STATE OF NEW JERSEY v. C.W.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0621-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.W.R.,

Defendant-Appellant.

______________________________

March 9, 2011

Submitted October 25, 2010 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 08-01-0108.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction. We affirm his convictions, but remand for resentencing.

Defendant engaged in sexual conduct with G.W., a girl twenty-four years younger than he, from the time she was eight or nine years old until she was about sixteen. Defendant had lived with G.W., her mother and her brother since G.W. was seven or eight months old. She thought of him as her step-father and called him "dad." A jury found defendant guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (penetration of a child less than thirteen) and N.J.S.A. 2C:14-2a(2)(c) (penetration of a child by a person standing in loco parentis); three counts of second-degree endangering the welfare of a child for whose care he was responsible, N.J.S.A. 2C:24-4a; one count of second-degree sexual assault based on the respective ages of defendant and the victim, N.J.S.A. 2C:14-2(c); and one count of second-degree sexual assault by one with supervisory or disciplinary authority over the victim, N.J.S.A. 2C:14-2c(3)(b). The judge imposed the appropriate fines, penalties, assessments and fees, and he sentenced defendant to an aggregate term of imprisonment for twenty-six years, which is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2 and Megan's Law.1

The first incident of abuse occurred when the family was preparing to move from one house in Millville to another and G.W.'s mother was at the hospital having surgery. Defendant took G.W. from playing with her brother to the room he shared with her mother and directed her to put her mouth around his penis. That incident ended when G.W.'s mother called home. Thereafter, defendant had G.W. repeat the service and on occasion also placed his penis between her labia, but they did not have intercourse. These things happened so often that G.W. could not recall the separate incidents. G.W. knew, however, that the conduct continued in their second home in Millville and while they were living in the Township of Upper Deerfield. There was a break in the abuse while the family was living with G.W.'s grandparents and another while they were living in a shelter.

In a statement given to the police, defendant admitted to having G.W. gratify him as she described for an average of twice a month for about five years after the first incident. He also said the abuse commenced when G.W. was about nine years old. A medical examination of G.W. did not disclose anything indicative of sexual abuse.

The first person G.W. told about the abuse was her friend. G.W. was sixteen years old at the time. Subsequently, she spoke to a guidance counselor, a representative of the Division of Youth and Family Services and the police. During her testimony at trial, G.W. acknowledged that she had twice recanted the accusations she made to the police, but she said her trial testimony was truthful.

Defendant raises five issues on appeal:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS TAPED RECORDED STATEMENT BECAUSE IT FAILED TO APPLY THE "TOTALITY OF THE CIRCUMSTANCES" TEST IN FINDING THAT THE DEFENDANT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS.

THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO ISSUE AN IMMEDIATE EXPLANATORY INSTRUCTION CONCERNING THE COMPLAINED ABOUT PORTION OF THE PROSECUTOR'S OPENING STATEMENT.

TESTIMONY THAT THE DEFENDANT'S CONDUCT AT THE STATE POLICE STATION WAS NOT CONSISTENT WITH A STRONG DENIAL OF GUILT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

THE TRIAL COURT ABUSED ITS DISCRETION IN PRECLUDING DEFENSE WITNESS [G.W.'S MOTHER] FROM TESTIFYING THAT SHE WAS THE VICTIM OF AN ATTEMPTED SEXUAL ASSAULT BY A NEW JERSEY TRANSIT BUS DRIVER.

THE AGGREGATE 26 YEAR BASE CUSTODIAL SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL DISCRETION.

I

After reviewing the record in support of Points I and II, we are convinced that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). The record compels that conclusion.

It is true that the judge did not utter the phrase "totality of the circumstances" in ruling on defendant's motion to suppress the recording of his interview by the police. State v. Yohnnson, 204 N.J. 43, 59 (2010). Nevertheless, the judge's conclusion that defendant's statements were made knowingly and voluntarily is based on factual findings about the conditions and duration of the interrogation, the attitude and demeanor of defendant and the detectives that was reflected in the tenor of their voices, the coherence of defendant's responses and his unwavering denial of having intercourse with G.W. Those factors, in the judge's view, demonstrated defendant's understanding of the officers' role and that his will was not overborne.

Additionally, the record includes no support for reversal based on the prosecutor's opening statement or the judge's response. In the pertinent portion of the statement, the prosecutor advised the jurors that there were blank spots on the tape recording of defendant's interview with the police because the judge had determined that portions "should not be permitted into evidence." Defendant argues the remark was capable of inviting the jurors to infer defendant had committed unspecified prior bad acts and contends that an immediate curative instruction was required. The capacity of that explanation to suggest that the information about defendant's prior wrongful conduct was omitted is not at all apparent, and the judge's decision to communicate a broader explanation of the various reasons for the gaps until it was time to play the recording was not an abuse of discretion.

II

Defendant urges us to reverse his convictions because a detective who interviewed him testified that defendant's conduct during his interview was "not consistent with a strong denial" of guilt. Without question, that testimony was a highly improper expression of the detective's opinion on defendant's guilt and credibility that violates well-settled law prohibiting opinion testimony on those issues. State v. Reeds, 197 N.J. 280, 292 (2009); State v. Vandeweaghe, 177 N.J. 229, 239 (2003); State v. Frisby, 174 N.J. 583, 593-94 (2002); State v. Odom, 116 N.J. 65, 77 (1989).

Viewed in context, it is difficult to understand why the State did not avoid this transgression. During his testimony, the detective said that when confronted with G.W.'s accusations, defendant "leaned back in his chair very smugly, crossed his arms and said 'I don't think so.'" The prosecutor asked, "[D]id that strike you at all?" Defense counsel objected on the ground that the prosecutor was eliciting the detective's opinion. Although the judge overruled the objection because no opinion had been expressed, he noted that the detective could testify about his observations but not his opinion and directed the prosecutor to rephrase her question. The prosecutor then asked: "What was significant about that reaction, without stating your opinion?" The detective responded, "Without stating my opinion, it is not consistent with a strong denial."

On defense counsel's second objection, the prosecutor said she would move on. The judge said thank you and sustained the objection. The detective did not offer any further opinion on the subject.

Although the incident leads one to question the State's representatives' understanding of the obligation to do justice, the transgression warrants reversal only if the error raises a reasonable doubt about whether the jury would have found defendant guilty if the judge's direction had not been violated. State v. Castagna, 187 N.J. 293, 312 (2006); see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967); R. 2:10-2. Given the brevity of the improper testimony and the fact that the jurors listened to the recording of the interview and heard defendant's admission to the conduct upon which his convictions are based, we are convinced that the improper testimony did not lead the jurors to a verdict they otherwise would not have reached. Notably, in his final instructions to the jurors, the judge directed them as follows: "You and you alone are the sole exclusive judges of the evidence, of the credibility of the witnesses, and the weight to be attached to the testimony of each witness."

III

We turn to consider whether the trial judge erred in excluding evidence that G.W.'s mother, a witness for defendant at trial, was sexually assaulted by a bus driver a few months before G.W. reported defendant's sexual abuse. Defendant argues that the evidence would have shown G.W.'s "awareness of her mother's victimization and the attention her mother" received when she made the allegation.

The judge foreclosed testimony about the nature of the assault, but not its occurrence or the attention the victim received thereafter. G.W.'s mother was permitted to testify that when G.W. reported defendant's conduct, G.W.'s mother was taking Xanax prescribed because she had been assaulted. The judge sustained the State's objection to a question eliciting what G.W.'s mother meant by "assault." The mother was, however, allowed to testify that G.W. was aware of and asked about the assault. There were no questions about how the victim was treated in the aftermath.

The trial judge addressed this issue in a written opinion on defendant's motion for a new trial dated February 9, 2009, in which he explains that the evidence was excluded on the balance of probative value and capacity to confuse and mislead the jurors. N.J.R.E. 403. Exclusion of evidence on the ground that its probative value is substantially outweighed by its capacity to confuse and mislead is reviewable for a patent abuse of discretion, and finding no such abuse here we affirm with reference to the reasons stated in the judge's opinion.

IV

Although defendant raises no argument warranting reversal of defendant's convictions, we must remand for resentencing. We are mindful of the limited scope of our review that precludes us from second-guessing factual findings underlying the judge's assessment of the aggravating and mitigating factors and requires affirmance of a sentence when the judge has appropriately applied the aggravating and mitigating factors and the factors relevant to consecutive and concurrent sentences. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009). A remand is necessary here because we cannot discern whether the judge followed the three well-settled principles governing the exercise of a judge's sentencing discretion: 1) elements of an offense cannot be considered an aggravating factor, State v. Carey, 168 N.J. 413, 425 (2001); State v. Miller, 108 N.J. 112, 122 (1987); 2) aggravating factors used to increase the terms of sentences cannot be used to justify consecutive sentences, Miller, supra, 108 N.J. at 122; and 3) merger of convictions is a function of the elements of the crimes and commonality of the proofs establishing them, id. at 118-21; State v. Adams, 227 N.J. Super. 51, 67-68 (App. Div. 1988). Application of these principles requires a detailed statement of the charges.

Counts one and two of the indictment charged crimes committed in Millville between 1997 and May 17, 2004, when G.W. was under the age of thirteen: first-degree aggravated sexual assault based on G.W.'s age, N.J.S.A. 2C:14-2a(1); and second-degree endangering the welfare of a child based on defendant's sexual conduct with G.W. and his having assumed responsibility for her care, N.J.S.A. 2C:24-4a. For those crimes, the judge imposed consecutive terms of eighteen and eight years both subject to NERA.

