New Jersey v.Miller

Annotate this Case

Michael Miller was convicted of possessing and distributing over 900 images and videos of child pornography through the use of online peer-to-peer file-sharing programs. He was also in possession of thirty-three CDs and DVDs, eleven of which contained photographs and recordings of child pornography separate from those found on his computer. The trial court ultimately sentenced Miller to seven years’ imprisonment for the distribution charge and one year of imprisonment for the possession charge. The court determined that the sentences must run consecutively, reasoning that Miller’s crimes “were independent of one another, involv[ing] separate acts committed at different times.” In this appeal, the issue presented for the New Jersey Supreme Court was whether it was an abuse of discretion for a trial court to apply aggravating factor one when sentencing a defendant convicted of possessing and distributing child pornography, and whether Miller was appropriately sentenced to consecutive terms of imprisonment. The Court concluded the Appellate Division’s opinion deprived trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. Miller’s possession charge involved child pornographic material beyond that involved in his distribution charge -- there was pornographic material in Miller’s possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Michael D. Miller (A-70-17) (079342)

Argued November 28, 2018 -- Decided February 20, 2019

FERNANDEZ-VINA, J., writing for the Court.

In this appeal, the Court first considers whether it is an abuse of discretion for a trial
court to apply aggravating factor one when sentencing a defendant convicted of possessing
and distributing child pornography. Second, the Court considers whether defendant Michael
Miller was appropriately sentenced to consecutive terms of imprisonment for his possession
and distribution of child pornography.

Miller was convicted of possessing and distributing over 900 images and videos of
child pornography through the use of online peer-to-peer file-sharing programs. He was also
in possession of thirty-three CDs and DVDs, eleven of which contained photographs and
recordings of child pornography separate from those found on his computer.

At Miller’s sentencing hearing, the trial judge applied aggravating factor one, the
nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), because the pornography
possessed and distributed by Miller depicted the rape, penetration, and sexual assault of
extremely young children, at least one of whom was an infant. The court also applied
aggravating factor two, the gravity of harm to the victim; aggravating factor three, the risk
defendant will commit another offense; and aggravating factor nine, the need for deterrence.
The court applied mitigating factor seven, no prior criminal history, as the sole mitigating
factor. The court then concluded that it would not merge counts one and two together,
explaining that “[Miller]’s possession of the child pornography was not fleeting and was for
a substantial period of time. And his use of the child pornography [was] distinct from his
making the files available by way of the [p]eer-to-[p]eer programs.” The court ultimately
sentenced Miller to seven years’ imprisonment for the distribution charge and one year of
imprisonment for the possession charge. The court determined that the sentences must run
consecutively, reasoning that Miller’s crimes “were independent of one another, involv[ing]
separate acts committed at different times.”

The Appellate Division reversed and remanded Miller’s sentence. The panel
concluded that the trial court “engaged in impermissible double-counting,” reasoning that
“[b]y its nature, child pornography inherently is especially heinous, cruel and depraved, and
[Miller]’s possession and distribution of it in this case was no different.” 449 N.J. Super. 460, 476 (App. Div. 2017). The panel asserted that, “under the specific facts presented” in
this case, Miller’s convictions for fourth-degree possession of child pornography and second-
1
degree distribution of child pornography should have been merged. Id. at 477. The panel
opined that Miller’s “crimes were reasonably proximate in time and place, and [Miller’s] use
of the file-sharing programs was a necessary ingredient and [an] integral part of both his
possession” and his distribution of the child pornography. Ibid. The panel ultimately
affirmed Miller’s conviction but remanded the matter, directing the trial court to re-sentence
him without consideration of aggravating factor one, and to merge count one with count two.
Ibid.

The Court granted the State’s petition for certification. 234 N.J. 1 (2018).

HELD: The Appellate Division’s opinion deprives trial judges of their discretion to make
nuanced assessments of the nature and circumstances of offenses involving child
pornography. Miller’s possession charge involved child pornographic material beyond that
involved in his distribution charge -- there was pornographic material in Miller’s possession
for an extended period of time that was not encompassed in the distribution charge. The
possession and distribution offenses were therefore distinct, and the trial court appropriately
determined that the offenses did not merge for sentencing purposes.

