Opinion
DOCKET NO. A-4849-14T2
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAREL ASHLEY a/k/a DARRELL D. ASHLEY, ANDRE D. ASHLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Sevan Biramian, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Leone and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-02-0547. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Sevan Biramian, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In this criminal appeal, we consider defendant's arguments that the judge mistakenly refused to conduct a hearing regarding the reliability of an out-of-court identification, that he was deprived of his right of self-representation, that the trial judge improperly instructed the jury on the elements of child endangerment and failed to instruct on a lesser-included offense of lewdness, and that the sentence imposed was excessive. We find no merit in these arguments and affirm.
Defendant was indicted and charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7), second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), third-degree sexual assault, N.J.S.A. 2C:14-2(c), third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a).
In particular, the jury heard evidence that, in June 2010, K.S. (Karen) was a fifteen-year-old runaway staying in Philadelphia with her friend Danielle, who was in her early twenties, and Danielle's mother and stepfather. Like Danielle, Karen found an "underground job" in Philadelphia as a foot model; specifically, some men and women paid to rub, photograph and kiss her feet and others liked to watch her walk in certain shoes, boots or sneakers.
A fictitious name.
On June 10, 2010, Danielle suggested she and Karen drive to Atlantic City and stay the night. After they arrived late that evening and while seated in Danielle's car, Danielle offered her Ecstasy. Karen was afraid to take it and refused; according to Karen, this upset Danielle and she "kick[ed]" Karen out of the car.
Karen then walked to the Showboat Casino because Danielle had said she was going to book a room there. When that turned out not to be true, Karen "kind of just panicked" about what to do because she was in an unfamiliar place and knew no one. While standing outside the Showboat, she told a woman wearing a red jacket "what had happened, and why" she was there. They went inside the casino and met defendant, whom the red-jacketed woman knew. The three conversed and, when Karen went outside to smoke another cigarette, defendant followed her.
Within a short time, Karen began to feel "panicky." Someone — she could not recall who — handed Karen a cup of water. After drinking the water, Karen felt "dehydrated," "very strange," "very paranoid and kind of delusional." Around midnight, Karen was outside the Showboat smoking a cigarette and trying to "calm [her] nerves from the anxiety" she was feeling. Defendant followed her and said that he would take her to the beach where she would be reunited with her mother. Karen believed him, and followed him down the boardwalk to the beach. As they walked towards the water, she thought she saw people sitting on rocks at the end of a jetty or pier. She also had a sense that her mother was nearby. Apparently, however, no one was there. Karen testified that she believed defendant had put a drug in the glass of water that caused her delusions and anxiety.
As they neared the ocean, defendant punched Karen in the face and told her that her mother said he could "do this." He threw sand into her mouth, eyes and nose, and told her to take off her pants; she agreed if he promised to stop hurting her, although her plan was to run away after she removed her pants. Before she could remove her pants, defendant "knocked" her to the ground, pulled her jeans and underwear to her ankles, and climbed on top of her. Karen tried to "push and kick him off." Because of her diminutive size -- she weighed only about one hundred pounds -- Karen was unable to escape. Defendant "gripped" her neck with one hand and used the other hand to hold himself on top of her. Karen "struggle[d] to breathe," "kept screaming for help," and yelled "multiple times" for him to get off. He threw more sand in her face and mouth, pressed his forearm into her chest, and punched her head and mouth multiple times. Karen testified: "It was the worst feeling I've ever felt in my life. . . . I couldn't break free."
Defendant lifted Karen's shirt, licked her chest, and "touched [her] in ways that [she] did not want to be touched with his mouth, or hands, and penis." He called her vile names and said she was worthless, that her mother "hit [him] up to do this," and that Karen deserved it. Defendant also showed Karen a knife in his waistband and told her that if she said anything to the police, he would kill her. Karen felt defendant penetrate her with his penis and, after he ejaculated, he fell on top of her for a brief moment, then got up and walked towards the boardwalk. Feeling "degraded," "scared," and "disgusted," Karen rolled over and vomited.
After quickly dressing, Karen ran to the rocks at the end of the jetty to look for her mother. At one point, she thought she saw her mother's dead body lying on the rocks. "[P]anicked," Karen ran to the boardwalk, and thought she passed an animal. When it occurred to her that she had run past people, Karen turned around and sought help; she was led to a Showboat security guard.
Crying and feeling as though her "mouth was about six times in size," Karen claimed to be having "a panic attack times ten, with emotion." She told the security guard she had been raped and assaulted. She was "stumbling over [her] words" and felt nauseous; her hands were "clammy," her face hurt, and she still had sand inside her mouth.
An investigating police officer described Karen as "skittish and panicked" and "going like a 100 miles a minute." Another officer testified Karen was "trembling [and] shaking[,] [h]er eyes were wide open[, and] [s]he looked like she . . . was in great fear." He testified that Karen "was hiding behind [both officers] looking around as if she saw somebody." At their request, Karen described the location on the beach where the incident occurred. Pursuant to information Karen provided, the officers found an area in the sand near rocks that appeared "flat," as if someone had been lying or sitting there. Nearby, they found a blue lighter, vomit and blood. According to one officer, it looked as if there had been a "scuffle" on the beach, and they could see "handmarks going like this through the sand," as depicted in photographs. The particular location was, according to the officers' testimony, about a five-minute walk from the boardwalk.
