STATE OF NEW JERSEY v. V.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2566-05T4A-2566-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.F.,

Defendant-Appellant.

_______________________________________________

 

Submitted December 6, 2006 - Decided January 4, 2007

Before Judges Stern and Lyons.

On appeal from Superior Court of

New Jersey, Law Division, Essex County,

Indictment No. 03-12-3964.

Yvonne Smith Segars, Public Defender,

attorney for appellant (John Douard, Assistant Deputy Public Defender, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Kenneth P. Ply,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant, V.F., appeals from a judgment of conviction finding him guilty of sexual assault, aggravated sexual assault, and endangering the welfare of a child. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

In 1995, when A.A. was eleven years old, her grandmother gave custody of A.A. to defendant's wife, who moved A.A. into defendant's Belleville home. A.A. resided in defendant's home with the couple's two young daughters until September 1, 2002, when the defendant and his wife separated. A.A. subsequently moved into an apartment with the defendant.

On November 6, 2002, eighteen-year-old A.A. went to the Belleville Police Department to file a complaint against defendant for sexually abusing her since she was twelve years old. On said date, A.A. also sought a restraining order. Defendant was arrested for the offense on November 8, 2002 and posted bail.

On December 22, 2003, the Essex County Grand Jury issued indictment number 2003-12-3964 charging the defendant with the following nine counts: Terroristic Threats contrary to N.J.S.A. 2C:12-3b, occurring between January 1, 1996 and December 31, 2002 (count 1); Endangering the Welfare of a Child, second degree, contrary to N.J.S.A. 2C:24-4a, occurring between April 14, 1996 and April 13, 2000 (count 2); Aggravated Sexual Assault, contrary to N.J.S.A. 2C:14-2a(1) and 14-2a(2)(c), occurring between April 14, 1996 and April 13, 1997, and April 14, 1997 and April 13, 2000 (counts 3 & 4, respectively); Sexual Assault, contrary to N.J.S.A. 2C:14-2c(1), occurring between April 14, 1996 and April 13, 2002 (counts 5 & 6), and April 14, 1996 and November 1, 2002 (count 7); Sexual Assault, contrary to N.J.S.A. 2C:14-2c(4), occurring between April 14, 1997 and April 14, 2000 (count 8); and Sexual Assault, contrary to N.J.S.A. 2C:14-2c(3)(c), occurring between April 14, 2000 and April 13, 2002 (count 9).

At trial, A.A. testified that the sexual relationship with the defendant began when she was twelve years of age and continued until she was eighteen. She claimed that between the ages of fifteen and eighteen, defendant forcibly compelled her to participate in sexual activity nearly every day and would hit her if she did not comply. A.A. also testified that as a result of the sexual activity with the defendant, she became pregnant and underwent an abortion at age seventeen. A.A. stated at trial that after his divorce from his wife, defendant forced her to move into an apartment with him and the abuse continued. A.A. admitted that defendant played a father-figure in her life but by age eighteen could no longer tolerate the abuse. Accordingly, she confided about the abuse in defendant's younger brother, A.F., who accompanied her to the police station to report same.

The defendant contested the allegations of sexual abuse made by A.A., testifying at trial that no sexual relationship existed when A.A. was between the ages of eleven and eighteen. Defendant stated that he had an almost father-daughter relationship with A.A. and that the two spent time with each other by going to the beach or eating at restaurants. Contrary to A.A.'s allegations, defendant specifically asserted at trial that no sexual activity occurred when A.A. was less than eighteen years of age, nor was A.A. compelled into performing any sexual acts on the defendant. Defendant further contested the allegations of sexual activity with A.A. from 1996 through April 2002 and denied responsibility for A.A.'s pregnancy.

At trial, defendant acknowledged that A.A. and he commenced a consensual sexual relationship in 2002, when she became eighteen years of age. Defendant testified that A.A. began the relationship by walking around the house naked after a shower and fondling him while he was in bed asleep. Defendant stated that he asked A.A. to move out of his apartment in October 2002 and that two weeks later, A.A. raised these false allegations against him. He asserted that the allegations of abuse were untruthfully made by A.A. because she was jealous of his new relationship with another woman.

