Opinion
DOCKET NO. A-1946-13T1
01-25-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. IVAN G. MCKINNEY, Defendant-Appellant.
Allison Perrone, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief). Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher, Ostrer and Leone. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-11-1878. Allison Perrone, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief). Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals his convictions for kidnapping, aggravated sexual assault during a kidnapping, and other offenses regarding his actions toward a thirteen-year-old girl, and his convictions for child endangerment by sexual conduct and other offenses regarding his actions toward a fifteen-year-old girl. He was also convicted of drug offenses. In addition, he challenges the imposition of consecutive terms that aggregated in a prison term of life plus twenty-four years with a fifty-four-year period of parole ineligibility. We find no merit in any of defendant's arguments and affirm.
On February 14, 2011, Jane and Susan (fictitious names), who were then thirteen and fifteen years old, respectively, decided to "run away," which Jane explained simply meant staying away from their homes for a few days. They walked from Clifton to a Dunkin' Donuts in Passaic, where, after leaving a restroom together, they were approached by defendant, who referred to himself as "G," and to his male friend as "C." Defendant asked the girls for their names and, after purchasing hot chocolate for them, defendant offered a place to stay and enticed the girls with the prospect of smoking marijuana at his boarding house room.
"C" would later be identified as "Court."
Video surveillance inside the Dunkin' Donuts that depicted this encounter was shown to the jury.
The girls left Dunkin' Donuts with Court and defendant, who drove to his residence in Hackensack and, upon arrival, retrieved a bag of marijuana from a garbage can on the side of the building. Defendant then escorted the girls and Court to his second floor room. Defendant gave the girls marijuana to smoke, and provided an alcoholic beverage called "Four Loko" and Everclear vodka. Defendant neither smoked nor drank, and both girls fell asleep after forty-five minutes.
The following morning, defendant drove the girls to Paterson, provided them with his cell phone number, and gave Jane a small amount of money. Jane added defendant's phone number to Susan's phone under a pseudonym. Susan returned home, and Jane went to a friend's house.
On February 15, 2011, defendant texted Susan multiple times, but she did not realize he was the author of the text messages until the following day when a text from defendant mentioned meeting the girls at Dunkin' Donuts. After an exchange of messages, defendant indicated he wanted the girls to spend additional time with him and offered to buy them sneakers or cellular telephones. He also requested photos of the girls and asked for Jane's telephone number, which Susan refused to provide.
Defendant continued to text Susan about her plans for the following day; she informed him she was in rehabilitation for drug abuse. He continued to try to arrange a meeting and offered to buy her sneakers. Defendant also told Susan that he obtained bags of marijuana for Jane.
On February 17, 2011, defendant texted Susan again. The following day, the girls went to a party at a friend's house and did not return home that evening.
The next day, February 19, 2011, at 2:15 p.m., Jane wanted to smoke marijuana and texted defendant from Susan's cell phone, spoke to him on the phone, and asked to go to his residence. At the time, the girls were in a Shop-Rite in Passaic. Defendant agreed, but only if the girls met him outside and a distance from the Shop-Rite. After the girls entered his vehicle, which was parked a half block away from Shop-Rite, defendant drove them to a liquor store and purchased Four Loko and Nuvo, a sparkling alcoholic liqueur, at Jane's request. While outside, defendant passed by a restaurant where he obtained cocaine. He instructed Jane to hold the bag of cocaine in the event the car was pulled over; she hid it in her bra.
Defendant drove the girls to Hackensack, brought them up to his room, and locked the door. Defendant removed marijuana from a plastic bag located behind the headboard of his bed. The girls smoked the marijuana and drank the alcohol; defendant did neither and just watched the girls.
Defendant also gave each girl unidentified pills that he ordered them to consume, yelling: "swallow it, swallow it." Jane, however, used a sleight-of-hand to hide one of the pills and, as a result, swallowed only one, while Susan swallowed both. Susan explained that she felt forced into taking the pills because defendant stood in front of them and refused to move. He gave them alcohol to assist with swallowing the pills. Defendant did not smoke, drink, or consume pills. A short time later, both girls began to feel disoriented.
Despite her disorientation, Susan recalled laying on the floor of defendant's room by the door, crying, and pleading on her cell phone with her sister for assistance. A short time later, at about 4:30 p.m., Susan texted that she was in a house, she did not know the location of the house, and that a black man was attempting to rape her. Susan made subsequent calls to her mother's cell phone and was able to speak to her mother.
Susan's mother testified at trial that Susan cried and pleaded for help, said that she could not talk for long because she was being monitored, and that she was locked in the bathroom and had been given pills. Susan's mother recalled that Susan sounded frightened and disoriented, and that Susan spoke in a low voice out of fear of being overheard. During Susan's last telephone call to her mother, Susan said "look mom, I love you very much." Defendant found Susan talking on the phone, yelled at her, and ordered her to hang up. Meanwhile, Jane also felt disoriented and unable to walk. She remembered hearing Susan crying out for her brother. At some point both girls lost consciousness.
Susan recalled waking up and seeing Jane lying next to her on defendant's bed. Jane's eyes were closed, her hands were by her knees, her tights were pulled down to her knees, and her pants were pulled down below her buttocks. Susan observed defendant lying on top of Jane and moving back and forth rhythmically while his pants were open and his penis was in Jane's vagina. Susan later recounted she was too disoriented to move or stop defendant from having sex with Jane. Prior to losing consciousness again, Susan realized her own pants and underwear had been removed.
At 6:28 p.m., defendant texted Court the following: "[T]hey over here kissing each other. I got one should I go 4 to [sic]. Y O that Nuvo had them bugging. They wasn't drunk. They was horney [sic]."
