STATE OF NEW JERSEY v. TYRONE J. HOWARD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE J. HOWARD, a/k/a

TYRONE MANN, TIRON H. HOWARD,

Defendant-Appellant.

February 12, 2014

 

Submitted November 13, 2013 Decided

 
Before Judges Reisner, Alvarez and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-06-0638.

 

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

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

Tried by a jury, defendant Tyrone J. Howard was convicted1 of four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one, two, three, and four); one count of lesser-included second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count five); and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts six and seven).

On November 17, 2011, the trial judge sentenced defendant to concurrent seventeen-year terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on counts one through three. On count four, which the judge made consecutive to counts one, two, and three, he imposed a seventeen-year NERA term, to be served concurrent to the eight-year NERA term imposed on count five. Defendant received seven years imprisonment for counts six and seven. Count six was to be served concurrent to counts one, two, and three, while count seven was to be served concurrent to counts four and five. The aggregate sentence was thus thirty-four years, subject to NERA. Defendant appeals from his conviction and the sentence. We affirm.

The charges arose from defendant's sexual molestation of A.L. and M.M., the daughters of L.M., a former girlfriend. Counts one, two, three, and six related to M.M.; counts four, five, and seven related to A.L. Defendant lived with L.M. and the children intermittently from 2005 to 2007, and continuously from 2007 until 2009. When the conduct came to light, the girls were eight and six years old. At the time of the trial in 2011, A.L. was eleven and M.M. was nine.

On January 7, 2009, Trenton Police Department Detective James Letts was called by a Division of Youth and Family Services2 (Division) caseworker to report an anonymous referral that "[at a specified address] there was a six- and eight-year-old living that were being sexually abused by the mom's boyfriend." Letts then contacted Detective Nancy Diaz of the Mercer County Prosecutor's Office, who conducted taped interviews of the girls, later played for the jury.

During this interview, A.L. said that while her mother slept, or visited her grandmother, defendant touched her vagina and her buttocks, made her perform fellatio on him, and touched his penis to her buttocks. She said defendant told her not to tell, and that she was afraid she would get into trouble if she told. A.L. was happy defendant no longer lived with them.

At the trial, A.L. testified that defendant would "stick his penis into [her] vagina and butt," and placed his penis in her mouth. She said his conduct made her sad and that she cried and was afraid to tell anyone. The incidents also occurred while her mother was at work, happened several times, and she thought she was nine years old at the time.

During M.M.'s taped interview, she recalled the first time defendant assaulted her; he was babysitting her and his other children at his former girlfriend's home while the latter was at work. On that occasion, A.L. was with her father. M.M. said defendant engaged in vaginal intercourse with her while they were on a couch. M.M. also stated that he had intercourse with her at her own home, whenever L.M. was upstairs or at work, and that afterwards, she would bleed. M.M. also said that defendant sexually assaulted A.L., and that when A.L. disclosed the conduct to their mother, L.M. could not breathe.

At trial, M.M. said defendant touched his "private part" to her "private part," and to her "butt." She said she felt "horrible" when he did these things, and that they made her cry. When explicitly asked, both girls denied that their mother or anyone else had told them what to say.

Linda J. Shaw, M.D., a board certified pediatrician with a subspecialty in child abuse pediatrics testified as the State's expert. She was then employed by St. Peter's University Hospital as the medical director of the Dorothy B. Hersh Regional Child Protection Center, one of four regional diagnostic centers for child abuse and neglect. Shaw conducted the medical evaluations of the children shortly after the molestation was first reported. After her qualification as an expert, but prior to her testimony with regard to the case, the trial judge gave the jury the expert witness model charge. See Model Jury Charge (Criminal), "Expert Testimony" (2003).

Shaw stated, preliminarily, that, as part of her medical evaluation, she gathers details about the alleged abuse from the child,

to assess the rare possibility that the child might be pregnant, the rare possibility that a child might have a sexually transmitted disease [(STD)], the rare possibility that a child might have an injury that needs treatment, or an infection; and I am concerned with trying to clarify what the child's needs are for counseling and what are the caretaker's needs for counseling.