In addition to the testimony of the two parties above, Belleville Police Officer Giovanni Torluccio, who took A.A.'s complaint on November 6, 2002, also testified as to his observations. Officer Torluccio stated at trial that A.A. presented to the police station to make a report of sexual assault against the defendant and to apply for a restraining order. Officer Torluccio then testified that the case was forwarded to the Detective's Bureau for investigation. According to the statement taken by the Belleville Police Department, A.A. informed Detective Carl Castellano that defendant began the sexual abuse when she was twelve by giving her sex education lessons and that the abuse progressed as she became older. A.A. also informed the detective that defendant would not permit A.A. to go out with friends or drive a car unless she consented to sexual relations. A.A. also informed Detective Castellano that defendant had thrown a knife at her and held it to her throat.

When A.A. presented to the police department, she brought with her three mobile phone messages left by the defendant on October 27, 2002. The recording was not transcribed and there was no transcript in the record of the recording that had been played at trial, but according to the defendant's trial testimony, the third mobile phone message to A.A. was, in part, "when you were younger, I think you took better care of me." Defendant also stated in the third phone message that he expected A.A. home at 5:30 that evening for sexual relations and apologized for hitting her earlier that day.

During direct examination of A.A., defendant's counsel requested a hearing under N.J.R.E. 104(b) and objected to the admission of the three recorded messages asserting that they referred to events occurring outside of the indictment and were overly prejudicial. Following this hearing, the court admitted only the third message into evidence. Defendant acknowledged at trial that he left this message on A.A.'s mobile mailbox but asserted that it was intended as a joke. Defendant also testified that by "when you were younger," he meant "when she first turned 18."

After closing arguments, the trial judge charged the jury as to the elements of the crimes. During his reading of the jury instructions, however, the trial judge mistakenly twice referred to the sexual assault counts (counts five, six and seven), as "aggravated sexual assault." Nonetheless, following deliberations, the jury found the defendant guilty of first-degree aggravated sexual assault (count four), second-degree endangering the welfare of a child (count two), and second-degree sexual assault (counts five, six, seven, and eight). Count nine of the indictment was dismissed at the end of the State's case.

On March 22, 2005, a sentencing hearing was held where count two, endangering the welfare of a child, was merged with count four, aggravated sexual assault. At that time, the trial judge concluded that two aggravating factors were applicable against the defendant: (1) the likelihood of committing another offense under N.J.S.A. 2C:44-1a(3), and (2) the need to deter under N.J.S.A. 2C:44-1a(9). The court also found an applicable mitigating factor under N.J.S.A. 2C:44-1b(7), that defendant had no history of prior criminal convictions. The court ultimately determined that "the aggravating factors preponderate over the mitigating factors" and did not sentence defendant to a lower-degree crime.

The trial judge then sentenced defendant to a custodial term of fifteen years with 85% parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2 for count four, with concurrent sentences of seven years for counts five, six, and seven, each with 85% NERA parole ineligibility, and seven years for count eight. On January 23, 2006, the defendant timely appealed his convictions.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TAPED CELL PHONE MESSAGES INDICATING HIS OTHER BAD ACTS AND BAD CHARACTER WERE INADMISSIBLE UNDER N.J.R.E. 404(a), 404(b), AND 403, DENYING DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, 1, 10 (Partially Raised Below).

A. The Prosecutor's Allegation Of Defendant's Other Wrongs or Bad Acts Was Inadmissible Under N.J.R.E. 404(b) and 403.

B. The Prosecutor's Introduction Of Evidence that Defendant Demanded Sex From A.A. When She Was Eighteen Years Old, Violated N.J.R.E. 404(a)(1) Because Defendant Did Not Present Evidence Of His Good Character or Otherwise Raise Character as an Issue.

POINT II

THE JUDGE'S JURY CHARGES WERE CONFUSING BECAUSE HE CALLED SEXUAL ASSAULT AGGRAVATED SEXUAL ASSAULT AND THE JURY MIGHT EASILY HAVE MISUNDERSTOOD AGGRAVATED SEXUAL ASSAULT AS REQUIRING ONLY SEXUAL PENETRATION WITH ANOTHER PERSON USING FORCE OR COERCION. (Not Raised Below).

POINT III

BECAUSE THE NO EARLY RELEASE ACT SENTENCES ON COUNT FOUR WAS IMPOSED WITHOUT THE JURY HAVING SPECIFICALLY FOUND THAT A.A. WAS SEXUALLY ASSAULTED ON OR AFTER JUNE 29, 2001, OR THAT DEFENDANT COMMITTED A "VIOLENT CRIME" BEFORE THAT DATE, THE 85% PAROLE INELIGIBILITY PERIOD IMPOSED WAS ILLEGAL AND MUST BE VACATED. (Partially Raised Below).