At the hospital, Karen spoke with police and told them her attacker was an "older," "[l]ight-skin, black" man who wore a numbered navy-blue shirt or jersey, and had his hair in cornrows. She believed he was in his twenties or thirties.
Blood testing revealed cannibas and amphetamine in Karen's system. She admitted to smoking marijuana, but not on that day, and she denied taking an amphetamine. She stated that when she lived with her parents, she took Adderall and Lexapro to treat attention deficit disorder and depression; however, after running away from home, she had taken neither.
Karen's body was photographed and examined, as was her clothing. Sand was observed in Karen's genital area but medical personnel found no injury to her vaginal wall. A State Police forensic scientist testified that cells collected from Karen's vaginal and cervical areas tested negative for sperm, and no saliva was detected on her skin. No saliva or semen was detected on Karen's shirt; her underwear tested negative for semen, but positive for saliva. And the crotch area of her jeans tested positive for sperm.
A forensic scientist with the State Police's DNA unit testified that he could not determine a DNA profile for the saliva detected on Karen's underwear because the sample was not large enough. The sperm sample taken from Karen's jeans matched defendant's DNA.
On August 6, 2010, police showed Karen a photo array and asked if any image depicted the man who assaulted her. On the back of one photograph, she wrote: "I have a strong feeling that this may be the guy because he had very similar features to the guy who did this to me," but she also wrote that she "wasn't 100 percent sure" he was her attacker. That photograph did not depict defendant.
Police showed Karen a second photo array on December 18, 2010. Karen wrote on the back:
[I] do hereby identify photograph number 5 as that of the individual who sexually assaulted me because the entire features stand out completely, unlike the others. He has light skin, braid, cornrows and [is] older. Photograph number 5 looks the most like the guy who did this to me, but it's not a 100 percent positive.This photograph depicted defendant. At trial, Karen made an in-court identification of defendant as the man who assaulted her.
At trial, Karen also identified photographs of the crime scene that depicted a blue lighter she claimed was hers. In viewing video surveillance recordings obtained from the Showboat, Karen identified herself, her duffle bag, defendant, the red-jacketed woman, the couple who helped her after the attack, and the security guard to whom she reported the crime. She also identified the clothes she had worn that night, and showed the jury where defendant had ripped her underwear when he had pulled it to her knees. In addition, Karen identified the photographs of her face, which showed a cut near one eye, bruising around both eyes, a swollen mouth that later became infected, "a blood clot from being hit so many times in the same spot," and swelling under her chin.
Defendant was interviewed by police. A recording of the interview was played for the jury. Defendant denied knowing Karen, but he identified himself as the man with Karen in the Showboat video surveillance recording. He initially said he did not recall anything that happened that evening, including being with a girl on the beach. And he denied having sex with Karen or knowing how his DNA got onto her jeans. Eventually, defendant claimed Karen was a prostitute who had approached him and the woman wearing the red jacket at the Showboat. Defendant said Karen was crying because someone had "beat[en] the shit out of her" after she had stolen money or drugs. He explained Karen said her parents were staying in a room at the casino, and she was avoiding them because she had been beaten up. Defendant said her lip was swollen, and she was delusional and "talking crazy."
Later in the interview, defendant said he took Karen to the beach to comfort her, that he fell asleep and that he had a "premature ejaculation" without knowing where his semen went when he ejaculated. He described it as "a wet dream," which he said happened to him "all the time," and that when he woke, Karen was still crying in his arms and, at one point, was "on top" of him. She had taken off her clothes and wore a two-piece bathing suit.
During the police interview, defendant also said that after waking he put on his pants and walked to the casino. Later that night he again met Karen and gave her $60 to compensate her for the drugs or money stolen from her earlier that day. Defendant stated that Karen then walked onto the beach with someone else, and he left the casino.
Defendant did not testify at trial or call any witnesses.
At the trial's conclusion, the jury convicted defendant of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), third-degree endangering the welfare of a child, and third-degree terroristic threats; he was acquitted of the other charges.
Defendant was sentenced to: an extended ten-year prison term, subject to a five-year parole bar, on the endangering conviction; a consecutive five-year prison term, subject to a two-and-one-half-year parole bar on the terroristic threats conviction; and a concurrent eighteen-month prison term on the criminal sexual contact conviction. He then filed this appeal.
Defendant argues:
I. THE DENIAL OF DEFENDANT'S MOTION FOR A WADE HEARING DEPRIVED HIM OF THE RIGHT TO A FAIR TRIAL.
II. [THE] TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SELF-REPRESENTATION.
III. THE TRIAL COURT COMMITTED ERROR IN INSTRUCTING THE JURY THAT IT COULD FIND THE DEFENDANT GUILTY OF ENDANGERING THE WELFARE OF A CHILD IF IT FOUND THAT HE EJACULATED IN HER PRESENCE (Not Raised Below).