Shaw said that A.L. identified defendant as the person who sexually assaulted her. Shaw recounted details regarding the nature of the acts, and explained that A.L. told her that they resulted in "some hurting and some redness" in her private area. Shaw also reported that, according to A.L., defendant put his tongue and penis in her mouth, touched her chest with his hands, that she thought this behavior began when she was seven years old, and that she had caught him putting his penis in her sister's mouth. Shaw also explained that the lack of physical indicia of sexual abuse that she found upon examining A.L. was unremarkable.

As to M.M., Shaw testified that the child, who estimated that the sexual assaults began when she was six, was fearful because defendant had been in her home recently. The child described defendant putting his penis, which she called defendant's "vagina," in her mouth and in her private area, resulting in pain on urination. She also talked about redness and some bleeding, and that once she saw blood on a toilet tissue. M.M. mentioned that on one occasion when defendant put his penis in her mouth, white stuff came out which she spat out. The doctor reported that the child had a healed injury to her hymen extending across the vaginal opening. On cross-examination, defense counsel asked Shaw if a trauma, such as being struck by a vehicle, could also cause that type of injury, and she agreed. Neither child had an STD.

On the stand, defendant categorically denied molesting the children. He attributed their accusations to L.M., claiming she fabricated the charges because the relationship between them had ended two weeks before the children accused him of wrongdoing.

On direct, he testified that in 2008 both he and L.M. became involved with others, and developed STDs, for which he was given an injection. On cross examination, he later admitted that he had not contracted an STD, but had been given an injection anyway because it was "protocol."

Defendant claimed that before he and L.M. separated, she filed a false domestic violence complaint against him. When the girls were questioned by police about the alleged incident, they told the investigating officers that he did not hit their mother or push her belongings onto the floor.

Defendant added that L.M. made him feel guilty about leaving her because of the children, including the two who were actually his. He explained he had been abandoned by his own father, and would never abandon his own children. Defendant acknowledged having eight children by four different women, including three five-year-olds and three four-year-olds. He insisted he maintained regular contact with all of them, stating, "during the week I make sure I see my kids like an hour or two during the day because I'm working and I have to get rest so I can get back to work." Defendant said that when L.M. sent him several love letters in the early days of his incarceration on these charges, he became very angry, but had mixed emotions, "because love is a thing that dies slow."

Defendant asserted that before he became involved with L.M., M.M. spent time in a full-body cast because she was seriously injured when struck by a car. Pressed on cross examination, defendant initially said that the incident occurred in 2001 or before then. Confronted with his prior sworn testimony, he then said that the accident occurred in 2002 or 2003, ultimately admitting that he was not sure about the date of the injury. When asked to give details about the accident, defendant responded that the child was "running around down -- they was on Clinton, I believe. North Clinton or South, by Roebling Market, whichever part of Clinton that is." He insisted, however, that as a result of being struck, M.M. broke her leg and fractured "the upper parts of her hips. Somewhere around there. Around the pelvis and the hips." When asked the reason that he had previously testified that L.M., as opposed to his mother, had described the cast to him, his explanation was incomprehensible.

Defendant added that he had read the pediatricians' reports regarding M.M.'s injuries from the accident. When asked directly whether he was given reports to read that included descriptions of M.M.'s injuries when he took the children to the pediatrician, defendant replied:

[The reports] didn't describe the car accident but it described why she had different treatment. Like they take her and they check her legs, her pelvis and that stuff to see if she still has some type of -- I don't know what type you would put it over the period of time.

 

The prosecutor followed up, asking defendant to clarify if the doctors had sat with him to discuss M.M.'s alleged injuries, and if they allowed him to read M.M.'s medical reports. He added:

A No. My cousin worked at the pediatrician.

 

Q So your cousin sat down with you?

 

A She worked there. I'm sitting there with the reports. It's papers to be signed when you come in there.

 

Q So these papers that you sign when you come in document that [M.M.] was in a cast from a car accident? Is that your testimony?

 

A Yes, there are documents.

 

Q You signed papers at the doctor?

 

A Yeah. Pediatrician has all that.

 

Q And what's this pediatrician's name?

 

A Dr. Kline. Douglas Kline.

 

Q Did you know what you were signing when you came into the office?

 

A Well, at that time I believe it was going for school checkups, physicals, so it would be the release forms and stuff like that and whichever other form. I don't know the name of the form. I forget the name of the form. You know, when the children get their check-up and their physical and their shots.