POINT IV

THE SENTENCE IMPOSED UPON DEFENDANT WAS LEGAL ERROR BECAUSE THE AGGRAVATING AND MITIGATING FACTORS WERE IMPROPERLY BALANCED.

We agree that the application of the NERA parole ineligibility period to count four, aggravated sexual assault, was improper and should be remanded to the trial court for a jury determination as to the threat or use of physical force. We also conclude that the balance of defendant's contentions are without merit and affirm the judgment of conviction.

I.

The defendant contends that his right to a fair trial was denied when the trial court permitted the introduction of the taped mobile phone message claiming that it possessed little probative value and was inadmissible under N.J.R.E. 403. The defendant also asserts that contrary to N.J.R.E. 404(a)(1) and (b), the jury was improperly encouraged to consider the defendant's character even though he had not raised his good character as an issue. The State argues that the phone message is relevant res gestae evidence, not excludable under N.J.R.E. 404(b).

N.J.R.E. 403 requires the exclusion of relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of the issues, or misleading the jury, or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

N.J.R.E. 404(a)(1) bars admission of an accused's character trait in an attempt to prove conformity unless evidence of a pertinent trait of the accused's character is offered by the accused. Under N.J.R.E. 404(b), "Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b) also holds however, that this kind of evidence may be admitted for other purposes, such as to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Such prior bad acts evidence is admissible where the court finds it to be relevant to a disputed material issue, similar in kind and reasonably close to the charged offense, the evidence is clear and convincing, and its probative value is not outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992).

Where "other-crimes" evidence is "otherwise admissible but involves inflammatory and other unduly prejudicial facts, the judge is obliged to require the evidence to be sanitized to the extent necessary to accommodate both the State's right to establish a fact in issue and the defendant's right to a fair trial." State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), aff'd, 162 N.J. 27 (1999).

It is the trial court that has broad discretion to determine whether evidence should be excluded under Rule 403, and on appellate review, "the decision of the trial court must stand unless it can be shown that it palpably abused its discretion, that is, that the finding was so wide off the mark that a manifest denial of justice resulted." State v. Marrero, 148 N.J. 469, 505 (1997); See also State v. Carter, 91 N.J. 86, 106 (1982), Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

"N.J.R.E. 404(b), does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995); See also State v. Ortiz, 253 N.J. Super. 239, 243 (App. Div. 1992). "In contrast to other-crimes evidence . . . res gestae evidence relates directly to the crime for which a defendant is being tried, rather than involving a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div. 2001); See also State v. Martini, 131 N.J. 176, 242, (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995).

Res gestae evidence "serves to paint a complete picture of the relevant criminal transaction." L.P., supra, 338 N.J. Super. at 235. Therefore, "evidence of conduct occurring 'during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.'" Ibid.; See also Cherry, supra, 289 N.J. Super. at 522. It is unnecessary to instruct the jury on the limited uses of other crimes evidence when the uncharged conduct is admitted as part of the res gestae of the crime. L.P., supra, 338 N.J. Super. at 235.

Res gestae evidence may be used to "prove or explain acts or conduct of a defendant-declarant. Such statements of defendant-declarant are admissible 'because they are so connected with an act, itself admissible as part of the res gestae, as to have become incorporated with it.'" State v. Long, 173 N.J. 138, 157 (2002). "In deciding whether to exclude evidence based on its potential for prejudice, 'a court must consider the availability of other evidence that can be used to prove the same point.'" Long, supra, 173 N.J. at 164; See also State v. Covell, 157 N.J. 554, 569 (1999).

The court below appropriately performed an N.J.R.E. 403 balancing analysis and properly concluded that the third mobile phone message was relevant and admissible. There is no indication that the trial court abused its discretion or in making its decision to admit the message, was so off the mark that the defendant was unduly prejudiced or did not receive a fair trial. Indeed, when the court made its determination to admit the recording, defendant's counsel did not specifically object to its introduction. "That evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof." Green, supra, 160 N.J. at 496, (quoting State v. Stevens, 115 N.J. 289, 308 (1989)).

