STATE OF NEW JERSEY v. J.D .

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2799-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.D.,

Defendant-Appellant.

___________________________

March 18, 2011

 

Submitted: March 2, 2011 - Decided:

 

Before Judges Fisher and Fasciale.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-00010.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction for first-degree aggravated sexual assault arguing that the judge erred by introducing into evidence a book concerning contraception, the prosecutor made improper comments during summation, and that his sentence is excessive. We affirm.

In December of 2006, defendant admitted that he was involved in a sexual relationship with his teenage daughter during a telephone conversation he had with his brother. After their conversation ended, his brother contacted a high school friend who worked for the New Jersey Division of Youth and Family Services (DYFS) and reported what defendant had stated. DYFS contacted the Plainsboro Police and the brother informed Detective Blanchard what defendant had told him.

Blanchard spoke with defendant's daughter, who initially denied any abuse by defendant but subsequently admitted the relationship to him a few days later. Blanchard learned that the abuse occurred in defendant's mobile home located in the backyard of his ex-wife's property. The police arrested defendant, impounded the vehicle, obtained a search warrant, and discovered a book about contraception, a gun, and suggestive photographs of defendant's daughter. The judge admitted each item into evidence.

At the trial, defendant's daughter testified about their relationship. She stated that the relationship began in 2002 after defendant invited her to sleep in his bed; she had intercourse with him "about every weekend or so;" he never wore a condom; he kept track of her menstrual cycle; she asked him to stop, but he threatened to kill her mother and commit suicide if she told anyone; and that defendant would sometimes have his gun holstered around his belt.

In summation, the prosecutor argued defendant's sexual abuse "broke" his daughter and added that it was now time to "fix" her. Defendant's counsel objected at a side bar and requested a mistrial. The judge denied the request for a mistrial and explained to the jury that the "fixing" comments were not to be of concern "because sympathy, bias, speculation[] [and] conjecture . . . play no role in the performance of your duty."

On January 14, 2009, a jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count One); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (Counts Two and Four); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Five). The judge merged Count Two into Count One and Count Five into Count Four and sentenced defendant to a fourteen-year term of imprisonment on Count One, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to a six-year term of imprisonment on Count Three. The judge imposed a seven-year sentence on Count Four to run concurrent to Counts One and Three.

On appeal, defendant raises the following points:

POINT I

ADMISSION OF THE TEXTBOOK REGARDING CONTRACEPTION VIOLATED NEW JERSEY RULE OF EVIDENCE 403 AND THEREBY DENIED J.D. BOTH DUE PROCESS OF LAW AND A FAIR TRIAL AS REQUIRED BY U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. I, 1, 9, AND 10.

 

POINT II

REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED J.D. HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL FREE FROM TAINT, AND INFLAMED PASSIONS OF THE JURY DEPRIVING THE DEFENDANT OF A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I 1, 10.

 

POINT III

THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF HIS PRISON TERM, J.D. WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO RE-OFFEND.

 

a. THE SENTENCING COURT IMPROPERLY APPLIED AGGRAVATING FACTORS

 

b. THE SENTENCING COURT FAILED TO FIND MITIGATING FACTORS MILITATING IN FAVOR OF A LESSER SENTENCE

 

c. THE COURT ERRERD IN IMPOSING A CONSECUTIVE SENTENCE

 

d. THE SENTENCING COURT FAILED TO CONSIDER THE REAL TIME CONSEQUENCES OF NERA WHEN IMPOSING SENTENCE ON J.D.

 

Concerning defendant's argument that it was error to admit the textbook into evidence, we are guided by the following standards of appellate review. We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, a trial court's evidentiary ruling will not be disturbed unless there is a clear abuse of discretion. Bd. of Educ., supra, 409 N.J. Super. at 430; Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Defendant argues that the textbook should not have been admitted into evidence because his daughter had never seen it and no evidence was introduced that he owned or wrote in the textbook. Evidence is relevant when it "has[] a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. N.J.R.E. 403 provides "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or [if it may] mislead[] the jury . . . ." The party seeking to exclude evidence has the burden of proving that the risks the evidence may create substantially outweigh its probative value. State v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied, 102 N.J. 298 (1985). However, "the more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it . . . ." Ibid.

Here, the judge admitted the textbook correctly into evidence. The textbook is relevant circumstantial evidence of defendant's relationship with his daughter allowing the jury to deduce permissible logical inferences therefrom. See State v. Swint, 328 N.J. Super. 236, 252 (App. Div.), certif. denied, 165 N.J. 492 (2000). It corroborates his daughter's testimony that he kept track of her menstrual cycle, that he did not wear a condom, and explains why defendant's daughter never became pregnant. Furthermore, defendant's arguments do not concern undue prejudice or confusion as contemplated by N.J.R.E. 403 but rather are directed to the weight to be given to the evidence.

Next, defendant argues that the prosecutor's use of the phrase "fix her" during summation was inflammatory, injected bias, conjecture, and opinion to improperly appeal to the jurors' emotions and requires a mistrial.

Prosecutors are allowed considerable leeway during closing arguments. State v. Smith, 167 N.J. 158, 177 (2001) (citing State v. Frost, 158 N.J. 76, 82 (1999)). "[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82. However, a prosecutor's main responsibility is to ensure that justice is done and not simply to obtain convictions. Id. at 83. "Thus, a prosecutor's duty is twofold: a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." Smith, supra, 167 N.J. at 177.

In order for prosecutorial misconduct to be grounds for reversal, the conduct must be so egregious that it deprives defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999). "To justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Williams, 113 N.J. 393, 452 (1988)).Furthermore, curative instructions by a judge following summations may reduce any potential prejudice that may have occurred from any improper remarks. State v. Ramseur, 106 N.J. 123, 323 (1987); State v. Collins, 262 N.J. Super. 230, 238 (App. Div. 1993).

Here, the judge explained that the prosecutor's use of the word "fix" in this context meant "bring justice or do justice." While the judge agreed such a task is not necessarily the jury's job, she correctly found no error since the comment did not substantially prejudice defendant and she limited any potential damage by explaining to the jury that they were to ignore such a comment. The judge's curative instruction, along with the substantial evidence of defendant's guilt, precludes a finding that the prosecutor's remarks were so egregious as to deprive defendant of a fair trial. Timmendequas, supra, 161 N.J. at 575.

Next, defendant argues the judge imposed an excessive sentence by improperly applying aggravating factors N.J.S.A. 2C:44-1a(2), (3), (4) and (9); the judge ignored mitigating factors N.J.S.A. 2C:44-1a(4), (8) and (9); the judge erred in imposing a consecutive sentence; and the judge failed to consider the real time consequences of NERA.

Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Cassady, 198 N.J. 165, 181 (2009); State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Jabbour, supra, 118 N.J. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. We are "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65). A sentence will be found improper when it "shock[s] the judicial conscience." Roth, supra, 95 N.J. at 365.

Applying these standards, we discern no reason to disturb the sentence. The trial judge followed the sentencing guidelines, and the record supports the judge's findings of aggravating factors pursuant to N.J.S.A. 2C:44-1a(2), (3), (4) and (9) substantially outweighing the non-existent mitigating factors.

The judge properly applied the Yarbough1 criteria when she imposed a consecutive sentence. The judge noted the difference between sexual assault and endangering the welfare of a child, and stated that "endangering the welfare of a child is aimed not only at the specific acts of conduct, such as the sexual assault, the penetration. It's not just aimed at that. It's aimed at a violation of the duty a parent owes a child." Therefore, the sexual assault charge and the endangering the welfare of a child charge are separate acts independent of each other.

Defendant's aggregate twenty-year sentence for first-degree aggravated sexual assault, second-degree endangering the welfare of a child, and second-degree sexual assault is not "clearly mistaken," Jarbath, supra, 114 N.J. at 401, and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 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).