STATE OF NEW JERSEY v. L.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.H.,

Defendant-Appellant.

May 9, 2014

Submitted April 29, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-08-0491.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A grand jury indicted defendant L.H. with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count One), and second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (Count Two). Following an unsuccessful motion to exclude the audio-recorded statement he gave to police based on a Miranda1 violation, the matter proceeded to trial where a jury convicted defendant of third-degree endangering the welfare of a child, as a lesser-included offense of Count One. Defendant was acquitted of Count Two. At sentencing, the court found that the statutory presumption of non-incarceration2 had been overcome, and sentenced defendant to a three-year prison term. Defendant's conviction also subjected him to the statutorily mandated Megan's Law3 requirements of registering as a sex offender, community notification, and lifetime supervision.

On appeal, defendant raises the following points:

POINT ONE

THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE WHEN IT PROHIBITED THE INTRODUCTION OF AN EXPLICIT LANGUAGE CHAT LOG WRITTEN BY E.S. THAT SUPPORTED THE DEFENSE THAT E.S., AND NOT DEFENDANT, WAS THE ORIGINAL AUTHOR OF THE EROTIC STORY, DISSEMINATION OF WHICH, FROM DEFENDANT TO E.S., FORMED THE BASIS OF THE ENDANGERING CHARGE

POINT TWO

PROSECUTORIAL MISCONDUCT, IN THE FORM OF THE PROSECUTOR CALLING DEFENDANT A "SEXUAL PREDATOR" IN SUMMATION, DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL

POINT THREE

NO REASONABLE EVALUATION OF THE RECORD SUPPORTS THE SENTENCING COURT'S FINDING THAT THE PRESUMPTION OF NON-INCARCERATION FOUND IN N.J.S.A. 2C:44-1E WAS OVERCOME

We have considered the points raised in light of the record and applicable legal principles. We reject each of the points raised and affirm.

I.

The underlying facts of this appeal concern allegations that defendant engaged in repeated instances of sexual conduct with E.S., including both penile and digital penetration. E.S. was a fourteen-year-old friend of defendant's step-daughter, D.S. The State also alleged that defendant wrote and presented E.S. with a sexually-explicit story, which ultimately formed the basis of defendant's conviction of third-degree endangering E.S.'s welfare.

E.S. testified at trial, explaining that she spent countless nights at D.S.'s house with D.S.'s family, which allowed E.S. to become close to defendant. E.S. apparently gravitated toward defendant because E.S.'s mother's marriage to E.S.'s biological father had ended in divorce, and he later passed away, with E.S. never having enjoyed a relationship with him. As a result of her affinity for defendant, E.S. shared intimate details with him and eventually began referring to him as "daddy."

According to E.S., she initially viewed defendant as a father figure, but the relationship soon changed when defendant began kissing her on the lips and cuddling with her on the couch. Around late April 2008, she began to discuss her sexual desires with defendant. E.S. explained that she was infatuated with a popular rock band, and its lead guitarist. E.S. testified that defendant offered to write her an erotic story for her to masturbate to which would feature E.S. and the guitarist, to which she agreed. Thus, one evening when defendant's wife was not home and D.S. was asleep, defendant typed the erotic story on his laptop and let E.S. read it. Then, E.S. claimed defendant wrapped his arm around her and told her he wished he could touch her, but could not do so because he understood it would be wrong. However, E.S. stated that defendant gave her a small fingertip vibrator and encouraged her to use it on herself that night.

E.S. testified that her relationship with defendant thereafter progressed from solely verbal communication to physical contact. Defendant initially began to digitally penetrate her vagina "nine times out of ten" when she was at defendant's home. On June 6, 2008, E.S. claimed that she had sexual intercourse with the then forty-nine-year-old defendant. E.S. stated that they had had sexual intercourse on three occasions thereafter, and that defendant gave her a vibrator for her birthday.

On August 31, 2008, E.S.'s alleged sexual relationship with defendant abruptly ended. Defendant told her that he wanted her to be a daughter more than a "sex buddy." Shortly thereafter, in the fall of 2008, defendant and his family moved to Pennsylvania. E.S. admitted at trial that she was "heartbroken" and deeply upset as a result of their move.