1. Aggravating factor one requires the trial court to consider “[t]he nature and circumstances
of the offense, and the role of the actor therein, including whether or not it was committed in
an especially heinous, cruel, or depraved manner.” N.J.S.A. 2C:44-1(a)(1). When it assesses
whether a defendant’s conduct was especially “heinous, cruel, or depraved,” a sentencing
court must scrupulously avoid double-counting facts that establish the elements of the
relevant offense. The Court has recognized that facts that established elements of a crime for
which a defendant is being sentenced should not be considered as aggravating circumstances
in determining that sentence. Nevertheless, a sentencing court may consider aggravating
facts showing that a defendant’s behavior extended to the extreme reaches of the prohibited
behavior. Thus, in appropriate cases, a sentencing court may justify the application of
aggravating factor one, without double-counting, by reference to the extraordinary brutality
involved in an offense. (pp. 17-19)

2. At the time Miller committed the relevant offenses in this case, the statute he violated
defined a “child” as any person under sixteen years old and prohibited the possession of
material depicting a child engaging in a “prohibited sexual act,” defined as “sexual
intercourse” and “nudity,” among other things. N.J.S.A. 2C:24-4 (2012). At Miller’s
sentencing hearing, the court explained that the child pornography found on defendant’s
computer “depicted rape essentially, penetration, bondage, really horrific displays of . . .
cruel treatment to these children.” The extraordinary brutality depicted in defendant’s
pornography demonstrated that his possession and distribution of such content extended to
the extreme reaches of the behavior prohibited by N.J.S.A. 2C:24-4. Further, the trial judge
appropriately considered the victims’ ages when applying aggravating factor one. N.J.S.A.
2C:24-4 contained an element of age, but that element did not preclude consideration of the
victims’ ages for sentencing purposes because it did not distinguish between a sixteen-year-
old girl who sends an explicit photo to her fifteen-year-old boyfriend and an individual who
acquires violent child pornography involving the sexual assault of toddlers. Like any other
2
fact, age is for the determination of the factfinder. The immaturity and extreme youth of the
victims in this case allowed the trial judge to determine that “infants” and “very young
children” were caused to engage in sexual activities. The appellate panel’s opinion in this
case deprives trial judges of their discretion to make nuanced assessments of the nature and
circumstances of offenses involving child pornography. (pp. 19-21)

3. State v. Brown sets forth the Court’s general approach to merger issues, a “flexible
approach . . . that requires . . . focus on the elements of the crimes and the Legislature’s
intent in creating them, and on the specific facts of each case. The overall principle guiding
merger analysis is that a defendant who has committed one offense cannot be punished as if
for two.” 138 N.J. 481, 561 (1994) (citations and internal quotation marks omitted). Such an
approach entails “[the] analysis of the evidence in terms of, among other things, the time and
place of each purported violation; whether the proof submitted as to one count of the
indictment would be a necessary ingredient to a conviction under another count; whether one
act was an integral part of a larger scheme or episode; the intent of the accused; and the
consequences of the criminal standards transgressed.” State v. Davis, 68 N.J. 69, 81 (1975).
Guidance also arises from the principle that “the [L]egislature is empowered to split a single,
continuous transaction into stages, elevate each stage to a consummated crime, and punish
each stage separately.” Id. at 78. In Davis, the Court considered the issue of merger in the
context of the crimes of possession and distribution of a controlled dangerous substance, and
found them to be separate offenses subject to separate punishments. Ibid. The Court
explained that if a defendant’s “possession were contingent upon and inseparable from the
sale itself, a 'mere fleeting and shadowy incident of the sale,’ then only one offense ha[d]
been committed.” Id. at 83. The Davis Court then explained that there was “ample evidence
to support the conclusion that Davis was not engaged in 'fleeting and shadowy’ possession
preceding and purely incidental to imminent distribution, as would be true of an agent of or
go-between for a seller,” but rather was in possession for a “substantial period of time
separate and apart from his possession merely incident to a particular imminent sale.” Id. at
83-84. (pp. 21-24)

4. In this case, prior to the period during which Miller began to distribute the pornography,
there was a period of over two years in which he possessed it but had not yet distributed it.
Further, in addition to the over 900 child pornographic images and videos stored on Miller’s
computer, there were eleven CDs and DVDs containing photographs and video recordings of
child pornography that were found inside his home, separate from the pornography on his
computer. The possession and distribution offenses were therefore distinct and the trial court
appropriately determined that they did not merge for sentencing purposes. (pp. 24-25)

The judgment of the Appellate Division is REVERSED and Miller’s sentence is
REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’S opinion.

3
SUPREME COURT OF NEW JERSEY
A-
70 September Term 2017
079342

State of New Jersey,

Plaintiff-Appellant,

Michael D. Miller,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
449 N.J. Super. 460 (App. Div. 2017).

Argued Decided
November 28, 2018 February 20, 2019

Lisa Sarnoff Gochman, Legal Assistant, argued the cause
for appellant (Christopher J. Gramiccioni, Monmouth
County Prosecutor, attorney; Lisa Sarnoff Gochman, of
counsel and on the briefs).

Michael T. Denny, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Michael T. Denny, of counsel
and on the briefs, and William Welaj, Designated
Counsel, on the briefs).