IV. THE TRIAL COURT COMMITTED ERROR IN FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED
OFFENSE OF LEWDNESS UNDER N.J.S.A. 2C:14-4 (Not Raised Below).We find no merit in these six arguments.
V. THE TRIAL COURT COMMITTED ERROR IN GRANTING THE STATE'S MOTION FOR A DISCRETIONARY EXTENDED-TERM SENTENCE.
VI. THE CONSECUTIVE SENTENCES OF 10 YEARS AND 5 YEARS, FOR A TOTAL OF 15 YEARS, WITH ONE-HALF OF BOTH SENTENCES (7-1/2 YEARS TOTAL) OF PAROLE INELIGIBILITY FOR TWO THIRD-DEGREE CRIMES WERE EXCESSIVE.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
We have rearranged for our purposes the order of defendant's arguments.
I
In denying defendant's request for a Wade hearing, the judge relied on a transcript, as well as what he referred to as the "crystal clear" sound recording, of the second identification procedure. He found no evidence of impermissible suggestiveness.
At the start of the second attempt to obtain a positive photographic identification, an officer told Karen that the lead detective on the case had supplied some photos he wanted her to view. The judge correctly recognized that "it would have been probably better if there had been no reference at all to the prov[enance] of the photo array" but ultimately found this comment alone did not taint the procedure. The examining officer, who had no prior involvement with the case, appropriately told Karen the assailant might or might not have been included in the array and that even if she chose one photo, she was required to examine all six. Karen looked at the array for about a minute before she identified defendant as the man who looked most like her attacker. The officer then asked her a number of questions to clarify her response; the judge found no evidence to establish the officer was "even remotely assertive or aggressive," and the judge determined that defendant's photograph did not stand out as significantly different from the others. Consequently, the judge found the risk of misidentification to be "remote."
Neither the State nor the United States Constitution affords an accused an automatic right to a Wade hearing. Watkins v. Sowders, 449 U.S. 341, 349, 101 S. Ct. 654, 659, 66 L. Ed. 2d 549, 556 (1981); State v. Ortiz, 203 N.J. Super. 518, 521 (App. Div.), certif. denied, 102 N.J. 335 (1985). Pre-Henderson principles required that, to receive a hearing, an accused must present "some evidence of impermissible suggestiveness" in the identification procedure. State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994). A judge's determination of whether to conduct a hearing will not be disturbed on appeal absent an abuse of discretion. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004).
State v. Henderson, 208 N.J. 208, 217 (2011).
If there is evidence of impermissible suggestiveness, a Wade hearing to examine whether the identification procedure was reliable or whether it "resulted in a 'very substantial likelihood of irreparable misidentification'" must be conducted. State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995) (quoting State v. Madison, 109 N.J. 223, 239 (1988)). The purpose of this inquiry is to determine whether "the identification was prompted by the eyewitness's own recollection of the crime or by the suggestive manner in which the identification procedure was conducted." Id. at 518.
Defendant argues the judge should have conducted a Wade hearing. He contends that showing Karen a second array after she had chosen a photograph from the first array implicitly suggested to her that her first identification was incorrect. He also claims that by telling Karen the lead investigator had some photos for her to view, the officer strongly suggested the suspect's photograph was contained within the array. Thus, defendant reasons that the court should have held a Wade hearing to determine if the identification procedure produced a reliable result.
We find no abuse of discretion in the judge's decision not to conduct a hearing. Certainly, as the judge observed, it would have been prudent for the examining officer not to mention to Karen that the lead detective had some photographs for her to view, but the statement alone did not establish that the procedure which followed was impermissibly suggestive. As the court found, the officer's demeanor was not assertive or aggressive during the procedure, and Karen took her time in viewing the photographs before identifying defendant.
Defendant's complaint that the State should not have shown Karen a second array after she identified someone in the first array is baseless. Karen did not definitively identify anyone in the first array, though she said that one photo resembled her attacker. And the evidence did not establish, or even suggest, her later identification of defendant was unreliable. Given the length of time she observed defendant prior to the assault, and most importantly, the presence of his DNA on her jeans, the judge was entitled to conclude that it was unlikely she wrongly accused defendant. Thus, in addition to there being no evidence that the identification procedure was suggestive, Karen's out-of-court identification was reliable. Moreover, defendant admitted to being with Karen on the night in question, and video surveillance cameras recorded them together. Even if it could be said that the identification procedure was flawed, the risk of misidentification was remote.
II
Defendant contends the judge erred in denying his request to represent himself. We disagree.
The record reveals that the issue first came up after the State produced most of its evidence. Defense counsel notified the judge of his client's desire, and defendant stated that his attorney was doing "an excellent job" by "faithfully" representing him "with all diligence," but he believed his attorney was overburdened and did not fully understand the ways in which he could defend the case. For example, defendant said his attorney had not cross-examined Karen about injuries she had before defendant met her. The judge asked why defendant had not spoken to his attorney about this during Karen's cross-examination; defendant said he did, but he believed the attorney missed important points because there was "so much data and information."
