STATE OF NEW JERSEY v. STEVEN SHRINER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2421-04T42421-04T4

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

STEVEN SHRINER,

Defendant-Appellant.

______________________________

 

Argued October 25, 2006 - Decided April 12, 2007

Before Judges Stern and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

03-03-0055.

Thomas Menchin argued the cause for appellant

(Yvonne Smith Segars, Public Defender, attorney;

Mr. Menchin, Designated Counsel, of counsel and

on the brief).

Russell J. Curley, Deputy Attorney General, argued

the cause for respondent (Stuart Rabner, Attorney General of New Jersey, attorney; Charles M.

Ouslander, of counsel and on the brief).

PER CURIAM

Following a bench trial, defendant was convicted of second-degree attempted sexual assault, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c) (count one); third-degree luring or enticing a child, contrary to N.J.S.A. 2C:13-6 and N.J.S.A. 2C:5-1 (count two); attempted endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) and N.J.S.A. 2C:5-1 (count three); fourth-degree attempted criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:5-1 (count four); and fourth-degree endangering the welfare of a child (possession of child pornography), contrary to N.J.S.A. 2C:24-4(b)(5)(b) (count five). Counts two, three, and four were merged into count one and defendant was sentenced to six years in the custody of the Commissioner of the Department of Corrections. He received a concurrent term of eighteen months for the conviction on the fifth count.

The State's proofs were that on January 17, 2003, Brian Damiani, an investigator with the New Jersey Division of Criminal Justice, commenced an investigation into unlawful computer activity involving children. Using an untraceable laptop computer that was able to record and transcribe Internet conversations and instant messages, he logged into a chat room called "I Want Older Men's Cocks II." The Yahoo server posted the following notice:

You are about to enter an adult chat, an age-restricted area of Yahoo chat. This area may contain communications of a mature and adult nature that may not be suitable for younger users. You must be eighteen years of age or older to access this area. By accessing this area, you are certifying that you are an adult over eighteen years of age, and you agree that you will not allow any minor as so defined in any jurisdiction to view, write or read the contents of this area.

Using the screen name "Timpit6668" (Timpit), Damiani typed "M 14 NJ," which indicated that Timpit was a fourteen-year-old male living in New Jersey. Among the responses received was an instant message from "Topact," who quickly transitioned the subject to sex and sexual contact.

Topact: into?

Timpit: not sure exactly.

Topact: no? what are you looking for today?

Timpit: chatting a bit, seing [sic] what's up.

Topact: my dick is up right now.

Topact:

Timpit: for me?

Topact: might be.

Topact said he had done stuff with younger guys and asked Timpit if he had even "been with a guy." After Timpit said no, Topact suggested phone sex. Timpit responded that he could not use the phone because "[my] parents are always around." Topact said he would love to show Timpit "a hot time" and began discussions of how they could meet. Topact lived in Hoboken, and Timpit said he lived in Hamilton Township.

Timpit: you're to [sic] far away though right?

Topact: for you to come here? or me to go there?

Timpit: i don't drive[.] I can't get there[.] [Do you] have a car?

Topact: yep.

Timpit: you would come here?

Topact: what town?

Timpit: hamilton.

Topact: how would i know if i would meet you if i drove all that way?

Timpit: i'd show up if you come down[.] i just can't get to you.

Topact: how could you get out?

Timpit: I could ride my bike or something.

Topact: wouldn't your parents get mad?

Timpit: no

Topact: how late do you get to stay out?

Timpit: normally like 11 on weekends [and] like 9ish or so during the week.

The conversation transitioned to types of sexual activity they would engage in when they met later that night, which included sexual penetration and fellatio. Topact made Timpit promise to engage in fellatio if he drove to meet him. Timpit responded:

Timpit: you're sure i'm not too young[?] I don't want to be stood up.

Topact: [You're] not too young and I would hate to be stood up as well.

Timpit: your age is opposite mine[.] [Y]our (sic) 41 and i'm 14, maybe its meant to be[.]

Topact then asked Timpit,

Topact: are you a cop?

Timpit: hell no[,] are u?

Topact: no are you involved in law enforcement?