Regina M. Oberholzer, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Regina M. Oberholzer, of counsel and on the brief).
1
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this appeal, we first consider whether it is an abuse of discretion for a

trial court to apply aggravating factor one when sentencing a defendant

convicted of possessing and distributing child pornography. Second, we

consider whether defendant Michael Miller was appropriately sentenced to

consecutive terms of imprisonment for his possession and distribution of child

pornography.

Miller was convicted of possessing and distributing over 900 images and

videos of child pornography through the use of online peer-to-peer file-sharing

programs. He was also in possession of thirty-three CDs and DVDs, eleven of

which contained photographs and recordings of child pornography separate

from those found on his computer. At Miller’s sentencing hearing, the trial

judge applied aggravating factor one, the nature and circumstances of the

offense, N.J.S.A. 2C:44-1(a)(1), because the pornography possessed and

distributed by Miller depicted the rape, penetration, and sexual assault of

extremely young children, at least one of whom was an infant. After

considering the relevant aggravating and mitigating factors, the trial judge

sentenced Miller to seven years’ imprisonment for the distribution charge, and

2
one year of imprisonment for the possession charge, to be served

consecutively. Miller subsequently appealed.

The Appellate Division reversed and remanded Miller’s sentence. In a

published opinion, which instructed the trial court to re-sentence Miller

without consideration of aggravating factor one and to merge Miller’s

possession and distribution convictions. The appellate panel determined that

the trial court engaged in impermissible double-counting when it applied

aggravating factor one because child pornography is inherently heinous, cruel,

and depraved, and Miller’s possession and distribution of such pornography in

this case was no different. The panel further held that the trial court should

have merged Miller’s possession and distribution convictions because the

crimes were reasonably proximate in time and place, and Miller’s use of the

file-sharing programs was a necessary ingredient and an integral part of both

his possession and his distribution of the child pornography.

We conclude that the panel’s opinion deprives trial judges of their

discretion to make nuanced assessments of the nature and circumstances of

offenses involving child pornography. We further conclude that Miller’s

possession charge involved child pornographic material beyond that involved

in his distribution charge -- there was pornographic material in Miller’s

possession for an extended period of time that was not encompassed in the

3
distribution charge. The possession and distribution offenses were therefore

distinct, and the trial court appropriately determined that the offenses did not

merge for sentencing purposes. Accordingly, we reverse the judgment of the

Appellate Division and reinstate Miller’s sentence.

From 2010 to 2012, Freehold Township Police Officer Richard Hudak was

assigned to the Computer Crimes Unit of the Monmouth County Prosecutor’s

Office (MCPO) as part of the Internet Crimes Against Children (ICAC) task

force. By using “undercover computers,” Hudak was able to locate computers

within Monmouth County that were making suspected images and videos of

children performing prohibited sexual acts available for download. As was the

case with defendant Michael Miller, these pictures and videos were oftentimes

shared via peer-to-peer file-sharing. Peer-to-peer networks allow computer

users to exchange audio, video, and image files with each other over the

internet, with the computers being referred to as “peers.” When users

download a particular peer-to-peer software program, they offer their

computers and files to other users for sharing, and can download files from

others using the same software.

4
Through his investigation, Officer Hudak was able to determine that

Miller’s computer was sending and receiving files containing child

pornography via peer-to-peer networks. On February 1, 2012, Hudak and

other members of the MCPO ICAC task force executed a search warrant at

Miller’s Keansburg residence. The officers seized thirty-three CDs and DVDs,

and several computers -- including an Acer Aspire 4315 laptop. Eleven of

those CDs and DVDs were found to contain images or videos of child

pornography. Miller was brought to the Keansburg Police Station, where he

was read and waived his Miranda1 rights. While being questioned by police,

Miller acknowledged that he had been living alone at his residence for two

years and that he previously used the peer-to-peer file-sharing program

LimeWire until it was shut down in 2010, at which time he began using

FrostWire. When asked if he was admitting to downloading child

pornography, Miller replied “Yes.”

Miller was then asked about his understanding of peer-to-peer networks

and responded, “[I]f you have a song on your computer, I can download it and

share [it].” Miller explained, “I know it’s wrong to distribute. I didn’t realize

that I was distributing [it], because it was on my library,” but he later

acknowledged, “I never thought it through . . . that if I have it on here, other

1
Miranda v. Arizona, 384 U.S. 436 (1966).
5
people can get it from me. And I know that’s exactly how peer-to-peer

works.” Miller further stated, “Obviously, if it’s in the FrostWire file . . . it’s

available to anyone else, so it’s not necessarily personal.” When Miller was

asked whether he disputed that he made the child pornography videos

shareable to other people through FrostWire, he responded, “No.” Miller then

acknowledged that he knew “that the library where the images or the videos

were was shareable.”