The judge asked defendant if he wanted to discharge his attorney and proceed on his own. Defendant responded in the negative and asserted that "[t]hat's not what I'm suggesting"; he instead wanted "to assist" his attorney. The judge advised defendant he was "allowed to assist him," to which defendant responded:
No. I'm saying, in front of the jury, right, as I'm speaking right now, as the victim got
up before on the videotape and she says oh, this is where I was sitting. This is where I - I first went out to smoke a cigarette. All right? And she explained every action. Right? As a matter of fact, the video was played over and over and over again. I felt bad when she said this happened to me. It had a subliminal effect upon the jury.
Defendant asserted that he wanted "to explain like [Karen] explained what was taking place." The judge stated that defendant could explain but he would have to take the stand to do that, to which defendant responded:
I have the right to do that but what this prosecution has done, all right, whenever my attorney brought up points that were relevant to me, she [the prosecutor] tried her best to discredit it. As me speaking from a point of representing myself right here, she cannot attack me on her tricks of the trade, which is deception to which she has been using, telling the Court that this is the -- this is the victim, hand over mouth, with her lips, you know. How can it be - the jury make that determination whether there was a pre-injury at the victim's mouth and she's presenting this to the jury? How can a jury define the facts if the same report - that's the saying here that there's no way that you could tell that there's no re - testing that could be done if a male ejaculates. This is - he may miss something -The judge then asked: "So what exactly is your application?" Defendant said he wanted to represent himself with his attorney's assistance, explaining: "In other words, he [defense counsel] would be the primary attorney but if I see[] fit that I can produce evidence that would produce my innocence that I be allowed to step up here and present it before the [c]ourt and the jury." When the State objected on the ground that what defendant proposed was an attempt to testify without facing cross-examination, defendant denied that, asserting his intention was "to represent facts and evidence to the jury that would support my innocence."
The judge denied defendant's request. In ruling, the judge underscored that defendant did not seek to discharge his attorney, but sought only to serve as co-counsel and step in at any point when he believed his attorney was missing something. The judge viewed this -- correctly -- as an attempt by defendant to testify without taking the stand and facing cross-examination.
Both the federal and our state constitutions provide an accused with the right to counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The "corollary" to that right is "the defendant's right to represent himself." State v. King, 210 N.J. 2, 16 (2012) (quoting Faretta v. California, 422 U.S. 806, 814, 95 S. Ct. 2525, 2530, 45 L. Ed. 2d 562, 570 (1975)). The right of self-representation, however, "is not absolute" and "cannot be used to jeopardize the State's equally strong interest in ensuring the fairness of judicial proceedings and the integrity of trial verdicts." Id. at 18. And "there is no constitutional right to partial or hybrid representation," State v. Figueroa, 186 N.J. 589, 594 (2006), which "is to be avoided wherever possible," State v. Roth, 289 N.J. Super. 152, 165-66 (App. Div.), certif. denied, 146 N.J. 68 (1996).
The judge's decision on defendant's request for hybrid representation rested
in the sound discretion of the trial court. That exercise of discretion requires that the trial court start from the presumption that hybrid representation is to be discouraged. If, however, a defendant insists on hybrid representation, the trial court in the exercise of its discretion must consider, among other things, the scope of the hybrid representation sought by the defendant; the practicality of splitting defendant's representation between defendant and defendant's counsel; and defendant's explicit recognition that engaging in hybrid representation, akin to self-representation, constitutes a waiver of any future ineffective assistance of counsel claims . . . in respect of those matters in which the defendant represents himself.
[Figueroa, supra, 186 N.J. at 595.]
Waiver of the right to counsel must be made knowingly and intelligently. King, supra, 210 N.J. at 18. As the Court explained:
Courts must be sensitive . . . to attempts by a defendant to claim "knowingness" merely to assuage the court's concerns about the consequences of pro se representation. To that end, beyond a defendant's mere yes or no response, the court must make appropriate credibility determinations bottomed on specific facts, observations, and conclusions. The court must ask appropriate open-ended questions that will require [the]
defendant to describe in his own words his understanding of the challenges that he will face when he represents himself at trial. For example, a defendant may be required to explain what difficulties he believes he will confront or create when he examines or cross-examines witnesses.Whether a defendant possesses technical legal knowledge is not significant, as a lack of legal schooling will not defeat an otherwise valid waiver of the right to counsel. King, supra, 210 N.J. at 19.
[State v. Reddish, 181 N.J. 553, 594-95 (2004).]
"[B]ecause of the importance of trial counsel to the criminal justice process, the courts must indulge in every reasonable presumption against waiver." State v. Ortisi, 308 N.J. Super. 573, 587 (App. Div.), certif. denied, 156 N.J. 383 (1998); accord King, supra, 210 N.J. at 19. And appellate courts must review a trial judge's waiver decision under the abuse-of-discretion standard. State v. DuBois, 189 N.J. 454, 475 (2007).
