May 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Indictment No. 04-12-1669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2007
Before Judges Lisa and Holston, Jr.
Defendant, L.I.H., was convicted on December 10, 2004 by a jury on Middlesex County Indictment No. 04-12-1669 of fourth-degree criminal sexual contact on diverse dates between November 1 and November 15, 2003, contrary to N.J.S.A. 2C:14-3(b) (count one) and third-degree endangering the welfare of a child on diverse dates between November 1 and November 15, 2003, contrary to N.J.S.A. 2C:24-4(a) (count two). Defendant had been convicted of lewdness, based on a plea of guilty seven years prior. After an Adult Diagnostic and Treatment Center (ADTC) determination of repetitiveness and compulsiveness, defendant was sentenced on June 3, 2005 to a four-year term of imprisonment at the ADTC on the third-degree endangering the welfare of a child charge. The court merged the fourth-degree criminal sexual contact into the third-degree endangering charge for sentencing purposes. Defendant appeals both his conviction and sentence. We affirm.
The jury found defendant had engaged in conduct, which would debauch the morals of a child under the age of sixteen. Defendant was age thirty nine. The child was the thirteen-year-old daughter of defendant's live-in girlfriend. During the last two weeks before defendant and his girlfriend broke up, the events underlying the offenses occurred. The minor alleged that defendant told her that for $200 he would have sexual relations with her and for $100 he would have sexual relations with her friend. He also disclosed to the minor aspects of his sex life with her mother and asked her about her physical relationship with her twelve-year-old boyfriend. Defendant told the minor that he was older, more experienced, and would be better able to satisfy her sexually. He then put his hands on the inside of her thigh.
On another occasion when the minor was taking a ride with defendant, he offered her a beer, which she refused. He attempted to put the bottle in her mouth, spilling the beer down her front.
At the time defendant and his girlfriend broke up, each had obtained a domestic violence restraining order against the other. Additionally, defendant was indicted for burglary and terroristic threats against his girlfriend, but the indictment was dismissed. All of the domestic violence restraining orders were also dismissed.
Defendant raises three points for our consideration: (1) he was denied effective assistance of counsel; (2) the prosecutor's misconduct denied him due process of law; and (3) his sentence is manifestly excessive.
Defendant contends his trial counsel failed to effectively present the prior criminal charges brought by his girlfriend against him for terroristic threats and burglary, which were dismissed by the prosecutor, and failed to present the domestic violence complaints by his girlfriend, which were also dismissed. Defendant claims evidence of these events would have helped him to demonstrate that the minor's allegations of improper sexual contact by him against her were part of a conspiracy between the minor and her mother to harm him. Defendant contends that had trial counsel placed the minor's allegations in the context of a pattern of harassment by her mother that he would have been acquitted. Defendant claims that his trial counsel could have elicited this information from defendant himself, when he testified in his own defense. As a result, defendant asserts that he was not afforded the opportunity to explain those unfounded allegations.
Defendant also contends that the investigating officer, Detective Reilly, who confirmed that the victim's mother had made other complaints against him, could have been cross-examined concerning those unfounded allegations. Defendant claims that had his trial counsel taken the opportunity to demonstrate the minor's mother's harassment, the jury would have concluded that the minor fabricated the claims that gave rise to his conviction, in order to further the interests of her mother.
Defendant must establish two elements to show that he was denied effective assistance of counsel. First, defendant must show by identifying acts or omissions that his trial counsel was deficient, failing to fulfill the counsel guarantee of the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 90 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). With respect to deficient performance, the Court in Strickland, supra, held that the defendant challenging assistance of counsel must demonstrate that counsel's actions were beyond "the wide range of professionally competent assistance." 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
Second, defendant must establish that his counsel's performance was so deficient as to create a reasonable probability "that these deficiencies materially contributed to his conviction." Fritz, supra, 105 N.J. at 58. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 90 L.Ed. 2d at 699; State v. Savage, 120 N.J. 594, 614 (1990).
Our review of the record indicates that when defendant was interviewed by the police, he admitted having sexual discussions with the minor but contended they were more in the nature of father-daughter discussions in order to educate her on sexual matters. Thus, part of the victim's story was corroborated by defendant's own statement. Additionally, we note that defense counsel did present a plausible strategy as to why the victim allegedly brought false charges against defendant when counsel questioned the minor and she admitted that she did not like defendant.
