STATE OF NEW JERSEY v. WILLIAM A. CASE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5912-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. CASE, JR., a/k/a

WILLIAM ANTHONY CASE,

Defendant-Appellant.

____________________________________

May 8, 2013

Argued April 17, 2013 Decided

Before Judges Axelrad, Sapp-Peterson, and Happas.

On appeal from the Superior Court of New Jersey, Atlantic County, Indictment No. 10-03-0626.

Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).

Deborah A. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, of counsel and on the brief).

PER CURIAM

Defendant engaged in several sexually explicit conversations on the internet with a fictional fourteen-year-old female impersonated by an investigator from the Atlantic City Prosecutor's office. Defendant was arrested when he arrived to meet the minor at a pre-arranged location. Represented by counsel, defendant consented to a bench trial. In this appeal, defendant argues the trial judge was biased, the State presented insufficient and inadmissible evidence, trial counsel provided ineffective assistance, and his sentence was excessive. Reviewing the record in light of defendant's contentions and the applicable law, we affirm.

I.

In August 2008, Investigator Christopher Hallet from the Computer Crimes Unit of the Atlantic County Prosecutor's office impersonated a fourteen-year-old female named Amanda. On August 14, 2008, defendant initiated an instant message conversation with Amanda and identified himself as a twenty-five-year-old male from Absecon. Amanda responded she was a fourteen-year-old female from Mays Landing. Defendant asked Amanda if she was a virgin and whether she had a boyfriend. Amanda said "it would be cool to go out with an older guy. . . . [S]omeone with a driver's license." Defendant replied, "Cool. Get in the backseat and have some fun."

Defendant sent Amanda a picture of himself, told her he was a fireman, and asked if he was "cute enough to jump, roll down on top of, and give [] a kiss[.]" The rest of their conversation that day continued in a sexually suggestive manner. For example, defendant asked about the range of Amanda's sexual experience, her body type, and the size of her breasts. Finally, defendant suggested that they meet, but expressed some apprehension about her age.

A few weeks later, on September 8, 2008, defendant initiated a second online chat with Amanda. Defendant indicated that he wanted to meet with her so they could "[h]ang out, make out, [and Amanda could] get naked . . . [.]" Defendant asked Amanda if she was seventeen years old and she replied she was only fourteen years old. Defendant asked for directions to Amanda's house and indicated he could "stop by" the next day. He asked if Amanda was a cop and joked about the television show "To Catch a Predator." Amanda assured defendant she was not a police officer and stated they could not meet at her house because her neighbors were "nosy", and her mother might be home. Nonetheless, defendant continued to ask Amanda if he could come to her house.

On September 17 and 22, 2008, respectively, defendant initiated a third and fourth conversation with Amanda. Defendant continued to engage in sexually explicit conversations with Amanda and asked for directions to her house so he could come perform sexual acts with her. Defendant initiated a fifth and final conversation with Amanda on September 24, 2008. During this conversation, defendant arranged a 4:00 p.m. meeting with Amanda at a location in Mays Landing. Defendant contacted Amanda online at 4:36 p.m. and asked if she was attempting to trap him, again referring to the television show "To Catch a Predator." Around 5:53 p.m., Amanda responded and assured defendant she was not with the television show and stated it would be fine if defendant no longer wanted to meet with her. Defendant agreed to meet with her in fifteen minutes and at 6:25 p.m. defendant arrived at the agreed upon location. He was immediately arrested.

II.

Defendant was charged in a twelve-count Atlantic County indictment with third-degree attempted endangerment, N.J.S.A. 2C:5-1, N.J.S.A. 2C:24-4 (counts one, three, five, seven, and nine); second-degree attempted luring of a minor, N.J.S.A. 2C:13-6 (counts two, four, six, eight, and twelve); second-degree attempted sexual assault, N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-2c (count eleven); and fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-3b (count ten).

Defendant waived his right to a jury trial and was convicted of all charges except second-degree attempted sexual assault, N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-2c (count eleven). The judge sentenced defendant to an aggregate term of eight years imprisonment and imposed a discretionary four years of parole ineligibility.

III.

On appeal defendant argues:

POINT ONE

DEFENDANT S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BEFORE A NEUTRAL AND OPEN-MINDED DECISION-MAKER WAS VIOLATED BELOW (PLAIN ERROR).

POINT TWO

THE CONVICTIONS SHOULD BE VACATED BECAUSE THE STATE S PROOFS FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT ALL THE REQUIRED ELEMENTS OF THE LURING AND ENDANGERMENT CRIMES UNDER EACH COUNT.