 

Defendant also said that he "look[s] at all their charts," because his cousin hands him the children's medical files upon entering the office. Despite claiming that he had reviewed reports regarding her injuries from the car accident, he did not know M.M.'s age when the alleged incident occurred or the name of the hospital where she was treated. Defendant agreed that the child's manner of walking had not been affected and that she did not suffer any residual pain.

L.M., called as a rebuttal witness, denied that M.M. had ever been hit by a car, broken a limb, been in a body cast, or even experienced an extended hospital stay. Defendant's mother, who had a prior criminal conviction, testified on surrebuttal. She said that she saw M.M. in a belly-to-toe body cast, lying on a sofa. Defendant's mother added that the child was struck while walking somewhere on Clinton Avenue near the home where the family was then living, and that M.M. was between two to three years old when the accident occurred. When pressed for details, she explained she was "kind of messed up as far as dates and stuff like that."

Defendant raises the following points for our consideration on appeal:

POINT I

THE PROSECUTOR COMMITTED MISCONDUCT IN HER SUMMATION WHEN SHE SUGGESTED THAT THE DEFENDANT HAD A BURDEN OF PRODUCING AN EXPERT WITNESS AND DOCUMENTATION IN SUPPORT OF HIS TESTIMONY THAT ONE OF THE COMPLAINANTS HAD BEEN IN AN AUTOMOBILE ACCIDENT. (Not Raised Below).

 

POINT II

THE COURT IMPROPERLY ADMITTED HEARSAY EVIDENCE REGARDING THE COMPLAINANTS' ALLEGATIONS OF SEXUAL ABUSE TO THE STATE'S DOCTOR, INCLUDING THEIR IDENTIFICATION OF HOWARD AS THEIR ASSAILANT, AND DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT BECAUSE HE MISUNDERSTOOD THE CASE LAW. (Partially Raised Below).

 

POINT III

THE DEFENDANT'S CONFRONTATION RIGHTS WERE VIOLATED WHEN HEARSAY EVIDENCE WAS ADMITTED THAT AN ANONYMOUS NON-TESTIFYING WITNESS IMPLICATED HIM IN THE CRIMES. (Not Raised Below).

 

POINT IV

BECAUSE THE TRIAL JUDGE ERRED IN HIS WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS, THE SENTENCES SHOULD BE REDUCED TO CONSECUTIVE TERMS AT THE LOWER END OF THE SENTENCING RANGE.

 

I

Defendant's first contention is that the prosecutor engaged in misconduct by pointing out to the jury that he did not corroborate his claim that M.M. had suffered from a car accident, which was the defense explanation for the injury to the child's hymen. Defendant further argues that the alleged prosecutorial misconduct impermissibly shifted the burden of proof from the State. The prosecutor said, specifically:

But, as I said, miraculously [M.M.] had this car accident that put her in a body cast from belly to toe that the defendant knows about, not because he was there, ladies and gentlemen, not because he saw any pictures, not because he visited her at the hospital. Certainly, didn't produce any medical records during this trial to that effect.

 

. . . .

 

Now, [the defense] didn't provide any medical reports, any documentation, any photographs, but they did provide his mother.

 

. . . .

 

. . . The evidence speaks for itself. You heard the testimony of both [A.L.] and [M.M.]. You heard the expert testimony of Dr. Shaw. You saw [A.L.'s] and [M.M.'s] videotaped disclosures, and the detectives who worked on the case. Balance that against the self-serving testimony of the defendant and his mother.

 

They didn't produce an expert to contradict what Dr. Shaw said. They didn't put any doctors on the stand to say, yes, after repeated injury, after repeated assaults, there is going to be injury. They didn't present that to you. The only expert medical opinion you have is what the state presented to you from Dr. Shaw.

Defendant did not object to the argument. Hence we review his claim under the plain error standard. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). This means we do not reverse unless the claimed error was "clearly capable of producing an unjust result." State v. Jordan, 147 N.J. 409, 421 (1997). It must be of such magnitude that it raises "reasonable doubt as to whether [it] led the jury to a result it would otherwise might not have reached." Macon, supra, 57 N.J. at 336.

Furthermore, reversal based on prosecutorial misconduct requires "an evaluation of the severity of the [trial] misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In determining whether a prosecutor's comment prejudiced the defendant's right to a fair trial, we consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Ramseur, 106 N.J. 123, 322-23 (1987).