We are convinced, however, that defendant's allegations of ineffective assistance of counsel, which concern his counsel's trial strategy, are better raised as part of a post conviction relief (PCR) petition, see State v. Preciose, 129 N.J. 451, 460 (1992), rather than on direct appeal. We thus decline to address the issue in this opinion because the reasons for defense counsel's trial strategy lie outside the trial record.
Defendant contends that the prosecutor made improper closing remarks, which severely prejudiced him, as a result of which, defendant seeks a reversal of his conviction and remand for a new trial. Prosecutorial misconduct can be a ground for reversal. State v. Ramseur, 106 N.J. 123, 322 (1987). In assessing whether prosecutorial misconduct, such as improper remarks in summation, requires reversal, an appellate court should determine whether "the conduct was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); Ramseur, supra, 106 N.J. at 322. The court should look at such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard the remark. Ramseur, supra, 106 N.J. at 322-23. An attorney may make remarks that constitute legitimate inferences from the facts. State v. Perry, 65 N.J. 45, 48 (1968). An attorney, however, may not go beyond the facts before the jury. State v. Farrell, 61 N.J. 99, 102 (1972).
The prosecutor commented that during defendant's trial testimony, when defendant was describing the sexual discussions he had with the victim, he displayed a look of pleasure. We find nothing improper about that comment. Counsel can properly comment on counsel's perceived observations of any witness during the course of his/her testimony, which may reflect upon credibility. See State v. Rivera, 253 N.J. Super. 598, 604 (App. Div.), certif. denied, 130 N.J. 12 (1992). The prosecutor asserted that it was simply not logical and the jurors in their common experience should not accept as credible defendant's father-daughter sexual education contention. The prosecutor argued that even a married woman would not typically volunteer information about her sexual activities to her father. We are satisfied the prosecutor's comments were not an attempt to present evidence from outside the trial record, but was an argument that the jurors use their own life experiences and common sense in assessing the believability of defendant's testimony. See State v. Perez, 177 N.J. 540, 554 (2003).
On count two, third-degree endangering the welfare of a child, defendant received a sentence of four-years imprisonment at the ADTC. The fourth-degree criminal sexual contact charge was merged with the endangering charge for sentencing purposes. Defendant claims his sentence is manifestly excessive and requests that the matter be remanded for resentencing. We disagree.
The judge found the following aggravating factors applied:
(1) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); (2) defendant took advantage of a position of trust or confidence to commit the offense, N.J.S.A. 2C:44-1a(2); (3) the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and (4) the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The judge found only one mitigating factor: the defendant is particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(10).
Defendant asserts that the sentencing judge's comments at the sentencing hearing suggest he disregarded the most fundamental sentencing guideline: that the sentence fit the crime, not the criminal. See State v. Hodge, 95 N.J. 369, 376 (1984). Defendant characterizes the unlawful behavior described by the minor at trial as consisting of a conversation and a single touch on the thigh. Defendant asserts that the offense was not sufficiently serious to warrant a four-year sentence. Defendant submits that a sentence of three years would have been more appropriate.
The State, in contrast, argues defendant's sentence was appropriate. The State offers that defendant had previously been convicted of a similar crime in 1997,*fn1 and there is therefore no presumption against incarceration. We note as to aggravating factor three that the ADTC psychologist found defendant to be compulsive and repetitive.
In reviewing a sentencing decision of the trial court, an appellate court must determine: (1) whether the proper sentencing guidelines were followed; (2) whether aggravating and mitigating factors were "based upon competent, credible evidence in the record"; and (3) whether the application of the guidelines to the facts of the case make the sentence so unreasonable as to "shock the judicial conscience," even though the trial court rendered the sentence in accordance with the guidelines. State v. Roth, 95 N.J. 334, 364-66 (1984). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
We are satisfied that the trial judge properly weighed the aggravating factors against any potential mitigating factors, that the factors found were supported by credible evidence in the record, and that the court sentenced defendant in accordance with State guidelines. See Roth, supra, 95 N.J. at 365. The four-year sentence imposed was in the middle of the sentencing range for a third-degree offense. N.J.S.A. 2C:44-1f(d). The sentence does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.
Accordingly, defendant's conviction and sentence are affirmed. However, defendant has the right to assert in a PCR petition his allegation of ineffective assistance of counsel.