POINT THREE

THE STATE S EXPERT TESTIMONY EXCEEDED THE LIMITS OF PERMISSIBLE EXPERT TESTIMONY UNDER THE RULES OF EVIDENCE AND NEW JERSEY CASE LAW (PLAIN ERROR).

POINT FOUR

DEFENDANT S TRIAL COUNSEL RENDERED CONSTITUTIONALLY-INEFFECTIVE ASSISTANCE BY COUNSELING DEFENDANT TO WAIVE HIS RIGHT TO TRIAL BY JURY OF HIS PEERS AND PROCEED TO TRIAL BEFORE A JUDGE WHO, THE RECORD BELOW MAKES CLEAR, HAD ALREADY BEGUN EXPRESSING HIS OPINION ON DEFENDANT S GUILT BEFORE TRIAL EVEN BEGAN (PLAIN ERROR).

POINT FIVE:

DEFENDANT S SENTENCE IS IMPROPER AND EXCESSIVE, WARRANTING REMAND FOR RESENTENCING.

Defendant first argues he did not get a fair trial because the judge was biased. We reject this argument. There is no question that a judge is required to act fairly and impartially. See State v. Zwillman, 112 N.J. Super. 6, 20-21 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971). Accordingly, "[t]he accusation of prejudicial actions by a trial judge is properly reviewable by an appellate court considering the entire transcript." Id. at 20.

The trial in this case was a bench trial and not a jury trial. A judge's conduct in asking pointed questions and expressing skepticism about a witness's testimony is much more likely to be prejudicial in the latter context than in the former. See, e.g., id. at 21-22; State v. Tilghman, 385 N.J. Super. 45, 59 (App. Div. 2006); Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999); see also State v. Medina, 349 N.J. Super. 108, 132 (App. Div.) ("This was a bench trial. There was thus no danger that undue emphasis would be placed by a jury on the questions propounded by the judge."), certif. denied, 174 N.J. 193 (2002).

The transcript reveals that the judge was highly critical of much, but not all, of the testimony offered by defendant and his expert witnesses, Drs. Weiss, Atkins and White. Defendant asserted a diminished capacity defense and offered expert testimony to demonstrate that he did not intend to engage in sexual contact with Amanda. There were times when the judge interrupted or questioned the witnesses, but he generally did so in order to clarify his own understanding of their testimony, which was at times unclear. See Medina, supra, 349 N.J. Super. at 132 ("The judge maintained an impartial role by propounding questions for the sole purpose of aiding his understanding of the witnesses' testimony.").

Additionally, although the judge was critical of the testimony offered by the expert witnesses, he never prevented them from answering a question, nor did he otherwise prevent defendant's counsel from presenting his defense. See Tilghman, supra, 385 N.J. Super. at 60 ("[C]ounsel had the opportunity to make a full and complete defense."). There is nothing to prohibit a judge, in a bench trial, from expressing an opinion as to the merits of a particular position prior to the resolution of those issues, provided the party is given ample opportunity to present the merits of that case. Medina, supra, 349 N.J. Super. at 129.

Based upon our review of the record as a whole, we find no basis to conclude the judge was biased. His criticism and questioning of the witnesses and his comments made to defendant's counsel did not interfere with defendant's ability to present his case and did not display a personal bias that would warrant reversal.

Defendant's next argument is that the State's proofs failed to establish the elements of attempted luring and attempted endangerment beyond a reasonable doubt. Our scope of review of a judge's findings in a non-jury trial is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). We determine whether the record contains sufficient, credible evidence to support the judgment, giving special deference to a trial judge's factual findings that are substantially influenced by the judge's opportunity to observe the witnesses directly. State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 616-17 (App. Div. 2006).

Defendant's assertion that the State's proofs were insufficient because the victim in the case was not a real child is without merit. We have repeatedly upheld convictions for attempted crimes against fictional children. See State v. Kuhn, 415 N.J. Super. 89, 98 (App. Div.) (stating "N.J.S.A. 2C:5-1a(1) and (3) permit convictions for the attempted crimes without regard to the actual age of the victim if it was [the] defendant's purpose to engage in the conduct with a person that age[.]") certif. denied, 205 N.J. 78 (2011); State v. Davis, 390 N.J. Super. 573 (App. Div.) (affirming conviction for attempted endangering, endangering, and attempted sexual assault on a fictitious victim), certif. denied, 192 N.J. 599 (2007).

