STATE OF NEW JERSEY v. DAVID C. ROTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1371-07T41371-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID C. ROTH,

Defendant-Appellant.

_________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Payne, Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-1076.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant David Roth appeals his conviction on fifteen counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b), based upon his possession of child pornography. He also appeals the aggregate sentence of imprisonment for seven- and-one-half years, consisting of one eighteen-month term and six consecutive twelve-month terms on the seven counts remaining after merger. We affirm.

I.

We discern the following facts from the trial testimony.

Roth began dating April Nelson in September 2002. In June 2003, Nelson moved into Roth's apartment in Blackwood. At that time, David Carp was also residing in Roth's apartment. The apartment had one bedroom. The dining room, which had been converted into a second bedroom by a curtain barrier, was used by Roth and Nelson.

Roth owned a Compaq computer that he kept in the living room. Both Nelson and Carp had access to the computer. According to Nelson, at some point after she moved in with Roth, she approached the computer to use it. After she moved the mouse to deactivate the screen saver, Nelson saw that the computer was downloading something from Kazaa, a searchable, peer-to-peer file-sharing service. Nelson testified that the files being downloaded had "weird titles," such as "Daddy's Little Girl." She clicked on the files and saw images of a little girl approximately nine to ten years old in sexually explicit poses.

When Nelson questioned Roth about the images, he told her "it was like looking at a car wreck. He couldn't take his eyes off it." Roth told Nelson that the girl in the pictures was named "Vickie." Roth promised Nelson that "he would get rid of it, erase it and not look at it again."

A few days later, because she did not believe that Roth had actually deleted the pictures, Nelson went through his computer disks and found that he had downloaded the pictures onto a disk. Nelson testified that during the two weeks she lived with Roth, she saw him look at the images six or seven times.

In February 2004, Nelson anonymously reported Roth to the National Center for Missing and Exploited Children (NCMEC), using an online form. She reported that Roth was downloading child pornography and that hard evidence of his crime existed "on a disk." Nelson testified at trial that she had waited so long to report Roth because she was "scared" and "embarrassed." She also explained that she "didn't want to have [Carp] be involved in anything."

NCMEC forwarded Nelson's report to the Camden County Sheriff's Department, which eventually identified Nelson as the source of the report. In May 2004, Nelson was contacted by Sheriff's Officer Tom Brett, to whom she gave a statement. Based on the information obtained from Nelson, Brett decided to conduct a "knock and talk" at Roth's residence.

On the early morning of June 4, 2004, Brett, Sergeant Brian Penn, and two State Troopers, Stanley Field and Gordon Samartino, went to Roth's apartment. Brett knocked on the door and Roth answered. Brett identified himself as a law enforcement officer and told Roth that he was there because of suspicion that Roth had child pornography on his computer. Roth asked the officers to wait while he locked up his dog and then let them into the apartment. Roth agreed, orally and in writing, to allow the officers to search his computer and computer related materials.

Brett testified that the computer was on a desk in the living room. The desk "wasn't very organized" and had "[a] lot of disks" on it. Field first examined Roth's hard drive, but found no images of child pornography. Brett, who had been advised by Nelson that the pictures were on a disk marked "Vic Simone," located that disk and brought it to Field's attention.

Field brought up an image from the "Vic Simone" disk. According to Brett, the image "[a]ppeared to be a preteen female. No clothes on. Fully unclothed." The second image was of "a naked prepubescent girl on top of a male . . . having sexual intercourse." A third image viewed in Roth's home was similar to the second. After seeing the images, the officers "secured that [disk] as well as the other DVDs and searched for any more DVDs that were there."

At that time, Roth had a new roommate, Earl McCart, who was sleeping in the bedroom. The officers knocked on McCart's door. He consented to a search of his room. The officers seized a loaded weapon and a computer from McCart's room. Because he had a previous felony conviction, McCart was arrested for unlawful possession of a firearm. N.J.S.A. 2C:39-7. However, McCart was never charged with any crimes involving child pornography.

The officers placed Roth under arrest and read him his Miranda rights. Once transported to the Gloucester Township Police Department, Roth made a statement in which he denied possessing any child pornography.

