (1) it did not have any capacity to communicate anything about prior illegal conduct; (2) jurors had been alerted in voir dire that they would hear about child pornography, thereby minimizing prejudice; and (3) the evidence was relevant to the remaining counts of the indictment in which defendant was charged with endangering the welfare of children by displaying pornographic images to them.

The State later moved to introduce into evidence a group of images. The prosecutor explained that the purpose of the evidence was to prove defendant's state of mind and to rebut claims that defendant was the victim of the children's chicanery. The trial court ruled that a limited number of images would be admissible to rebut defendant's assertion that the children acted on their own, without his involvement, and against his wishes, and the witness could testify that defendant possessed other images on his computer. The trial court also noted the relevance to the element of demonstrating defendant's intent related to sexual gratification. Moreover, the images were relevant to rebut the claims defendant made in his statement to police that the children initiated the acts. The trial court also did not believe that the probative value of the images was outweighed by their potential for prejudice. The jurors had been vetted on the issue of whether their need to view child pornography would make it difficult for them to serve as jurors, and they had seen defendant's videographed statement to police, in which he admitted possession of pictures of naked children. Although a large number of images might have diverted the jury's attention from the issues in the case, a carefully scrutinized handful of images would not.

Finally, the trial court ruled that Detective Hageman's testimony about defendant's collection of images on his computer consisting of adults and children; some clothed, some unclothed was admissible because the jury already had heard defendant admit to that fact in his statement to police. However, Detective Hageman's opinion as to whether the images constituted pornography was not allowed.

The trial court instructed the jury regarding the images by indicating the limited purpose and utility of such evidence. It initially told the jury that it could not

use this evidence to decide that the defendant has a tendency or propensity to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed other acts he must be guilty of the crimes charged in this case. I have admitted the evidence only to help you to decide the specific question of intent or motive. You may not consider the evidence for any other purpose and you may not find the defendant guilty on any charge before you simply because the State has offered evidence that he possessed the images.

The trial court repeated this charge in its final instructions.

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

[E]vidence 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.

The examples set forth in the evidence rule are not exclusive. State v. Stevens, 115 N.J. 289, 300 (1989).

To be admissible under this rule, "other crime" evidence must be: (1) relevant to a material issue; (2) similar to, and reasonably close in time to, the offense charged; (3) clear and convincing; and (4) the probative value of the evidence must not be outweighed by its potential for prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). If deemed admissible, trial courts should issue a limiting instruction to the jury, both when the other-crimes evidence is admitted and in the final charge. State v. Barden, 195 N.J. 375, 390 (2008).

On appeal, defendant contests the admission of the evidence only as to the first and fourth prongs of the Cofield test. As to the first prong, he argues that the images and his statements to the police about the images were not necessary to prove a material issue, his intent to commit the crimes alleged, because his sexual interest in children was readily ascertainable from other portions of his statement to the police.

Additionally, defendant claims the evidence was not relevant because it did not have a tendency to prove his guilt of the crimes charged. N.J.R.E. 401; State v. Darby, 174 N.J. 509, 518-20 (2002). Rather, "in the sense that his retention of the images served as an outlet for his deviant sexual attraction, they enhanced the credibility of his denials that he crossed the line and engaged in criminal conduct."

Contrary to defendant's contention, his admission to police of his sexual interest in children neither rendered his motive and intent uncontested issues at trial, nor was his admitted attraction to children sufficient evidence for the prosecutor to prove motive and intent, such that the images, and defendant's statements about his use of them, were unnecessary. This evidence was appropriate for the prosecutor to rebut defendant's claims to the police, and defense counsel's arguments to the jury, of defendant's innocent intent: that he was shocked and disgusted by the allegations made against him; that he did not victimize the children; and instead, that the three girls had acted of their own volition, without any prompting from him, by performing in a sexually provocative manner.

According to the uncontested descriptions in the record, the nine images admitted into evidence depicted prepubescent girls, of similar age to the three girls, striking poses similar to those struck in this case. Therefore, the evidence provided reasonable support for the State's argument that defendant intended to and did touch the girls, did compel the girls to touch him, and did compel the girls to perform for his own sexual gratification, all consistent with the way he admittedly used the images for his own sexual gratification.