Although at trial the State predominantly relied upon the defendant's reference of when the victim was "younger," it is clear that the admission of the entire message assisted the jury in understanding the relevant charges brought against the defendant and accordingly, was res gestae proof of the crimes alleged. Indeed, the Supreme Court has long held that declarations made by a defendant prior to a crime should be admitted as res gestae evidence because they are part of the "mosaic of the criminal event." State v. Baldwin, 47 N.J. 379, 394 (1966). The defendant's message in this case was not used solely to demonstrate a character trait contrary to N.J.R.E. 404(a)(1), but was admitted into evidence by the trial court because it "related back to a prior time period" that was relevant to the indictment. It was also a statement made by the defendant against his own interest and thus, admissible under N.J.R.E. 803(c)(25).

The defendant was indicted for making terroristic threats, endangering the welfare of a child and various charges of sexual assault and aggravated sexual assault. Under these charges, the trial court was correct to admit evidence of prior abuse in order to demonstrate defendant's motive and plan. As held in State v. Baluch, "Evidence of a defendant's prior verbal and physical abuse of his or her victim may be relevant and admissible under N.J.R.E. 403 and 404(b) to establish motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident or other such matters when relevant to a material issue in dispute." 341 N.J. Super. 141, 191 (App. Div. 2001).

At trial, the defendant denied that he physically disciplined or abused A.A. Such clear and convincing evidence demonstrating that, in fact, he did abuse A.A. in the past relates back to the current charges and was properly admitted. Moreover, "Courts have recognized that the nature of child abuse prosecutions makes it difficult in some cases to extricate evidence of other uncharged conduct from testimony about abuse." L.P., supra, 338 N.J. Super. at 238. The phone message in dispute evidenced defendant's long-practiced motive and plan in abusing the victim and did not merely relate to his character. Rather, the contents of the message served as highly probative admissions by the defendant, providing the jury with a "complete picture" of the scope and extent of the crimes committed. L.P., supra, 338 N.J. Super. at 235. Accordingly, the mobile phone message was properly admitted by the trial judge.

II.

Defendant also contends that he was deprived of constitutional due process and a fair trial because the trial judge mistakenly twice referred to the sexual assault counts (counts five, six and seven), as "aggravated sexual assault" during his reading of the jury charge, confusing the jury. The State contends that the trial judge's references to "aggravated" did not amount to a plain error warranting reversal of the conviction.

"Jury instructions consist of various different parts. The most critical part of any jury instruction is an explanation of the law applicable to the case." State v. Walker, 322 N.J. Super. 535, 546 (App. Div. 1999). With regard to a criminal case, "this includes an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State's burden of proving the defendant's guilt beyond a reasonable doubt." Ibid. Thus, "the court must explain the controlling legal principles and the questions the jury is to decide. So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990). In balancing the need for accuracy, however, the Supreme Court has "repeatedly held that portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).

Most importantly, "in passing on the propriety of a trial court's charge, an appellate court reviews all that was said on the particular subject being challenged, and if on reading the charge as a whole, prejudicial error does not appear then the verdict must stand." State v. C.H., 264 N.J. Super. 112, 136-37 (App. Div. 1993). Indeed, no party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. Thompson, supra, 59 N.J. at 411; Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J. 204, 206 (1988). Moreover, the Court has "repeatedly emphasized that incorrect instructions of law are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987).

Where the appellant failed to object to the charge, R. 1:7-2 specifically provides that a showing of plain error must be made when appellant claims error on appeal. In considering a jury charge, the court has held that plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Moreover, R. 1:8-7 distinctively requires written requests to charge.

A review of the record and the applicable standards of law reveal that the defendant was not deprived of due process or a fair trial because of the trial judge's references to the word "aggravated" during the jury charge for sexual assault. When given the opportunity to object to the jury charge, defendant's counsel did not do so with regard to the trial judge's use of the word "aggravated." Instead, defendant's counsel objected on other grounds concerning another portion of the charge. Accordingly, the court must analyze the jury charge under the plain error rule to determine whether it led to an unjust result.

In evaluating the charge as a whole, there is no indication that the jury would have been misled or confused by the judge's use of "aggravated sexual assault" for counts five, six, and seven. Granted, it is clear that the judge twice misspoke in reading the jury charge, but it is also true that before the misstatements, the judge clearly explained the counts he would be discussing. According to the trial transcript, the judge first charged the jury, stating, "I now turn to counts 5, 6, and 7, which charge sexual assault and the definitions are going to be very similar. So I'm going to combine them for one count in one charge." The trial judge then explained in detail, the elements of each count and referred to "sexual assault" three times before he misspoke in adding the word "aggravated." In any event, he instructed on the elements on a count by count basis and advised the jury that the State had the burden of proving the elements of each count as charged.

The judge's instructions were detailed and specific enough for the jury to understand the essential content of the charge, despite the misstatements made. The trial judge's mistaken references certainly were not enough to confuse the jury to such an extent that an unjust result occurred or to warrant the reversal of the conviction. Had the jury been misled or confused by the judge's references, it is likely that jury members would have asked questions of the court during deliberations. There is no indication from the record or in defendant's brief however, that such questions were asked. Moreover, the jury took with them into deliberations, the verdict sheet noting "each count and the type of charge" and thus, members had the opportunity to resolve any confusion by reference to the verdict sheet as well as the charge. Indeed, the verdict sheet itself expressly differentiates "aggravated sexual assault" in counts three and four from mere "sexual assault" in counts five through eight.

In evaluating a jury charge, "The test is to examine the charge in its entirety, to ascertain whether it is either ambiguous or misleading or fairly sets forth the controlling legal principles relevant to the facts of the case." C.H., supra, 264 N.J. Super. at 136-37. When taken as a whole, the trial judge's jury charge was not ambiguous or misleading, sufficiently explained the elements of the crimes charged on each count, and was not prejudicial.

III.

Defendant also asserts that the court's imposition of the 85% NERA parole ineligibility period upon count four's charge of aggravated sexual assault was erroneous because the jury did not render a determination on whether physical force or the threat of physical force was used consistent with the statute. The State counters that the required determination regarding physical force was made by the jury when it decided upon counts five, six, and seven of the indictment which charged second-degree sexual assault by penetration with physical force or coercion and that the findings of force on those counts should apply to count four.

The policy function of NERA is to establish "a required minimum sentence for certain crimes of the first and second degree" by requiring incarceration for 85% of the sentence without the possibility of parole. Cannel, New Jersey Criminal Code Annotated, comments 1 & 3 on N.J.S.A. 2C:43-7.2 (2006). Amended on June 29, 2001, the current version of NERA specifically lists those crimes to which the parole ineligibility period must be applied, including sexual assault and aggravated sexual assault. State v. Andino, 345 N.J. Super. 35, 39 (App. Div. 2001).

In contrast, the prior 1997 version imposed the 85% parole ineligibility period if a defendant was convicted of a "violent crime" and did not specifically list the applicable crimes. Ibid. Under the 1997 NERA, "violent crime" expressly included "any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of physical force." 1 997 N.J. A.L.S. 117. In choosing which version of NERA should be applied, the date of the crime controls. State v. Johnson, 376 N.J. Super. 163, 168 (App. Div. 2005).

Under the 1997 version, NERA covers three types of first-degree and second-degree sexual assaults: (1) those in which the actor causes serious bodily injury; (2) those in which the actor uses or threatens the immediate use of a deadly weapon; and (3) those in which the actor uses or threatens the immediate use of "physical force." Those three categories are NERA factors. State v. Thomas, 166 N.J. 560, 571 (2001). Moreover, "physical force as a NERA sentencing enhancement factor means the same as an element of the offense." Ibid. Thus, "NERA has defined `violent crime' in the context of `statutorily defined elements of a crime,' whether sexual in nature or otherwise." Ibid. However, "where none of the NERA factors is an element of the offense charged, there must be additional proof of a NERA factor before there can be sentence enhancement under the Act." Id. at 563.

Our courts have held, "A NERA sentence on an extended term [has] to be the NERA sentence that would be imposed had defendant been sentenced to the maximum ordinary term for the crime of which he is convicted." Andino, supra, 345 N.J. Super. at 39. Additionally, the Supreme Court has held that the 1997 NERA applies only to sexual assaults and aggravated sexual assaults where a jury determines beyond a reasonable doubt that physical force beyond that inherent in the act of penetration or contact is used or threatened. Thomas, supra, 166 N.J. at 576-77. The Court specifically determined that the Legislature chose to define violent crime narrowly under NERA, requiring "the actor actually to use or threaten the immediate use of a deadly weapon or physical force unless serious bodily injury has been inflicted." Id. at 576.