Timpit: no, i'm in high school!

Topact: gotta ask[.]

They agreed to meet in the parking lot of the Briarwood Mall in Hamilton and discussed what they would be wearing to identify each other. They agreed to chat again at 8:00 p.m. before they met. At around 6:00 p.m. Topact transmitted to Timpit a video clip of himself masturbating to ejaculation. At 8:00 p.m. the meeting was confirmed for that evening. Topact said he would be driving a Jeep Cherokee and would activate his emergency flashers to announce his arrival.

At 9:40 p.m. that evening, a dark blue Jeep Cherokee pulled into the Briarwood Shopping Center, and the driver turned on the emergency flashers. Accompanied by other enforcement officers, Investigator Damiani approached the vehicle and placed defendant under arrest. After being advised of his rights, defendant signed a Miranda form and a form consenting to a search of his Jeep. The search uncovered a black bag containing prophylactics, two containers of "Rush," two towels, and a container of Eros Body Glide Lubricant. Defendant admitted that he brought those items for his meeting with Timpit.

At Hamilton Township Police headquarters defendant told Damiani he was in Hamilton Township to meet an eighteen-year-old named Tim whom he had met in an Internet chat room and that it was Tim who initiated the conversation about sex. He said he agreed to the meeting "just to see if we'd get along," and added that if "we wanted to continue the role playing, [it] would have ended up in sexual activity." He said he believed Timpit was eighteen, and he was not interested in anyone under that age. Although he acknowledged Timpit's statements that he was fourteen, defendant said that persons in chat rooms were often engaged in fantasy and role playing. He said he would only know if someone was really fourteen if he saw him or heard him on the phone.

Defendant said he used his Sony laptop in his Hoboken apartment to chat with Timpit. While he admitted having photographs of nude men on the computer, he said none were younger than sixteen. He denied possessing child pornography on his computer, and considered it disgusting. He said his roommate had access to his computer, but conceded that only he had access to the computer that day.

A search warrant for defendant's apartment was issued and executed the next day. A forensic examination of the hard drive of defendant's laptop revealed twenty-four saved pictures of nude or partially nude boys between the approximate ages of eight and fourteen. The images were contained in two newsgroups entitled "alt.binaries.pictures.asparagus" and "alt.binaries. pictures.boys."

At his bench trial defendant conceded that the various chat logs of his conversations with Timpit were accurate. He maintained he thought Timpit was an adult engaged in fantasy role playing and considered Timpit's statements about being fourteen, living with his parents, and riding a bike as part of the role playing. When asked about the images of young boys on his computer, the defendant acknowledged what appeared to be young boys but denied previously seeing them. Nonetheless, he admitted subscribing to the two newsgroups from which the images were obtained and was unable to explain why the time/date stamps for the last modified dates of the files containing the images were dated January 17, 2003 at 3:00 p.m., about forty-five minutes before his chat session with Timpit.

In his oral decision of August 13, 2004, Judge Charles A. Delehey made the following findings:

The certification of age required by Yahoo to enter the chat room is a sham, easily recognized by someone under the age of eighteen, as well as the defendant who is forty-one years of age. There is nothing to preclude a person less than eighteen years of age from entering the chat room, and the defendant's argument that he relied upon the certification as being evidence that an adult had entered the chat room is fallacious.

The defendant contends that he believed that he was engaged in a fantasy with a person over eighteen years of age. He reached that conclusion based upon terminology used by timpit, and timpit's reference to actor Benjamin Bratt. He chose to ignore multiple indications that timpit was fourteen years old, such as, timpit's disclosures that he rode a bike, that he was fourteen years of age, that he had a curfew, that he was living at home and could not speak on the telephone because his mom might hear the conversation. The defendant attributed all of that as being part of a fantasy. The defendant's assertion of a fantasy relationship, absent other evidence, might at least be plausible, however, it is not persuasive.

The Court is satisfied that the defendant accessed the computer at three p.m. on January 17, for the purpose of viewing the downloaded pictures of young boys displayed in sexually explicit and stimulating manners. The pictures themselves are clearly those of young boys; they are not morphed. The bodies are hairless and the faces are hairless. One of the boys displayed, a black male about eight years old, appears apprehensive and frightened.