Counts five, six, seven and eight2 charged defendant with crimes committed between August 2006 and May 17, 2007, in the Township of Upper Deerfield, and the judge sentenced defendant to the following terms concurrent with count one: count five, first-degree sexual assault based upon the fact that defendant stood in loco parentis to G.W., in violation of N.J.S.A. 2C:14-2a(2)(c), a sixteen-year term subject to NERA; count six, second-degree sexual assault based on the difference between defendant's and G.W.'s respective ages, N.J.S.A. 2C:14-2c, an eight-year term; count seven, second-degree endangering the welfare of a child based on defendant's sexual conduct with G.W. and his having assumed responsibility for her care, N.J.S.A. 2C:24-4a, an eight-year term; and count eight, second-degree sexual assault based on their ages and defendant's supervisory or disciplinary authority over G.W., N.J.S.A. 2C:14-2c(3)(b), an eight-year term.

Count nine charged defendant with second-degree endangering the welfare of a child in Deerfield between May 18 and September 9, 2007. That endangering charge, like the others, was based on defendant's sexual conduct with G.W. and his having assumed responsibility for her care, N.J.S.A. 2C:24-4a. The judge imposed an eight-year term that is concurrent with the sentence on count one.

The trial judge discussed the aggravating and mitigating factors before imposing sentence on counts one and two. He found the following aggravating factors: one, based on the duty of care defendant owed G.W. and breach of the trust inherent in their father-daughter relationship through horrific, reprehensible, and repeated acts of sexual assault over a span of many years, N.J.S.A. 2C:44-1a(1); two, because G.W. was extremely young when the abuse began and defendant caused her significant emotional and psychological trauma, N.J.S.A. 2C:44-1a(2); three, based on defendant's prior encounters and defendant's lack of remorse and failure to appreciate the impropriety of his conduct, N.J.S.A. 2C:44-1a(3); four, due to defendant's having taken advantage of his position of trust, N.J.S.A. 2C:44-1a(4); and six, based on defendant's prior criminal record and the need to deter that "applies in every case of this type." N.J.S.A. 2C:44-1a(6).

The judge found one mitigating factor that defendant's imprisonment would impose an excessive hardship on his family. N.J.S.A. 2C:44-1b(11).

The judge's discussion of the aggravating factors does not address their relevance to each conviction, and as noted at the outset of this section, a judge may not count an element of a crime as an aggravating factor. The judge's findings with respect to aggravating factors one and four duplicate elements of the crimes charged in counts two, five, seven, eight and nine; we cannot tell whether the judge considered factors one and four when imposing sentence for these counts. Accordingly, a remand is required so that the judge can reconsider the sentences imposed on those counts.

Merger is another issue the judge must reconsider. The judge's determination that the first-degree aggravated sexual assault conviction on count one and the related endangerment conviction on count two should not merge is fully consistent with the Supreme Court's decision in Miller, supra, 108 N.J. at 121-22. There the Court held that even when convictions for those crimes are "based on the same general conduct," merger is not required because the endangerment conviction accounts for the violation of a parental duty that is not an element taken into consideration in the definition of aggravated sexual assault. Ibid.

That justification for separate convictions does not apply, however, when the sexual assault is criminalized because the defendant stands in loco parentis or has disciplinary or supervisory authority over the victim. Thus, with the exception of counts one and two, the judge should reconsider merger of counts five through eight with reference to the elements of the crime and conduct as discussed in Miller and its progeny.

We turn to consider the propriety of the consecutive sentences imposed on counts one and two. Miller also provides guidance on that point. The Court noted that merger depends on whether there are multiple crimes and consecutive sentences depend on their overall fairness. Miller, supra, 108 N.J. at 122. Consecutive sentences require a separate statement of findings and legal conclusions based on the factors set forth in 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), and, as noted above, aggravating factors used to increase the terms of sentences cannot be used to justify consecutive sentences, id. at 645-46; Miller, supra, 108 N.J. at 122.

The judge stated his reasons as follows: "The Court finds that based upon the psychological and physical damage issues that the first-degree crime of aggravated sexual assault and the endangering the welfare of a child crime, the second degree, should be counted separately, and therefore, the defendant will be sentenced consecutively in that regard." There is no discussion of the Yarbough factors, but instead, an apparent reliance on factors that the judge considered in fixing sentences near the top of the range for these crimes. Thus, reconsideration is warranted.

We have considered defendant's remaining objections to his sentence and find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We simply offer an observation so that the judge can amplify his statement of reasons: the evidential basis for the judge's reference to G.W.'s physical injury warranting the finding of an aggravating factor is not apparent; nor is the legal basis for a finding of two aggravating factors primarily based on the relationship between defendant and G.W.

Defendant's convictions are affirmed, and the matter is remanded for re-sentencing in conformity with this opinion.

1 The terms imposed for the several convictions are set forth in Part IV of this decision, where we discuss defendant's objections.

2 Counts three and four were dismissed on the State's motion.