As we have observed, defendant believed his attorney was doing "an excellent job" representing his interests, and he emphatically denied seeking a discharge of his attorney. Defendant instead wanted to be able to speak in court whenever he believed his attorney was missing something important. We agree with the trial judge that what defendant proposed was an attempt to offer his side of the story without taking the stand and subjecting himself to cross-examination. Having closely examined the record, we conclude the judge did not abuse his discretion in denying defendant's request.
III
The court instructed the jury that to find defendant guilty of child endangerment, the State was required to prove beyond a reasonable doubt that: (1) Karen was under the age of sixteen; (2) defendant "knowingly engaged in sexual conduct with" her; and (3) defendant "knew that such conduct would impair or debauch [her] morals." The judge also instructed that the State did not have to prove defendant knew Karen's age, but was required to prove he knowingly engaged in sexual conduct. And the judge explained to the jury that the State alleged "that the sexual conduct committed by the defendant consisted of sexual contact with the victim's intimate parts, and/or vaginal penetration, and/or ejaculating in the victim's presence, leaving ejaculate on her clothing" (emphasis added). The judge: defined knowing conduct; explained the State's burden to prove "defendant engaged in the sexual conduct knowing that it would impair or debauch the morals of the child"; and instructed the jury that impairing or debauching conduct is that "which tends . . . to corrupt, mar, or spoil the morals of a child under 16 years of age." He further instructed the jury that the State did "not have to show that the sexual conduct actually impaired or debauched the morals of [Karen]."
Defendant did not object to these instructions at trial. Instead, approximately a year after the jury returned its verdict, defendant moved for a new trial, claiming the evidence did not support the guilty verdict on child endangerment. The judge denied the motion, relying on the fact that Rule 3:20-2 rendered the motion untimely; he also found the motion without merit. We agree with the judge in both respects.
In turning to the latter aspect of defendant's argument, we of course recognize that proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). A judge must give a jury a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Ibid. The charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 289.
We need say no more about the timeliness of the motion except to note that the Rule obligates a defendant to file such a motion within ten days of the verdict.
In reviewing the propriety of a jury instruction, we must examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). Absent an objection, a challenge on appeal will not be considered unless it constitutes plain error. Id. at 321.
N.J.S.A. 2C:24-4(a) defines the offense of endangering the welfare of a child as follows:
(1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
To establish the offense, the State must prove "a conscious and knowing action by defendant" that would impair, or tend to impair, or debauch the morals of a child. State v. Overton, 357 N.J. Super. 387, 393 (App. Div.), certif. denied, 177 N.J. 219 (2003). Determining what conduct would impair or debauch presents a "commonsense" question for the jury. State v. Hackett, 166 N.J. 66, 82 (2001) (affirming the jury's finding that exposure of one's genitals to a child for the actor's sexual gratification constituted sexual conduct that would impair or debauch the child's morals).
Defendant contends that the portions of the instruction quoted above were improper because they allowed the jury to return a guilty verdict even if it accepted his claim that he "probably ejaculated [on Karen's pants] while he was sleeping." Relying on the definition of "sexual contact" in N.J.S.A. 2C:14-1(d), defendant argues that to convict him of child endangerment the jury had to find he intentionally touched himself for sexual gratification within Karen's view and could not convict him if it found he simply ejaculated in his sleep. He argues that the jury did not fully accept Karen's version of the facts -- as demonstrated by his acquittal of sexual assault -- and he claims "there was a strong likelihood that [he] was convicted unfairly if the jury concluded [that] he ejaculated and his semen wound up on the victim's clothing."
The judge's charge mirrored the model jury charge. See Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Sexual Conduct (Third Degree) (N.J.S.A. 2C:24-4(a)(1))" (Apr. 7, 2014). The judge explained to the jury that to establish child endangerment the State had to establish Karen's age and prove that defendant knowingly engaged in sexual conduct that would impair or debauch her morals. The State did not have to prove "sexual contact," as defined in N.J.S.A. 2C:14-1(d). Sexual contact is an element of sexual assault, not of child endangerment. The judge accurately instructed that under the State's theory, defendant's "sexual conduct" was contact with Karen's intimate parts, or vaginal penetration, or ejaculating in her presence. The judge then defined knowing conduct, thus clarifying the second element of the offense.
We observe that the judge separated these three things with the conjunctive/disjunctive "and/or," of which we have previously and continue to disapprove. State v. Gonzalez, 444 N.J. Super. 62, 70-78 (App. Div.), certif. denied, 226 N.J. 209 (2016). We note, however, that defendant has not argued that the erroneous phrase "and/or" prejudiced him -- indeed, it seems more prejudicial to the State in this context -- nor do we see from the record any reason to conclude that the jury would have been confused by the judge's use of "and/or" in this charge.
The charge accurately reflected the statutory elements of child endangerment.