The Court is satisfied that the state has met its burden of proof, and this Court is clearly convinced, in fact convinced beyond a reasonable doubt that Exhibits S-20 through S-43 are unaltered pictures of young boys being exploited for sexual stimulation.

The Court finds that it is no mere coincidence that approximately forty minutes after entering a chat room, or forty minutes before entering the chat room, in which he engaged in sexual conversation with timpit, that the defendant had viewed the pictures of the boys. The stimulation he received from viewing the pictures directly led to his communications with timpit and their arranged meeting at the Briarwood Mall.

The defendant took a substantial step strongly corroborating his intent to engage in the crimes charged in the indictment when he left his apartment in Hoboken and drove sixty miles to meet timpit, whom he believed to be fourteen years of age.

The Court rejects the defendant's explanations, and is firmly convinced beyond a reasonable doubt that the defendant is guilty of all of the crimes charged.

Defendant raises the following arguments on appeal:

POINT I - DEFENDANT'S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED AS TO COUNT 5 BECAUSE THE INSTRUCTIONS TO THE GRAND JURY WERE ERRONEOUS.

POINT II - THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF ANY OF THE CHARGES.

POINT III - BECAUSE THE MITIGATING FACTORS FAR OUTWEIGHED THE AGGRAVATING FACTORS IN THIS CASE, AND BECAUSE A DOWNGRADED SENTENCE WOULD HAVE BEEN IN THE INTEREST OF JUSTICE, THE TRIAL JUDGE SHOULD HAVE IMPOSED A THIRD DEGREE SENTENCE.

Defendant argues initially that his pre-trial motion to dismiss the indictment should have been granted as to the count of possession of child pornography because the instructions as to the applicable law given by the Deputy Attorney General as to N.J.S.A. 2C:24-4(b)(6) did not distinguish between a presumption that the computer images depicted actual children and the statutory rebuttal inference. The statute imposing strict liability for possession of child pornography states:

For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of sixteen in any . . . computer program or file . . . shall be rebuttably presumed to be under the age of sixteen.

[N.J.S.A. 2C:24-4(b)(6).]

The statutory presumption of age is a permissive inference and does not relieve the State from its burden of proving that the children depicted in pornographic material are actual children as opposed to computer generated images and that their age is below sixteen. State v. May, 362 N.J. Super. 572, 593-94 (App. Div. 2003). However, the requisite proof before the grand jury was probable cause and not proof beyond a reasonable doubt. See State v. Muhammad, 182 N.J. 551, 575 (2005). The grand jury reviewed the computer images prior to determining probable cause. Based on that review and reasonable inferences from the proofs presented, the grand jury could determine there was probable cause. In instructing the grand jury as to N.J.S.A. 2C:24-4(b)(6), the Deputy Attorney General stated:

The point of that part of the law is that there is a rebuttable presumption, and that means that you may, but are not required to, find that if it truly looks like a child under the age of sixteen engaged in one of those enumerated prohibited acts, you may infer the same. . . . You may, but are not required to make that inference.

When a prosecutor's instruction to the grand jury is not an incorrect statement of law or misleading, the indictment will be upheld. State v. Laws, 262 N.J. Super. 551, 563 (App. Div. 1993); State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993). We find no substantive error in the instruction and no abuse of discretion by the motion judge in declining to dismiss the indictment. State v. Hogan, 144 N.J. 216, 228 (1996); State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Furthermore, defendant's argument is moot since the trial judge found sufficient facts as to each statutory element to convict defendant beyond a reasonable doubt. Warmbrun, supra, 277 N.J. Super. at 60; State v. Lee, 221 N.J. Super. 590, 599-600 (App. Div. 1986); see also U.S. v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 942, 89 L. Ed. 2d 50, 56 (1986).