Where it is found that a NERA predicate is not constitutionally adequate, "the factual predicate for a NERA sentence must be found by a jury under the `beyond a reasonable doubt' standard." Johnson, supra, 376 N.J. Super. at 169. The United States Supreme Court supported the requirement for a jury determination, holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt ... It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.

[Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000).]

Courts "must be guided by the governing legal precedents which require a jury finding, beyond a reasonable doubt, that the necessary NERA predicate was proved by the State before a NERA enhanced sentence can be imposed." State v. Natale, 348 N.J. Super. 625, 635-36 (App. Div. 2002), aff'd in part, rev'd in part, 184 N.J. 458 (2005). Where a jury verdict does not demonstrate such a finding, the matter must be remanded for a jury trial on the NERA predicate. Ibid. If the NERA predicate fact, [such as] physical force, did not constitute an element of the offense of which the jury found the defendant guilty, the jury was required, on special instruction, to find whether the predicate fact was present or not. State v. Marinez, 370 N.J. Super. 49, 57 (App. Div. 2004).

The defendant in this matter was charged in count four with "Aggravated Sexual Assault by vaginal penetration upon A.A." between April 14, 1997 and April 2000 as a foster parent or guardian who stood in loco parentis within the household. Accordingly, since the crime charged occurred sometime before the June 29, 2001 amendment of NERA, the 1997 version of the statute controls. See Johnson, supra, 376 N.J. Super. at 168. Pursuant to the cited case and statutory law, in order for the defendant to be subject to the 1997 85% parole ineligibility period, the jury had to find "beyond a reasonable doubt" that the defendant in fact, committed a violent act in which he used or threatened to use physical force against the victim. See Natale, supra, 348 N.J. Super. at 635-36; Johnson, supra, 376 N.J. Super. at 169 (App. Div. 2005).

The State correctly submits that at trial, the jury unanimously found the defendant guilty of sexual assault using physical force and coercion in counts five, six and seven sometime between A.A.'s thirteenth and eighteenth birthdays, that is, between April 1996 through November 2002. Under the State's analysis, the finding of physical force on these counts should apply to count four so that the parole ineligibility period may be imposed. This reasoning is problematic, however, because the trial jury never specifically determined the dates that such physical force was used in counts five, six, and seven, but merely that it occurred over a range of time which included the period prior to June 1, 1997. Without a specific finding as to when force or the threat of force was used, the appropriate NERA standard could not be applied as to count four. Accordingly, the findings of counts five, six, and seven cannot be carried over into count four and it should be analyzed independently under the 1997 version of NERA.

Additionally, the jury never specifically found beyond a reasonable doubt that the defendant used physical force or coercion against A.A. with regard to the count four charge of aggravated sexual assault. In count four, the jury merely determined that vaginal aggravated sexual assault occurred on a victim less than sixteen years of age by an in loco parentis offender. In contrast, counts five, six, and seven, each charged the defendant with different forms of sexual assault at different times and specifically noted that the "actor used physical force or coercion." The issue of physical force or coercion, however, was never given to the jury with respect to count four. Since the jury never made this finding, the issue of whether the defendant committed a "violent crime" and used or threatened the "immediate use of physical force" remains unresolved with respect to that count.

Absent the jury's finding of physical force or the immediate threat of force beyond a reasonable doubt, it follows that the trial court erred in imposing the NERA parole ineligibility standard upon the defendant as to count four. Pursuant to Natale, supra, 348 N.J. Super. at 635-36, this matter should be remanded and a jury trial held to determine, beyond a reasonable doubt, the NERA predicate of the threat or use of physical force as to count four of the indictment. "We leave it to the trial judge, prosecutor and defense attorney to resolve the parameters of such a trial." Ibid.

IV.

Defendant argues the trial court's weighing of the aggravating and mitigating factors was erroneous in that the victim's age, an element in many of the charges, was inappropriately considered. Defendant also claims that neither the unlikelihood of these crimes to recur nor his responsibilities to his family while he is incarcerated were weighed as mitigating factors. The State counters that the trial court's sentencing was lenient, and its balancing of the aggravating and mitigating factors was not arbitrary and capricious, but was supported by evidence in the record.