In November 2008, after attending a concert, E.S. met "Randy", a forty-six-year-old man. Thereafter, she began to exchange inappropriate instant messages, emails and text messages with him, although she never saw him again after the concert. E.S.'s mother eventually discovered the inappropriate instant messages and photos sent to Randy, and confronted her daughter about them. Initially, E.S. told her parents she was having sex with Randy.

Subsequently, however, in June 2009, while E.S. was attending outpatient therapy, she inadvertently admitted that she had engaged in sexual intercourse with her friend's father. A social worker who overheard the revelation informed E.S.'s mother. After being confronted, E.S. admitted to her parents that it was defendant, and not Randy, that she had slept with. E.S.'s parents then called the police. E.S. turned over to her parents, who then provided to the police, the finger-tip vibrator and a dildo she claimed defendant had given her.

Detective Kristen Houck of the Somerset County Prosecutor's Office interviewed E.S., her counselor, and her parents. E.S.'s step-father gave Det. Houck the erotic story he had confiscated from his daughter when the allegations came to light. E.S. told the detective that defendant had written it for her.

Det. Houck testified that, after receiving his Miranda warnings, defendant admitted writing the sexual story, for E.S. to masturbate to. Det. Houck obtained consent to search defendant's laptop. The Computer Forensic Lab subsequently located the story on the computer's hard-drive. At trial, Det. Houck read aloud portions of the sexually explicit story defendant wrote for E.S. The State also introduced the copy of the story provided by E.S., as well as an identical copy that was recovered from defendant's computer. Defendant's recorded interview was also played for the jury.

In his testimony, defendant denied ever touching E.S. inappropriately, providing her with any vibrators, or sending her sexual text messages. He acknowledged that the police had found a story on his computer hard-drive written to E.S. However, contrary to E.S.'s version of events, defendant explained that E.S. actually approached him first with three pages of a handwritten, erotic letter that she had already composed on her own. According to defendant, the letter read similar to an actual conversation between E.S. and the guitarist, her favorite musician, speaking to each other through instant messages. He acknowledged that the letter involved sex between the two.

Defendant further claimed that E.S. then asked him to write her an erotic story based on that narrative. Although he rejected her request multiple times, eventually he finally agreed and typed up the letter. In doing so, he changed the first person narrative to the third person, and added a discussion of condoms and a fear of pregnancy, in order to instill a sense of responsibility in E.S.

Defendant's trial strategy was to establish that he had not written the story himself, but merely edited the original conversational script that E.S. had written and brought to him. No such original script was admitted at trial. In E.S.'s previous testimony, she had categorically denied giving defendant any script or story to edit. She explained that defendant first offered to write her the story, and that she had no involvement in its creation.

Given the non-existence of the supposed original script of the story, defendant sought to establish that he had not composed the initial story for E.S. by revealing E.S.'s knowledge of explicit, sexual language, which was showcased in the instant message conversation between E.S. and Randy in December 2008. Following extensive objections and discussions at sidebar, the trial court ruled that the instant message log was inadmissible under the Rape Shield Law, N.J.S.A. 2C:14-7, because it related to prior sexual conduct of the victim, and that it was irrelevant as it transpired well after E.S.'s relationship with defendant had concluded.

Testifying on behalf of her step-father, D.S. indicated that she never witnessed anything inappropriate occurring between E.S. and defendant. D.S. also denied that anything inappropriate ever occurred between herself and her step-father, thus disputing E.S.'s claim that she had seen defendant molest D.S.

At the conclusion of the trial, the jury acquitted defendant of the sexual assault charge, but found him guilty of third-degree endangering the welfare of a child. This appeal follows.

II.

Defendant first argues that the trial court denied him his constitutional right to present a complete defense when it barred the introduction of the instant message log between E.S. and Randy, the forty-six-year-old man that she subsequently met at a concert. Defendant claimed that the chat log's explicit nature highlighted E.S.'s sexual experience and knowledge of sexual, "dirty language." The defense sought to introduce this chat log, that E.S. admittedly wrote, to demonstrate that she was familiar with such sexually-explicit language, and thus she was more likely to have also been the author of the earlier chat log that defendant testified he had merely converted for her into an erotic story. Essentially, his defense to this aspect of the endangering the welfare of a child charge was that he did not impair or debauch E.S.'s morals because he did not provide her with any explicit language that she was not already familiar with.