Defendant contends that his conviction of counts one through four of attempting to commit various sexual offenses against a child must be reversed because the State did not present sufficient proof that defendant had the firm purpose of engaging in sexual contact or that he took a substantial step toward commission of that crime. It is settled law that a person cannot logically attempt to cause a particular result unless it is his or her conscious object to do so. State v. Robinson, 136 N.J. 476, 485 (1994)(citing State v. McCoy, 116 N.J. 293, 304 (1989)). Moreover, in order to distinguish between an attempt as opposed to mere preparation, there must be an action corroborative of a criminal purpose that is a substantial step in that course of conduct planned to accomplish the criminal result. State v. Farrad, 164 N.J. 247, 257-58 (2000). If a defendant so acts in a way that is "strongly corroborative" of the firmness of his purpose to carry out the crime, the State has satisfied its burden of proof. State v. Fornino, 223 N.J. Super. 531, 538 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859 (1988).

Judge Delehey found that defendant believed Timpit was fourteen years old, that he had the criminal purpose to engage in sexual penetration with him, and that he took a substantial step to accomplish this unlawful result by driving to meet Timpit at the Briarwood Mall. He rejected defendant's contention that he relied on the age certification posted by Yahoo as fallacious, noting that even defendant conceded that nothing prevented a person under the age of eighteen from entering the chat room. Citing the chat room conversations, he also did not accept defendant's testimony that he believed Timpit was role playing as a fourteen year old and would not have engaged in sexual contact with a fourteen-year-old. He said the defendant's intent to engage in sexual contact with the fourteen-year-old Timpit was made plain by the items defendant brought with him to the meeting place, which were clearly for the purpose of sexual penetration and contact. Further, he accepted the State's argument that the child pornographic images on defendant's hard drive led to the inference that defendant attempted to have sex with Timpit as a fourteen year old. In that regard the judge stated:

The Court finds it is no mere coincidence that approximately . . . forty minutes before entering the chat room in which he engaged in sexual conversation with timpit, that [defendant] had viewed the pictures of the boys. The stimulation he received from viewing the pictures directly led to his communications with timpit and their arranged meeting at the Briarwood Mall.

With regard to count five, Judge Delehey found that the images found on defendant's laptop computer were unaltered pictures of actual boys under the age of sixteen for the following reasons:

The Court is satisfied that [defendant] assessed the computer at three p.m. on January 17, for the purpose of viewing the downloaded pictures of young boys displayed in sexually explicit and stimulating manners. The pictures themselves are clearly those of young boys; they are not morphed. The skin tones of the bodies match the heads. The bodies are hairless and the faces are hairless. One of the boys displayed, a black male about eight years old, appears apprehensive and frightened.

After consideration of the record and in light of Judge Delehey's credibility findings, we find substantial credible evidence supports his determination of defendant's guilt as to all counts of the indictment. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant's last argument on appeal is that in light of the predominance of mitigating factors he should have received a sentence within the third degree range for his conviction of the second-degree crime of sexual assault under N.J.S.A. 2C:44-1(f)(2). A sentencing judge may impose a term appropriate to a crime of one degree lower when the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and that the interest of justice demands the downgrade. State v. Megargel, 143 N.J. 484, 495 (1996). The decision whether or not to downgrade is permissive and discretionary. We will not disturb the sentence if the trial judge properly weighed the aggravating and mitigating factors and set forth a substantial factual basis to support reasons for the sentence. State v. Evers, 368 N.J. Super. 159, 173 (App. Div. 2004).

Judge Delehey found a single aggravating factor, namely, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(9). He found the following mitigating factors: defendant's lack of prior criminal record and the defendant was unlikely to reoffend. N.J.S.A. 2C:44-1(b)(7) and (9). The judge then merged the first four convictions and sentenced defendant to a six-year term, which was at the lower end of the sentence range of five to ten years for a second-degree offense. He received a concurrent sentence for his conviction of the fourth-degree offense of endangering the welfare of a child by possession of child pornography. We find that Judge Delehey appropriately weighed the aggravating and mitigating factors and that there was a sufficient basis for his sentence. The record does not indicate that defendant petitioned the trial judge to downgrade his sentence. In any event, we find from the record before us that there is an insufficient showing that the interest of justice demands that his sentence should have been downgraded.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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16

A-2421-04T4

RECORD IMPOUNDED

April 12, 2007