Defendant's contention that the State failed to refute his diminished capacity defense must also fail. The defense of diminished capacity is statutorily recognized in New Jersey. N.J.S.A. 2C:4-2 states:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

Diminished capacity is a "failure of proof" defense. State v. Melendez, 423 N.J. Super. 1, 32 (App. Div. 2011), certif. denied, 210 N.J. 28 (2012) (citing State v. Reyes, 140 N.J. 344, 354 (1995)). Evidence of diminished capacity negates the State's proof that a defendant had the necessary mental state to commit the charged crimes. Ibid. The State retains the burden to prove that a defendant acted with the required mental state even if he introduces evidence of mental state or disease. Ibid.

We support the judge's finding that defendant failed to show his alleged mental disease or defect affected his ability to form the requisite mens rea of the charged offenses. The defense experts testified to defendant's struggle with post-traumatic stress disorder and other psychological conditions, however, they were unable to connect same to defendant's alleged inability to knowingly converse in sexually explicit terms with Amanda and to knowingly meet with her to consummate sexual acts discussed on the internet. Although defendant's experts maintained that defendant tried to escape from his real problems by retreating to a fantasy world on the internet, they failed to explain how this negated the mens rea element of the charged crimes.

The record supports the judge's findings that defendant engaged in sexually explicit conversations with Amanda online, made clear his intent to carry out sexual acts with her, and facilitated their meeting after inquiring about her home address. The judge evaluated the expert testimony and determined that defendant did not lack the requisite mens rea to commit the charged crimes. A judge is free to accept or reject expert testimony. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005) (stating that a trial judge "is not obligated to accept an expert's opinion" and "may . . . accept some of the expert's testimony and reject the rest"). There is sufficient credible evidence in the record to support the judge's findings of guilt beyond a reasonable doubt.

Defendant's next argument that the State failed to establish the elements of the crimes with respect to each charged date is without merit to warrant further discussion. R. 2:11-3(e)(2). We add only the following brief comments. We reject defendant's argument that the State's proofs were insufficient because defendant failed to take a "substantial step" toward the commission of the crimes on each of the five separate dates charged in the indictment. "There is no iron clad requirement . . . that defendant must arrive at a physical meeting with the targeted victim for preliminary 'grooming' actions to ripen into an attempted sexual assault." State v Davis, 390 N.J. Super. 573, 589 (App. Div. 2007).

Defendant further argues that the State s expert witness, Dr. Greenfield, exceeded the bounds of permissible testimony under the New Jersey Rules of Evidence when he opined as to defendant's intent in conversing with and arranging to meet Amanda. The record reflects that Dr. Greenfield did not express his opinion of defendant's guilt, but simply characterized defendant's conduct based on the facts in evidence, which is permissible. State v. Odom, 116 N.J. 65, 79 (1989). His opinions focused on the defendant's ability to form the mens rea required to commit the crimes charged.

We note defendant raised no objection to Dr. Greenfield's testimony at trial. We review arguments raised for the first time on appeal under a "plain error standard." Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Errors in admitting evidence, including those brought to the trial judge's attention, are not grounds for reversal if deemed harmless. Macon, supra, 57 N.J. at 337-38. This is true even if the errors are of a constitutional dimension. Id. at 338. Trial errors may be found harmless when evidence of guilt is overwhelming. State v. Gillispie, 208 N.J. 59, 93 (2011).

We perceive no error, much less plain error, in the testimony offered by Dr. Greenfield. Moreover, there was overwhelming evidence demonstrating defendant's guilt, independent of the expert's testimony. Given the strength of the other evidence presented, his testimony was not "clearly capable of producing an unjust result." Macon, supra, 57 N.J. at 337. In this bench trial, we are satisfied the judge "was fully aware of the factual and legal issues raised, and had the ability to make a reasoned decision concerning what was relevant and what was not." State v. Krivacska, 341 N.J. Super. 1, 36 (App. Div. 2001).

Defendant next argues he was denied effective assistance of counsel because counsel waived his right to a trial by jury. Because such claims involve allegations and evidence that lie outside the trial record, they are better suited for post-conviction review, to which we defer, and therefore decline to entertain them on this direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).

Lastly, defendant argues his sentence was excessive. In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 234, 365 (1984). We are satisfied the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code. The sentence does not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess it.

In summary, we reject each of defendant's points on appeal and affirm his conviction and sentence. "We have acknowledged before and continue to recognize today that some measure of imperfection characterizes almost every trial . . . . [W]e still adhere to the general principle that '[a] defendant is entitled to a fair trial but not a perfect one.'" State v. Feaster, 156 N.J. 1, 84 (1998) (citing State v. Marshall, 123 N.J. 1, 169-70 (1991)).

A