Jane later woke up and discovered that her clothes were askew, her tights had been pulled down; she noticed an open condom wrapper on the floor next to the bed. Jane testified that it felt like a stick had been inserted into her vagina and it felt as if she had just had sex.
At some point between 8:00 p.m. and 10:00 p.m., defendant drove the girls to Clifton, gave them money, and offered to purchase a cell phone for Jane. The girls went to a friend's home where Susan told Jane what she observed while Jane was unconscious.
Meanwhile, at 6:06 p.m. that same day, Susan's family contacted Clifton police. Susan's mother spoke to Detective Carmen Bermudez and described Susan's calls and texts. Police conducted a two-hour search in Paterson, Passaic, and Clifton, and also tried to call Susan to no avail. Ultimately, Bermudez entered information about both girls into a national missing person's database.
At 9:18 a.m. on February 20, 2011, Jane texted defendant asking for the cell phone that he had promised her because Susan's phone was being disconnected. Ten minutes later, defendant responded via text to inform the girls he was going to church and they should call him the following day. When Jane asked for money, he again responded he had to go to church.
Susan had contacted her mother earlier that morning and finally returned home around 5:00 p.m. Jane returned home as well, but did not share the details of her encounter with her family.
On February 21, 2011, Susan's mother brought Susan to be interviewed by Clifton police and afterwards they went to Hackensack Medical Center. Susan was generally examined but chose not to submit to a rape screening. That same evening, Jane went to the police with her mother to report that she believed she was sexually assaulted. Jane later went to the hospital to submit to a rape screening. Defendant's DNA was not present.
Following further investigation, defendant was later indicted and charged with: four counts of third-degree endangering the welfare of a child by abuse, N.J.S.A. 2C:24-4(a)(2); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); third-degree possession of oxycodone with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(5); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree aggravated sexual assault during a kidnapping, N.J.S.A. 2C:14-2(a)(2)(c)(3); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4); and two counts of third-degree endangering the welfare of a child by sexual conduct, N.J.S.A. 2C:24-4(a)(1).
A fifteen-day trial took place in January and February 2013. At the close of the State's case, defendant unsuccessfully moved for a dismissal of the entire indictment. Later, the court dismissed the charge of possession of oxycodone with the intent to distribute prior to submitting the case to the jury. The jury acquitted defendant of aggravated sexual assault and sexual assault with respect to his actions toward Susan, and convicted on all of the remaining charges.
Defendant appeals, arguing, through counsel:
I. THE CRIME OF KIDNAPPING WAS UNSUPPORTED BY SUFFICIENT EVIDENCE BECAUSE ANY CONFINEMENT WAS INCIDENTAL TO THE SEXUAL ASSAULT. ACCORDINGLY, DEFENDANT'S CONVICTIONS ON COUNT EIGHT (KIDNAPPING) AND COUNT NINE (SEXUAL ASSAULT DURING A KIDNAPPING) MUST BE VACATED.In a pro se supplemental brief, defendant presents an additional twenty arguments:
II. DEFENDANT'S CONVICTIONS FOR NON-SEXUAL ENDANGERING THE WELFARE OF A CHILD . . . MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON ITS OBLIGATION TO FIND THAT DEFENDANT HAD ENDANGERED THE CHILDREN'S WELFARE BY C[AU]SING THEM TO BE "ABUSED OR NEGLECTED" AS DEFINED BY N.J.S.A. 9:6-1 (Not Raised Below).
III. DEFENDANT'S CONVICTIONS ON COUNTS NINE (AGGRAVATED SEXUAL ASSAULT), TEN (AGGRAVATED SEXUAL ASSAULT), ELEVEN (SEXUAL ASSAULT), AND TWELVE (ENDANGERING THE WELFARE OF A CHILD) MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.
IV. DEFENDANT'S CONVICTION ON COUNT FIFTEEN (ENDANGERING THE WELFARE OF A CHILD) MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE THIS CHARGE BEYOND A REASONABLE DOUBT.
V. THE IMPOSITION OF FOUR CONSECUTIVE PRISON SENTENCES, TOTALING LIFE PLUS 24 YEARS WITH A 54-YEAR PAROLE DISQUALIFIER, SHOCKS THE JUDICIAL CONSCIENCE.
VI. THE COURT BELOW ERRED IN DENYING [DEFENDANT]'S MOTION TO SUPPRESS PHYSICAL EVIDENCE FOUND IN HIS APARTMENT AND EVIDENCE FOUND ON [DEFENDANT]'S TELEPHONE.
VII. THE COURT BELOW ERRED IN DENYING [DEFENDANT]'S MOTION TO DISMISS THE UNDERLYING COMPLAINTS BASED UPON DEFECTIVE ARREST WARRANTS PURSUANT TO STATE V. BOBO.
VIII. THE COURT BELOW ERRED IN NOT GRANTING [DEFENDANT]'S MOTION TO INTRODUCE EVIDENCE PURSUANT TO THE RAPE SHIELD STATUTE; DEFENSE COUNSEL SHOULD HAVE BEEN PERMITTED TO INTRODUCE EVIDENCE THAT THERE WAS DNA FOUND OF ANOTHER MALE IN ONE OF THE ALLEGED VICTIMS.
IX. THE COURT BELOW ERRED IN NOT COMPELLING THE STATE TO TURN [OVER] NUMEROUS ITEMS OF DISCOVERY THAT WERE NEVER PROVIDED TO DEFENSE COUNSEL DURING TRIAL.
X. REMARKS MADE BY THE COURT TO THE JURY AND TO DEFENSE COUNSEL AT NUMEROUS POINTS DURING JURY SELECTION AND DURING THE TRIAL RESULTED IN THE JURY RUSHING THEIR VERDICT, AND UNDERMINED THE VALIDITY OF ALL OF THE JURY'S VERDICTS.