During this interview, Miller was shown sanitized photographs taken

from the pornographic videos obtained from his computer and was asked to

sign his initials on the pictures he recognized. The photographs that Miller

initialed and that were presented to the judge at trial included: (1) an image of

an adult male and a juvenile female with a pacifier in her mouth and her legs

drawn up with her vaginal area exposed; (2) a photo where both an adult

female and a juvenile male are nude, and the male is straddling the adult

female’s legs; (3) a photo of a juvenile female performing fellatio on an adult

male; (4) a photo of a juvenile female and juvenile male with their genitals

exposed alongside an adult female with her breasts exposed; (5) an image of a

juvenile female as she straddles and masturbates an adult male; and (6) an

image of a naked juvenile male and a naked adult female with another juvenile

female wearing a type of nightgown.

6
Detective Richard Bruccoliere conducted a forensic analysis of all the

media that was seized in this case. Bruccoliere investigated Miller’s Acer

Aspire 4315 laptop, in which he found 631 images and 353 videos of child

pornography. Miller’s laptop also contained three peer-to-peer file-sharing

programs: FrostWire, uTorrent, and MediaGet.

On May 20, 2013, a Monmouth County grand jury returned an

Indictment charging Miller with fourth-degree endangering the welfare of a

child by knowingly possessing child pornography, contrary to N.J.S.A. 2C:24- -

4(b)(5)(b)2 (count one), and second-degree endangering the welfare of a child

by knowingly distributing child pornography, contrary to N.J.S.A. 2C:24- -

4(b)(5)(a) (count two). Miller waived his right to a jury trial and, after a two -

week bench trial, was found guilty of both charges.

At the sentencing hearing, the court applied aggravating factor one,

“[t]he nature and circumstances of the offense.” See N.J.S.A. 2C:44-1(a)(1).

In applying aggravating factor one, the court noted that “[t]hese are numerous,

numerous children, infants, very young children in these cases who are

portrayed. Not just portrayed, they were photographed. They were caused to

2
Since Miller’s indictment, N.J.S.A. 2C:24-4(b)(5)(b) has been amended. L.
2013, c. 51 made a violation of that section a third-degree offense.
7
engage in these sexual activities. One had a binky in her mouth[,] [b]ut they

were all quite young, quite, quite young.” The court further noted that the

content of Miller’s pornography was “heinous, and cruel, and depraved,” and

that the “little girls and boys” depicted in Miller’s pornography were “treat[ed]

as if they were not people, as if they were mere objects.”

The court also applied aggravating factor two, the gravity of harm to the

victim ( N.J.S.A. 2C:44-1(a)(2)); aggravating factor three, the risk “defendant

will commit another offense” (id. § 44-1(a)(3)); and aggravating factor nine,

the need for deterrence (id. § 44-1(a)(9)). The court applied mitigating factor

seven, no prior criminal history (id. § 44-1(b)(7)), as the sole mitigating factor.

The court then concluded that it would not merge counts one and two together,

explaining that “[Miller]’s possession of the child pornography was not

fleeting and was for a substantial period of time. And his use of the child

pornography [was] distinct from his making the files available by way of the

[p]eer-to-[p]eer programs.”

The court ultimately sentenced Miller to seven years’ imprisonment for

the distribution charge and one year of imprisonment for the possession

charge. The court determined that the sentences must run consecutively,

explaining that “these are separate crimes” that were “horrific [and]

reprehensible.” The court reasoned that Miller’s crimes “were independent of

8
one another, involv[ing] separate acts committed at different times.” Miller

was also required to comply with Megan’s Law, N.J.S.A. 2C:7-1 to -23.

Miller appealed his conviction. He argued, among other things, that his

sentence was excessive. The appellate panel concluded that the trial court

“engaged in impermissible double-counting,” reasoning that “[b]y its nature,

child pornography inherently is especially heinous, cruel and depraved, and

[Miller]’s possession and distribution of it in this case was no different.” State

v. Miller, 449 N.J. Super. 460, 476 (App. Div. 2017). The panel asserted that,

“under the specific facts presented” in this case, Miller’s convictions for

fourth-degree possession of child pornography and second-degree distribution

of child pornography should have been merged. Id. at 477. The panel opined

that Miller’s “crimes were reasonably proximate in time and place, and

[Miller’s] use of the file-sharing programs was a necessary ingredient and [an]

integral part of both his possession” and his distribution of the child

pornography. Ibid. The panel ultimately affirmed Miller’s conviction but

remanded the matter, directing the trial court to re-sentence him without

consideration of aggravating factor one, and to merge count one with count

two. Ibid.

9
The State sought certification from this Court, which we granted.3 234 N.J. 1 (2018). We also granted the Attorney General leave to appear as amicus

curiae.

