STATE OF NEW JERSEY IN THE INTEREST OF M.A.

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NOT FOR PUBLICATION WITHOUT THE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 IN THE

INTEREST OF M.A., a minor.

_________________________________

March 27, 2015

 

Submitted February 24, 2015 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-957-13.

Helmer, Conley & Kasselman, P.A., attorneys for appellant M.A. (Patricia B. Quelch, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

M.A., a juvenile, appeals from his adjudication of delinquency for conduct that, if committed by an adult, would constitute one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. He also appeals from his commitment for eighteen months to a secure juvenile facility. We affirm the adjudication and reverse and remand for resentencing.

In September of 2006, V.C., the victim of the assaults, and his mother moved into M.A.'s father's house in Freehold. At that time, V.C. was ten years old, and M.A. was one year older. V.C. lived with his mother and M.A.'s father, visiting his own father every other weekend. M.A. lived predominately with his mother, but also stayed with his father every other weekend. The boys' visitation schedules were synchronized so they would both live at M.A.'s father's house on alternate weekends.

When the two boys first met, their relationship was "like a normal brother-brother" one; they did "everything that normal brothers would do." V.C. testified that the boys' relationship morphed into sexual abuse in "the middle of fifth grade[.]" He explained that

[M.A.] would close the door behind me, lock the door, get in front of the door, and tell me to take off my pants. . . . [and d]irect me to do basically anything he wanted me to do.

Expanding on the sexual nature of the incidents, V.C. continued

Q. Okay. And once your pants were off, what happened, what would happen next?

A. It would usually, he would either come over to me and he would, you know, just like ask me what I wanted him to do to me, and I would always say like nothing. I want to leave. And . . . he would say, no, you have to pick something.

So, I would always . . . never . . . actually pick anything and he would always just give me a hand job. That's how it started off.

. . . .

A. And later on, the abuse, it turned into him giving me oral sex.

. . . .

Q. Okay. Did he ever make you do anything to him?

A. He always made me give him a hand job in return.

Over the course of four years, V.C. estimated that this type of abuse happened "like 30 to 40 [times], but that's probably a lot less."

Regarding the abuse, V.C. testified he would try to get away by "threaten[ing] to yell . . . [and] threaten[ing] to tell someone. [V.C.] tried to forcefully get up and like push [M.A.] away or get past him[.]" This was difficult because M.A. was bigger than V.C., and would physically block him from leaving. V.C. explained that, "[M.A.] told me that he'd hit me, that he'd beat me. He told me that he'd kill me a couple of times if I said anything." The abuse continued until the beginning of V.C.'s freshman year of high school, when he moved into his dad's home in East Brunswick.

V.C. did not tell anyone about the abuse right away because his "home life . . . wasn't that great," and he "felt like [he] had no one to go to." V.C. explained

Well, [M.A.'s] dad like ruled the house, it was whatever he said [] went. And my mom would always like put him first, so I had no one to talk to there. And at that point, I didn't really have a good relationship with my father either.

Eventually, however, V.C. disclosed the abuse to a friend, Carla,1 and then to an intake counselor at High Focus, a therapeutic center. He confided in his "very good friend" Carla in 2011, approximately one year after the last instance of abuse. Regarding that conversation, he stated

I was talking on the phone to her, and it was one of my bad nights, I was really depressed, I was having suicidal thoughts, and . . . I was just talking to her and I just went off on a rant about like everything, like a big heart to heart, spilled my life story.

As for the disclosure at High Focus, V.C. testified that he told them when he was sent there for "an attempted suicide and depression[.]" The sexual abuse was then reported to V.C.'s parents, law enforcement, and to the Division of Child Protection and Permanency.

After an investigation by the Freehold Police Department, M.A. was charged on December 20, 2012, for conduct that, if committed by an adult, would constitute: aggravated sexual assault, N.J.S.A. 2C:14-2a (charge 1); aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (charge 2); false imprisonment, 2C:13-3 (charge 3); endangering the welfare of a child, N.J.S.A. 2C:24-4a(1) (charge 4); and, criminal coercion, N.J.S.A. 13-5a(1) (charge 5). The juvenile delinquency complaint alleged that these offenses occurred between September 1, 2006 and September 30, 2010.