IV
Defendant also contends the judge's failure to charge the offense of lewdness was plain error requiring reversal. Defendant acknowledges he did not request such an instruction, but claims the judge should have given it because the jury could have found he had caused Karen alarm by touching himself in her presence under circumstances in which he reasonably expected her to see him.
N.J.S.A. 2C:14-4 defines lewdness as follows:
a. A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other
nonconsenting persons who would be affronted or alarmed.
b. A person commits a crime of the fourth degree if:
N.J.S.A. 2C:14-4(c) defines "lewd acts" as including "the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or any other person."(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.
(2) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a person who because of mental disease or defect is unable to understand the sexual nature of the actor's conduct.
In charging a jury, a judge's "primary obligation is to see that justice is done, and that a jury is instructed properly on the law and on all clearly indicated lesser-included offenses[.]" State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). Consequently, a judge must instruct on any lesser-included offense clearly suggested by the record, regardless of the absence of a request. Ibid. As the Court held in State v. Brent, 137 N.J. 107, 123 (1994), a jury should be instructed on a lesser-included offense if "the evidence at trial presents a rational basis for the jury to acquit the defendant of the greater offense and convict him or her of the lesser."
After careful review, we conclude that the judge did not err in failing to instruct on lewdness because the evidence did not establish a rational basis for such a charge. Fourth-degree lewdness was clearly inapplicable because Karen was not younger than thirteen years of age and there was no proof that she was someone with a mental disease or defect that rendered her unable to understand the sexual nature of defendant's conduct. N.J.S.A. 2C:14-4(b)(1) and (2). And the evidence did not establish a basis to find the disorderly persons offense of lewdness. N.J.S.A. 2C:14-4(a).
The proofs suggested that defendant led Karen to a beach, away from the public, where he physically attacked her, threatened her, and engaged in sexual conduct against her will. Those facts, if believed, established a crime of greater gravity than mere lewdness. And, if it accepted defendant's version -- that he fell asleep and awoke to find he ejaculated -- the jury would have been unjustified in finding him guilty of lewdness because he denied exposing himself or committing any type of lewd act knowing or expecting to be observed. Neither version of the facts established or rationally suggested the offense of lewdness.
V
In challenging the sentence, defendant first argues the judge erred in imposing, on the endangering conviction, a discretionary extended term. The judge found that defendant satisfied the persistent-offender criteria and that his conduct warranted an extended term for, among things, the following reasons:
I see these as despicable acts committed by a man who was then 55 years old, against a vulnerable and homeless 14-year-old girl. There were acts which caused, I think, a normal person to wonder if Mr. Ashley has a conscience, or, indeed, if there's something more like ice water, th[a]n blood, in his veins.
Karen was actually fifteen years old when the event occurred. That discrepancy had no bearing on the judge's findings or the sentence imposed.
The court underscored defendant's denial of responsibility and "the truth about what he did to this innocent child." "[T]aking into account" defendant's extensive prior record and "many previous trips to State prison," the judge imposed the maximum sentence of ten years' imprisonment. Finding the aggravating factors outweighed the nonexistent mitigating factors, the court included a five-year period of parole ineligibility.
The judge found: defendant's risk of reoffending (aggravating factor three) was "strong," particularly since he had been out of prison only eleven months when he assaulted Karen; the "extent and seriousness" of defendant's prior convictions (aggravating factor six) "[stood] . . . on their own," the record revealing twenty-six arrests, six disorderly persons offenses, six parole violations, and seven convictions for indictable offenses and his service of substantial periods of time in prison for receiving stolen property, terroristic threats, aggravated assault, and multiple armed robberies; and the need for deterrence (aggravating factor nine) was "particularly strong," not only because of defendant's criminal history, but because "the offense was committed by an adult against a minor child." We recognize that the factual ground for a finding on aggravated factor nine partially includes an element of the child-endangerment conviction (the victim's age) but conclude that this partial double-counting had no apparent impact on the judge's ultimate determination.
On the terroristic threats conviction, the judge imposed a maximum term of five years' imprisonment based on defendant's prior record and history of incarceration, which, the judge emphasized, had "done nothing to deter [defendant] from reoffending." Because the aggravating factors substantially outweighed the nonexistent mitigating factors, the judge imposed a two-and-one-half year period of parole ineligibility.
N.J.S.A. 2C:44-3 provides that, upon application, a sentencing judge may impose an extended term if the defendant was convicted of a crime of the first, second or third degree, and the defendant qualifies as a "persistent offender." A persistent offender is a person who: (1) was at least twenty-one years of age at the time of the offense; (2) was previously convicted on two separate occasions of two crimes while at least eighteen years old; and (3) committed the latest crime, or obtained release from confinement, within ten years of the crime for which the court is imposing sentence. N.J.S.A. 2C:44-3(a). If a defendant satisfies the criteria for a persistent offender extended term, a judge must "give weight to the prosecutor's determination" that an extended term is an appropriate sentence. State v. Thomas, 195 N.J. 431, 436 (2008).