II.

The State first argues that the Appellate Division’s “one size fits all”

approach to sentencing in child pornography cases ignores the wide range of

images criminalized by N.J.S.A. 2C:24-4(b) and strips sentencing judges of

their discretion to make nuanced assessments of the nature and circumstances

of different offenses. The State asserts that the plain language of N.J.S.A.

2C:24-4(b)(1) does not distinguish between a video of an adult male vaginally

raping a three-year-old girl and a photograph of a consenting seventeen-year-

old girl taken by her eighteen-year-old boyfriend during a sexual encounter.

In that hypothetical, the State reasons, both of the victims meet the

definition of “child,” defined in N.J.S.A. 2C:24-4(b)(1) as “any person under

18 years of age,” 4 and both images depict a “prohibited sexual act” as defined

3
We denied Miller’s cross-petition for certification. 233 N.J. 483 (2018).
4
At the time of Miller’s offense, the term “child” was defined by N.J.S.A.
2C:24-4b(1) as “any person under 16 years of age.” In 2013, the Legislature
amended the statute by increasing the benchmark age of “child” from 16 to 18
years of age. L. 2013, c. 136; see also In re Cohen, 220 N.J. 7, 17-18 (2014)
(discussing the amendment).
10
by that statute. The State contends that although the photograph of a

seventeen-year-old is illegal and inappropriate, it bears none of the violence,

cruelty, and depravity depicted in a hardcore video of the sexual assault of a

vulnerable, prepubescent minor.

The State further argues that sentencing courts are required to

differentiate between the least culpable and most culpable offenders and , to

accomplish this, “[a] sentencing court may consider 'aggravating facts

showing that [a] defendant’s behavior extended to the extreme reaches of the

prohibited behavior.’” (quoting State v. Fuentes, 217 N.J. 57, 75 (2014)

(second alteration in original) (quoting, in turn, State v. Henry, 418 N.J. Super.
481, 493 (Law Div. 2010))). The State asserts that the Appellate Division’s

blanket prohibition on trial courts’ consideration of aggravating factor one in

child pornography prosecutions stands in defiance of this bedrock principle of

sentencing law.

Second, the State argues that the Appellate Division erroneously

required the merger of Miller’s convictions for child endangerment by

possessing child pornography (count one) and child endangerment by

distributing child pornography (count two). The State cites to State v. Davis,

68 N.J. 69, 81 (1975), in which this Court considered the issue of merger in the

11
context of the possession and distribution of a controlled dangerous substance

and found them to be separate offenses subject to separate punishments.

The State argues that, in this case, Miller was in possession of the child

pornography as early as December 16, 2010, 5 but the start date of his

distribution as charged in the indictment was almost six months later -- June

13, 2011. Given those time frames, the State contends there is ample evidence

to support the conclusion that Miller was not engaged in “fleeting and

shadowy” possession of the child pornography purely incidental to the sharing

of the files over the peer-to-peer network, but was instead in possession of the

child pornography for a substantial period of time separate and apart from its

distribution.

The Attorney General, appearing as amicus curiae, agrees with the State

that while all crimes involving the sexual exploitation of children are

inherently heinous, cruel, and depraved, some exploitation of children is

especially so, and defendants who engage in such conduct should face harsher

punishment. The Attorney General notes that Miller possessed and distributed

hundreds of pornographic images of many children, and that the victims in the

5
According to Miller’s indictment, his possession of the child pornography
actually began much earlier, starting on May 29, 2009.
12
images were very young, some of whom were infants and toddlers, including

one child who had a pacifier in her mouth while she was being sexually

assaulted.

The Attorney General further notes that Miller was convicted of

distributing child pornography from June 13, 2011, to February 1, 2012, but

was convicted of possessing child pornography from May 29, 2009, to

February 1, 2012 -- a period of time that encompasses over two more years

than the distribution charge. The Attorney General also notes that although

nearly 1000 images were stored on Miller’s computer, he had an additional

eleven CDs and DVDs containing photographs and video recordings of child

pornography that were not on the computer and thus were not available for

distribution.

Miller notes that when he committed these offenses, N.J.S.A. 2C:24-

4(b)(1) defined a “child” as anyone under the age of sixteen. Miller argues

that the Legislature had therefore already taken the age of the victim into

account by making it an element of possessing and distributing child

pornography. Miller further asserts that had the Legislature wanted to pun ish

offenses depicting younger victims more severely, or more violent acts

differently, it would have written the statute to reflect that.

13
According to Miller, by their very nature, child pornography

prosecutions virtually always involve material with children assumed to be

well below the age of eighteen. Thus, he argues, without an additional finding

of some feature other than age, aggravating factor one would apply in virtually

every case involving child pornography. Miller asserts that it is hard to

imagine how a finding of extreme youth could be made with clarity in child

pornography cases because the real ages of the children depicted are generally

unknown. Miller concludes that, as a result, courts are left in the position of

guessing age without any additional information, which would lead to an

uneven application of aggravating factor one.

Second, Miller argues the Appellate Division properly determined that

his conviction for fourth-degree possession of child pornography should merge

with his conviction for second-degree distribution of child pornography.

Miller asserts that the appellate panel appropriately found that the crimes were

reasonably proximate in time and place and that his use of the peer-to-peer

file-sharing system was a necessary ingredient and an integral part of both his

possession and distribution of the child pornography.

Miller cites to State v. Lyons, 417 N.J. Super. 251, 255-56, 263 (App.

Div. 2010), observing that the Appellate Division held that the defendant had

distributed child pornography via peer-to-peer file-sharing because “[t]he court

14
found that the downloaded items were immediately placed into the defendant’s

shared folder, and that the accessibility of the defendant’s shared folder to

other users of the network constituted distribution.” Miller argues that, as was

the case in Lyons, the moment he downloaded child pornography on the peer-

to-peer network, it was automatically put into his shared folder where it was

available to others.

Miller finally asserts that his possession and distribution of the child

pornography were reasonably proximate in time and place because all of the

downloads occurred in a roughly six-month timeframe from an IP address

associated with his home, and a forensic examination of his computers showed

that only one computer appeared to be used for pornography.

III.

We first consider the trial court’s application of aggravating factor one

in sentencing Miller.

“Appellate review of a sentence is generally guided by the abuse of

discretion standard.” State v. Robinson, 217 N.J. 594, 603 (2014).

“[A]ppellate courts are cautioned not to substitute their judgment for those of

our sentencing courts.” State v. Case, 220 N.J. 49, 65 (2014). Rather, an

appellate court must affirm the sentence unless (1) the
sentencing guidelines were violated; (2) the
15
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) “the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience.”

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]

The general deference to sentencing decisions includes application of the

factors set forth in N.J.S.A. 2C:44-1(a) and (b): appellate courts do not

“'substitute [their] assessment of aggravating and mitigating factors’ for the

trial court’s judgment.” State v. Miller, 205 N.J. 109, 127 (2011) (quoting

State v. Bieniek, 200 N.J. 601, 608 (2010)). “Permitting appellate courts to

substitute their factual findings for equally plausible trial court findings is

likely to 'undermine the legitimacy of the [trial] courts in the eyes of litigants,

multiply appeals by encouraging appellate retrial of some factual issues, and

needlessly reallocate judicial authority.’” State v. S.S., 229 N.J. 360, 380-81

(2017) (alteration in original) (quoting Fed. R. Civ. P. 52(a) advisory

committee’s note to 1985 amendment). “[T]he public’s interest in 'stability

and judicial economy’ is promoted by designating our trial courts, rather than

appellate courts, as 'the finder of the facts,’ in the absence of clear error.” Id.

at 381 (quoting Fed. R. Civ. P. 52(a) advisory committee’s note to 1985

amendment).

16
B.

Aggravating factor one requires the trial court to consider “[t]he nature

and circumstances of the offense, and the role of the actor therein, including

whether or not it was committed in an especially heinous, cruel, or depraved

manner.” N.J.S.A. 2C:44-1(a)(1). When applying factor one, “the sentencing

court reviews the severity of the defendant’s crime, 'the single most important

factor in the sentencing process,’ assessing the degree to which defendant’s

conduct has threatened the safety of its direct victims and the public.” State v.

Lawless, 214 N.J. 594, 609 (2013) (quoting State v. Hodge, 95 N.J. 369, 379

(1984)).

“When it assesses whether a defendant’s conduct was especially

'heinous, cruel, or depraved,’ a sentencing court must scrupulously avoid

'double-counting’ facts that establish the elements of the relevant offense.”

Fuentes, 217 N.J. at 74-75. As this Court has observed:

In State v. Yarbough, 100 N.J. 627, 633 (1985), we
recognized that facts that established elements of a
crime for which a defendant is being sentenced should
not be considered as aggravating circumstances in
determining that sentence. We reasoned that the
Legislature had already considered the elements of an
offense in the gradation of a crime. Ibid. If we held
otherwise, every offense arguably would implicate
aggravating factors merely by its commission, thereby
eroding the basis for the gradation of offenses and the
distinction between elements and aggravating
circumstances. In the same manner, double-counting
17
of elements of the offenses as aggravating factors
would be likely to interfere with the Code’s dedication
to uniformity in sentencing.

[State v. Kromphold, 162 N.J. 345, 353 (2000)
(discussing Yarbough).]