In Covell, supra, 157 N.J. at 559-71, the Court held that the defendant's statement to police relating to an alleged prior incident of lewdness that he was interested in only young and teenage girls was admissible pursuant to N.J.R.E. 404(b) to prove that the defendant attempted to lure the victim, an eight-year-old girl, into his car for the purpose of committing a criminal offense against her. Similarly, in State v. Davis, 390 N.J. Super. 573, 587, 590-91 (App. Div.), certif. denied, 192 N.J. 599 (2007), the court held that evidence of the defendant's other internet/telephone relationships with fictional underage females, and his prior sexual relationship with a teenage girl, were admissible pursuant to N.J.R.E. 404(b) to prove motive and intent, which were placed in issue due to defendant's claims that he never knowingly or intentionally possessed child pornography, and that his internet conversations with an undercover detective posing as a fourteen-year-old girl constituted mere fantasizing with another person he believed to be an adult. See also State v. Cusick, 219 N.J. Super. 452, 464-66 (App. Div.), certif. denied, 109 N.J. 54 (1987) (admitting into evidence the defendant's prior conviction for sexual assault of underage victims to prove absence of mistake or accident).

Turning to the fourth prong of the Cofield test, defendant contends, regardless of their relevance, that the images of child pornography and his statements about the images should have been excluded because their probative value was outweighed by their potential for prejudice. We disagree, largely because we are satisfied that these evidentiary materials could not have diverted the jurors' attention from their duty to consider only the crimes charged. See State v. Williams, 190 N.J. 114, 132 (2007); Covell, supra, 157 N.J. at 568-71; State v. Nance, 148 N.J. 376, 390 (1997). To the contrary, they were directed specifically to the crimes charged and the jury was properly instructed about the appropriate use of such evidence. We note that to some extent defendant's trial strategy was reliant upon the juror's knowledge of defendant's prior behavior. He chose to have the jurors hear about his past to enhance his claim that his granddaughters were poisoned against him and therefore fabricated their allegations. Viewed in this context, the images and defendant's statements about them were not unduly prejudicial.

B.

Defendant's second point relates solely to the charges included in count ten. He contends that the trial court erred by not charging the petty disorderly persons offense of harassment by offensive touching, N.J.S.A. 2C:33-4(b), as a lesser-included offense of the charge that he sexually assaulted Meg by having sexual contact with her. He argues that the jury could have concluded that he did not touch Meg's intimate parts, as alleged by Eve and May, and instead only engaged in offensive touching of Meg's hand, arms, legs, and stomach, as Meg alleged. Alternatively, the jury could have believed that defendant offensively touched Meg by pushing her into his van, as alleged by May.

At trial, the prosecutor requested that the court charge the petty disorderly persons offense of harassment by offensive touching on each of the sexual assault counts, and defense counsel joined the request. However, the trial court rejected the request because it believed that the element of intent to harass by offensive touching was substantially unlike the element of intent needed for the sexual assault charge.

N.J.S.A. 2C:14-2(b) provides that "[a]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." "Sexual contact" is defined as "an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d).

The petty disorderly persons offense of harassment by offensive touching is set forth in N.J.S.A. 2C:33-4(b):

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . . .

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so[.]

 

[N.J.S.A. 2C:33-4(b).]

The requested jury instruction was for an alternative unrelated offense, not a lesser-included offense. See State v. Queen, 221 N.J. Super. 601, 606 (App. Div.), certif. denied, 110 N.J. 506 (1988) (holding that simple assault is not a lesser-included offense of sexual assault because the physical force or coercion required for a sexual assault need not amount to bodily injury or attempted bodily injury, which is a requirement of simple assault). "Unlike homicide or theft, sexual offenses and assault involve distinct injuries, not the same injury, and are separately classified as crimes under the Code of Criminal Justice, sexual offenses in Chapter 14 and assault in Chapter 12." Id. at 608.

Thus, harassment is not a lesser-included offense of sexual assault because the two offenses involve different conduct. It does not involve a less serious form of injury or kind of culpability. See N.J.S.A. 2C:1-8(d)(3). The trial court did not err in denying defendant's request to charge harassment as a lesser-included offense of sexual assault on count ten.

C.

Defendant contends he was deprived of a fair trial based upon the prosecutor's single summation reference to the jury as the "conscience of the community." Responding to arguments made by defense counsel, the prosecutor's statement was extremely brief and it came in the middle of the summation, at a point where he was discussing defendant's answering his granddaughters' questions about sex:

[Defendant] had a view on his role with his granddaughters as we'll see in clip 28, 29, and 32.

 

(Tape played.)

 

There to give them instruction, talk about things with them, it's a fine line though, when you're talking [eight] and [nine] year old, [seven] year old granddaughter. Gee, as nice as that might feel, not going to happen. You are the [conscience] of the community. You're going to answer the question as to whether that's reasonable and whether anyone, any adult who engages in that type of behavior is not held accountable for what they did.

Defense counsel did not object to this aspect of the summation; therefore, our review is for plain error. R. 2:10-2. We will not reverse on the basis of such error unless we find it was "clearly capable of producing an unjust

result." Ibid. The possibility of producing an unjust

result "must be real, one sufficient to raise a reasonable doubt

as to whether the error led the jury to a result it otherwise

might not have reached." State v. Macon, 57 N.J. 325, 336

(1971). Moreover, our assessment of plain error "depends on an

evaluation of the overall strength of the State's case." State

v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, the absence

of an objection at the time the alleged error occurred may well

indicate that counsel did not consider such error to be

significant in the context of the trial. Macon, supra, 57 N.J.

at 333.

"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). Although prosecutors may not "make inaccurate legal or factual assertions during a trial," id. at 85, they "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented," id. at 82. If a prosecutor oversteps the bounds of propriety, it may constitute grounds for reversal, but only if the prosecutor's comments were so egregious that they deprived defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Frost, supra, 158 N.J. at 83.

Here, the prosecutor's comment was an accurate statement. In our decisional law, juries are often referred to as the conscience of the community. See, e.g., State v. Bey, 112 N.J. 123, 162 (1988); State v. Ramseur, 106 N.J. 123, 311 (1987); State v. Ragland, 105 N.J. 189, 204-06 (1986); State v. Ingenito, 87 N.J. 204, 212 (1981); see also State v. Harmon, 104 N.J. 189, 214 (1986) (ruling on jury charge issue, noting prosecutor's reference in summation to the jury as conscience of the community but not noting any impropriety).

Contrary to defendant's argument, in referring to jurors as the conscience of the community in the present case, the prosecutor neither asked that the jury convict defendant for offenses for which he was not indicted, nor sought to invoke a species of jury nullification. It also was a fair response to defense counsel's impassioned summation, in which counsel repeatedly invoked the jurors' sense of spiritualism and community. He made Biblical references, referred to the jury's "sacred duty," and referred to his visit to the Quaker church and cemetery down the street from the courthouse where he was inspired to communicate the following to the jury:

The only thing that matters in this world is our legacy, what we leave behind. What we do, what we give before the [altar] of God. It's nothing we can do in this world. We can't bring anything with us. The only thing we can bring with us is the way we treat each other. That's the only thing that we have left. And maybe that person down there is trying to tell me that and I stood there for a little while, I had time to go back so I'm walking back to the courthouse. And as I'm walking down the street I look one more last time at the church and there's like a big sign. And it says, it was like an epiphany. It says, [j]ustice, charity and walk humbly. I was outside the church. I came full circle within [fifteen], [twenty] minutes and I walked to the back, looking at those tombstones and then looking at that sign, it was confirming everything that I was thinking about right there. That is the only thing that we have. It also said, Justice, mercy, walk humbly. I'm sorry. I'm not sure. Justice I should have [written] it down. But that's the only thing we have left. That's the only thing that we have in this case.

 

As I told you in our opening, I don't know why you have been selected for this jury. Nobody knows. But I think there's a reason. I think there's a reason why you have been selected to be here on this jury on this case on this day. I don't know if I'll ever try another case again, by the grace of God I might, I might not. This great judge doesn't know if he'll ever try a case again. By the grace of God he might or he might not. The same goes with [the prosecutor]. But while we're here, while we're here, don't let this opportunity pass you by. You will never walk this way again. Love is not love until it's given away. Justice is not justice until it's given away. A bell is not a bell is not a bell until it's rung. Justice is not justice until you give it away. There's one just verdict in this case, ladies and gentlemen of the jury, and that's to send [defendant] home. Thank you and God bless each and every one of you.

Viewed in context, as a response to defense counsel's zealous entreaties to the jury, the prosecutor's single reference to the jury as the conscience of the community was not clearly capable of producing an unjust result and does not erode our confidence in the validity of the verdict.

D.

Defendant contends that the trial court made additional evidentiary errors by admitting into evidence: (1) Karen's hearsay statement to Detective Hageman, that Eve said defendant had "touched" her; and (2) a statement that May told Meg that defendant had sexual contact with her. Defendant argues that

Detective Hageman's testimony violated both the rule against hearsay, N.J.R.E. 802, and his Sixth Amendment right to confrontation. We find no plain error in the trial court's rulings.

The first statement was elicited on cross-examination by defense counsel. Specifically, defense counsel questioned Detective Hageman as follows:

Q. So the last person you interviewed was [Meg], correct?

A. I also interviewed [Karen].

Q. And, in fact, you spoke to [Karen] and she said nothing happened, correct?

A. No, that's not correct.

Q. You had an interview with her?

A. Yes, I did.

Q. Did she accuse [defendant] of doing something?

A. No. [Karen] indicated to me that [Eve] told her that her grandfather touched her.

Q. Okay. But [Karen] denied that [defendant] did anything to her, correct?

A. To [Karen], correct.

Defense counsel engaged in a similar line of questioning later, asking Detective Hageman about his interview of Meg, and his question to her about what kind of problems Karen and May had with her grandfather.

The second statement also was elicited by defense counsel, when cross-examining Meg. She was asked, "[a]nd when did [May] stop playing at your house," to which Meg responded, "[a]s soon as my . . . Grandpa started touching her she stopped coming over." Defense counsel clarified with Meg that she had never seen defendant touch May:

Q. That's what [May] said. She told you that, right?

 

A. Yes.

 

Q. When did [May] tell you this, that Grandpa was touching her?

 

A. Well, she told me it, like one day when I was at the bus stop with her. Because we like she's in middle school right now [be]cause she just left my school. And, like, we're at the same bus stop. So she talks to me about stuff and she told me.

 

Q. How long ago was this that she told you this?

 

A. I don't remember.

 

Q. Was it a long time ago?

 

A. Yes.

 

Since there were no objections to the now-challenged statements during the trial, and no request to strike the statements from the record, our review is for plain error. State v. Branch, 182 N.J. 338, 353 (2005); State v. Bankston, 63 N.J. 263, 273 (1973).

Because the comments appeared as unexpected responses to defense counsel's open-ended questions, we do not invoke the doctrine of invited error. Plainly, the offending comments were not encouraged by defense counsel. This is obvious from the questions that followed, through which defense counsel attempted to clarify the witnesses' responses and undo any perceived harm he may have unintentionally created.

The statements at issue, by Karen to Detective Hageman, and by May to Meg, were clearly out-of-court statements by declarants other than the persons testifying. However, they were not presented to prove the truth of the matters asserted. Defense counsel's decision not to seek to strike the testimony indicated that the testimony was not deemed particularly prejudicial. See, e.g., Frost, supra, 158 N.J. at 83-84.

First, it was not significant whether Eve ever told Karen that defendant had touched her. The jury repeatedly heard that Eve had made such allegations to many people, including DeSimone and Detective Hageman, and it heard explicit details about her allegations both through her videographed statement to Detective Hageman and from her trial testimony. It also heard from Meg and May, both in their videographed statements to Detective Hageman and in their trial testimony, that they had witnessed defendant touching Eve. Defense counsel extensively cross-examined all three girls, and in both his opening and summation he challenged the credibility of their allegations. In particular, he argued that Eve's persistent accusations against defendant were false the product of her animosity toward defendant, her troubled upbringing, and her prior sexual abuse.

Thus, viewed in light of the entire record, the admission of Detective Hageman's twice-removed testimony, that Karen told him what Eve had told her, in very vague terms, that defendant had touched Eve, was incapable of producing an unjust result. It was of such little consequence that it could not have led the jury to a result it otherwise might not have reached.