When an extended-term motion has been granted, the sentencing range "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). The ordinary sentencing range for third-degree child endangerment is three-to-five years' imprisonment, N.J.S.A. 2C:43-6(a)(3), and the extended range is five-to-ten years' imprisonment, N.J.S.A. 2C:43-7(a)(4).
To set the length of the extended term, a judge must assess the aggravating and mitigating factors and the need to protect the public. See Pierce, supra, 188 N.J. at 168-69. A defendant's prior record is relevant in the weighing process, but because it formed a basis to impose an extended term, the court must take a broader view and must place particular emphasis on the crime being punished. As the Court had previously explained:
[a] defendant's prior record of conviction has been taken into account in deciding whether to impose an extended term and presumably would not have the same qualitative weight in grading the range of the extended sentence. But other aspects of the defendant's record, which are not among the minimal conditions for determining persistent offender status, such as a juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation, will be relevant factors in adjusting the base extended term. Nonetheless, the primary focus will be on the conduct that occasions the sentence.
[State v. Dunbar, 108 N.J. 80, 91-92 (1987).]
The need-to-protect-the-public finding "involves an evaluation of the 'entire person of the defendant before the sentencing court,' [id. at 91], and necessarily encompasses a judicial assessment and finding that goes beyond the objective facts of a defendant's criminal-conviction record." Pierce, supra, 188 N.J. at 167. It "exceeds a mere finding of the existence of a prior conviction . . . [and] contemplate[s] an added factual assessment of the defendant's whole person." Ibid.
In addition to setting an extended-sentence base-term, the judge must also decide whether to impose a period of parole ineligibility. Pursuant to N.J.S.A. 2C:43-7(b), a judge "may fix a minimum term not to exceed one-half of the" extended term sentence. The Dunbar Court explained that the analysis differs from that applied to an ordinary term
because of the "two-tiered" process used in extended sentencing. Harmonizing a presumed extended term and a period of parole ineligibility is more consistent with the Code's structure in the context of extended sentencing because of the two-fold role of the prior record in the extended sentencing process; it determines both the eligibility for an extended sentence and, in part, the length of the base and parole ineligibility features of the sentence. . . . A court that has decided to impose an extended term in the interest of public protection on the basis of defendant's prior offenses may conclude quite correctly that a presumptive extended term reflects the appropriate balance of other aggravating factors against mitigating, but that the totality of aggravating factors, including the prior record, clearly and substantially outweighs the mitigating factors and calls for a period of parole ineligibility.
[Dunbar, supra, 108 N.J. at 94.]
To impose a parole disqualifier, the judge must be "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." Id. at 92. "[T]he sentencing court is specifically required to 'place on the record the aggravating factors'" that justify a parole bar. Id. at 95 (quoting N.J.S.A. 2C:44-1(f)). The judge must also "specifically distinguish between those factors that" supported the sentence length and those that supported the parole bar. Ibid. However,
[i]t is not necessary that every sentence be a discourse. A brief reference to the reasons
for imposing the extended term, once the minimal conditions are met, a recital of the specific aggravating and mitigating factors found and their balance, and the reasoning that led to the choice of the base and parole ineligibility terms will suffice to explain the sentence.Where a trial judge fails to explain the "reasoning that led to the choice of the base and parole ineligibility terms," a reviewing court may affirm the sentence if "it is obvious that [the court] was clearly convinced that the aggravating factors substantially outweighed the mitigating factors." State v. Burton, 309 N.J. Super. 280, 291 (App. Div.), certif. denied, 156 N.J. 407 (1998).
[Id. at 97.]
In reviewing the imposition of a persistent offender discretionary extended term, an appellate court will defer to the sentencing judge's decision on the sentence length, so long as the facts establish that the defendant met the criteria for an extended term. Pierce, supra, 188 N.J. at 166. Similarly, a reviewing court will not disturb a period of parole ineligibility imposed at the court's discretion unless it finds an abuse of discretion. Ibid.
Defendant contends the judge failed to properly weigh the aggravating and mitigating factors and to assess whether an extended term was necessary to protect the public. He argues that the judge improperly double-counted his prior record because he used it as a reason to impose an extended term while also giving it significant weight in setting the prison term. He further claims the judge imposed the sentence "not on what the jury convicted him of, but" on the crime for which the court believed he "should have been convicted." In so claiming, defendant relies on the judge's following discussion of the verdict:
I think that I'm, frankly, very strongly persuaded that the only reason there was an acquittal on the sexual assault, was the doubt engendered by the absence of DNA inside the victim. Was . . . it possible . . . another jury [could] have convicted based on the evidence that was presented here[?] [N]o question that they could have, and it would have been a solid verdict. This jury gave Mr. Ashley the benefit of the doubt on that single point, in my view.Finally, defendant contends that in imposing a parole bar, the judge failed to consider and issue specific findings on whether the aggravating factors clearly and substantially outweighed the mitigating factors.