XI. THE COURT ERRED WHEN IT DID NOT GRANT A MISTRIAL OR A REQUESTED ONE-WEEK POSTPONEMENT REGARDING MATERIAL WITNESS [K.H.]. THIS WAS AFTER HE TOLD DEFENSE COUNSEL THAT HE COULD MENTION HER STATEMENT IN HIS OPENING.
XII. THE COURT ERRED WHEN IT ALLOWED PREJUDICIAL TEXT MESSAGES TO BE HEARD BY THE JURY OVER DEFENSE COUNSEL'S MANY OBJECTIONS, AND
WHEN IT INTERRUPTED DEFENSE COUNSEL AS HE LAID OUT HIS OBJECTIONS TO THE TEXT MESSAGES.
XIII. THE COURT ERRED WHEN IT DID NOT GIVE AN OBLIGATED CURATIVE INSTRUCTION TO THE JURY REGARDING THE 13-YEAR OLD [JANE]'S STATING OFFICERS SHOWED HER A PICTURE OF DEFENDANT.
XIV. THE COURT TOOK A NUMBER OF ACTIONS THAT DIRECTLY IMPINGED UPON [DEFENDANT]'S RIGHT NOT TO TESTIFY UNDER THE FIFTH AMENDMENT.
XV. NUMEROUS STATEMENTS MADE BY THE PROSECUTOR IN HIS OPENING AND IN HIS SUMMATION WERE IMPROPER AND PREJUDICIAL (Not Raised Below).
XVI. THE COURT BELOW ERRED IN NOT ENTERING JUDGMENTS OF ACQUITTAL ON COUNTS EIGHT AND NINE OF THE INDICTMENT.
XVII. THE COURT BELOW ERRED BY LYING TO POTENTIAL JURORS. THIS LIE TAINTED THE JURY POOL FROM THE START. SUCH REMARKS DENIED APPELLANT A FAIR TRIAL (Not Raised Below).
XVIII. CONDUCT BY THE 13 YEAR-OLD [JANE] AT TRIAL UNDERMINED THE STRENGTH OF THE STATE'S CASE.
XIX. THE COURT BELOW ERRED IN CONTACTING THE CLIFTON SUPERINTENDENT REGARDING THEM SENDING DEFENSE COUNSEL VICTIM'S SCHOOL RECORDS DIRECTLY. THE COURT MADE THIS CALL WITH NONE OF THE PARTIES PRESENT.
XX. ACTIONS BY A COURT OFFICER IN COMING INTO THE COURTROOM AND POINTING TO [DEFENDANT] DURING TRIAL HAD THE EFFECT OF IDENTIFYING [DEFENDANT] TO THE JURY AS BEING IN CUSTODY; THE COURT[']S REFUSAL TO INSTRUCT THE JURY OR DISMISS THE JURY AND DECLARE A MISTRIAL WAS ERROR.
XXI. THE DISMISSAL OF ALL BLACK AND LATINO JURORS BY THE STATE WAS ERROR AND RESULTED IN
A DENIAL OF [DEFENDANT]'S RIGHT TO A FAIR TRIAL (Not Raised Below).We find insufficient merit in Points VII, VIII, X, XI, XII, XIII, XIV, XVI, XVII, XVIII, XIX, XX, XXI, XXIII, XXIV, and XXV to warrant discussion in a written opinion. R. 2:11-3(e)(2).
XXII. THE REPEATED DESCRIPTION OF THE 13 YEAR-OLD AND THE 15 YEAR-OLD AS "VICTIM" BY THE STATE'S WITNESSES, AS WELL AS TESTIMONY IDENTIFYING [DEFENDANT] AS THE "SUSPECT" WAS OVERLY PREJUDICIAL TO [DEFENDANT] AND WAS ERROR (Not Raised Below).
XXIII. THE COURT ERRED WHEN IT ALLOWED SGT. ANTISTA, A STATE'S WITNESS, TO SIT IN THE COURTROOM DURING A RULE 104[(a)] HEARING ON EXCITED UTTERANCE, THIS SGT[.] TESTIFIED AT THIS SAME HEARING. THE COURT TOLD THE SGT[.] TO GO OUT BUT THAT WAS AFTER HE HEARD ALL THE TESTIMONY.
XXIV. THE COURT BELOW ERRED WHEN IT ALLOWED THE FIFTEEN YEAR-OLD ALLEGED VICTIM, [SUSAN], TO TESTIFY WITH A TRANSLATOR, NOTWITHSTANDING CLEAR TESTIMONY BY A STATE'S WITNESS PRIOR TO HER TESTIFYING THAT SHE KNEW ENGLISH (Not Raised Below).
XXV. THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL (Not Raised Below).
We have renumbered these points.
State v. Bobo, 222 N.J. Super. 30 (App. Div. 1987).
For the reasons that follow, we reject defendant's nine remaining arguments — specifically, his contentions that: (1) the jury's verdict on kidnapping and sexual assault were against the weight of the evidence; (2) the judge's jury instructions on child endangerment were erroneous; (3) the evidence in support of the charges brought with regard to Jane was inadequate to support his convictions; (4) the judge erred when he denied the motion for judgment of acquittal notwithstanding the verdict on the charge of endangering Susan's welfare by committing sexual conduct, N.J.S.A. 2C:24-4(a)(1); (5) as a result of the imposition of consecutive terms, the sentence was excessive and shocking to the judicial conscience; (6) a search of his boarding house room was unreasonable and evidence seized therefrom should have been suppressed; (7) the trial judge erred in declining to compel the State to produce certain discovery, including evidence of telephone calls and text messages made by Susan to her family, Susan's family to her, and Susan's family to the police; (8) the prosecutor exceeded the proper bounds of advocacy in his opening and closing statements; and (9) defendant was prejudiced because of references during the trial to Jane and Susan as the "victims" and to him as the "suspect."