Similarly, it was insignificant whether May ever told Meg that defendant had touched her. The jury heard the details of May's allegations both through her videographed statement to Detective Hageman and from her trial testimony. In those statements she never alleged that defendant touched her only that he attempted to touch her. Defense counsel extensively cross-examined all three children, and he argued to the jury that May was a liar, calling her story

a make-up. It's diametrically opposed to the truth. It's not truth. It's a lie. She admitted here she lied. You don't have to have her admi[ssion] you didn't have to have her admit that she lied. You know she lied. You know she lied. Her story goes beyond bizarre. Goes beyond bizarre. Goes beyond it.

Finally, we find little merit to commend defendant's constitutional and other arguments. R. 2:11-3(e)(2). In a criminal case, out-of-court testimonial statements are inadmissible under the federal Confrontation Clause unless the witness is unavailable and defendant has had an opportunity to cross-examine that witness. State v. Basil, 202 N.J. 570, 591 (2010) (citing Crawford v. Washington, 541 U.S. 36, 50-53, 124 S. Ct. 1354, 1363-65, 158 L. Ed. 2d 177, 192-94 (2004)). Here, May, Meg, and Detective Hageman testified, and therefore the Sixth Amendment was not implicated by Detective Hageman's testimony regarding what May may have said to Meg. Crawford, supra, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9 (2004); State v. Nyhammer, 197 N.J. 383, 411-14, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).

Thus, the limited question remains as to Karen's putative statement of what Eve told her. Eve testified at trial and was extensively cross-examined. We cannot conceive of how the single, stray reference made by Detective Hageman regarding Karen's report about Eve had the capacity to engender an unjust result. The admission of Karen's pretrial statement into evidence did not violate defendant's right to confrontation.

Defendant's argument under N.J.R.E. 404(b) is similarly without merit. N.J.R.E. 404(b) applies to "other crimes" evidence. Meg's testimony about what May told her clearly related to the incidents at issue in this case, and not "other crimes" committed by defendant.

E.

Defendant's penultimate argument, raised in his supplemental brief, contends that the videographed statements of Eve, Meg, and May were improperly admitted under the tender years hearsay exception, N.J.R.E. 807(c)(27)(b). We do not agree.

N.J.R.E. 803(c)(27)(b) permits the admission in evidence of an out-of-court statement made by a child under the age of twelve pertaining to sexual misconduct committed with or against the child provided that: (1) the State notifies the defendant in advance of its intention to rely on the hearsay statement; (2) the court finds at a hearing that "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy"; and (3) the child either testifies at the trial or, if the child is unavailable as a witness, the State offers "admissible evidence corroborating the act of sexual abuse." Ibid.

In determining whether a statement proffered under N.J.R.E. 803(c)(27) is sufficiently trustworthy to be introduced intoevidence, a trial judge should consider "the totality of thecircumstances" that surround the making of the statement. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). The non-exclusive factors to be considered by a judge when conducting a trustworthiness analysis under this rule of evidence are the spontaneity of the statement, whether it was made without prompting or suggestive questioning, whether the account provided by the declarant is consistently repeated, the mental state of the declarant, the use of terminology unexpected of a child of a similar age, and a lack of motive to fabricate. State v. P.S., 202 N.J. 232, 249 (2010).

From our review of the record, including the extensive evidence derived from Detective Hageman regarding his methodology in interviewing the children, we have no occasion to reverse the trial court's decision to admit the videographs of the children's interviews pursuant to the tender years exception. We reject defendant's contention that the children's statements were unreliable. Cf. State v. Michaels, 136 N.J. 299, 321 (1994). Moreover, because the videographs were presented before the children testified, defense counsel had a full opportunity to cross-examine the witnesses concerning the statements made on the properly-admitted videographs. As noted in State v. Burr, 392 N.J. Super. 538, 567-68 (App. Div. 2007), aff'd in part, modified in part, 195 N.J. 119 (2008), the Confrontation Clause does not preclude admission of a child's taped statement under N.J.R.E. 803(c)(27) as long as the child appears at trial and is available for cross-examination, as here.

We also reject defendant's contention that the trial court abused its discretion in not conducting an evidentiary hearing on the claim that reliability was undermined because of bias against defendant and due to the persistent contradictions among the girls' statements. The trial court was fully familiar with the nuances and discordances embedded in the videographs, and conscientiously applied the law in reaching its decision to allow them to be viewed by the jury. The videographs were properly admitted into evidence.

F.

