STATE OF NEW JERSEY v. J.R.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3476-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.R.D.,

Defendant-Appellant.

________________________________________________________________

November 2, 2012

 

Submitted January 31, 2012 - Decided

 

Before Judges Messano, Espinosa and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0120.

 

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel; Nicholas Schroter, on the brief).

 

PER CURIAM

Defendant appeals from his convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and his sentence. We affirm.

Defendant has two daughters, Ava1 and Dawn. In August 2005, Ava was eight years old and Dawn was five years old.

Ava lived with her mother, Catherine, in a three bedroom apartment in Plainfield. Colleen Holloman and David Dix, who shared a bedroom, lived with them from June to mid-August of 2005. David's brother, Derrick Dix, lived there as well in the third bedroom. Catherine testified that after Ava turned five, defendant saw her approximately every two to three weeks. As of August 2005, Ava had not made any complaints about him and defendant had not requested to spend more time with Ava.

Dawn lived with her mother, Cora, and Cora's son, Kyle, in Linden. According to Catherine, Ava had a "beautiful" relationship with Dawn and Cora and a "good" relationship with defendant. Ava visited with Dawn and Cora, staying the weekend "about every other month or so." On these occasions, defendant brought Ava to Cora's apartment and returned her to her mother's home.

On Saturday, August 6, 2005, Cora returned home with the two girls and her son from a basketball game at approximately 9:30 p.m. She left the girls with defendant while she went to the supermarket with her son. When she returned at approximately 11:00 p.m., both girls had taken baths and were in bed. Defendant took Ava home to her mother on Sunday at around dinnertime.

Catherine testified that Ava "seemed to be okay" when she returned. Defendant called Catherine on Monday evening to see how Ava was doing, which Catherine said was something he did not usually do.

On Tuesday, August 9, Colleen was watching Ava while Catherine was at work as a bus driver. Colleen asked Ava about her weekend with her father. Ava said she did not like visiting her father and then asked, "Colleen, could I tell you something?" Colleen said "what." Ava then said she did not like to go to her father's house because "he put [his] fingers in her privacy." Colleen testified that Ava complained "she was sore down there in her private." Ava asked Colleen not to tell her mother. She told Colleen that when she was with her father, he had put her in the bathtub, and then took her out, dried her off and "started kissing her and putting his fingers in her vagina and asking her how it felt[.]" Colleen testified that Ava was upset and mad as she was telling Colleen this and said she did not like her father.

That night, Colleen told Catherine that defendant was molesting Ava. Catherine asked Ava what had happened. Ava told her that as she and her sister were getting ready to take a bath, defendant called her into the room and told her to sit on his lap facing him. She said that defendant "grabbed her and starting feeling her butt," and put his middle finger inside her and squeezed her breasts. Ava later told Catherine that defendant kissed her. Catherine testified that Ava was frowning, looking uncomfortable, as she described the incident, and afterward, she started crying. She and Colleen hugged and kissed her. Catherine asked Ava why she had not told her about this when she came home. She replied that she was scared; "she thought [Catherine] was going to yell at her and [] wasn't going to believe her and [] was going to tell her dad." Catherine told Ava she would take care of it.

Neither Catherine nor Colleen contacted the police or took Ava to the hospital that night because they were concerned that if they did, the Division of Youth and Family Services would intervene and take Ava away. Catherine called the Plainfield police on Wednesday and eventually spoke to the Linden police on Thursday. She was referred to the prosecutor's office. Detective Walter Johnson took a videotaped statement from Ava, which was played for the jury. Ava was also examined by Gladibel Medina, M.D. Dr. Medina testified that Ava described where she had been touched, that there were no injuries, and that the lack of injuries was not unusual, whether or not the described abuse occurred.

At trial, Ava recounted the incident involving her father. She testified that she and Dawn prepared to take a bath. Dawn had taken her clothes off and went into the bath. Ava also took her clothes off but before she got into the bath, defendant told her "to stop real quick[.]" He went into the kitchen, took some pills, and then returned to her in Dawn's bedroom. Defendant sat on the bed and told her to come to him and sit on his lap. Then he told her to turn around so she would be facing him. Defendant asked her if she loved him. Ava said she did not reply. Defendant "squeezed [her] butt" with his hand, which made her feel uncomfortable. Then he squeezed her chest with his hand, which she said made her feel "[d]isgusting." Ava testified that defendant then put his middle finger in her "private," which she said felt "[n]asty." Ava said that it hurt a little bit but she did not say anything because she was scared. Ava testified that, after that, defendant kissed her on the lips and put his tongue in her mouth. He asked her again if she loved him and again she did not reply. Ava said she felt disgusting. She got off his lap and took a bath. Ava testified that she did not say anything to defendant because she was "very scared" of him. Defendant told her to keep it a secret or he would "whop" her. Ava said that defendant had never hit her or spanked her before.

Defendant did not testify or present any witnesses. His counsel argued that the allegations were fabricated in retaliation for defendant's complaints about Ava's living conditions and interest in pursuing joint custody.

The jury found defendant guilty on all charges.2 The court sentenced defendant to a twenty-year term with eighty-five percent parole ineligibility on count one; a concurrent term of ten years with eighty-five percent parole ineligibility on count two; and a consecutive term of five years on count three. Defendant was also sentenced to Parole Supervision for Life, as required by N.J.S.A. 2C:43-6.4; required to comply with Megan's Law, N.J.S.A. 2C:7-1 to -11 and N.J.S.A. 2C:47-5; and found to be a sex offender, pursuant to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10.

Defendant presents the following issues for our consideration:

 

POINT I

 

THE TRIAL JUDGE'S FAILURE TO GIVE THE JURY A DEFINITION OF "INTENTIONAL" WHEN CHARGING SEXUAL ASSAULT DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. MOREOVER, THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW)

 

A. JUDGE'S FAILURE TO DEFINE "INTENTIONAL" WHEN CHARGING SEXUAL ASSAULT DEPRIVED MR. D. OF A FAIR TRIAL AND DUE PROCESS OF LAW

 

B. THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT

 

C. THE FLAWED JURY INSTRUCTIONS CONSTITUTED PLAIN ERROR, REQUIRING REVERSAL

 

POINT II

 

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT DURING OPENING AND CLOSING STATEMENTS WHEN IT VOUCHED FOR THE VICTIMS CREDIBILITY, DENIGRATED THE DEFENSE AND APPEALED TO THE JURY'S EMOTIONS, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, 10. (PARTIALLY RAISED BELOW)

 

A. THE PROSECUTOR IMPERMISSIBLY VOUCHED FOR HER WITNESS' CREDIBILITY

 

B. THE PROSECUTOR IMPROPERLY DENIGRATED THE CREDIBILITY OF THE DEFENSE

 

C. IN HER CLOSING ARGUMENT, THE PROSECUTOR IMPROPERLY APPEALED TO JURORS' EMOTIONS IN DESCRIBING THE OFFENSES CHARGED

 

D. THE CUMULATIVE PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL

 

POINT III

 

THE TWENTY-YEAR SENTENCE WITH AN 85% PAROLE BAR IMPOSED FOR AGGRAVATED SEXUAL ASSAULT, COUPLED WITH A CONSECUTIVE SENTENCE IMPOSED FOR ENDANGERING THE WELFARE OF A CHILD, CONSTITUTES A MANIFESTLY EXCESSIVE SENTENCE

 

A. THE TWENTY-YEAR SENTENCE FOR AGGRAVATED SEXUAL ASSAULT WAS UNDULY PUNITIVE AND BASED ON MISAPPLICATION OF AGGRAVATING AND MITIGATING FACTORS

 

B. THE JUDGE ERRED IN IMPOSING A CONSECUTIVE SENTENCE FOR ENDANGERING THE WELFARE OF A CHILD BECAUSE HE FAILED TO CONDUCT A YARBOUGH ANALYSIS AND FAILED TO PROVIDE AN ADEQUATE STATEMENT OF REASONS FOR IMPOSING A CONSECUTIVE SENTENCE

We have considered all of defendant's arguments in light of the record and the applicable legal principles and are satisfied that they lack any merit.

I

In Point I, defendant raises two challenges to the jury instructions. Because defendant did not object at trial, we review the charge for plain error and reverse only if such an error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Walker, 203 N.J. 73, 89 (2010).

First, he argues that the court erred in failing to define "intentional" within the context of the charge on second-degree sexual assault, N.J.S.A. 2C:14-2(b). Second, he argues that the court erred in its charge on his election not to testify. In each case, the court provided the jury with the Model Jury Charge in effect at the time of trial.

A

Count two of the indictment3 charged that defendant committed second degree sexual assault, N.J.S.A. 2C:14-2(b), "by committing one or more acts of sexual contact upon [Ava] when [Ava] was less than 13 years old and [J.R.D.] was at least four years older than [Ava]."

Defendant acknowledges that the court "read most of the model jury charge," but argues that the court failed to do so with respect to the following discrete paragraph:

To find that defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was done with the purpose of degrading or humiliating (name of victim) or sexually arousing or gratifying the defendant. Intentional means purposeful. A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist.

 

[Model Criminal Charge (Criminal), "Sexual Assault" (2008) (emphasis added).]

 

Specifically, defendant alleges that the court committed plain error in failing to read the three words underscored above. However, the Model Jury Charge cited by defendant was a revision as of March 10, 2008, more than a year after the trial in this matter. The relevant paragraph of the Model Jury Charge in effect at the time of trial was the revision dated February 23, 2004. It did not contain the words, "Intentional means purposeful[,]" and read as follows:

To find that (defendant) committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was

done with the purpose of degrading or humiliating (the other person) or sexually arousing or sexually gratifying the defendant. A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist.

 

[Model Jury Charge (Criminal), "Sexual Assault" (2004).]

 

This is the instruction the trial court gave to the jury. We are therefore satisfied the trial court did not commit any error, let alone plain error, in providing the jury with the Model Jury Charge in effect at the time of the trial, which contained no intrinsic errors. See State v. R.B., 183 N.J. 308, 325 (2005); State v. Docaj, 407 N.J. Super. 352, 370 (App. Div.), certif. denied, 200 N.J. 370 (2009).

B

Defendant also argues that the court erred in its instruction regarding his election not to testify. Again, the court tracked the Model Jury Instruction in effect at the time of trial, stating:

The defendant is entitled to have the jury consider all of the evidence presented at trial, and he is presumed innocent even if he chooses not to testify.

 

The revision of the charge that became effective May 4, 2009 altered this language to read as follows:

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent whether or not he/she chooses to testify.

 

[Model Jury Charge (Criminal), Defendant's Election Not to Testify" (2009).]

 

In State v. Miller, 205 N.J. 109 (2011), the defendant raised this precise argument, also as plain error. In explicitly rejecting the argument, the Court noted its agreement with our assessment:

We have no doubt that a jury hearing this clear description could not be confused by use of the word "even" and led to conclude that defendant had an obligation to testify. We recognize that the last sentence of the relevant Model Jury Instruction was revised after defendant's trial and that it now explains that the defendant "is presumed innocent whether or not [he] chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (revised May 4, 2009).

 

Nonetheless, we are persuaded that the charge given in this case, read as a whole, had no capacity to lead the jurors astray. The jurors were clearly directed that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time.

 

[Id. at 127 (alteration in original) (quoting State v. Miller, 411 N.J. Super. 521, 533 (App. Div. 2010), aff'd, 205 N.J. 109 (2011)).]

 

These observations are equally applicable here. We are therefore satisfied that the trial court did not commit plain error in giving the Model Jury Charge as it existed at the time of trial.

II

Defendant next argues that the prosecutor committed misconduct during the course of her opening and closing remarks to the jury by vouching for the credibility of prosecution witnesses, denigrating defendant and his attorney, and repeatedly appealing to the jury's emotions regarding child sex abuse.

"A prosecutor's opening statement should provide an outline or roadmap of the State's case." State v. Torres, 328 N.J. Super. 77, 95 (App. Div. 2000). "The scope of the State's opening statement is limited to the 'facts [it] intends in good faith to prove by competent evidence.'" State v. Wakefield, 190 N.J. 397, 442 (2007) (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

 

[T]he test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct was so egregious that it deprived defendant of a fair trial. The goal that rule seeks to foster is that juries [will] . . . reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary. Although we impose a greater burden on prosecuting attorneys than defense attorneys on that issue, [i]t is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations.

 

[State v. DiFrisco, 137 N.J. 434, 474 (1994) [DiFrisco II] (alterations in original) (citations and internal quotation marks omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).]

 

Defendant challenges the following comments made during the prosecutor's opening statement:

[Prosecutor]: You may hear many things from [defense counsel]. You may hear from [defense counsel] that [Ava] is making this up, that her mom is making this up, that she is making it up because she is mad at her dad because of a spanking and I think it is important to think the details that this eight year old little girl tells you. It is not a little girl mad at her dad for spanking and I ask that you keep that in mind when you hear the details that she tells you.

 

[Defense counsel], of course, will present his case and question the witnesses that are presented by the State. Through his questioning I submit to you we are going to be playing the blame game. It is going to be blaming Catherine for - -

 

[Defense Counsel]: Objection, Judge.

 

[The Court]: Counsel, please stick to the evidence that you intend to present.

 

As the record reflects, when defense counsel objected, the court immediately directed the prosecutor to limit her comments to the appropriate objective of an opening statement, which is to inform the jury of what the State will prove. When the prosecutor digressed shortly thereafter to speculate that defense counsel "most likely will point out that the State has a job to do," the trial court interrupted her to caution her again to "stick to what you intend to present."

Clearly, the prosecutor's references to what she anticipated defense arguments would be strayed beyond representations of what the State expected to prove. The prosecutor is not to use the opening statement as a vehicle for anticipating what may be said in summation. See State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v. W.L., Sr., 292 N.J. Super. 100, 108 (App. Div. 1996). However, the objected to comments did not advance any factual representations that were unsupported by the evidence. See Hipplewith, supra, 33 N.J. at 309.

Defendant argues that these comments improperly denigrated the credibility of the defense. In support of this argument defendant cites cases in which the prosecutor impugned the integrity of defense counsel, see State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991), or suggested that defense counsel attempted to deceive the jury by fabricating evidence or distorting the truth, see, e.g., State v. Rose, 112 N.J. 454, 518-19 (1988); State v. Setzer, 268 N.J. Super. 553, 565-66 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Lockett, 249 N.J. Super. 428, 433-34 (App. Div.), certif. denied, 127 N.J. 553 (1991). Here, the prosecutor did not suggest that any evidence the defense was expected to present was untruthful or that defense counsel was attempting to deceive the jury. Rather, her arguments were that the anticipated attacks on the prosecution witnesses' credibility were unwarranted. Thus, although the comments exceeded the proper scope of an opening statement, they were not prejudicial to defendant. Given the considerable leeway afforded prosecutors in making opening statements and summations, see Wakefield, supra, 190 N.J. at 443, DiFrisco II, supra, 137 N.J. at 474, the objected to comments did not provide grounds for reversal, see State v. Echols, 199 N.J. 344, 360 (2009).

Defense counsel also objected after the prosecutor refuted a version of the evidence argued by defense counsel in summation and summarized the argument with this comment:

What we know here is this occurred in August, 2005 and we know that on August 6th [Ava] goes to Cora's for a weekend visit with [defendant], and I'll get back to how much visiting she did with [defendant], father of the year, who wants custody of her.

 

A major theme in defendant's attack on Catherine's credibility was his assertion that the allegations were made in retaliation for his expression of concern regarding the living conditions at Catherine's apartment and his desire to obtain joint custody. "Prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence." State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003). No argument is made here that the prosecutor strayed beyond the evidence in making this argument. As the trial court observed in overruling the objection, the prosecutor's statement was a "fair comment, particularly with respect to joint custody."4

The remaining comments defendant challenges on appeal were not objected to at trial. Since defendant failed to object to these comments at trial, these challenges are reviewed as plain error and will require reversal only if the alleged error was "clearly capable of producing an unjust result." R. 2:10-2.

In evaluating claims of prosecutorial misconduct and plain error the fundamental question [this court] must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred. If the possibility of an unjust result is sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached, a new trial is required.

 

[State v. Walden, 370 N.J. Super. 549, 562 (App. Div.) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)), certif. denied, 182 N.J. 148 (2004).]

 

"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Echols, supra, 199 N.J. at 360 (quoting State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). "[T]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Wakefield, supra, 190 N.J. at 438 (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)).

Defendant argues that the prosecutor repeatedly vouched for Ava's credibility. One of the determinations a jury must make is the credibility of the witnesses. During the course of summation, a prosecutor may present reasons why the jury should believe or disbelieve a particular witness. To this end, it was not improper for the prosecutor to argue to the jury that Ava was "corroborated, [] consistent, and [] credible [.]" It is, however, unprofessional for the prosecutor to express a personal opinion as to the truth or falsity of any testimony. State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980) (ABA standards)), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Defendant cites the following as an example of improper vouching by the prosecutor:

And I submit to you that the child did tell the truth about what happened to her August the [sixth] of 2005. She did tell the truth about what her dad did to her. She had no reason not to tell you the truth.

The prosecutor should not have stated that Ava "did tell the truth" and "had no reason not to tell you the truth." See State v. Frost, 158 N.J. 76, 85 (1999). Such statements "are improper because they divert the jurors' attention away from the facts of the case before them." State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).

We must, however, consider the arguments made by defense counsel in assessing the prosecutor's comments. A court "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991). The thrust of the defense summation was to attack the credibility of both Catherine and Ava, raising inconsistencies in iterations of their accounts and arguing that Catherine made the allegation because defendant expressed concern regarding Ava's living conditions and wanted joint custody of Ava. The prosecutor's references to consistencies and corroboration were directly responsive to those arguments, and did not suggest an opinion based upon personal knowledge rather than evidence before the jury. See Wakefield, supra, 190 N.J. at 440 (quoting State v. Thornton, 38 N.J. 380, 398 (1962) ("[i]t is improper for the prosecutor to declare his individual . . . opinion or belief of a defendant's guilt in such manner that the jury may understand the opinion or belief to be based upon something which he knows outside the evidence."); Vasquez, supra, 374 N.J. Super. at 260.

Among the errors alleged to be plain error is a comment made by the prosecutor in which she refuted a version of the evidence given by defense counsel and stated, "just because someone says something, just because [defense counsel] said it doesn't mean it happened." This, too, was directly responsive to defense counsel's summation. The statement was included within an argument that was properly within the scope of a review of the evidence. Moreover, the statement mirrored the instruction given by the court, that "[a]rguments, statements, remarks, openings, and summations of counsel are not evidence and should not be treated by you as evidence."

Defendant also argues that the prosecutor made inflammatory comments in her summation that improperly appealed to the jurors' emotions. The charges against defendant have an inherent capacity to trigger an emotional response in jurors. Indeed, defense counsel made apparent efforts to defuse the impact of the jurors' perception of the child's vulnerability by comparing her to child actors, calling her a "cute little girl" and continually referring to her as "the baby" throughout his summation.

Although it is improper to make direct appeals to emotions that are unanchored to the evidence and the State's burden of proof, the prosecutor cannot competently present the case if required to avoid all reference to the unpalatable details of the evidence and allegations. Here, the prosecutor's comment that "[e]veryone knows it's wrong to touch a child" was responsive to defense counsel's reference in summation that Ava said "it was wrong." The prosecutor's discussion of "everything [Ava] went through" was included in her argument that Ava

didn't go through this because she was mad at her dad about being spanked and she didn't go through this because her mom put her up to it, this child went through this because it happened and because she at eight knows it's wrong.

 

Other references complained of on appeal relate to the proof of defendant's guilt through Ava's statements regarding what happened and the argument that, at eight years old, she was unlikely to have knowledge of the conduct she described from other sources. When viewed within context, the comments now challenged as plain error are directly related to legitimate objectives of a prosecution summation. Because the comments were "based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments will afford no ground for reversal." State v. Bradshaw, 195 N.J. 493, 510 (2008) (internal quotation marks omitted).

In sum, we conclude that, while some of the comments made by the prosecutor were improper, those comments were not so egregious as to deprive defendant of a fair trial. See Echols, supra, 199 N.J. at 360; Wakefield, supra, 190 N.J. at 437; Ramseur, supra, 106 N.J. at 322. Because we do not find any of the comments meet this standard, we are satisfied that defendant's argument that the cumulative effect of the comments requires reversal lacks any merit.

III

Defendant argues that the sentence imposed upon him was excessive, and that the court erred in imposing a consecutive sentence on count three.

The court sentenced defendant to the following custodial terms: twenty years with eighty-five-percent parole ineligibility for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); a concurrent term of ten years with eighty-five percent parole ineligibility for second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and a consecutive term of five years for second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). The trial court found the following aggravating factors: (1) "[t]he nature and circumstances of the offense[;]" (2) "[t]he gravity and seriousness of harm inflicted on the victim[;]" (3) the risk that defendant will recidivate; (4) "defendant took advantage of a position of trust or confidence to commit the offense;" and (9) "[t]he need [to] deter [] defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(1),(2),(3),(4), and (9). The trial court found no mitigating factors.

The standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).

Defendant argues that the court failed to make adequate findings to support the factors relied upon.

Here, the court made the following factual findings:

In fashioning this sentence I've arrived at certain aggravating factors. And they don't apply to each one. But as a composite I'm satisfied that the nature of this attack that it involved multiple acts of sexual conduct. Even if they occurred at the same time with the same victim that there was the digital penetration of [Ava's] vagina, that there was the rubbing of her breasts, that there was kissing her. And mixing all of that up with love between a father and a child.