In this case, no objection was made, suggesting that at the time defense counsel did not consider the remarks to be prejudicial. Additionally, in the absence of a timely objection, the trial court was deprived of the opportunity to take curative action. See Frost, supra, 158 N.J. at 84. Certainly, a prosecutor has considerable leeway in presenting the State's case. A comment is fair not unduly prejudicial when it is made on facts or reasonable inferences from facts. State v. Wakefield, 190 N.J. 397, 457 (2007).

Here, the prosecutor's statements were made in response to defendant's claim that the only physical sign of sexual assault, M.M.'s scar tissue, was caused by something other than his own misconduct. There was nothing inherently prejudicial about the prosecutor's comment. It was self-evident that defendant did not present documentation that might have corroborated the claim. The only corroboration he offered for his testimony was his mother's statements. The prosecutor's statements were therefore fair comment, and did not shift the burden of proof.

The prosecutor's comments regarding Shaw's testimony were also unobjectionable. The point she made was that the expert's testimony about the neutrality of the absence of physical injury stood unrefuted, in other words, that it was the only evidence proffered to the jury on the absence of physical indicia of abuse. In doing so, the prosecutor was merely commenting on the absence of proof.

It cannot be disputed that defendant has no obligation to establish his innocence, a basic tenet of our system. State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). In Jones, for example, the defendant was accused of a home invasion burglary while posing as an armed security guard. Id. at 379. On appeal, he successfully argued that the prosecutor's suggestion in summation that the defendant could have had the gun tested for fingerprints to disprove his guilt impermissibly shifted the burden of proof. Id. at 380.

At the trial in Jones, defense counsel elicited from police witnesses that no effort had been made to obtain fingerprints from the gun retrieved from the scene. Id. at 381-82. Using the testimony as a springboard, counsel then argued in closing that the State's failure to obtain prints was a weakness in its case. Id. at 382. The prosecutor responded that "while the defense never has any burden of proof, when they put on a case stop and ask yourself why isn't it they dusted the gun for prints to disprove that his fingerprints were on there? Maybe the defendant knows something we don't, that it is his gun." Ibid. When it was made, defense counsel objected to the comment. Ibid. In that case, however, in addition to counsel's timely objection, the remarks were not withdrawn nor stricken from the record. In making the argument, the prosecutor created a straw man to knock down affirmatively suggesting to the jury a step defendant could have taken, and then drawing a negative inference before the jury about his guilt because of his failure to take that step.

But unlike Jones, in this case, no objection was made. Defendant himself had testified that he saw the documents regarding M.M.'s alleged injuries. Jones would be analogous if the defendant had said he had the prints tested and that they were not his, but did not produce an expert report to corroborate the claim. Had the prosecutor in Jones commented on defendant's failure to produce the test results in that scenario, the remark would have been unobjectionable.

Here defendant claimed that he saw documents that corroborated his testimony but did not produce them. He only produced his mother to testify that she saw the child in a cast. Therefore, the prosecutor's comments were fair, and did not shift the burden of proof or prejudice the process.

The prosecutor's reference to the absence of expert testimony refuting Shaw's testimony was not so egregious as to have prejudiced the outcome. It was the only evidence presented to the jury of the meaning of the absence of injuries, and, if error, it was harmless. It was another way of pointing out that the only evidence on the meaning of the absence of injuries came from the State's witness. We also note that the court twice instructed the jury, mirroring the model charge, that it could accord to the expert whatever weight it deemed appropriate to her testimony. In our view, the prosecutor's comments overall do not constitute plain error.

II

Defendant's next contention is that the court improperly admitted details regarding defendant's identity as the perpetrator, and details of the sexual abuse acts, through Shaw. Defendant also asserts that defense counsel was ineffective because he did not object, contrary to the principle articulated in State v. Pillar, 359 N.J. Super. 249 (App. Div.), certif. denied, 177 N.J. 542 (2003) (reversing the conviction based on inadmissible hearsay in a child abuse case). We agree that the admission of these statements was error, not only based on Pillar, but the longstanding principle that testimony regarding the identity of a sexual abuser disclosed by a victim to a treating physician is ordinarily inadmissible at trial. See State v. Bowens, 219 N.J. Super. 290, 300-301 (App. Div. 1987) (holding that a statement made by sexual assault victim to a doctor who was treating her was inadmissible because the information was irrelevant to treatment of the patient); State v. McBride, 213 N.J. Super. 255, 273 (App. Div. 1986) (holding that a portion of a hospital report in which patient identified the defendant as the individual who inflicted injuries against her was not relevant to the treatment). Because we conclude the error was harmless, however, we do not reverse.