Defendant's final arguments revolve around his claim that the numerous consecutive sentences he received, and the aggregate imprisonment for more than a half-century, were manifestly excessive. Under the lens of our sentencing jurisprudence, we find that the trial court imposed a legal if severe sanction, which does not warrant being disturbed.

A trial court's sentencing decision is reviewed through the prism of principled discretion. Wide discretion is afforded to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). Although our review of a sentence must be "careful and vigorous," State v. Kirk, 145 N.J. 159, 175 (1996), we may not substitute our judgment for that of the sentencing court. State v. Bieniek, 200 N.J. 601, 608-09 (2010). The test is not whether we would have imposed a different sentence, but 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). In our review, we must make sure that the statutory sentencing guidelines have been met, that applied aggravating and mitigating factors were based upon "competent credible evidence in the record," and that the sentence is not "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984); see also Bieniek, supra, 200 N.J. at 612 ("Because the sentencing court adhered to the sentencing principles set forth in the Code [of Criminal Justice] and defined in our case law, its discretion should be immune from second-guessing.").

In terms of consecutive sentences, N.J.S.A. 2C:44-5(a) provides: "When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence . . ." and "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."

"Under our sentencing scheme, there is no presumption in favor of concurrent sentences and therefore the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions." State v. Abdullah, 184 N.J. 497, 513-14 (2005). Defendant was on notice that he risked receiving an aggregate sentence covering all offenses he committed. Id. at 514.

In deciding whether to impose consecutive or concurrent sentences, "courts should be guided by the Code [of Criminal Justice]'s paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing." State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); see also N.J.S.A. 2C:1-2(b)(4) (one general purpose of sentencing provisions is "[t]o safeguard offenders against excessive, disproportionate or arbitrary punishment"); State v. Pennington, 154 N.J. 344, 361 (1998) (court's focus should be on fairness of overall sentence).

Here, the court sentenced defendant to an aggregate term of fifty-five years plus six months, with almost twenty-nine years of parole ineligibility. The court found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3), (6), (9). Mitigating factor eleven was identified in defendant's favor. N.J.S.A. 2C:44-1(b)(11). In the balance, the trial court concluded that "the aggravating factors substantially if not overwhelmingly outweigh the single mitigating factor."

The trial court found that consecutive sentences were appropriate because the "crimes were directed against three victims, each of whom was harmed by his conduct, and, therefore, at least the sentences being imposed as to the various victims should be consecutive to the sentences imposed with respect to the crimes directed against any other victim." Also considered was that with respect to some, the crimes occurred on different dates.

The record abundantly supports the trial court's ruling. A lengthy overall sentence was consistent with its weighing of the aggravating and mitigating factors, and with defendant's long history of sexual offenses, including the sexual abuse of children. The presentence report and sentencing transcript show that defendant's criminal history began in 1972, with multiple sexual offenses committed between 1972 and 1977. He spent approximately eighteen years imprisoned in the Adult Diagnostic Treatment Center at Avenel, between 1978 and 1996, and upon release he committed a number of offenses, including in 1998 the failure to comply with sex offender registration requirements, and the present offenses.

Defendant was eligible for extended term sentencing, but the trial court declined to impose such sentencing only because of the lengthy term it otherwise imposed. It found "a substantial need to protect the public from [defendant]," later noting the high risk of re-offense, the extent of defendant's criminal record, and the need to deter defendant and others from violating the law. Thus, contrary to defendant's argument, the court considered the real-time consequences of its sentencing decision. See, e.g., State v. Cooper, 402 N.J. Super. 110, 116 (App. Div. 2008) (the real time a defendant must serve is the realistic and practical measure of the punishment imposed).

Moreover, the trial court did not abuse its discretion in imposing the consecutive sentences. Defendant abused three victims, committing multiple and discrete criminal acts against them on different dates, and the consecutive sentences were imposed for different crimes committed against different victims on diverse dates. We do not agree with defendant that his behavior constituted a single course of conduct to commit the same or similar crimes against the same victims over and over again. On each separate date that he victimized the three girls, he made separate and independent decisions to offend, and the aggregate sentence reflects that fact.

Affirmed.

 

1 We elect to use fictitious names for the children and related family members.

2 Also present at that meeting was the paramour of Meg's and Eve's mother.

3 A pseudonym.