Nevertheless, “[a] sentencing court may consider 'aggravating facts

showing that [a] defendant’s behavior extended to the extreme reaches of the

prohibited behavior.’” Fuentes, 217 N.J. at 75 (alteration in original) (quoting

Henry, 418 N.J. Super. at 493). Thus, “[i]n appropriate cases, a sentencing

court may justify the application of aggravating factor one, without double -

counting, by reference to the extraordinary brutality involved in an offense.”

Ibid.; see, e.g., State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992)

(affirming the sentencing court’s application of aggravating factor one when,

in an aggravated assault case, “the serious injuries were far in excess of that

required to satisfy” the crime’s statutory elements).

State v. Taylor further illustrates the point. 226 N.J. Super. 441, 453-54

(App. Div. 1988). In that case, “the conviction itself required that [the]

defendant have 'sexual contact with a victim who [was] less than 13 years

old,’” but the age of the victim, the defendant’s four-year-old niece, led the

appellate court to conclude that “[t]he extreme youth of the victim was a

proper aggravating factor to have been considered by the [sentencing] court”

18
in applying aggravating factor two. 6 Id. at 453. In applying aggravating factor

two in that case, the sentencing court reasoned, “While the element of age is

included within this crime, I don’t think it completely blankets it, and I think

there is some consideration given to the seriousness of harm inflicted on

someone of this age.” Ibid. The Appellate Division affirmed. Id. at 454.

At the time Miller committed the relevant offenses in this case, the

statute he violated defined a “child” as any person under sixteen years old and

prohibited the possession of material depicting a child engaging in a

“prohibited sexual act,” defined as “sexual intercourse” and “nudity,” among

other things. N.J.S.A. 2C:24-4 (2012). At Miller’s sentencing hearing, the

court explained that the child pornography found on defendant’s computer

depicted rape essentially, penetration, bondage, really
horrific displays of . . . cruel treatment to these children.
I reiterate there was one that a bag was placed over the
young girl’s head. There was . . . an adult penis
entering a very young girl’s vagina. Multiple . . .
incidents of real people, real children. An infant with a
. . . [pacifier] in her mouth whose genitalia . . . is
exposed and . . . displayed, and many others.

6 See N.J.S.A. 2C:44-1(a)(2) (providing that courts should consider “[t]he
gravity and seriousness of harm inflicted on the victim, including whether or
not the defendant knew or reasonably should have known that the victim of the
offense was particularly vulnerable or incapable of resistance due to advanced
age, ill-health, or extreme youth, or was for any other reason substantially
incapable of exercising normal physical or mental power of resistance”).
19
We hold that the extraordinary brutality depicted in defendant’s

pornography demonstrated that his possession and distribution of such content

extended to the extreme reaches of the behavior prohibited by N.J.S.A. 2C:24-

4. We further find that the trial judge appropriately considered the victims’

ages when applying aggravating factor one. Like the statute at issue in Taylor,

N.J.S.A. 2C:24-4 contained an element of age. However, that element did not

preclude consideration of the victims’ ages for sentencing purposes because it

did not distinguish between a sixteen-year-old girl who sends an explicit photo

to her fifteen-year-old boyfriend and an individual who acquires violent child

pornography involving the sexual assault of toddlers.

We disagree with Miller’s argument that it is “hard to imagine how a

finding of extreme youth could be made with clarity in child pornography

cases because . . . the real ages of the children depicted are generally

unknown.” New Jersey courts have held that, “[l]ike any other fact, age is, of

course, for the determination of the [factfinder],” and “whether the age of a

model in a child pornography prosecution can be determined by a [factfinder]

without the assistance of expert testimony . . . must be determined on a case by

case basis.” State v. May, 362 N.J. Super. 572, 594 (App. Div. 2003) (ellipsis

in original) (first quoting State v. Carlone, 109 N.J.L. 208, 211 (Sup. Ct.

1932); then quoting United States v. Katz, 178 F.3d 368, 373 (5th Cir. 1999)).

20
The immaturity and extreme youth of the victims in this case allowed the

trial judge to determine that “infants” and “very young children” were caused

to engage in sexual activities, one of whom had a pacifier in her mouth. The

judge further acknowledged that the victims in defendant’s child pornography

“were all quite young, quite, quite young,” and that the “little girls and boys”

depicted were “treat[ed] as if they were not people, as if they were mere

objects.”

We agree with the State that the appellate panel’s opinion in this case

deprives trial judges of their discretion to make nuanced assessments of the

nature and circumstances of offenses involving child pornography.

Accordingly, we reverse the judgment of the Appellate Division as to this

issue and next consider whether the sentences were subject to merger.

IV.

As to the consecutive sentences imposed here, where a defendant

receives more than one sentence of imprisonment “for more than one offense

. . . such multiple sentences shall run concurrently or consecutively as the

court determines at the time of sentence.” N.J.S.A. 2C:44-5(a). State v.

Brown sets forth this Court’s general approach to merger issues:

We follow a “flexible approach” in merger issues that
“requires us to focus on the 'elements of the crimes and
21
the Legislature’s intent in creating them,’ and on 'the
specific facts of each case.’” The overall principle
guiding merger analysis is that a defendant who has
committed one offense “cannot be punished as if for
two.” Convictions for lesser-included offenses,
offenses that are a necessary component of the
commission of another offense, or offenses that merely
offer an alternative basis for punishing the same
criminal conduct will merge.

[ 138 N.J. 481, 561 (1994) (citations omitted).]

Such an approach entails

[the] analysis of the evidence in terms of, among other
things, the time and place of each purported violation;
whether the proof submitted as to one count of the
indictment would be a necessary ingredient to a
conviction under another count; whether one act was an
integral part of a larger scheme or episode; the intent of
the accused; and the consequences of the criminal
standards transgressed.

[Davis, 68 N.J. at 81.]

Guidance also arises from the principle that “the Legislature may

fractionalize a single criminal episode into separate offenses when the

Legislature intends them to be punished separately and when the

fractionalization does not offend constitutional principles.” State v. Mirault,

92 N.J. 492, 504 (1983). Stated differently, “the [L]egislature is empowered to

split a single, continuous transaction into stages, elevate each stage to a

consummated crime, and punish each stage separately.” Davis, 68 N.J. at 78.

22
In Davis, this Court considered the issue of merger in the context of the

crimes of possession and distribution of a controlled dangerous substance, and

found them to be separate offenses subject to separate punishments. Ibid. In

that case, this Court explained that if a defendant’s “possession were

contingent upon and inseparable from the sale itself, a 'mere fleeting and

shadowy incident of the sale,’ then only one offense ha[d] been committed.”

Id. at 83. The Davis Court cited to Laughter v. State, 241 So. 2d 641 (Miss.

1970), which it found to be “illustrative of this merger.” Davis, 68 N.J. at 83.

The Davis Court described the facts of Laughter as follows:

[T]he defendant procured marijuana at the request of an
undercover agent who had given [the] defendant money
with the express intent of consummating a sale to the
agent. Defendant was prosecuted and convicted for
possession of marijuana. He was subsequently
prosecuted in a second trial for sale to the agent of the
same marijuana. In stating that the possession for
which there had already been a conviction was
inextricably tied to that sale, the Supreme Court of
Mississippi reversed the conviction for sale, holding
that prosecution therefor was barred by the earlier
proceeding. That court hastened to add, however, that
if [the] defendant had, after an offer to purchase from
the agent, gone to a location where the same amount of
marijuana was concealed and then sold it to the officer,
both convictions would be sustained.

[Ibid. (discussing Laughter, 241 So. 2d at 644).]

23
The Davis Court then detailed how the facts of the case before it differed

from the facts in Laughter, explaining that there was “ample evidence to

support the conclusion that Davis was not engaged in 'fleeting and shadowy’

possession preceding and purely incidental to imminent distribution, as would

be true of an agent of or go-between for a seller,” but rather was in possession

for a “substantial period of time separate and apart from his possession merely

incident to a particular imminent sale.” Id. at 83-84.

In this case, Miller was charged with possessing child pornography

between May 29, 2009, and February 1, 2012; and distributing child

pornography between June 13, 2011, and February 1, 2012. Thus, prior to the

period during which Miller began to distribute the pornography, there was a

period of over two years in which he possessed it but had not yet distributed it.

This directly conflicts with Miller’s theory that the possession and distribution

of his child pornography was “coincidental,” and that the two offenses “were

reasonably proximate in time.”

Further, in addition to the over 900 child pornographic images and

videos stored on Miller’s computer, there were eleven CDs and DVDs

containing photographs and video recordings of child pornography that were

found inside his home, separate from the pornography on his computer.

24
Miller’s possession of those CDs and DVDs contradicts his argument that his

“use of the file-sharing programs was a necessary ingredient and integral part

of both his possession of the child pornography and the means by which he

made it accessible to others.”

The record contains ample evidence supporting the trial court’s

conclusion that Miller was not engaged in “fleeting” possession preceding and

purely incidental to the imminent distribution of the child pornography, but

was instead in possession of the pornography for a substantial period of time

separate and apart from his distribution of pornography. The possession and

distribution offenses were therefore distinct and the trial court appropriately

determined that they did not merge for sentencing purposes.

Accordingly, we reverse the judgment of the Appellate Division and

reinstate Miller’s sentence.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’S opinion.

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