 

That the gravity of the harm here is so great that it operates as an aggravating factor. That the risk of offense [sic] is so great that it operates as an aggravating factor. And then the breach of trust between parent [and] child and the inability of Mr. Davis to be able to distinguish between sexual conduct and love and what that would do to [Ava]. I find it present.

 

I also find the strong need to deter. Many people we think we sentence to rehabilitate. As far as I'm concerned this focus of this sentence is not to rehabilitate, it's to express society's outrage at this behavior. It is to warehouse [defendant] for as long as I think is legally possible so that this behavior cannot happen again. Because it surely will, unless he deals with his issues while at Avenel.

 

And I'm satisfied that the aggravating and mitigating -- that the aggravating factors that I mentioned I'm clearly convinced they exist and they significantly and substantially outweigh non-existent mitigating factors.

 

Later, in distinguishing the factors that the court applied to defendant's child endangerment conviction, the court noted that only aggravating factors (1),(2),(3) and (9) were applicable to that offense and that aggravating factor (4) was not.

Although the court did not explicitly state what facts it relied upon in finding each aggravating factor, it cited "the breach of trust between parent and child" as a reason for the sentence. Defendant argues that aggravating factor (4) was not applicable because he is not a public official and there was no breach of a position of public trust. We disagree.

N.J.S.A. 2C:44-1(a)(4) states: "A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense[.]" (Emphasis added). Therefore, the clear language of the factor does not limit it to an abuse of the public trust. Moreover, it has been applied to other circumstances where a defendant has taken advantage of the trust placed in him by another to commit the offense and the requisite trust does not constitute an element of the offense. Compare State v. Modell, 260 N.J. Super. 227, 255 (App. Div. 1992) (theft committed by entrusted employee), certif. denied, 133 N.J. 432 (1993), with State v. Martin, 235 N.J. Super. 47, 59 n.8 (App. Div.) (breach of trust by shelter supervisor who had sexual intercourse with juvenile under his supervision constituted element of misconduct of office), certif. denied, 117 N.J. 669 (1989).

As noted, the trial court applied aggravating factor (4) to the sentences imposed for counts one and two, but explicitly stated it was not applicable to the sentence imposed on count three.

The position of trust described by the court was an element in the second-degree endangerment charge. N.J.S.A. 2C:24-4(a) states in pertinent part:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child . . . is guilty of a crime of the second degree.

 

It is, in fact, the existence of the relationship described by the judge that elevates the offense to a crime of the second degree. Therefore, as the judge acknowledged, aggravating factor (4) was not appropriate as to that charge. However, that did not preclude reliance upon this factor in determining the sentence on the other charges. See State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988).

Count one charged defendant with a violation of N.J.S.A. 2C:14-2(a)(1), which states an actor is guilty of aggravated sexual assault "if he commits an act of sexual penetration with a victim less than 13 years old." Count two charged defendant with a violation of N.J.S.A. 2C:14-2(b), which states an 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." Therefore, the position of trust described by the trial court was not an element of either of these offenses and it was not error to apply aggravating factor (4) in determining the sentences for these charges.

Defendant concedes that aggravating factor (2) applies but challenges the court's finding of aggravating factor (1). He argues that the court double counted the elements of the offense in finding aggravating factor (1) and failed to find facts that would support a conclusion that the offense was committed in an "especially heinous, cruel, or depraved manner" compared to other offenses under the same statute. Again, defendant reads the statutory factor too narrowly. N.J.S.A. 2C:44-1(a)(1) states the following is an aggravating circumstance:

The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]

 

Here, the court considered that there were multiple acts of sexual abuse and "mix[ed] all of that up with love between a father and a child." Because the elevation of the sexual assault was based upon Ava's age and not her relationship with defendant, it was appropriate for the court to consider that relationship as an aggravating factor. See State v. Yarbough, 100 N.J. 627, 646 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Defendant also argues that the court abused its discretion in finding aggravating factors (3) and (9) and that the court failed to make necessary findings to support the imposition of a consecutive sentence pursuant to Yarbough. We are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Fictitious names are used for the children and their mothers to protect their privacy.

2 A prior trial ended in a mistrial when the jury was unable to come to a unanimous verdict.

3 Count one of the indictment charged that defendant had committed first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). Defendant does not allege any error in the instruction regarding this charge.

4 The prosecutor made additional references to defendant as "father of the year" as to which there was no objection. These comments were also made in response to defendant's contention that the allegations were fabricated in retaliation for his desire to seek joint custody. We are satisfied that these comments also constituted "fair comment."