The judge held an N.J.R.E. 104 hearing prior to trial to determine whether Carla, V.C.'s friend, qualified as a fresh-complaint witness. After the testimony of Carla and argument by counsel, the judge determined that Carla could testify as a fresh-complaint witness. The judge found that she was a credible witness, that she was V.C.'s friend, and that the two had known each other for approximately one year. Finally, the judge concluded that

The Court has to consider the fact here that . . . at the time of the alleged abuse, this was a juvenile who was . . . between the ages of ten and 13. We're not talking about . . . a 25-year-old here. The fact that a year lapsed in between the time that he told . . . [Carla] about the alleged abuse, I f[i]nd here not to be an unreasonable period of time given his age, and given the period of time in which . . . it is alleged that he was abused.

After trial, M.A. was found delinquent on all five charges. With regard to charge 1, first-degree sexual assault, the judge found the juvenile not guilty of performing oral sex on the victim when the victim was less than thirteen years old. N.J.S.A. 2C:14-2a(1). The judge could not determine beyond a reasonable doubt from the testimony that the victim had not turned thirteen before the oral sex began. The judge, however, found the juvenile guilty of conduct constituting the first-degree charge on the alternate basis charged, that the actor used physical force or coercion and the victim sustained severe personal injury. N.J.S.A. 2C:14-2a(6).

The judge then sentenced M.A. for conduct that, if committed by an adult, would constitute the first-degree aggravated sexual assault charge alone, as all other charges were merged into that one. M.A. was sentenced to eighteen months of incarceration in a juvenile facility, as well as the requisite fines, penalties, and Megan's Law, N.J.S.A. 7-1 to -19, restrictions and reporting requirements.2

M.A. raises the following points on appeal

POINT I: THE STATE FAILED TO PRESENT SUFFICIENT CREDIBLE EVIDENCE PROVING M.A. GUILTY OF THE CRIMES CHARGED (PARTIALLY RAISED BELOW).

A. THE TRIAL COURT WAS NEGATIVELY INFLUENCED BY THE JUVENILE'S EXERCISE OF HIS RIGHT NOT TO TESTIFY WHEN MAKING ITS FACTUAL AND CREDIBILITY FINDINGS (NOT RAISED BELOW).

B. THE TRIAL COURT'S FINDINGS OF FACTS AND CREDIBILITY ARE NOT ENTITLED TO DEFERENCE.

C. THE STATE FAILED TO PROVE THE JUVENILE GUILTY BEYOND A REASONABLE DOUBT (PARTIALLY RAISED BELOW).

D. THE TRIAL COURT ERRED BY DENYING THE JUVENILE'S MOTION FOR A NEW TRIAL.

POINT II: THE COMPLAINT DID NOT AFFORD THE JUVENILE ADEQUATE NOTICE TO DEFEND (PARTIALLY RAISED BELOW).

POINT III: THE TRIAL COURT ABUSED ITS DISCRETION BY RULING [CARLA] QUALIFIED AS A FRESH[-]COMPLAINT WITNESS.

POINT IV: PROSECUTORIAL MISCONDUCT DURING SUMMATION WARRANTS REVERSAL OF THE TRIAL COURT'S FINDING OF GUILT.

POINT V: CUMULATIVE ERROR WARRANTS REVERSAL OF THE TRIAL COURT'S FINDING OF GUILT.

POINT VI: THE TRIAL COURT ABUSED ITS DISCRETION DURING SENTENCING ENTITLING THE JUVENILE TO A NEW HEARING.

We address each of the juvenile's arguments in sequential order.

I(A)

M.A. argues that the judge improperly considered his decision not to testify at trial. As evidence, he points to the fact that the judge indicated that, when judging credibility of the witnesses, he considered whether a witness's testimony was corroborated by other evidence and whether the witness gave consistent or inconsistent prior statements.

In response, the State points out that the judge never once referred to M.A.'s election not to testify in his decision on the record. Additionally, it is quite clear from the judge's preliminary comments that he did not consider the juvenile's failure to testify. The judge stated

The burden of proving each element of a charge beyond a reasonable doubt rests upon the state, and that burden never shifts to the juvenile. The juvenile, during the course of this trial, has no obligation, or duty to prove his or her innocence or offer any proof relating to his or her innocence.

Nothing in the record substantiates the juvenile's argument that the judge construed his election not to testify against him.

I(B)

We next address M.A.'s argument that the State presented witnesses with inconsistent testimony, and that the trial court erred in "rationaliz[ing] or dismiss[ing] the inconsistencies, rather than conducting an objective review of the evidence." We find this argument without merit, and uphold the trial court's findings of fact and credibility determinations.