I
Defendant contends that the jury instructions regarding whether he kidnapped Jane were unsupported by sufficient evidence because any confinement was only incidental to the alleged sexual assault.
To prove kidnapping, the State must prove beyond a reasonable doubt that an accused unlawfully removed the alleged victim a substantial distance from the vicinity where the alleged victim was found, or unlawfully confined the alleged victim for a substantial period, and that the removal or confinement was with the purpose to facilitate commission of any crime or flight thereafter. N.J.S.A. 2C:13-1(a). The removal or confinement of a person under age fourteen is unlawful if done without the consent or a parent or guardian. N.J.S.A. 2C:13-1(d). The substantial-distance analysis encompasses whether transporting increased the alleged victim's vulnerability and increased the risk of harm. State v. Masino, 94 N.J. 436, 447 (1983). "Substantial period" is defined as a period of time that is criminally significant as opposed to being incidental to the underlying crime. State v. LaFrance, 117 N.J. 583, 594 (1990).
Defendant argues the jury verdict was unsupported by sufficient evidence because any confinement was only incidental to the sexual assault. We disagree.
Jane was under the age of fourteen and could not consent to travel to defendant's residence, despite her decision to contact him and voluntarily travel with him to his residence. In addition, defendant transported the girls a substantial distance from Passaic to defendant's Hackensack residence. The transportation of these minors to an isolated room increased their vulnerability and the risk of harm. In addition, the evidence demonstrated that defendant confined the girls in his locked room long enough for them to become incapacitated from drugs, alcohol, and pills, and for a sufficient period of time to allow him to assault Jane. The time frame was criminally significant as well.
The present matter is strikingly similar to State v. Lopez, 395 N.J. Super. 98, 104-06 (App. Div.), certif. denied, 192 N.J. 596 (2007), where we affirmed a conviction for kidnapping a thirteen-year-old who willingly entered the defendant's car, traveled with him from Cherry Hill to Edison, entered his hotel room, and engaged in sexual activity. Here, in addition to evidence of the transporting of the under-aged girls a significant distance, the jury was also presented with evidence that defendant insisted on meeting the victims in an isolated parking lot down the street from their actual, public location, at the Passaic Shop-Rite. He purchased alcohol in violation of the terms of his parole, drove them to his boarding house in Hackensack, locked the door, gave them marijuana and alcohol, and forced them to each take pills that rendered them unconscious. Susan testified that she witnessed defendant having sex with Jane while Jane was unconscious, and Jane testified that she felt as if she had sexual intercourse after waking up in defendant's room.
According to Jane and Susan, defendant locked the door to his room after they entered and forced them to take pills that rendered them unconscious. Moreover, Jane testified that defendant forced Susan to get off her cell phone when she tried calling for help -- another indication that the girls were not free to leave the apartment. Defendant's intentional isolation of the girls and their confinement in his room enhanced the risk of harm that resulted from defendant's actions. LaFrance, supra, 117 N.J. at 594.
This abundance of evidence permitted the jury to make findings on all the elements of kidnapping and sexual assault during a kidnapping.
Because there was ample evidence to support the convictions, we find no merit in defendant's argument that the judge should have granted his motion for acquittal or for a new trial.
II
In seeking reversal of his convictions for non-sexual endangering the welfare of a child, defendant asserts that the trial judge failed to instruct the jury that he could only be convicted if he had endangered the girls by abuse or neglect as defined by N.J.S.A. 9:6-1. Defendant did not seek such an instruction in the trial court, nor did he object to the instructions given on these charges.
Accurate and understandable jury instructions are, of course, essential for a fair trial. State v. Savage, 172 N.J. 374, 387 (2002); State v. Concepcion, 111 N.J. 373, 379 (1988). A jury instruction must explain the law in the context of the material facts of the case; it should act like a roadmap that guides the jury to the rendering of a fair and just verdict. Savage, supra, 172 N.J. at 387; State v. Koskovich, 168 N.J. 448, 506 (2001). Flawed instructions on material issues constitute reversible error. State v. Grunow, 102 N.J. 133, 148 (1986).
If a defendant failed to object to the jury charge at trial, it may be held, pursuant to Rule 1:7-2, that the right to challenge the jury instruction on appeal has been waived. State v. Afanador, 151 N.J. 41, 54 (1997). Because defendant's arguments about the endangering charges were not raised in the trial court, defendant must demonstrate the alleged error was clearly capable of producing an unjust result. Ibid.; R. 2:10-2. In the context of a jury charge, plain error has been defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Afanador, supra, 151 N.J. at 54 (internal quotations omitted).
Defendant contends the trial judge should have clearly stated and explained the particular provision of Title Nine that defendant was alleged to have violated. Specifically, defendant complains that the judge did not provide or explain the statutory definitions of abuse and neglect contained in N.J.S.A. 9:6-1(e) and (f), which define "abuse" as including:
(e) the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child;Rather than recite the terms of these statutes, the judge instructed the jury that, among the other elements of the offenses, the jury would also have to determine whether the State had proven the specific allegations of debauching or endangering that were alleged. In other words, the judge described the debauching or endangering conduct alleged without invoking the statutory terms.
(f) [the] permitting or allowing any other person to perform any indecent, immoral or unlawful act in the presence of a child that may tend to debauch or endanger the morals of such child[.]