"Sentencing discretion under the Code [of Criminal Justice] involves an interplay between the degree of crime on one hand and application of aggravating and mitigating factors on the other." State v. Sainz, 107 N.J. 283, 287 (1987). Aggravating and mitigating factors are used to insure that sentencing is individualized without being arbitrary. Id. at 288. To provide an intelligible record for review, the trial court should identify the aggravating and mitigating factors, describe the balance of those factors, and explain how it determined defendant's sentence. State v. Kruse, 105 N.J. 354, 360 (1987).

In contrasting the respective roles of trial and appellate courts in evaluating aggravating and mitigating factors, the Supreme Court held:

A trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence. Kruse, supra, 105 N.J. at 359-60; State v. Roth, 95 N.J. 334, 359-60 (1984). The role of the appellate court is different. It does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances the aggravating and mitigating factors that are supported by competent credible evidence in the record. State v. Jarbath, 114 N.J. 394, 400-01 (1989). Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience." Roth, supra, 95 N.J. at 365.

[State v. O'Donnell, 117 N.J. 210, 215-16 (1989).]

The sentence imposed must reflect the Legislature's intention to focus on the degree of the crime itself as opposed to other factors personal to the defendant. State v. Hodge, 95 N.J. 369, 377 (1984). In reviewing a sentence, the appellate court can "(a) review sentences to determine if the legislative policies . . . were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.

"The fundamental principal is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." Roth, supra, 95 N.J. at 365-366; O'Donnell, supra, 117, N.J. at 216. "Courts should consider a defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him." State v. Evers, 175 N.J. 355, 394 (2003).

The sentencing record reveals that the trial judge considered the testimony and input of several parties when the aggravating and mitigating factors were being evaluated. Also considered was an evaluation report from a diagnostic center concluding "that defendant is not a compulsive sex offender" but finding "hedonistic, opportunistic and exploitive factors." Despite four prior arrests and two disorderly persons offenses, the trial judge was flexible and noted that the defendant's past offenses amounted to "no prior criminal record at all." The record reveals that the trial judge considered the defendant, the offenses, and the applicable aggravating and mitigating factors as a whole, and did not simply sentence the defendant in an arbitrary and capricious manner.

The sentencing statutes of this State contemplate "a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Scher, 278 N.J. Super. 249, 273 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). It is apparent from the sentencing transcript that in fact, the court thoughtfully considered the factors and all aspects of this case, and arrived at a balanced sentence. The judge did exactly what he should have done at the time, he imposed presumptive sentences based on the fact that neither the aggravating nor mitigating factors outweighed the other.

Contrary to the defendant's assertion that the trial judge did not consider the defendant's otherwise clear legal record, his financial responsibilities to his family, or the unlikelihood of these crimes recurring, the trial judge did in fact, include these points in his sentencing evaluation. Acknowledging that the testimony before the trial court depicted the defendant as "a good provider for his family" and "a hard working man" the court also noted that it must balance the "serious offenses for which he stands convicted." Moreover, the Supreme Court has held that "Defendant's status as a first-time offender, `family man,' `breadwinner,' and esteemed member of the community, however commendable and worthy of consideration in deciding the length of his term of incarceration, is not so extraordinary as to alter the conclusion that his imprisonment would not constitute a serious injustice overriding the need for deterrence." Evers, supra, 175 N.J. at 400. Accordingly, the trial court did not err in not recognizing defendant's financial responsibilities to his family when it balanced the mitigating factors.

With regard to defendant's contention that the victim's age weighed more heavily in the trial judge's sentencing considerations than he wished to admit and was improperly considered since it was an element of the charges, there is no indication in the record that the victim's age played a predominant role in the judge's application of the aggravating factors. Pursuant to well-settled case law, "an appellate court may not substitute its judgment for that of the trial court . . . [unless] the trial court's determination was clearly mistaken." Evers, supra, 175 N.J. at 386; See also O'Donnell, supra, 117 N.J. at 215; Jabbour, supra, 118 N.J. at 6. There is no indication that the trial judge below was clearly mistaken, erroneous, or imbalanced in his sentencing determination. Nor is there any indication that the trial court's sentence should shock the conscience of any court when considering the gravity of the crimes charged. Accordingly, the trial court's findings of aggravating and mitigating factors were not erroneous.

The convictions are affirmed. The sentences are affirmed except for the sentence imposed on count four, and the matter is remanded for further proceedings with respect to the sentence on count four.

 

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A-2566-05T4

RECORD IMPOUNDED

January 4, 2007