Roth was indicted in March 2006 on fifteen counts as follows: (1) possession of a photograph depicting children engaging in prohibited sexual acts designated "kid girl 12 yr," N.J.S.A. 2C:24-4(b)(5)(b); (2) possession of a photograph designated "Jessica 012," N.J.S.A. 2C:24-4(b)(5)(b); (3) possession of a photograph designated "Jessica 013," N.J.S.A. 2C:24-4(b)(5)(b); (4) possession of a video clip designated "Jessica 014," N.J.S.A. 2C:24-4(b)(5)(b); (5) possession of a video clip designated "Jessica 015," N.J.S.A. 2C:24-4(b)(5)(b); (6) possession of a video clip designated "Jessica 016," N.J.S.A. 2C:24-4(b)(5)(b); (7) possession of a video clip designated "Jessica 017," N.J.S.A. 2C:24-4(b)(5)(b); (8) possession of a video clip designated "Jessica 018," N.J.S.A. 2C:24-4(b)(5)(b); (9) possession of a video clip designated "Jessica 019," N.J.S.A. 2C:24-4(b)(5)(b); (10) possession of a video clip designated "Jessica 020," N.J.S.A. 2C:24-4(b)(5)(b); (11) possession of a video clip designated "Jessica 021," N.J.S.A. 2C:24-4(b)(5)(b); (12) possession of a video clip designated "Jessica 022," N.J.S.A. 2C:24-4(b)(5)(b); (13) possession of a video clip designated "Jessica 023," N.J.S.A. 2C:24-4(b)(5)(b); (14) possession of a video clip designated "Jessica 024," N.J.S.A. 2C:24-4(b)(5)(b); and (15) possession of a video clip designated "Child Lover/Little Collection," N.J.S.A. 2C:24-4(b)(5)(b).

Roth was tried by a jury in March 2007. Nelson, Brett, and Penn testified to the facts recounted above. Carp also testified for the prosecution. Carp testified that he did not own a computer when he lived with Roth, and that there was one computer in the apartment, which was located in Roth's living room. According to Carp, he had only used Roth's computer "three or four times" to check his email.

Carp testified that, on one occasion, Roth knocked on his door and "said come out and take a look at this thing I found on the Internet." When Carp did so, he saw child pornography on Roth's computer screen. Carp testified that he told Roth: "You should get rid of it. Furthermore, I don't want to see it. [You] shouldn't bring anything like that to my attention."

Carp also testified that, approximately a month after that incident, Nelson came to him and said that she had gone through Roth's computer and "found a large amount of child pornography and . . . was very concerned about him." Later that same day, Nelson and Roth had an argument about what Nelson had found on the computer.

During cross-examination at trial, Carp denied having planted the "Vic Simone" disk in Roth's apartment when he moved out in March 2004. He acknowledged that he did not like Roth and that they did not have an "amicable parting." Carp also testified that he and Nelson were friends and that she would drive him to go shopping.

Carp also admitted that, in return for his testimony, the Prosecutor's Office had "turned all [of his outstanding] warrants into court dates." The warrants were for unpaid fines associated with two prior municipal court convictions for possession of drug paraphernalia and possession of marijuana in a motor vehicle.

Detective Denman Powers, a forensic examiner with the New Jersey Regional Computer Forensic Laboratory, testified at trial as the State's expert on computer forensics. He identified Kazaa as a searchable, peer-to-peer file-sharing service from which files could be downloaded. Powers also described the process used to investigate the current and deleted contents of a computer's hard drive.

Powers related his examination of the "Vic Simone" computer disk, on which he found "three pictures and approximately twelve movies . . . that depicted young children." Five of the videos were played in open court. Defense counsel then stipulated that the remaining videos and pictures showed "child[ren] under the age of sixteen engaging in sexual acts."

While reviewing the hard drive of Roth's computer, Powers found a "link file" to a picture entitled "d:/preteengirlkid12yr.jpg." While the hard drive did not contain the actual image, Powers testified that the link file "contains the pointer to the .jpg as if the [disk] was in the drive and the file was viewed, . . . you can click here and it will point you to the file found on the [disk]." The .jpg file in the link file was from the "Vic Simone" disk. The time stamp on the "link file" suggested that the file on the disk had been created on October 10, 2003, and viewed on the computer on November 27, 2003. There was also a general "link file" on the hard drive pointing to the entire "Vic Simone" disk.