Our review of a judge's verdict in a non-jury case is limited. The standard is not whether the verdict was against the weight of the evidence, but rather "whether there is sufficient credible evidence in the record to support the judge's determination." State in the Interest of R.V., 280 N.J. Super. 118, 121 (App. Div. 1995). We are also obliged to "'give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Thus, we give due regard to the trial judge's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citation omitted). In the present case, defendant outlines each and every inconsistency in the trial testimony. We note that some discrepancies and inconsistencies in testimony are common, even when the truth is being told. After a thorough review of the record, we find there was sufficient credible evidence to support the judge's well-reasoned findings that V.C. and the State's other witnesses were credible.

I(C)

M.A. contests the court's finding of aggravated sexual assault and aggravated criminal sexual contact. Particularly, he challenges whether the State proved, beyond a reasonable doubt, the common element in both offenses that V.C. "suffered severe personal injury." He argues that the State offered no expert testimony as to V.C.'s injury, and that the State therefore failed to demonstrate a causal relationship between M.A.'s actions and V.C.'s harm. We disagree.

N.J.S.A. 2C:14-2(a)(6) states "[a]n actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person . . . [if he] uses physical force or coercion and severe personal injury is sustained by the victim[.]" (Emphasis added). "'Severe personal injury' means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain[.]" N.J.S.A. 2C:14-1(f). In State v. Walker, we defined "mental anguish" as "severe emotional distress or suffering." 216 N.J. Super. 39, 43 (App. Div.), certif. denied, 108 N.J. 179 (1987). We continued that "incapacitating mental anguish as severe emotional distress or suffering" results "in a temporary or permanent inability of the victim to function in some significant aspect of her life, such as in her employment, her ability to care for herself or in her capacity as a spouse, homemaker or mother." Id. at 44.

In Walker, we concluded that expert testimony was not necessary to prove a sexual assault victim suffered "incapacitating mental anguish" due to her attack.3 There is no doubt that V.C. sustained incapacitating mental anguish as a result of the abuse by M.A. and there is no doubt the analysis in Walker holds true in this case. From the relevant testimony deemed credible by the judge, he found that

[V.C.] said that the sexual assault had something to do with . . . his cutting, and that the fact that he continued several years after the fact[,] . . . as [Carla] stated, . . . [indicated] he was extremely upset, and that he . . . had to go to counseling at High Focus. Certainly that was something that resulted in, at least, a temporary inability of the victim to function in his normal life[.]

V.C. felt severely depressed, at times even suicidal, and required referral to High Focus. The argument that this victim did not sustain severe injury from the abuse inflicted upon him has absolutely no merit.

I(D)

Prior to sentencing, the juvenile moved for a new trial based upon the various errors alleged in his brief. He raised many of the same issues then that he now raises on appeal.

Rule 3:20-1 states that a "trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." (Emphasis added). "[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (citations omitted).

Because we find the juvenile's arguments on appeal are not meritorious, we find no basis to support his claim of an abuse of discretion in denying his motion for a new trial. The judge made clear findings of fact and credibility, and each of his findings were well supported by the record.

II

In Point II of the juvenile's brief, he argues that he was denied fair notice and due process by the delinquency complaint, which charged him with sexual acts spanning a four-year period, between 2006 and 2010. Specifically, he takes issue with the court's denial of his pre-trial motion to shorten the complaint's time span by two months "from September 2010 to July 2010 based upon [V.C.]'s statement to police." We disagree with the juvenile and find that the judge properly denied the motion.

Both N.J.S.A. 2A:4A-30(a)(3) and Rule 5:20-1(a)(3) require a juvenile complaint to contain the date and time of the conduct alleged. State in the Interest of K.A.W., 104 N.J. 112, 119-20 (1986). Both this statute and Rule "need not be read literally[,]" however. Id. at 120. "[A] literal application of the 'date' and 'time' provisions of the statute and Rule would effectively preclude prosecution of those who have sexually abused children who are unable to specify a date." Ibid.; see also State v. C.H., 264 N.J. Super. 112, 125 (App. Div.), certif. denied, 134 N.J. 479 (1993) (recognizing that when an indictment charges a sexual crime against "a young victim[,] [it] will not have to be as exacting when specifying dates of abuse.").

In determining whether a designated period of time set forth in a delinquency complaint is reasonable, a court should consider

the length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the indictment and the alleged offense; and the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense.

[K.A.W., supra, 104 N.J. at 122 (quoting People v. Morris, 461 N.E.2d 1256, 1260 (N.Y. 1984)).]