In our view, the judge followed the applicable standards and did not abuse his discretion in imposing the ten-year extended term with a five-year parole bar. Defendant had an extensive record and history of imprisonment, including seven indictable offenses. And he committed the offenses here less than a year after his most recent release from prison. As the judge found, in carrying out his "despicable acts," defendant latched onto Karen's vulnerable state and lured her to a secluded place where she could not escape from him. His actions were calculated and dangerous, and his lack of remorse and continued denial of responsibility showed that he did not appreciate the significant harm his behavior posed to young girls and to society. Thus, the aggravating factors and circumstances of the crime established that defendant was a threat to society and the imposition of a maximum term was appropriate. As the judge found, a five-year period of parole ineligibility was warranted by the substantial aggravating factors.
Contrary to defendant's contention, the judge did not partake in improper double-counting. The rule against double-counting precludes use of an element of an offense as a basis for finding an aggravating factor. State v. Fuentes, 217 N.J. 57, 74-75 (2014). Here, although the judge relied in part on the victim's age in finding aggravating factor nine, it did not appear to play any substantial role; the judge ultimately based the sentence on the severity of defendant's conduct and the other information that formed the bases for his findings on the three aggravating factors that were applied.
Similarly, the judge did not base his decision on the verdict he believed the jury should have reached and instead properly relied on the facts and circumstances underlying the actual convictions. The matter bears some similarity to Burton, supra, 309 N.J. Super. at 291, where a judge imposed an extended term on a theft conviction, which we held "was much closer to a robbery" than the lesser offense of theft. Citing Dunbar, we explained that "[w]hen an extended term is imposed, the severity of the sentence imposed should be controlled by the conduct that is the occasion for that sentence." Ibid. The sentencing judge here took a similar approach.
Finally, even setting aside the two convictions on which the judge based his finding that defendant was a persistent offender, defendant had five other indictable convictions, six other offenses, and six parole violations, and had failed to rehabilitate himself despite substantial time in prison. Those aspects of his prior record were amply sufficient to support the findings and balancing of aggravating factors.
We conclude that the judge did not abuse his discretion in imposing a ten-year term with a five-year parole bar on the child endangerment conviction.
VI
Defendant lastly contends that the judge erred in ordering the prison term imposed on the terroristic threats conviction be served consecutively to the prison term imposed on the endangering conviction. In so holding, the judge explained:
I view Mr. Ashley's offending here to be so reprehensible. And I view his antisocial proclivities to be so pronounced that I am focused on the reality that the harm intended to be avoided in criminalizing terroristic threats, is entirely distinct from the harm intended to be avoided by forbidding old men from engaging in sexual conduct with 14-year-old girls. And I will view these two crimes . . . as separate and distinct from each other, even though they did arise out of the same shameful episode. Indeed, it was by means of threatening violence against this young lady, with the purpose to terrorize her, that Mr. Ashley placed himself in the circumstances where he could then violate her sexually.
Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple sentences of imprisonment the terms "shall run concurrently or consecutively as the court determines at the time of sentence[.]" The statute does not specify when consecutive or concurrent sentences are appropriate.
In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court provided the following guidelines:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
A sentencing court should qualitatively, not quantitatively, weigh the factors set forth in guideline three. State v. Carey, 168 N.J. 413, 427 (2001). And a court may impose consecutive sentences "even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000).
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
Guideline number six has been superseded by a 1993 amendment to N.J.S.A. 2C:44-5(a), which provides that there "shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." --------
A sentencing judge must state separately reasons for imposing consecutive sentences. State v. Miller, 205 N.J. 109, 129 (2011). A reviewing court, however, may uphold a sentence that lacks a specific statement of reasons and findings "where the sentencing transcript makes it possible to 'readily deduce' the judge's reasoning." Id. at 129-30 (quoting State v. Bieneck, 200 N.J. 601, 609 (2010)). We review a trial judge's decision to impose consecutive terms under the abuse-of-discretion standard. Carey, supra, 168 N.J. at 430.
Defendant contends that the decision to run consecutively the child endangerment and terroristic threats sentences resulted in a manifestly excessive aggregate term of fifteen years' imprisonment with a seven-and-one-half-year parole bar. He argues the judge should have imposed concurrent terms because the offenses were closely related to one another and constituted one continual act of violence against one victim, and that the judge did not properly weigh the Yarbough factors but instead based his decision solely on what he viewed as defendant's egregious conduct. We disagree.
In applying the Yarbough principles, and in distinguishing between the two convictions, the judge explained that "the harm intended to be avoided in criminalizing terroristic threats, is entirely distinct from the harm intended to be avoided by forbidding old men from engaging in sexual conduct with 14-year-old girls." Thus, while defendant committed the two offenses during "the same shameful episode," the harms caused were separate.
We lastly emphasize that in reviewing the judge's sentencing determinations we should not be governed by how we would have sentenced defendant. The question is whether the trial judge acted within his discretion. For these reasons, we cannot conclude that the judge abused his discretion in either selecting the prison terms from the range authorized by law or by imposing consecutive terms.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION