On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-2045.
The opinion of the court was delivered by: Lefelt, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Detectives from the Monmouth County Prosecutor's Office arrested defendant, James Davis, a Holmdel police officer, after an undercover investigation revealed that he had conversed on the internet about sex and masturbation with an undercover officer who had portrayed herself as a fourteen-year-old girl. Upon defendant's arrest, the police discovered in his apartment diskettes containing pornographic images of alleged children. Defendant claimed that he had committed no crime as he was fantasy role-playing with women he thought to be over the age of sixteen, and that any possession of pornographic images was inadvertent. Despite these defenses, a jury convicted defendant of several counts of attempting to endanger the welfare of a child, endangering the welfare of a child, and attempted sexual assault. Judge Chaiet imposed a seven-year aggregate prison sentence and defendant appealed, raising numerous arguments, including, among others, the need for severance and the improper use of other-crimes or bad-acts evidence. We reject all of defendant's arguments and affirm.
Defendant came to the attention of the San Diego Police Department, the Morris County Prosecutor's Office, and the FBI as someone who appeared to be sexually pursuing children on the internet. The Monmouth County Prosecutor's Office began an undercover investigation of defendant after receiving reports from the other authorities regarding defendant's sexual activities, and after V.P., who was sixteen years old at the time, told the Parsippany Police Department that she had had a sexual relationship with defendant between September and October of 2000. Because defendant began his relationship with V.P. before she became sixteen, the Monmouth County Prosecutor's Office, from January 2001 to March 2002, surveilled defendant, monitored his computer chatroom conversations, and conversed over the internet and telephone with defendant under the guise of a fourteen-year-old girl named Krissy.
Two officers played the part of Krissy during internet and telephone conversations, and in a picture sent to defendant. Before conversing with defendant over the internet, one of the officers posing as Krissy also created a "profile," an accessible description of the person linked to the person's screen name, describing her as a freshman in high school and revealing age appropriate interests.
On March 22, 2001, Krissy initiated an instant message conversation with defendant. During the various internet conversations relevant to this case, defendant used either MisterRight2 or NJRoboCopI as his screen name.
Krissy began the first conversation by talking about the New Jersey Devils. That apparently interested defendant, as he asked: "Why are all the great women all so young?" Presumably he had accessed her profile. Krissy answered with question marks. Although this conversation ended shortly thereafter, at Krissy's request, defendant e-mailed his picture to her.
From that date until April 19th, defendant had several conversations with Krissy. These conversations included discussions about hockey, music, and sex, focusing mostly on masturbation, and how steps could be taken to prevent Krissy's mother from learning of their conversations. At one point, Krissy agreed to send defendant her picture, although the picture sent was actually of a twenty-three year old police officer sitting in a tree, wearing a Devil's jersey and backwards baseball hat. Defendant thought she was "very pretty."
During their second conversation on March 24, 2001, defendant asked Krissy if she was a "physical person," as in "romantic stuff." Defendant asked her whether she pleased herself and Krissy answered "[m]y buds talk about it but I've tried. Never, sorry, tried I mean." Defendant told her having sex was "the most intense feeling you will ever feel with the right person that is. You can make yourself feel that way too just not as intense." Although defendant offered to teach her over the phone, Krissy refused claiming that her mother was home. Krissy asked: "How?" and defendant answered: "Want me to tell you how? Like teach you?" Krissy answered: "Okay." Nothing more was said about it at that time.
On March 31, 2001, while defendant was at work, he sent Krissy an e-mail apologizing for not telephoning her as he had said he would.
During their third conversation on April 2, defendant asked Krissy if she had "masturbated or tried" lately. Krissy answered that she had but that she was not sure if she had done it right. Defendant asked if she had talked to her friends about how they do it and she said that she would not feel comfortable doing that. Defendant encouraged her to discuss masturbation with her friends, and to ask them to show her how they do it. He again offered to teach her, over the phone, how to do it.
On April 16, 2001, they had their fifth instant message conversation. Once again, defendant told Krissy that he wanted to call her and asked whether she had talked to her friends about masturbating. He then told her that he likes to tease, "not have sex just tease." When Krissy asked "how do you tease," he replied "[w]e watch each other" and he helps her "learn how to play." He explained that he was "a great kisser, very soft and yet masculine."
On April 17, 2001, Krissy e-mailed defendant her cellular telephone number and asked him to call at a particular time. Defendant opened the e-mail while at work and called Krissy. During this brief conversation, defendant told Krissy that he had a nine-year-old son. Defendant did not, in fact, have a son, but he had a daughter who was in her late teens. Later that day, they had another brief conversation talking about hockey, music and defendant's son. The tenor of their subsequent April 18 conversation, while defendant was at work, was largely the same.
It was not until April 19 when the defendant initiated the most explicit dialogue. On that day, defendant explained to Krissy that when he was her age his sister told him that she and her friends masturbated together and that it was natural for them to do so. He used this as a segway to again offer to teach her how to masturbate. At that point Krissy accepted his offer, and defendant proceeded to tell her, step-by-step, how to touch her abdomen, inner thighs, and the outside of her vagina. He then explained that some girls like "to put something inside of them, . . . like a dildo, a vibrator," or their fingers.
Later on that same day, in an instant message, defendant asked Krissy if she liked the way touching herself felt and if she "[w]ant[ed] to try in person to," as he "could show [her] more that way." Krissy said she wanted to meet him in person and asked where they should meet. Defendant suggested a park, saying "we're not going to do much. If you want, we won't do anything at all." He then asked: "Can you wear like a skirt when we meet? . . . Be easier to help you when you're wearing a skirt." Krissy said that she could and that they should meet at the Belmar Marina tomorrow at about 3:30 p.m.
Defendant then asked her if she shaved "everything," what size bra she wore and whether she "want[ed] to do more than that[,] what we talked about." Krissy told defendant, "I've never done it before, does it hurt?" Defendant said it depends on how excited you are and promised that he would never hurt her. Krissy told defendant that she did not want to get pregnant, and he explained that he had undergone a vasectomy. At that point, defendant urged Krissy to tell him what she wanted when they met. She said that she felt stupid telling him because she was inexperienced. Defendant told her to never feel stupid and that he would "love to hear what you want."
The next day, on April 20, the officer who had supplied the picture of herself waited for defendant at the Marina. He never arrived. Shortly before 3:30, he called her cellular phone and told her that he had been in a car accident. That was not true, however, as police knew from their surveillance that he was at his apartment.
The next conversation Krissy and defendant had was not until May 1, by instant message, when defendant apologized again for not meeting her. On May 2, defendant called again. During that conversation Krissy told defendant that she had masturbated since the last time they talked but she was still not sure she was doing it right. After Krissy claimed to be too embarrassed to explain what she had done, defendant again instructed Krissy on how to masturbate. He told her how to fondle her breasts, rub her "finger across your clit," and "push your fingers, [inside your vagina] . . . towards your stomach." Krissy pretended to be doing as defendant instructed.
The next conversation occurred on May 15 where they again discussed a meeting time. On May 21, defendant told her he had told a thirty-two-year-old female friend about Krissy, and that she would like to help teach Krissy how to masturbate. He said ...