The Court in K.A.W. suggested trial courts should also consider "the age and intelligence of the victim, the extent and thoroughness of the prosecutor's investigative efforts to narrow the time frame of the alleged offense, and whether there was a continuous course of conduct." Ibid.4

Here, the timeframe set forth in the complaint was reasonable. The complaint alleged sexual abuse took place for a period of approximately four years, during which time V.C. was between ten and fourteen years old. In that timeframe, V.C. testified that he was forced to perform or receive sexual acts between "like 30 to 40 [times], but that's probably a lot less." Thus, the following factors addressed above are particularly persuasive: V.C.'s age, the length of the alleged abuse, the fact that there was a continuous course of conduct, and the number of individual criminal acts alleged. M.A.'s contention that the delinquency complaint be narrowly tailored to a shorter time period contradicts the factors and reasoning addressed in K.A.W.

III

M.A. argues the trial judge abused his discretion by qualifying Carla as a fresh-complaint witness. Specifically, he takes issue with the timeframe in which V.C. disclosed his sexual abuse to her, and that V.C. "was fourteen years old, almost fifteen, not thirteen as asserted by the trial court" when he made his disclosure of the sexual abuse. We find this discrepancy to be of little importance, and that Carla was properly qualified as a fresh-complaint witness.

The fresh-complaint doctrine "allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated." State v. R.K., ___ N.J. ___, ___ (2015) (slip op. at 19) (citing State v. Hill, 121 N.J. 150, 163 (1990)). To qualify as fresh-complaint evidence, "the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support." Id. at 19-20 (citing State v. W.B., 205 N.J. 588, 616 (2011)). The requirements are relaxed when applied to juvenile victims, because children may be "'too frightened and embarrassed to talk about' the sexual abuse they have encountered, and therefore, juvenile victims are given additional time to complain, and their complaint may be elicited through non-coercive questioning." Id. at 20 (quoting State v. Bethune, 121 N.J. 137, 143-44 (1990)).

Here, the judge did not abuse his discretion in making his evidentiary ruling. See State v. Torres, 183 N.J. 554, 567 (2005). The statement to Carla was spontaneous. As the judge noted, the witness "was a friend and this was not something where she was interrogating V.C." He "opened up to her, [and] was very emotional when he did." The statement was also made within a reasonable amount of time.

M.A. also argues the court abused its discretion by allowing Carla to testify too broadly and by utilizing her testimony to bolster V.C.'s allegations. In that respect, we note that fresh-complaint evidence has a narrow purpose, and a witness may testify only to the general nature of the complaint. R.K., supra, slip op. at 20 (citing Bethune, supra, 121 N.J. at 146). Fresh-complaint evidence should not be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; "it may only be considered for the limited purpose of confirming that a complaint was made." Ibid. (citing Bethune, supra, 121 N.J. at 147-48).

A review of the record reveals that the judge did not consider Carla's testimony as substantive evidence of M.A.'s guilt. Instead, the judge found V.C.'s own description of the abuse as persuasive testimony that M.A. committed the alleged acts. The judge stated

[W]hat remains the constant throughout this, is [V.C.'s] description of the acts of abuse. He never wavered on that. . . .

[W]e can't corroborate it . . . through DNA, we can't corroborate through witness testimony, but each of the witnesses related that - - [Carla], Detective Smith, Mr. Hall, related . . . how he was upset in . . . his account to them.

[(Emphasis added).]

It is clear that the judge relied primarily on V.C.'s unwavering testimony, and not on Carla's testimony, in finding M.A. delinquent beyond a reasonable doubt.

IV

M.A. argues that various comments by the assistant prosecutor during closing argument warrant reversal. In particular, defendant points to the prosecutor's colloquy discussing V.C.'s memory at trial; she described her own recollection of the day she graduated from high school, noting that some of the details were clear, but that others were not easily remembered. Essentially, M.A. argues the "assistant prosecutor's memories were not part of the record and were not appropriately placed before the fact finder during summation."

We analyze the prosecutor's comments within the context of the whole trial. State v. Feaster, 156 N.J. 1, 64 (1998). For prosecutorial comments "to justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper." State v. Wakefield, 190 N.J. 397, 438, (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (citation and internal quotation marks omitted). Additionally, the comments must have been "so egregious as to deprive defendant of a fair trial." Id. at 437 (citation and internal quotation marks omitted).