Pillar, which coincidentally also involved Shaw as a witness, is illustrative. In that case, the doctor testified about her examination of the two young victims of sexual assault. The doctor said that the sexual abuse one of the children described included "penile to genital area touching." Pillar, supra, 359 N.J. Super. at 287. The testimony was not objected to at trial. Having concluded that, pursuant to N.J.R.E. 803(c)(4), the testimony was inadmissible hearsay not falling within the rule related to medical exams, we reversed. The record indicated the victims were referred to Shaw for forensic purposes only. Pillar, supra, 359 N.J. Super. at 289. In the matter at hand, Shaw explained that the interview was conducted for treatment, a significant difference from Pillar.

The details that the prosecutor elicited from Shaw in this case included defendant's identity, the nature of the acts he performed upon the children, and that A.L. had seen him engage in sexual conduct with M.M. Those details, at first glance, were not necessary for treatment or diagnosis.

The nature of the sexual activity was, however, arguably necessary for diagnostic purposes, as it directed Shaw to the type of testing necessary to eliminate the possibility of any resulting infection, injury, or disease. That one child had seen the other being abused by defendant was necessary so that a treating therapist could be informed as to whether the child suffered from a secondary trauma by virtue of having witnessed her sibling's abuse in addition to experiencing her own. Even the identity of the perpetrator, that it was L.M.'s boyfriend, the father of their half-siblings who acted as a father to them, was relevant in terms of necessary psychological treatment.

In assessing the viability of the conviction in this case given Shaw's testimony, we must therefore ask if the error was harmless beyond a reasonable doubt. We must conduct an independent analysis of the quality of the evidence of defendant's guilt. State v. Sterling, 215 N.J. 65, 102 (2013). We do not act as a thirteenth juror. The question of whether the error was harmless beyond a reasonable doubt requires strong independent proof of defendant's guilt. Ibid.

There is strong independent proof of defendant's guilt here as there was in Pillar namely, the testimony of the two girls. The jury also heard and watched the video of the girls' interviews, which included the details reiterated by Shaw. M.M. had the scarring about which Shaw testified, a possible consequence of sexual assault.

But the most significant difference is that defendant's attorney did not object to Shaw's testimony in fact, he welcomed it. The court and trial counsel engaged in the following colloquy on the subject.

THE COURT: I believe [the prosecutor is] going to elicit from this expert witness hearsay what the girls told her. You're going to be objecting to that?

 

[Defense counsel]: No, Judge.

 

THE COURT: Because I find it's permitted New Jersey rule of 803(c)(4) that they went there for treatment and diagnosis, and that's an exception to the hearsay rule.

 

[Defense counsel]: That's correct, Judge.

 

THE COURT: And do you have any objection to this witness indicating who the young girls told her was the one who committed the alleged acts of abuse on them?

 

[Defense counsel]: No, Judge.

 

THE COURT: Okay. Just wanted to make clear. Thank you.

 

[Prosecutor]: Yes, and just for the record as would be before we discussed State v. Pillar . . . . [t]hat was a case that involved Dr. Shaw. We discussed that at length and at sidebar and I believe I briefed the issue for your Honor and again there was no objection or issue to her testimony.

THE COURT: Yeah, I was just trying to recall that case. . . . The court is familiar with that, and despite whatever the court held you're not objecting to this expert witness's testimony, [defense counsel]?

 

[Defense counsel]: That's correct. It all goes back to what was the purpose of securing that evaluation and in the Pillar case I believe that evaluation was more for forensic purposes for use in the courtroom. That made it hearsay. Here we have pretty much a contemporaneous reporting and examination to the date of the allegation. The real purpose for that evaluation . . . is that the Division of Youth and Family Services uses the child protection center that's what it's designed to be able to get information so that they can help with treatment and services. If there is a testimonial benefit that the State can garner, it does so, the statement of a person of the Division of Youth and Family Services or the county prosecutor. I understood the distinction even with my review of the case law and have no objection. Obviously, the cross-examination of this witness is going to focus on some of these hearsay particular statements, but that's what we're here for.