For example, on one of the endangering counts in which Jane was alleged to have been victimized, the judge told the jury:
For a finding of abuse or neglect on this count, the State must prove beyond a reasonable doubt that on February 19, 2011[,] defendant knowingly gave, supplied[,] and/or allowed [Jane] to ingest marijuana and/or alcohol in his presence and under circumstances that created a substantial risk of harm to the . . . child.It is clearly unlawful to offer alcohol to a thirteen-year old with parental permission or to distribute marijuana to any person See N.J.S.A. 2C:33-17(a); N.J.S.A. 2C:35-5(a); N.J.S.A. 2C:35-5(b)(12). Moreover, under the circumstances shown by the evidence, defendant's giving, supplying, or allowing the girls to ingest alcohol or marijuana not only created a substantial risk of harm but also may have tended to debauch or endanger their morals. Thus, although the trial judge should also have instructed the jury on the statutory definitions contained in N.J.S.A. 9:6-1(e) and (f), defendant has not demonstrated plain error. We see no principled basis for concluding that the result would have been different had the judge instructed on those definitions or for concluding that the omission was clearly capable of producing an unjust result. R. 2:10-2.
We note that the judge used the conjunctive/disjunctive "and/or" to link the various allegations. Defendant has not referred to this in seeking reversal. We continue, however, to condemn the use of "and/or" in jury instructions. See State v. Gonzalez, 444 N.J. Super. 62 (App. Div.), certif. denied, 226 N.J. 209 (2016).
III
Defendant argues that his motion for a new trial, based on the contention that the verdict was against the weight of the evidence, was erroneously denied. Specifically, in his Point III, defendant contends the State failed to prove his guilt beyond a reasonable doubt as to the charges, which pertained to Jane, of aggravated sexual assault during a kidnapping, aggravated sexual assault, sexual assault, and endangering the welfare of a child by sexual conduct.
A trial judge's decision on a motion for a new trial, pursuant to Rule 3:20-1, will not be reversed unless it clearly appears there was a miscarriage of justice. R. 2:10-1. We are obligated to defer to the judge's view of "intangibles" such as witness credibility, demeanor, and "the feel of the case," although we must also make an independent determination of whether a miscarriage of justice has occurred. Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).
Defendant contends there was no physical evidence linking defendant to Jane's sexual assault and that he could not be proven to be the attacker because Jane could not recall the sexual assault. This argument, however, ignores that Susan testified she observed defendant laying on top of Jane, while she was unconscious, and having sex with her. Similarly, Jane testified that when she awoke in defendant's boarding house room, her clothing was disheveled, her jacket was unzipped, and her tights were pulled down to her knees. Jane also testified she felt as if a stick had been inserted into her vagina, and she found a condom wrapper next to her location. In addition, defendant texted his friend, Court, about the girls becoming drunk, and he bragged that he "got one" and asked if he should "go [for] t[w]o." This testimony and evidence — if credited by the jury — provided ample support for the convictions. In the final analysis, the jury was tasked with determining the credibility of the witnesses, the weight of the evidence, and the ultimate question of whether defendant was or was not guilty of the offenses. State v. Vandeweaghe, 177 N.J. 229, 239 (2003). Defendant has offered no principled reason why we should not defer to the jury's assessment of this evidence.
IV
Defendant contends that the judge erred when he denied his motion for judgment of acquittal on the charge of endangering Susan's welfare by committing sexual conduct, N.J.S.A. 2C:24-4(a)(1). The offense is committed when the accused engages in sexual conduct that would impair the morals of a child. Defendant argues that the jury could not have convicted him of this offense because it also acquitted him of aggravated sexual assault, aggravated criminal sexual contact (a lesser included offense), sexual assault, and criminal sexual contact (a lesser included offense), in which Susan was alleged to be the victim. We reject this argument chiefly because the offense of endangering a child's welfare by committing sexual conduct is committed if the actor merely exposes a child to sexual conduct; the statute does not require that the child must also be the victim of the alleged sexual conduct. There was sufficient evidence in the record to prove all of the elements of N.J.S.A. 2C:24-4(a)(1) beyond a reasonable doubt.
At trial, Susan testified that when she woke up in defendant's room that her pants had been pulled down around her knees, that she was not wearing underwear, and that her pubic area was exposed. While the jury may have found this evidence insufficient to warrant defendant's convictions on the sexual assault charges in which Susan was alleged to have been victimized, there was enough evidence to prove that defendant exposed Susan to sexual conduct with regard to his victimization of Jane. Susan testified she observed defendant having sex with Jane while Jane was unconscious. Although the jury did not convict him of other sexual offenses, there was evidence from which it could convict defendant on the endangering count even if it only concluded that Susan was exposed to the sexual conduct between defendant and Jane. In any event, even if the verdicts were inconsistent, the acquittals are not necessarily a basis to attack a guilty verdict because acquittals may also "result from lenity, compromise, or even mistake." State v. Goodwin, 224 N.J. 102, 116 (2016).
V
Defendant argues that his aggregate sentence of life plus twenty-four years with fifty-four years of parole ineligibility shocks the judicial conscience. In applying our standard of review in such matters, we disagree.
For convenience, we identify the various sentences imposed for each conviction, identifying as well the victim to which the conviction applied:
| Count | Charge | Victim | Result | Sentence |
|---|---|---|---|---|
| 1 | Third-degree endangering thewelfare of a child by abuse(2/14/2011 conduct) | Jane | Guilty | Seven years with seven yearsparole ineligibility |
| 2 | Third-degree endangering thewelfare of a child by abuse(2/14/2011 conduct) | Susan | Guilty | Seven years with seven yearsparole ineligibility, consecutiveto count one |
| 3 | Third-degree endangering thewelfare of a child by abuse(2/19/2011 conduct) | Jane | Guilty | Seven years with seven yearsparole ineligibility, concurrentto count one |
| 4 | Third-degree endangering thewelfare of a child by abuse(2/19/2011 conduct) | Susan | Guilty | Seven years with seven yearsparole ineligibility, concurrentto count one |
| 5 | Third-degree possession ofcocaine with the intent todistribute | N/A | Guilty | Five years flat, concurrent to allcounts |
| 6 | Third-degree possession ofoxycodone with the intent todistribute | N/A | Dismissed | N/A |
| 7 | Third-degree possession ofcocaine | N/A | Guilty | Merged into count five |
| 8 | First-degree kidnapping | Jane | Guilty | Life with a thirty-year period ofparole ineligibility, consecutiveto counts one and two |
| 9 | First-degree aggravatedsexual assault during akidnapping | Jane | Guilty | Merged into count eight |
| 10 | First-degree aggravatedsexual assault | Jane | Guilty | Merged into count eight |
| 11 | Second-degree sexual assault | Jane | Guilty | Merged into count eight |
| 12 | Third-degree endangering thewelfare of a child by sexualconduct | Jane | Guilty | Ten years with ten years paroleineligibility, concurrent tocounts four and eight |
| 13 | First-degree aggravatedsexual assault | Susan | Acquitted | N/A |
| 14 | Second-degree sexual assault | Susan | Acquitted | N/A |
| 15 | Third-degree endangering thewelfare of a child by sexualconduct | Susan | Guilty | Ten years with ten years paroleineligibility, consecutive tocounts one, two, and eight |
After finding and applying aggravating and mitigating factors, and as to which defendant takes no issue, the judge considered whether to impose concurrent or consecutive sentences. In analyzing that question, the judge considered the criteria set forth in State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and imposed both consecutive and concurrent terms.
Our review of such a determination is limited. State v. Miller, 205 N.J. 109, 127 (2011). A reviewing court must not substitute its own judgment for that of the sentencing judge. State v. O'Donnell, 117 N.J. 210, 215 (1989). Such a determination lies with the sentencing judge's discretion that will not be overturned absent a finding of an abuse of that discretion. State v. Roth, 95 N.J. 334, 363-64 (1984).
In guiding judges in determining whether to impose consecutive or concurrent sentences, Yarbough provides a number of factors, including: whether the crimes and their objectives were independent of each other; whether the crimes involved separate acts of violence; whether the crimes were committed at different times or places; and whether the crimes involved multiple victims. 100 N.J. at 643.
In short, as a general matter, it is not an abuse of discretion for a judge to impose consecutive sentences when there is more than one victim and separate offenses. State v. Roach, 146 N.J. 208, 230 (1996), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Here, there were two minor female victims and separate offenses committed as to both. The judge determined that the two endangering counts based on abuse to each of Jane and Susan on February 14, 2011, for which he imposed seven-year prison terms, would be served consecutively because they victimized two separate individuals. He similarly imposed consecutive terms on the kidnapping of Jane and the endangering of Susan that occurred five days later because those offenses again dealt with separate victims on a different occasion than the February 14 offenses. Consequently, we find no abuse of discretion in the judge's imposition of consecutive prison terms.
We also note that with the exception of the term imposed on count fifteen, defendant has not argued about the length of the terms imposed.
VI
Defendant argues that the judge erred when he denied defendant's motion to suppress physical evidence found in his apartment. The judge upheld the reasonableness of the search and seizure because it was initiated and conducted in part by parole officers, who had a right to be on the premises and search for parole violations.
Parole allows an individual to complete the final portion of a sentence outside of prison but subject to specified conditions. State v. Black, 153 N.J. 438, 447 (1998). A parolee does not enjoy the same freedoms as an ordinary citizen, but rather has conditional liberty subject to the observance of various parole requirements. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972). A warrant is not needed to conduct a search of a parolee's home. Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987). The State only needs to show there were reasonable grounds to believe evidence of a probation violation would be found. Ibid. That is, parole officers can conduct a search of a parolee's residence if there is a reasonable articulable suspicion that such a search would discover evidence that the parolee's probation had been violated. N.J.A.C. 10A:72-6.3(a). A high level supervisor or assistant district parole supervisor can provide the authorization for the search of a parolee's home under these circumstances. See State v. Maples, 346 N.J. Super. 408, 412-13 (App. Div. 2002) (stating that a parole officer can search a parolee's home when the officer has a reasonable suspicion that a condition of parole has been violated).
Defendant argues the parole officer acted as a "stalking horse" for police by using a parole search as a subterfuge for a criminal investigation. We agree with the trial judge that what occurred here did not violate constitutional search-and-seizure principles. The parole officer was authorized to search defendant's room because he was the district parole supervisor for the sex offenders management unit. He was present during the search and helped locate evidence of a parole violation. In particular, the parole officer was present when a bottle of Grey Goose vodka was found under defendant's bed, which prompted him to determine that defendant had violated his parole and would be arrested. This determination justified the subsequent search and location of other evidence by police officers.
Defendant was forbidden from purchasing, possessing, or using alcohol.
A police officer subsequently moved a window curtain near the headboard of defendant's bed and located on the fire escape a black plastic bag containing two cans of Four Loko, a bottle of Everclear vodka, two bags of cocaine, and one bag of marijuana. This evidence was consistent with the girls' description of the events with defendant. Although it is true that the police officers, and not the probation officers, located the items on the fire escape, the search was nevertheless proper.
In Maples, supra, 346 N.J. Super. at 412, for example, a probation officer conducted a search of a parolee's home based on information provided by police that the defendant was in violation of the terms of her parole. We explained that a certain degree of governmental intrusion is allowable with regard to parolees, whereas similar conduct might be impermissible in a different scenario with an ordinary citizen. Id. at 413.