M.A. did not raise this issue prior to this appeal, and "plain error" will be found only where there is a "clear capacity to bring about an unjust result." State v. Macon, 57 N.J. 325, 337 (1971). We do not find the prosecutor's example of how we all remember important events, but forget details, to have been improper. Even if it was improper, such an error would be harmless, and not capable of changing the outcome of this case or creating an unjust result. This is particularly so because it was a bench trial.

V

Defendant in Point V of his brief raises a cumulative error argument. We find that no cumulative error exists to warrant a new trial. "[N]o trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one." Wakefield, supra, 190 N.J. at 537 (citation and internal quotation marks omitted). "When legal errors cumulatively render a trial unfair, the Constitution requires a new trial." State v. Weaver, 219 N.J. 131, 155 (2014) (citing State v. Orecchio, 16 N.J. 125, 129 (1954)). However, where multiple trial errors are alleged, cumulative error will still not apply if there was no prejudicial error and the trial was fair. Ibid. (citing State v. D'Ippolito, 22 N.J. 318, 325-26 (1956)).

As stated throughout this opinion, there were no trial errors of significance. We do not find cumulative error that would justify a conclusion that defendant was afforded an unfair trial.

VI

M.A. argues the judge misapplied the aggravating and mitigating factors, and abused his discretion when sentencing him. We agree that the judge improperly applied two aggravating factors. The judge found and applied the following three aggravating factors

N.J.S.A. 2A:4A-44a(1)(a)

The fact that the nature and circumstances of the act, and the role of the juvenile therein, was committed in an especially heinous, cruel, or depraved manner;

N.J.S.A. 2A:4A-44a(1)(b)

The fact that there was grave and serious harm inflicted on the victim and that based upon the juvenile's age or mental capacity the juvenile knew or reasonably should have known that the victim was particularly vulnerable or incapable of resistance due to advanced age, disability, ill-health, or extreme youth, or was for any other reason substantially incapable;

N.J.S.A. 2A:4A-44a(1)(j)

The impact of the offense on the victim or victims[.]

As to mitigating factors, the judge found and applied

N.J.S.A. 2A:4A-44a(2)(a)

The child is under the age of 14;
 
N.J.S.A. 2A:4A-44a(2)(h)

The juvenile has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present act[.]

We generally review a judge's sentencing decision under an abuse-of-discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citation omitted). Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)).

As directed by our Supreme Court, we (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

We must also, however, heed our Supreme Court's recent reminder that "When it assesses whether a defendant's conduct was especially "heinous, cruel, or depraved," a sentencing court must scrupulously avoid "double-counting" facts that establish the elements of the relevant offense." State v. Fuentes, 217 N.J. 57, 74-75 (2014) (citations omitted).

In applying the aggravating factors, the judge gave the most weight to factor (a), because he found the abuse went on for a prolonged period of time, four years, and occurred more than thirty to forty times in a cruel manner. We find no error in applying factor (a).

The judge also applied aggravating factor (b) because the victim suffered great harm, and was younger and weaker than M.A. The judge adjudicated that M.A. had committed conduct that if committed by an adult would make him guilty of first-degree sexual assault because of the severe harm to the victim. It was double-counting to also use the severe harm to the victim as an aggravating factor. Similarly, it was double-counting to apply aggravating factor (j), the impact of the offense on the victim.

The juvenile also argues that other mitigating factors should have been applied. In that respect, we find the judge considered them, and correctly found there was not sufficient evidence to support those additional mitigating factors.

Under N.J.S.A. 2A:4A-44d(1)(c), the maximum sentence for an adjudication of delinquency for conduct, which, if committed by an adult, would constitute a crime of the first-degree, is four years, and the eighteen-month sentence imposed in this case is less than half of the maximum. Although we remand to reconsider the sentence without aggravating factors (b) and (j), we do not intend by this decision to infer any opinion regarding the length of the sentence imposed.

The adjudication is affirmed. The sentence is reversed and the matter remanded for an expeditious resentencing. We do not retain jurisdiction.

1 Carla is a fictitious name used to protect the identity of the witness.

2 The sentence was stayed pending appeal.

3 We continued that "[e]xpert testimony is required if the issue to be decided 'is so esoteric that jurors of common judgment and experience cannot form a valid judgment . . . [.]'" Id. at 45 (quoting Butler v. Acme Mkt., Inc., 89 N.J. 270, 283 (1982)). "Expert testimony is justified when the average juror 'is relatively helpless in dealing with a subject that is not a matter of common knowledge.'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 209 (1984)).

4 The Court noted that the factors are merely illustrative, and that other factors would doubtless be relevant based upon the circumstances of a particular case. Ibid.