Powers also found a video from the "Vic Simone" disk, entitled "Jessica 016," on the hard drive of Roth's computer. The file had been deleted and "purged from the recycler, but [the investigators] were able to . . . recover the file from the hard drive." Powers also discovered that the movies entitled "Jessica 017" and "Jessica 021" had been viewed on Roth's computer and deleted because "the reference point showing . . . that the file existed" was still present, "but the contents of the file had already started to be overwritten."

In the temporary internet files on Roth's computer, Powers found a movie entitled "Pedo[1].mpg." While the movie had a different file name, it was identical to one of the movies contained on the "Vic Simone" disk. The timestamp on that file was June 3, 2004, the day before Roth's arrest.

Powers testified that it was not unusual during an investigation to find evidence of only a few of a larger number of movie files because, once purged from the recycler, the "data is overwritten randomly." He also testified that the computer, which had two user accounts, was not password protected.

On cross-examination, Powers testified that a Kazaa account would be required to access material through file sharing. However, he did not investigate who created the account used on Roth's computer because anyone with physical access to the computer could use the account.

Roth did not call any witnesses at trial. In summation his attorney suggested that the child pornography had been planted by Nelson and Carp, and that it had come from a computer belonging to Nelson's brother, which had been in Roth's apartment.

The jury returned its verdict on March 28, 2007, finding defendant guilty of all charges. Roth was sentenced on June 1, 2007. Judge Stephen M. Holden applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6), finding that Roth had four prior felony convictions, one involving a Megan's Law violation; and aggravating factor three, N.J.S.A. 2C:44-1(a)(3). Judge Holden found no mitigating factors. He noted that there were images of seven different underage girls on the disk. Consequently, citing State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), Judge Holden determined that Roth should be sentenced to seven consecutive sentences, one for each "victim."

Roth was sentenced to eighteen months imprisonment on count one, and to six consecutive twelve-month sentences for counts two, four, seven, nine, ten, and fifteen. The remaining counts were merged. Roth received an aggregate sentence of seven-and-one-half years of imprisonment, together with the required fines and penalties. This appeal followed.

II.

Roth raises the following issues on appeal:

POINT I: THE STATE IMPROPERLY FRACTIONALIZED DEFENDANT'S ALLEGED CRIMINAL CONDUCT AND THEREBY VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PUNISHED ONCE FOR THE SAME OFFENSE.

POINT II: THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT III: N.J.S.A. 2C:24-4(b)(5)(b) ON ITS FACE IS UNCONSTITUTIONALLY OVERBROAD, AND THE TRIAL COURT NEGLECTED TO TAILOR THE STATUTE TO THE POSSESSION OF IMAGES BY DEFENDANT WHICH COULD BE CONSTITUTIONALLY RESTRICTED. (NOT RAISED BELOW).

POINT IV: DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

A.

Roth contends that he was improperly charged in a separate count for each of the fifteen pictures or videos found on the "Vic Simone" disk, arguing that he should only have been charged with a single count for possession of the entire disk. Because none of the pictures or video files mentioned in the indictment are duplicates, we disagree.

In order to determine whether possession of each individual, non-duplicate picture or video constitutes a separate offense, we must first determine whether the Legislature has "undertaken to create separate offenses" for each such possession, because "it is the legislative branch that defines the unit of prosecution or 'offense' and ordains its punishment." State v. Davis, 68 N.J. 69, 77-78 (1975). N.J.S.A. 2C:24-4(b)(5)(b), which prohibits conduct "endangering the welfare of children," reads as follows:

Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.

Because the statute uses the singular throughout, we conclude that possession of each individual picture or video file containing a child engaged in a prohibited sexual act creates culpability under the language of the statute.

Consequently, an individual in possession of more than one image depicting either different children or non-identical pictures of the same children would, under the wording of the statute as drafted, be guilty of a separate offense for each image. Were we to accept Roth's argument, someone possessing one hundred different pictures would face the same charge as someone possessing a single picture. The Legislature could have, but chose not to, define the crime simply as possession of child pornography, whether there were one or more such pictures.

Roth argues that his prosecution on fifteen counts, rather than a single count, violated the double jeopardy clause of the Fifth Amendment of the United States Constitution. His argument is without merit. Roth was tried only once for possession of each non-identical picture or video file. This is not a case in which a defendant was tried or even charged twice for identical conduct. The proofs for each offense were separate, in that the State had to prove that each separate picture was found on the "Vic Simone" disk to sustain its burden of proof on each separate count. See State v. Martinez, 387 N.J. Super. 129, 145 (App. Div.) ("[A] defendant is unconstitutionally faced with multiple punishment" for similar offenses except when each offense "'requires proof of an additional fact which the other does not.'" (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306, 309 (1932))), certif. denied, 188 N.J. 579 (2006).

The trial judge appropriately addressed the issue as one of merger, a concept that is related to double jeopardy. In State v. Miller, 108 N.J. 112, 116 (1987), the Supreme Court observed as follows:

Merger is based on the principle that "an accused [who] has committed only one offense . . . cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). Merger implicates a defendant's substantive constitutional rights. State v. Truglia, 97 N.J. 513, 522 (1984); State v. Rodriguez, 97 N.J. 263, 271 (1984); State v. Davis, supra, 68 N.J. at 77. The analysis is similar to a double jeopardy analysis. State v. Mirault, 92 N.J. 492, 501 (1983). Slightly different interests are involved, however. In double jeopardy cases the defendant seeks to avoid both multiple prosecution and multiple punishment; in merger cases, only multiple punishments are at issue.

Consequently, we reject Roth's argument that he was unlawfully charged with a separate count for possession of each picture or video file.

B.

Roth next argues, for the first time on appeal, that the prosecutor made improper and prejudicial statements during his summation. He points to the prosecutor's statements with respect to (1) McCart's computer containing no pornography; (2) the use of the phrase "Vicky Copulation Series"; and (3) assertions concerning Nelson's testimony about her brother's computer.

Because the issue of impropriety in the prosecutor's summation was not raised by defense counsel at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citation omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citation omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

With respect to Roth's roommate McCart, there was testimony that his computer was reviewed by the police and that no charges relating to child pornography were brought against him. "Because the prosecutor's comments were based on evidence in the record, and the reasonable inferences that could be drawn from that evidence, the prosecutor acted properly." Timmendequas, supra, 161 N.J. at 594 (citation omitted). In addition, we note that, under Roth's theory of the case as set forth in his attorney's summation, McCart was not implicated in the effort to incriminate Roth falsely. We see no significant prejudice to Roth with respect to this issue.

We reach a similar conclusion with respect to the prosecutor's remarks concerning Nelson's statements about her brother's computer, although she was implicated in Roth's theory of the case. Her testimony about whether the child pornography was on that computer after she brought it home following her break-up with Roth was clearly inconsistent. However, she did testify on redirect that the images she saw on that computer "were not the child pornography images that were on the disk that I reported. . . . The one that says Vic Simone on it." While the prosecutor certainly overstated the consistency of Nelson's testimony taken as a whole, her assertion that Nelson did not see the images at issue on her brother's computer had a factual basis in the record.

Roth correctly argues that there was no testimony concerning the title "Vicky Copulation Series." While the remarks were clearly improper, we do not find that they were "clearly capable of producing an unjust result" in light of the considerable evidence of Roth's guilt. Id. at 589.

During the jury charge, the trial judge specifically told the jury:

You and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses, and of the weight to be attached to the testimony of each witness. Regardless of what counsel said or I may have said in recalling the evidence in this case, it is your recollection of the evidence which should guide you as judges of the facts.

Arguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence. Although the attorneys may point out what they think important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial.

See Timmendequas, supra, 161 N.J. at 588-89 (considering the judge's post summation instructions "to determine guilt based on the evidence in the record" in finding that the prosecutor's statements did not prejudice the defendant).

The statement about McCart, the partial mischaracterizations of Nelson's testimony, and the references to the "Vicky Copulation Tape" by the prosecutor during summation, whether viewed separately or cumulatively, were not so "egregious that [they] deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.

C.

We briefly address Roth's contention with respect to the constitutionality of N.J.S.A. 2C:24-4(b)(5)(b), even though it was not raised in the Law Division.

Roth correctly points to Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), and State v. May, 362 N.J. Super. 572, 578 (App. Div. 2003), for the proposition that N.J.S.A. 2C:24-4(b)(5)(b) cannot constitutionally form the basis for a prosecution involving the possession of virtual pornographic images, i.e., those not involving real children. However, unlike the defendant in May, Roth never raised such a defense. Indeed, in order to avoid exposing the jury to all of the pornographic images, his attorney stipulated to most of them at trial. Roth has not demonstrated that there was any issue of fact as to the pictures being virtual images of underage girls. Consequently, we find no constitutional violation.