In this case, the State argues that defendant waived his objections to Shaw's testimony for strategic reasons. Trial counsel wanted the jury informed of the absence of physical indicia of sexual abuse, including an STD, infection of any sort, or any other physical symptoms. In fact, the jury did not convict defendant of first-degree aggravated sexual assault on A.L., count five, only finding him guilty of the lesser-included offense of sexual assault a downgrade likely attributable to the lack of physical evidence as per Shaw's testimony.

Significantly, defendant's position with regard to Shaw's testimony was an informed one. Shaw's testimony at the first trial was similar to the testimony she gave here. Counsel could anticipate with some precision what the expert was going to say.

We therefore find that the doctrine of invited error controls. See State v. Lykes, 192 N.J. 519, 539 n.7 (2007). A defendant cannot request that a trial court take a certain course of action, and upon its adoption by the court, take his chance on the outcome of the trial, and then use an unfavorable outcome to condemn the very procedure he sought and urged, claiming it to be error and prejudicial. State v. Jenkins, 178 N.J. 347, 358 (2004).

Defendant knew the details the jury would hear, and for strategic reasons, chose to allow it to be presented to the jury. In light of that position, defendant cannot now object. See also State v. Kemp, 195 N.J. 136, 155 (2008).

Defendant's entire defense theory rested on his own credibility and his blanket denials of culpability. He posited that the charges were fabricated by L.M., and that he was a reliable, hard-working, and loving father to his children, a man who would never engage in wrongful behavior towards a child. Defendant's hope was to tie the alleged car accident suffered by M.M. to the child's torn hymen to explain the only concrete detail that refuted his denials. Had the jury found him to be a credible witness, he would have been acquitted.

Moreover, had the jury believed defendant's account that M.M. had been in a body cast, thereby explaining how she might have torn her hymen, defendant would have been acquitted of the first-degree conviction at least as to that child. That the State's own witness proffered testimony that the injury could have resulted from a car accident made his defense all the more believable. Hence the court did not abuse its discretion in admitting Shaw's testimony, and the admission was harmless error.

Defendant also argues that his counsel's strategy resulted in ineffective assistance. As a general rule, we do not entertain ineffective assistance of counsel claims "on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Therefore, we decline to consider this argument without prejudice to defendant's right to file a petition for post-conviction relief.

 

III

Defendant's third point on appeal is that the State violated the confrontation clause by eliciting the investigating detective's testimony that he first learned of the matter when the Division passed on the anonymous referral regarding A.L. and M.M. When he testified, however, no objection was made. We therefore again employ the plain error standard of review.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This right to confrontation has been applied to state courts through the Due Process Clause of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923, 927-28 (1965). In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court elaborated on the confrontation clause by finding that it applied to "testimonial statements." Further, the Court articulated a two-prong test declaring "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197.

The Crawford court did not specifically define what statements would be considered "testimonial," but the Court has provided some guidelines. For example, "ex parte testimony at a preliminary hearing" and "[s]tatements taken by police officers in the course of interrogations" are testimonial. Id. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193. Statements "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" are not testimonial. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). They are testimonial where the circumstances indicate there is no ongoing emergency and that "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Ibid.

Importantly, federal courts and New Jersey state courts have held that the constitutional right of confrontation may be waived. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3, 129 S. Ct. 2527, 2534, 174 L. Ed. 2d 314, 323 (2009) ("The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections."). See generally State v McKnight, 52 N.J. 35, 48 (1968) (stating that, with regard to waiver of constitutional rights, "[a] defendant must object to evidence when it is offered . . . and although he may be relieved of his failure for 'plain error,' relief depends upon the justice of the case and not upon whether the objection which should have been made has a constitutional tone.").

Defendant also relies on State v. Bankston, 63 N.J. 263 (1973), in support of his argument. That case stands for the proposition that, although the hearsay rule is not violated when an officer explains that he approached a suspect, or went to the scene of a crime, because of "information received," id. at 268, the testimony is objectionable when it includes details that "leads the jury to believe a non-testifying witness has given the police evidence of the accused's guilt," which the jury does not have, id. at 271.

First, unlike Bankston, here defense counsel did not object. Unlike Bankston, the officer's testimony did not imply that a non-testifying witness had given the police evidence of the accused's guilt. The officer said simply that the Division conveyed a referral that they received from an anonymous person. Although we question the necessity of the testimony here, as no challenge was made, even if error, the officer's testimony was harmless. The principal evidence that the jury considered was the videotaped interviews and the children's statements. The admission of this anonymous tip simply was not itself capable of producing an unjust result.3

In a similar fashion, the admission of the anonymous tip does not violate the right to confrontation. It was a non-testimonial statement. See State v. Buda, 195 N.J. 278, 306-07 (2007). The referral was volunteered, not in response to any police or Division questioning, and made to the Division, not the police. The admission of this non-testimonial statement violated neither the confrontation clause nor Bankston.

IV

Lastly, defendant argues that the court improperly weighed the aggravating and mitigating factors in calculating his sentence. Defendant alleges that the crimes were not among the more serious offenses in their class and therefore not deserving of harsh punishment pursuant to NERA. He contends that the judge erred in finding that the children had suffered psychological harm. He also claimed the trial judge erred in finding his lack of remorse warranted aggravating factor three, the risk of re-offense. N.J.S.A. 2C:44-3.

Upon sentencing defendant, the judge found aggravating factors one, two, three, six, and nine, pursuant to N.J.S.A. 2C:44-1. He found that the nature and circumstances of the offense was particularly cruel and heinous because the children were six and seven at the time of the assaults, among other reasons. That alone warrants the finding. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1998) (holding that, where a child is significantly younger than thirteen, the child's young age does not constitute an impermissible double-counting of an element of the offense as an aggravating factor). The court also found aggravating factor two, i.e., the gravity and seriousness of the harm, given the psychological damage the children have suffered and will suffer. That finding also seems warranted in light of the generally accepted notion that child sexual abuse inflicts a terrible toll upon its victims. As to aggravating factor three, the risk that defendant will reoffend, defendant does have the option to continue to deny his guilt and show no remorse for an offense he denies committing. See State v. Poteet, 61 N.J. 493 (1972). The court may nonetheless consider the lack of remorse in assessing the likelihood of reoffending, since, for example, a defendant who continues to deny guilt may resist participation in rehabilitative and correctional programs designed to reduce the risk of future offenses. See State v. Carey, 168 N.J. 413, 426-27 (2001) (stating there was support for trial court's finding of aggravating factor three in a vehicular homicide case where defendant "denied responsibility for the crash and did not acknowledge that he had an alcohol problem"); State v. O'Donnell, 117 N.J. 210, 216 (1989) (where the Court affirmed the trial court's finding of aggravating factor three, that the defendant was likely to reoffend, as the trial court found that the defendant was 'almost boastful' of his actions, which not only indicated a lack of remorse, but also pride in his actions); State v. Rice, 425 N.J. Super. 375, 382 (App. Div.) (finding no error in court's weighing of aggravating and mitigating factors, where court found aggravating factor three "because defendant did 'not tell[] the truth' when testifying before the jury, lacked any remorse and took no responsibility for his actions"), certif. denied, 212 N.J. 431 (2012).

Defendant also contends that aggravating factor six should not apply as his criminal record was not extensive. Defendant has been arrested nine times as an adult, however, and convicted in Pennsylvania on a drug offense dating back to 1996. That conviction warrants a finding that the aggravating factor is applicable.

Generally, aggravating factor nine, the need to deter, is precisely that the necessity to deter the individual being sentenced, and the public at large, from the commission of crimes. That this case involves child sexual abuse adds some heightened weight to this factor.

As the court found, there were no mitigating factors. Nothing in the record would have warranted such findings. Defendant may have perceived himself to have been involved in a positive way with his children, and may have believed that his incarceration would impose a great hardship upon them. But, he was not living with any of them, did not have custody of any of them, and did not appear to be paying support on a formal basis for any of them.

We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid. Defendant's sentence does not shock our conscience.

Affirmed.

1 At defendant's first trial, the jury was unable to reach a verdict. This appeal is from the outcome of defendant's second trial.

2 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3 The anonymous tip was consistent with the defense theory that L.M. was responsible for orchestrating the filing of false charges against defendant.