We review a trial court's evidentiary rulings under an abuse of discretion standard. State v. McGuire, 419 N.J. Super. 88, 135 (App. Div. 2011). A trial court's evidentiary rulings will not be disturbed on appeal absent a showing of a clear abuse of discretion, meaning, a clear error in judgment. State v. J.A.C., 210 N.J. 281, 295 (2012). An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted. Ibid.

In the present case, when faced with the evidence, the trial court found that it qualified as sexual conduct of the victim, and was hence precluded by the Rape Shield Law. The court further found that the evidence was irrelevant because it occurred after the alleged relationship between defendant and E.S. had concluded. We agree.

The Rape Shield Law serves to presumptively exclude evidence relating to a victim's prior sexual conduct. N.J.S.A. 2C:14-7(a). A defendant seeking to introduce such evidence for any purpose must ordinarily make application prior to trial. Ibid. The Rape Shield Law allows testimony regarding a victim's prior sexual history with a person other than the defendant only when it relates to proving that another individual is the source of certain physical evidence, or when the evidence could negate the element of force. N.J.S.A. 2C:14-7(c), (d); State v. Budis, 125 N.J. 519, 530 (1991). The purpose of the law is to "'protect the privacy interests of the victim while ensuring a fair determination of the issues bearing on the guilt or innocence of the defendant.'" State v. Schnabel, 196 N.J. 116, 128 (2008) (quoting State v. Garron, 177 N.J. 147, 165 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)).

The Legislature's expression of policy is subject to constitutional constraints. The United States and New Jersey Constitutions ensure to criminal defendants "a meaningful opportunity to present a complete defense." Garron, supra, 177 N.J. at 168. As the Court noted in Garron, the constitutional rights of confrontation and compulsory process have "long been recognized as essential to the due process right to a 'fair opportunity to defend against the State's accusations,' and thus [are] 'among the minimum essentials of a fair trial.'" Id. at 169 (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973)).

In order to protect a defendant's right to a fair trial, "'evidence relevant to the defense that has probative value outweighing its prejudicial effect must be placed before the trier of fact.'" Schnabel, supra, 196 N.J. at 130 (quoting Garron, supra, 177 N.J. at 172). In determining the admissibility of evidence of prior sexual conduct, a court must first determine whether the evidence is relevant to the defense. Budis, supra, 125 N.J. at 532. If relevant, the court must then decide whether the probative value outweighs the prejudicial effect to the victim. Ibid. "The probative value of the prior acts depends on clear proof that they occurred, that the acts are relevant to a material issue in the case, and that they are necessary to the defense." Id. at 533.

In J.A.C., supra, 210 N.J. at 301, the Court engaged in an extensive and instructive analysis of the propriety of the trial court's decision to bar the admission of online instant messages sent by the sexual abuse victim. The Court concluded that the child victim's instant messages, containing sexual references and advances, constituted "sexual conduct" within the meaning of N.J.S.A. 2C:14-7(f), which encompasses "any conduct or behavior relating to sexual activities of the victim." Ibid.

Here, defendant concedes that E.S.'s instant messages with Randy, intended to convey the impression that she was sexually experienced, qualify as "sexual conduct" as broadly defined by N.J.S.A. 2C:14-7(f). We do not have the message log in the record before us;4 nonetheless we note that the trial judge commented, "when one reads [the log] in its entirety, one clearly sees that this is behavior relating to sexual activities of the victim."

Having determined that the instant messages constituted "sexual conduct" within the ambit of the Rape Shield Law, the trial court appropriately went on to consider whether the evidence was relevant, and correctly concluded that it was not. By all accounts, the instant message chat log between E.S. and Randy occurred months after the relationship between E.S. and defendant ended. As defendant candidly concedes in his brief, "the second chat log was authored after the erotic story, so . . . E.S. could have learned the graphic language from the erotic story." Having found the proffered evidence irrelevant, it is unnecessary to decide whether its probative value outweighs the prejudicial effect to the victim.

We further note that while the trial court did not permit the chat log to be entered into evidence, it afforded defendant a full opportunity to develop this defense on cross-examination of E.S. She was presented with the instant message log, and conceded that there were inappropriate sexual conversations between her and Randy, of which the jury was thus made aware. E.S. displayed her knowledge of sexual language, thereby establishing defendant's contention and rendering admission of the chat log unnecessary.

In these circumstances, we conclude that the trial judge did not misapply the Rape Shield Law. Nor do we discern an abuse of discretion in the trial court's decision to exclude the message log on the basis that it was not relevant.

Defendant next argues that the prosecutor exceeded the bounds of proper advocacy when he referred to defendant as a "sexual predator" during his summation, thereby depriving him of his rights to due process and a fair trial. We disagree.

The State began summation with the following introduction:

[Prosecutor]: Where do I start? With a mother's guilt? With the tears that result from the realization that she was unable to protect her daughter from a sexual predator? I guess I start there.

[Defense Counsel]: I'm going to object to that characterization of my client.

[The Court]: It's summation.

[Defense Counsel]: Okay.

The State then discussed defendant's conduct juxtaposed with the vulnerability of his underage victim:

Or do I start with the joy, with the delight, the joy that [E.S.] experienced. [E.S.], a 14-year-old high school freshman who had some weight issues, apparently had some self-esteem issues, who told you from right there that, you know, she was uncomfortable with other people seeing her naked. With the joy that resulted from a man, albeit a 50-year old man, seeing her naked and telling her she was beautiful. That's pretty cool. That's really nice.

To warrant reversal, prosecutorial misconduct during summation must be "so egregious that it deprived defendant of a fair trial." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.) (citing State v. Feaster, 156 N.J. 1, 84 (1998)), certif. denied, 165 N.J. 492 (2000). A reviewing court should not hesitate to reverse a conviction where "the prosecutor in his [or her] summation over-stepped the bounds of propriety and created a real danger of prejudice to the accused." State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson, 31 N.J. 489, 511 (1960)). However, a prosecutor's comments during summation should not be reviewed in a vacuum, rather, they must be considered "in the context of the trial as a whole[.]" Swint, supra, 328 N.J. Super. at 261.

A prosecutor is entitled to significant latitude in the content of his or her closing arguments. State v. Frost, 158 N.J. 76, 82 (1999). The prosecutor may "be forceful and graphic" in the arguments presented to the jury. State v. DiPaglia, 64 N.J. 288, 305 (1974). Likewise, the prosecution in its summation "may suggest legitimate inferences to be drawn from the record, but it commits misconduct when it goes beyond the facts before the jury." State v. Harris, 156 N.J. 122, 194 (1998).

Viewed in light of these principles, we cannot conclude that the trial judge erred in permitting the prosecutor's characterization of defendant as a sexual predator. There was ample evidence in the record, which the jury was free to either accept or reject, that E.S. suffered from weight and self-esteem issues, initially viewed defendant as a father-figure, and that defendant thereafter engaged in various sexual acts with E.S., both verbal and physical.

Even if improper, we are also unable to conclude that the jury was unduly swayed by the prosecutor's isolated reference to defendant as a "sexual predator," especially since he was acquitted of both the sexual assault and second-degree endangering charges. In short, we discern no undue prejudice arising from that discrete portion of the summation, and, more importantly, detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").

Finally, defendant argues that his sentence was excessive. Specifically he contends that, as a first offender convicted of a third-degree crime, he was entitled to the statutory presumption of non-incarceration, N.J.S.A. 2C:44-1e, and that the trial court erred in imposing a three-year custodial sentence.5 Again, we disagree.

"The guiding purpose of the New Jersey Code of Criminal Justice (Code) is clear punishment, rather than rehabilitation, for wrongful acts." State v. Evers, 175 N.J.355, 387 (2003). To achieve that purpose, along with uniformity in sentencing, the Code 'channel[s] the discretion of trial courts' by focusing on the gravity of the offense rather than the offender's blameworthiness or capacity for rehabilitation." Ibid.(quoting State v. Jabbour, 118 N.J.1, 6 (1990)); see alsoState v. O'Connor, 105 N.J.399, 405-06 (1987). The judiciary is obligated to adhere to the sentencing guidelines set forth in the Code. State v. Johnson, 118 N.J.10, 15 (1990).

The Code guides the discretion of judges by creating a system in which every crime is graded by degree and afforded an ordinary range of sentence. Evers, supra, 175 N.J.at 387. A third-degree crime carries an ordinary range of sentence between three and five years. N.J.S.A.2C:43-6a(3).

To further channel the discretion of the sentencing judge, the Code applies a presumption of imprisonment to all first- and second-degree convictions, N.J.S.A. 2C:44-1d, and a presumption of non-imprisonment to all third- and fourth-degree convictions when the defendant is a first-time offender, N.J.S.A. 2C:44-1e. The presumption of non-imprisonment is overcome, however, when the sentencing court, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, is of the opinion that his imprisonment is necessary for the protection of the public. N.J.S.A. 2C:44-1e. The sentencing court must be persuaded by a standard that is higher than "clear and convincing" evidence that incarceration is necessary. State v. Gardner, 113 N.J. 510, 517 (1989) (holding that presumption of non-incarceration can be overcome by the nature and circumstances of the offense). An element of the crime cannot be counted as an aggravating factor, and general deterrence alone is insufficient to overcome the presumption. Id. at 519-20.

An appellate court may reverse a sentence if it finds the sentencing determination was "clearly mistaken." State v. Jarbath, 114 N.J. 394, 401 (1989). The reviewing court may correct a sentence if: (1) the trial court failed to follow the applicable sentencing guidelines; (2) the aggravating and mitigating factors found below were not based on sufficient evidence in the record; or (3) the sentence imposed by the trial court was "'clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)); Jabbour, supra, 118 N.J. at 6. While a reviewing court may not substitute its judgment for the trial court, it must act when the trial court was "clearly unreasonable." Jarbath, supra, 114 N.J. at 401.

In this case, defendant was a first-time offender who was convicted of third-degree endangering, so the presumption of non-imprisonment applied. N.J.S.A. 2C:44-1e. In accordance with the statutory framework, the sentencing judge considered defendant's personal history. The judge acknowledged that defendant had no prior criminal history, was unemployed, disabled, and in poor health.

The sentencing court next undertook an analysis of the statutory mitigating factors to determine if any applied, as argued by defendant. The judge declined to apply mitigating factor two, N.J.S.A. 2C:44-1(b)(2), finding that defendant did contemplate that his conduct would cause serious, mental harm. The court then considered mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), whether defendant was particularly likely to respond appropriately to probationary treatment. The judge admonished defendant, stating that he "accepted no responsibility for your action here. You show absolutely no remorse for what you've done. You've indicated it's a story and that's about it." Regarding mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), the judge found that defendant did not exhibit a willingness to cooperate with law enforcement, as he merely made a statement that mitigated his own conduct.

Additionally, the sentencing court found three aggravating factors: the gravity and seriousness of harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court ultimately concluded, after giving consideration to the nature and circumstances of the offense, history, character, and condition of the defendant, that defendant should be imprisoned for the protection of the public. The judge specifically noted defendant's apparent "lack of understanding of appropriate boundaries, the effect [his] conduct has had, and the need for deterrence since acts like this strip children of their innocence which can never be regained."

Before imposing sentence, the judge also addressed defendant's apparent view that his actions were not reprehensible, but rather, commendable, in writing the story for E.S. that instructed about condoms and instilled a fear of pregnancy. The judge explained that defendant's explanation was "quite absurd," and that it was a very serious offense. The judge then sentenced defendant to three years imprisonment, with three days of jail credit.

The judge's findings as to the aggravating and mitigating factors are supported by the record and command our deference. See State v. Bieniek, 200 N.J. 601, 608-09 (2010). Sufficient evidence in the record existed to support the judge's conclusion that defendant's character and condition warranted a departure from the presumption of non-incarceration for his third-degree conviction, and that his imprisonment was necessary for the protection of the public. The sentence imposed fell at the lowest end of the ordinary range of sentences for third-degree crimes, and does not shock the judicial conscience. Ibid; Roth, supra, 95 N.J. at 364-65.

Affirmed.

1 Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140, 24 L. Ed. 2d 122 (1969).

2 N.J.S.A. 2C:44-1e.

3 N.J.S.A. 2C:7-1 to -23.

4 Our review on appeal is hampered by the failure to provide the chat log. The appendix is required to include "such other parts of the record . . . as are essential to the proper consideration of the issues[.]" R. 2:6-1(a)(1)(I).

5 According to the State of New Jersey Department of Corrections website, defendant was released from custody on November 22, 2013, having thus served approximately twenty-two months of his three-year sentence.