D.

Roth argues that his trial counsel provided ineffective assistance, resulting in a deprivation of his rights under the Sixth Amendment of the United States Constitution. We find no merit in that argument.

The Sixth Amendment guarantees a person accused of crimes the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Ibid. see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In State v. Johnson, 365 N.J. Super. 27, 34 (2003), certif. denied, 179 N.J. 372 (2004), we stated that "[i]t is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial."

In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Roth argues that his trial counsel's ineffectiveness was demonstrated on several occasions, specifically: (1) the failure to follow through with an application "pursuant to R. 3:7-5(a) and [3:]7-6" to join the fifteen counts of the indictment into one count prior to the start of trial; (2) the failure to object to the prosecutor's inappropriate comments during summation; (3) the failure to discuss "on the record whether defendant wanted a charge regarding his election to testify"; and (4) the failure "to make a motion for a judgment of acquittal at the end of the State's case or to apply following the verdict for a new trial on the basis that the verdict was against the weight of the evidence."

We will assume, for the sake of convenience only, that trial counsel's performance was deficient. The second requirement under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, is that the deficient performance actually prejudiced the accused's defense. Having reviewed each of Roth's contentions in that regard, we find no merit in any of them. We have determined that they do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

We have already determined (1) that there was no error with respect to the separate counts for each image and (2) that there was no issue presented at trial with respect to an unconstitutional application of the statute to virtual images. Although a timely objection to the prosecutor's summation would have provided an opportunity for the trial judge to give specific curative instructions, we conclude that counsel's failure to do so did not lead to the conviction or significantly prejudice Roth.

With respect to the issue of the charge concerning Roth's decision to testify, the following exchange took place on the record and outside the presence of the jury:

The Court: Is your client electing to testify or not testify?

[Defense counsel]: I discussed this very thoroughly and meticulous. In fact, I bring new definition to meticulous. I went over and over.

The Court: We're going to do this on the record. I'm going to bring the jury back and dismiss the jury and do that on the record.

. . . .

The Court: During this break with the jury out, I inquired as to whether the defendant wished to testify or not. And, [defense counsel], have you had an opportunity to discuss whether he will or will not testify?

[Defense Counsel]: Yes, your Honor. In fact, I've taken extensive discussions with him outside and within the courtroom. I want to be very meticulous and very detailed about my conversations with him. I gave him my legal advice. And he has listened to my legal advice and he'd like to address the Court. I believe he elected not to testify.

The Court: Mr. Roth, please raise your right hand.

(Defendant sworn)

The Court: Sir, I have heard your attorney indicate you and he have had extensive discussions whether or not you will testify at the trial today. Is that correct?

The defendant: Yes.

The Court: If you do not testify, what I will read to the jury is that: As you know, ladies and gentlemen of the jury, the defendant has elected not to testify at trial. It is his constitutional right to remain silent. You must not consider in any purpose or any manner in arriving at your verdict the fact that defendant did not testify. The fact should not enter into your deliberations or discussions in any manner at any time. The defendant is entitled to have the jury consider all evidence presented at trial. He is presumed innocent even if he chooses not to testify.

That is the instruction that I will read to the jury. Do you understand that?

The defendant: I understand that.

The Court: You understand that you have a right to remain silent and you have a right to testify. Do you understand that?

The defendant: I understand that.

The Court: Are you satisfied that you have had sufficiently full and complete conversations with your attorney with regard to the question of whether you will or will not testify?

The defendant: I am satisfied.

Based upon that exchange, we are satisfied that Roth had the opportunity to express a desire not to have that charge given, even though he was not specifically asked whether he objected to the charge. In addition, we see no basis to conclude that the result of the jury's deliberations would have been different had the charge not been given.

Finally, we conclude that there was no prejudice resulting from trial counsel's failure to make motions for acquittal and a new trial. There was no basis for the trial judge to grant a motion for acquittal under Rule 3:18-1. In addition, had a motion for a new trial pursuant to Rule 3:20-1 been made, we see no basis to believe that it would have been granted by the trial judge. Had the issue of whether the jury's verdict was against the weight of the evidence been preserved for our review on appeal, we would not have ruled in Roth's favor. Consequently, we find that Roth has failed to satisfy his burden under Strickland.

E.

Finally, Roth argues that his sentence was excessive because the trial judge imposed seven consecutive sentences, for an aggregate of seven-and-one-half years of imprisonment, rather than a single sentence resulting from the merger of all the counts into one. We disagree.

An appellate court "will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (citation omitted). "Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." State v. Natale, 184 N.J. 458, 488 (2005).

The Supreme Court listed the following factors to be considered by the sentencing court when deciding whether to impose consecutive, as opposed to concurrent, sentences:

(a) the crimes and their objectives were predominantly independent of each other;

 
(b) the crimes involved separate acts of violence or threats of violence;

 
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 
(d) any of the crimes involved multiple victims;

 
(e) the convictions for which the sentences are to be imposed are numerous.

[Yarbough, supra, 100 N.J. at 644.]

"Where the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim." State v. Miller, 108 N.J. 112, 122 (1987).

At sentencing, Judge Holden found that there were seven different victims involved in "between one and three different sexual acts" each. In addressing the Yarbough considerations, Judge Holden stated:

The question is really whether multiple sentences should be consecutive or concurrent. And 2C:44-5 gives us guidance as does State v. Yarbough[, supra, 100 N.J. at 627], State v. Miller[, supra, 108 N.J. at N.J. at 112], State v. Pennington[, 154 N.J. 344 (1998),] and State v. Swint[, 364 N.J. Super. 236 (App. Div. 2003)]. The Court reads all those cases because the Court wants to do what's right and what's fair. And the Court is swayed to an extent, by [defense counsel]'s argument out of [State v. ]Rodgers[, 230 N.J. Super. 593 (App. Div.), certif. denied, 117 N.J. 54 (1989),] and Miller, with regard to the imposition of consecutive sentences or not. And there's six guidelines that were set forth in State v. Yarbough, should be measured qualitatively. It's a balance between the principle in State v. Yarbough, that there should be no free crimes against the principle of proportionality and fairness of sentencing, as articulated in Rodgers, and in Miller.

The convictions then on 15 counts of endangerment, when I got to Yarbough, factor 3(d), with regard to multiple victims, I think if I were to impose consecutive sentences, I would have to impose not 15 consecutive sentences because the sentencing is for what? For the endangerment of a child. There are only seven children. So I go from 15 -- the possibility of 15 consecutive sentences, down to the possibility of seven.

. . . .

I'm going to impose consecutive sentences because there were seven different -- there might have been nine, but I can only be certain from what I saw that there are seven different young women who were being violated, whose innocence was being stolen, the integrity of whose bodies were being humiliated.

So I'm going to impose seven consecutive sentences because there are seven different victims. Each one of them is made more vulnerable, each one of whose lives is made more fragile because there are people who look at it, who own it, who possess it. If there were no market for those images, those images wouldn't be there.

And when I look at Yarbough, the crimes were predominantly independent of each other. Except in one picture where two of the same women appeared together, they were separate events, separate sound effects, some of them in the same room, but not at the same time. . . . [W]hat's interesting is Yarbough, the crimes involved separate acts of violence, or threats of violence. For the organs of a grown man to be placed inside the private parts of a little girl is indeed an act of violence. For that to have occurred multiple times, to multiple little girls is indeed an act involving separate acts of violence, and there are multiple victims. There are seven little girls.

We conclude that Judge Holden's careful Yarbough analysis fully supports his decision to impose consecutive sentences, only one of which was at the maximum of the sentencing range. Affording the required deference to the trial judge, we will not disturb the sentence he imposed. The sentence imposed does not "shock[] the judicial conscience," Dalziel, supra, 182 N.J. at 501, and will not be disturbed.

III.

In summary, we reject each of Roth's arguments on appeal and affirm both the conviction and the sentence.

Affirmed.

 

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

We express no opinion as to whether possession of duplicates of the same picture would support more than one count because that issue is not before us.

"[I]ssues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009) (citing Country of Essex v. First Union, 186 N.J. 46, 51 (2006); State v. Arthur, 184 N.J. 307, 327 (2005)).

We note that, although the State objected to any merger of the counts, it did not raise the issue by way of a cross-appeal. Consequently, we express no opinion on the issue of whether the merger undertaken by the judge was required.

(continued)

(continued)

29

A-1371-07T4

RECORD IMPOUNDED

October 20, 2009