Defendant was a parolee with a reduced expectation of privacy. The initial part of the search was conducted by the parole officers, and during that search they determined that defendant violated his parole because they located a bottle of vodka under his bed. At that time, it was impracticable for the police officers on scene to leave and obtain a warrant to conduct a further search of defendant's room. First, defendant's room was in a boarding house and may have been accessible to individuals other than defendant, which increased the risk that evidence could have been tampered with. Second, the alleged victims told police that defendant kept his drugs in a location near the headboard of his bed, which was located by the window and fire escape. When the police officers were present during the parole officer's search, only a small period of time had passed between the alleged assaults against the girls and the search. If the police officers had been required to leave the scene and obtain a warrant, the additional evidence the police located on the fire escape may have been tampered with or lost. See also United States v. Knights, 534 U.S. 112, 121-22, 122 S. Ct. 587, 593, 151 L. Ed. 2d 497, 507 (2001) (stating that a police detective did not violate the Fourth Amendment when he conducted a warrantless search of a parolee's apartment because he had a reasonable suspicion that the parolee had violated parole).
VII
Defendant argues the trial judge erred in declining to compel the State to produce certain discovery, including evidence of telephone calls and text messages made by Susan to her family, Susan's family to her, and Susan's family to the police.
In considering this, the judge heard argument from the assistant prosecutor that Susan's telephone records and the telephone records of her family were not in the State's possession. The text messages exchanged among defendant and the girls had been preserved and turned over to the defense because they were part of the evidence obtained from defendant's cell phone after the search of his room, but the text messages between Susan and her family members were not kept by Susan, her mother, or her sister. As a result, the judge denied defendant's request to compel the State to produce this evidence because it was never in the State's possession.
The judge also denied defendant's request to obtain records from the Division of Child Protection and Permanency regarding the girls because there was no indication that the Division had ever been involved with the girls and because defendant's request was a "fishing expedition." And the judge denied defendant's request to compel the State to produce a recording of a 9-1-1 call about the girls' encounter with defendant because it was unclear if such a recording existed. In particular, Susan's brother testified only that he called the "police" and not 9-1-1 specifically. The State did obtain and turn over the dispatch entry of a call being made to police about a missing person during the same time frame that the girls were missing.
Of course, a prosecutor cannot withhold material evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). Suppression of evidence favorable to the accused constitutes a denial of due process when the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution. Ibid.
Here, the record reflects that the evidence about which defendant complains was not turned over at trial was not in the State's possession. See State v. Robertson, 438 N.J. Super. 47, 68-69 (App. Div. 2014), certif. granted on other grounds, 221 N.J. 287 (2015). In addition, the State provided all discovery in its possession and obtained additional information, such as the dispatch entry of a police call about a missing person, in an effort to comply with defendant's requests. Moreover, the jury heard testimony from Susan's mother that Susan called and texted during her ordeal with defendant. Susan's mother had first-hand personal knowledge of the text messages, and defendant was permitted to cross-examine her about them or, for that matter, the fact that they were not retained.
Additionally, Bermudez personally read several of the text messages to Susan's mother and the text message from Susan to her sister. He memorialized the contents of these messages in her police report, testified, and was subjected to cross-examination. And the State turned over a copy of Bermudez's police report to the defense during discovery. Thus, the court did not err when it denied defendant's various requests.
VIII
Defendant argues for the first time that the prosecutor made prejudicial remarks during opening statements and summation. Because the defense did not object at trial, our courts assume counsel did not believe the comments were prejudicial when made. State v. Ramseur, 106 N.J. 123, 322-23 (1987); State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993). As a result, on appeal defendant must show plain error as defined by Rule 2:10-2. Afanador, supra, 151 N.J. at 54. Under this standard, defendant is required to show that the error was clear and obvious and that it affected his rights in a substantial manner. State v. Morton, 155 N.J. 383, 421 (1998). Defendant argues that references to the girls' ages, the use of drugs on the girls, and the reference to the Dunkin' Donuts encounter, were improper. He complains the prosecutor played on the jury's emotions when he made various statements; specifically, defendant refers to the following statement made by the prosecutor in his opening statement:
And at the end of the case you're going to ask why[.] [W]hy did he do that[?] And I submit to you now . . ., [t]he reason he did that is contained in the indictment. The indictment that charges all different reasons that this defendant was intent on committing when he engaged these children, when he pursued these kids, and when he had them alone in his single room apartment just blocks from this courthouse.Similarly, defendant complains that the prosecutor played on the jury's emotions when he stated "[n]ext week will be the anniversary when these two young ladies met this man," referred to Jane and Susan as "our 13 and 15 year old victims," and described how, at 3:00 a.m., the girls "were sitting in the warmth of Dunkin' Donuts with no money."
Certainly it is true that a prosecutor cannot impassion a jury or incite emotions, but the prosecutor is allowed to comment on the evidence presented to the jury. State v. Black, 380 N.J. Super. 581, 594-95 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). For example, our Supreme Court determined that a prosecutor did not make prejudicial comments or deprive the defendant of a fair trial when he stated that "the victim had been 'tied spread eagle on her own bed' and subjected to sexual indignities" because those remarks were within the scope of the evidence presented. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
We find no substance in defendant's argument. The references to the ages of the girls were mentioned in the indictment, in the opening remarks of the court during voir dire, and throughout the trial. Importantly, the date of the assaults and the location of defendant's first encounter with the children were also not at issue. And all the statements defendant contends were improper were mentioned in the indictment and supported by the evidence adduced at trial.
Defendant also contends the prosecutor misled the jurors when he stated "this was a drug facilitated assault" and that the girls were unconscious during the assaults. In particular, defendant complains that the prosecutor referred to the girls' lack of consciousness because there was "no scientific proof" the girls were actually unconscious. Defendant also complains about the prosecutor's reference to evidence that would be presented at trial. In particular, defendant complains the prosecutor referenced text messages that Susan sent to her family because those messages were never turned over. In addition, defendant complains the prosecutor referenced Jane's statement to a nurse at the hospital administering her rape kit that it felt like a stick had been inserted in her vagina.
We have already rejected defendant's discovery argument regarding these texts. See Section VII, supra.
The prosecutor is permitted to reference the facts the State intends in good faith to prove by competent evidence. State v. Wakefield, 190 N.J. 397, 442 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Hipplewith, 33 N.J. 300, 309 (1960). Here, the jury heard testimony that defendant provided the girls with drugs and that they later lost consciousness. And Susan testified she woke up to witness defendant having sex with Jane while Jane was asleep. Thus, the statements by the prosecutor were not improper because they were rooted in the facts that he intended to, and ultimately did, present.
Defendant also complains that the prosecutor spoke improperly when he urged the jury to "think critically." A prosecutor, however, is entitled to some leeway and allowed to be forceful. State v. Pindale, 249 N.J. Super. 266, 285 (App. Div. 1991). It does not exceed the bounds of proper advocacy for a prosecutor to request that jurors "think critically"; that is merely a statement seeking the focus of the jury on a particular aspect believed pivotal.
The prosecutor's entire comment in this regard was: "and when you analyze his communication with [Susan] I would now ask you to think critically of what he's saying and what he is intending and why he's saying what he's saying."
Defendant complains the prosecutor also made improper comments in his summation. Such a contention requires a reviewing court to take into consideration the tenor of the trial, the conduct of counsel, the comments of the defense, and the conduct of the court. United States v. Young, 470 U.S. 1, 11-12, 105 S. Ct. 1038, 1044-45, 84 L. Ed. 2d 1, 9-11 (1985); State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991), certif. denied, 130 N.J. 393 (1992). We focus on whether a prosecutor's remarks substantially prejudiced the defendant's right to a fair trial. State v. Johnson, 31 N.J. 489, 510 (1960).
Prosecutors are entitled and expected to make vigorous closing arguments and are given wide latitude at this stage. State v. Frost, 158 N.J. 76, 83 (1999); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). A prosecutor can urge inferences based upon the evidence but cannot go beyond the facts of the case. State v. R.B., 183 N.J. 308, 330 (2005); State v. Farrell, 61 N.J. 99, 102 (1972). In reviewing a record for prosecutorial conduct, we are required to consider the whole closing, not just pieces in isolation. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008). If an attorney does not object, a summation is presumed to be proper. State v. Wilson, 57 N.J. 39, 51 (1970).
Defendant complains that the prosecutor referred to "a pill" even though the count applicable to this allegation had been dismissed. It is permissible, however, for the prosecutor to mention information regarding defendant's conduct even if that conduct is not the subject of a criminal charge. Here, the jury was aware of evidence that defendant had given the girls pills at his apartment because Susan and Jane, and others, so testified.
Defendant additionally complains that the prosecutor stated that Susan's mother contacted the police. Again, the jury heard testimony from Susan's mother that she contacted the police and testimony from Bermudez that Susan's mother contacted the police. Thus, the comment was based upon the evidence presented at trial and not improper. Likewise, the prosecutor's comments that defendant was in the Dunkin' Donuts was consistent with the video that had already been entered into evidence. Also, the prosecutor's reference to the elements of kidnapping was not inappropriate, and the judge also informed the jury to disregard any comments of counsel that were in conflict with the court's instructions.
In this point, defendant lastly makes several vague references to statements made by the prosecutor that lack a full argument, citations to the record, or a clear articulation of the error complained of. We need not consider an argument that is made in such an off-handed fashion or not bolstered by the record. D'Ercole v. Norwood, 198 N.J. Super. 531, 542 (App. Div. 1984).
IX
Defendant contends he was prejudiced by references during the trial to Jane and Susan as the "victims" and defendant as the "suspect." We find no merit in these arguments although we agree that judges and attorneys should be careful in the use of these terms.
The accused has the right to the presumption of innocence and a fair trial before an impartial jury. State v. Artwell, 177 N.J. 526, 533-34 (2003). Consequently, the court should not refer to the complaining witness as a "victim" until conviction. State v. Cusumano, 369 N.J. Super. 305, 311 n.1 (App. Div.), certif. denied, 181 N.J. 546 (2004). Until there is a conviction, the court should refer to the complaining witness as the "alleged victim" or by name in order to avoid an infringement of the accused's presumption of innocence.
We are mindful that in this context the use of the word "victim" is contained in some Model Jury Charges. See, e.g., Model Jury Charge (Criminal), Kidnapping (N.J.S.A. 2C:13-1(a)) (April 16, 2012). We are also mindful that the Model Jury Charges are not binding but merely helpful guides to trial judges. See State v. Bryant, 419 N.J. Super. 15, 28 (App. Div. 2011). --------
On the other hand, we see no harm when a defendant is referred to as a "suspect" or as the "accused." Common sense dictates that the individual in the dock has been suspected of or accused of having committed a crime. Unlike references to a complaining witness as a "victim," which suggests a belief by the speaker that a crime was committed and implies that the defendant committed it, we fail to see how referring to a defendant as either "suspect" or "accused" infringes on the right to a fair trial.
Notwithstanding, we observe that defense counsel did not object to references to Jane or Susan as "victims" nor did he object to references to defendant as the suspect, which demonstrates that defense counsel did not find the references to be improper or prejudicial. Wilson, supra, 57 N.J. at 51.
As mentioned earlier, we find insufficient merit in any of defendant's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION