STATE OF NEW JERSEY v. ABEL ODERANTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2945-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABEL ODERANTI,

Defendant-Appellant.

__________________________________

February 7, 2013

Submitted January 29, 2013 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-06-0876.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert S. Lane, Designated Counsel, on the brief).

Camelia M.Valdes, PassaicCounty Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Abel Oderanti was tried by a jury and convicted of second-degree luring a child, N.J.S.A. 2C:13-6; second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b); and third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a). After merger, defendant was sentenced to an aggregate three-year term of imprisonment. Defendant appeals from the judgment of conviction, arguing the following points:

POINT I: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO TRIAL BY A FAIR AND IMPARTIAL JURY BY NOT DECLARING A MISTRIAL AFTER JUROR NUMBER NINE EXPLAINED THAT ANOTHER JUROR HAD ADMITTED TO CONDUCTING INDEPENDENT RESEARCH IN RELATION[] TO THE TRIAL.

POINT II: THERE WAS INSUFFICIENT EVIDENCE OF APPELLANT'S GUILT AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT III: THE DEFENDANT WAS ENTRAPPED AND THE COURT FAILED TO PROPERLY INSTRUCT THE JURY AS TO THIS.

After reviewing the record in light of these contentions, we affirm.

I.

In December 2007, the Passaic County Sheriff's Department was conducting an undercover investigation relating to child endangerment on the internet. At that time, Detective Juan Passano, in his sixth year assigned to the Sheriff's Internet Crimes Unit, impersonated a twelve-year-old female in various internet chat rooms.

On December 3, 2007, while signed into a chat room in his undercover identity, Passano was contacted by defendant. After exchanging personal information, Passano represented that he was a twelve-year-old girl in the seventh grade living with her parents. Defendant replied that he was a twenty-seven-year-old Nigerian male living in Essex County. In the following weeks, Passano and defendant were in contact via the internet approximately fifteen more times. Once, defendant spoke by telephone with a female Sheriff's Officer who temporarily took over the persona of the twelve-year-old.

Early in this virtual relationship, defendant broached the subject of sexual activities. He kept up discussions in this vein, asking the supposed twelve-year-old about her romantic encounters, virginity, and sexual experiences. By February 2008, the interchanges became heavily-laden with sexual topics, with defendant asking if Passano's fictitious tween was interested in engaging in certain sexual acts. The response was an equivocal, "I don't wanna get pregnant though." Defendant reassured Passano's fictitious self (using internet terminology and abbreviations) that "u can't," because "I'm going 2 use a condom."

Eventually, defendant asked his underage chat partner if she could get to Newark. When she responded, "I don't drive," defendant eventually suggested that they meet at her parents' home, to which she replied, "ur not coming to ma house silly I'll get in trouble."

This rebuff did not dissuade defendant. Plans progressed to the point that defendant agreed to meet at an electronics store in West Paterson. Armed with this promise, Passano and an arrest team were deployed to apprehend defendant if he appeared at the parking lot of the store. On February 6, 2007, defendant arrived in an automobile registered in his name. He was immediately arrested. Among the items found on his person were two condoms. The indictment followed.

II.

Defendant's first point on appeal relates to an event that occurred during the trial. Just before the second day of deliberations commenced, a court officer alerted the trial judge that juror nine wished to speak with the judge. In open court, but not in the presence of the other jurors, juror nine stated:

Yesterday when we started deliberation, one of the jurors mentioned pretty much her mind's made up; she's done outside research how to get a Yahoo account. I don't know if that was proper or not. I figured I'd tell you.

After the juror confirmed that she had not mentioned her concerns to other jurors, and identified juror thirteen as the person who supposedly conducted the outside research, the prosecutor and defense counsel agreed that the proper course for the judge to take was to interview juror thirteen.

Juror nine was excused, and then juror thirteen was invited into the courtroom alone. The trial judge explained:

It's been brought to our attention, counsel and mine, that you have indicated to the other jurors that you in effect have done your own independent research in this matter; that you have checked out how to go on to the computer, Yahoo in particular, to open up an account, so forth; that your mind is already made up without even wanting to deliberate.

Juror thirteen immediately responded, "No." She briefly described some juror discussions about "the Yahoo romance site," but she adamantly denied doing any independent research on her own: "No I have not; I have not, your honor."

After a discussion with counsel about whether to make further inquiries of juror nine and the ramifications of continuing the investigation vis- -vis a mistrial,1 the trial judge volunteered, "I don't want to get to a position of questioning these jurors about the ongoing discussions they've had. Quite frankly, at this posture it's none of our business." Instead, the judge suggested that the entire panel be polled, as a group in open court, about whether independent research was conducted. The prosecutor and defense counsel agreed with this course of action. When the full jury panel returned to the courtroom, the judge stated the following:

You will hopefully recall that before we even began to take testimony, I gave you some preliminary instructions and those instructions included a specific directive from me that, among other things, jurors were not permitted to undertake their own independent investigation. You sort of recall that? I see you're all nodding your heads.

An inquiry has been raised as to whether or not that specific directive has in some way, shape or form been ignored or violated. So my inquiry to the members of the jury, have any of you conducted an independent investigation or inquiry about this matter, including checking things out on the Internet? If you have, you have to raise your hand and tell me and we have to discuss it. That doesn't mean if you have experience before you became a juror that you leave your experiences and your common sense in the parking lot.

The issue is whether or not since you became a juror whether or not you've done any independent type of checking things out. So I'll rephrase the question. If your answer is yes to that, just raise your hand and I'll speak to you privately about it. All right. No hands are being raised.

Thereafter, the jury was instructed to continue to deliberate. Approximately two hours later, after a question was answered by the judge regarding entrapment, the jury returned with its guilty verdict.

On appeal, defendant claims that the trial judge erred by not declaring a mistrial in the face of having "one of two jurors in question . . . lying to the court." Speculating about the scope of juror thirteen's "outside information," defendant blithely contends that "[s]uch information certainly could have had the capacity or tendency to influence the jury."

We do not agree with defendant because this claimed error was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. "Reversal of defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)).

Part of our conclusion is informed by the invited error doctrine.

"[A] 'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). "[I]nvited error also is designed to prevent defendants from manipulating the system. Therefore, the invited-error doctrine . . . is implicated only when a defendant in some way has led the court into error." Id. at 359.

[State v. Salter, 425 N.J. Super. 504, 516-17 (App. Div. 2012) (alterations in original).]

In this case, defense counsel did not object to the trial judge's proposed solution of exploring the question of outside influences on the jury. Nor did defense counsel seek a mistrial. We believe that this silence bespeaks recognition of the satisfactory outcome of the judge's inquiry, and the innocuous or irrelevant nature of the supposed independent research conducted by juror thirteen.

A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Central to the trial judge's responsibility is the obligation to ensure that the jury remains fair and impartial throughout the proceedings. State v. Loftin, 146 N.J. 295, 365 (1996). When the jury's impartiality is threatened by extraneous influences, the determination of an appropriate response is within the discretion of the judge who has the feel of the case and is best equipped to gauge the effect of a proposed solution on the jury in the overall setting. Id. at 365-66. We do not believe that the trial judge abused his discretion in failing to sua sponte declare a mistrial.

Furthermore, even aside from the invocation of invited error, we are satisfied that the alleged juror misconduct researching how to get a Yahoo account would not warrant anything more than the judge's repeated admonition to not engage in such conduct. The gaffe, if that is what it was, had no objective capacity to unfairly influence the jury or compromise the verdict.

Defendant next contends that there was insufficient evidence of his guilt, and the jury verdict was against the weight of the evidence. Although not couched as a formal motion for a new trial, defense counsel moved immediately following the jury verdict for an acquittal notwithstanding the verdict. The trial court denied the motion declaring, "this record is clear there is an adequate basis . . . and a firm basis for the jury's finding of guilt."2

Defendant's primary assertion in this regard is his claim that his convictions "on all counts hinge on whether or not he believed [that he was] communicating with a 12-year-old girl." Defendant argues that because there was post-arrest evidence suggesting that defendant believed that he was speaking with a more mature woman, the State's evidence does not support his conviction. Neither the standard for a judgment of acquittal nor the test for a new trial support defendant's contention.

In ruling upon a motion for a judgment of acquittal, the test to be applied is whether the State's evidence "viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged." State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)). We have stated that "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case." Ibid. (citing Reyes, supra, 50 N.J. at 459).

We are firmly convinced that the trial judge rightly denied defendant's motion for a judgment of acquittal because there was ample evidence from which the jury could have believed that he considered his potential victim underage, and therefore worthy of the convictions.

On a motion for a new trial, a trial judge cannot "set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. In determining whether a miscarriage of justice occurred, we defer to the trial court on matters not transmitted by the record, such as credibility, demeanor, and the feel of the case. State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).

Because defendant did not move for a new trial, we are without the benefit of the trial judge's views. However, our independent review satisfies us that no miscarriage of justice occurred here.

Defendant's final point relates to what he describes as "the inappropriate and under-handed manner" that Detective Passano acted in initiating the majority of the online conversations with defendant. To that end, defendant claims that although the trial judge instructed the jury as to entrapment, "he did not explain it in the nuanced manner which these facts called for, specifically as to objective entrapment."3 Defendant's entrapment argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), except to note that the record clearly indicates that defendant was ready and willing to commit the crimes. Cf. State v. Davis, 390 N.J. Super. 573 (App. Div.) (rejecting an entrapment argument in a similar internet sex sting where defendant failed to appear at a planned meeting), certif. denied, 192 N.J. 599 (2007).

Affirmed.

1 The trial judge commented that an inquiry of juror nine concerning whether anyone else other than him heard what juror thirteen had to say would be "getting real close to a mistrial." The judge then stated, "You want to do this again, that's fine." Defense counsel immediately responded, "Judge I don't want to do it again."

2 Although the jury convicted defendant of luring, attempted sexual assault, and attempted child endangerment, he was acquitted of attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1).

3 "Objective entrapment takes place when the police conduct causes an average citizen to commit a crime or when the conduct is so egregious as to 'impugn the integrity of the court that permits a conviction.'" State v. Florez, 134 N.J. 570, 584 (1994) (quoting State v. Fogarty, 128 N.J. 59, 65 (1992)).