July 12, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRY W. CODER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-11-2143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 08, 2007
Before Judges Weissbard, Payne, and Lihotz.
Defendant, Terry W. Coder, appeals from his convictions on four counts of a ten-count indictment charging sexual offenses against two children, J.B. and S.F., ages three and eleven, respectively. The indictment, returned on August 8, 2001, charged defendant as follows: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count two); second-degree sexual assault with a minor, at least four years his junior, N.J.S.A. 2C:14-2(b) (count three); second-degree attempt to commit aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count four); second-degree attempt to commit sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1) (count five); second-degree attempt to commit sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count six); third-degree attempt to lure or entice a child, N.J.S.A. 2C:13-6 (count seven); fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1) (count eight); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count nine); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count ten).
Following a jury trial in April 2003, defendant was found guilty on counts three, six, eight and ten, and not guilty on counts one, four and seven. Counts two, five and nine were dismissed by the State at the outset of the trial.
On July 18, 2003, defendant was sentenced to a seven-year prison term on count three, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a concurrent seven-year term on count six, a concurrent eighteen-month term on count eight, and a consecutive four-year term on count ten. Thus, defendant's aggregate sentence is eleven years with seventy-one months to be served without parole. Appropriate penalties and assessments were also imposed.
On appeal, defendant presents the following arguments for our consideration:
THE STATE'S RELIANCE ON THE OUT-OF-COURT STATEMENT OF AN ABSENTEE WITNESS/ALLEGED VICTIM TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I PAR. 1 OF THE NEW JERSEY CONSTITUTION (Partially Raised Below).
A. THE STATE UNCONSTITUTIONALLY INTRODUCED INTO EVIDENCE THE OUT-OF-COURT HEARSAY ACCUSATIONS OF ONE OF THE ALLEGED VICTIMS WHO DID NOT TESTIFY AT THE TRIAL (Not Raised Below).
B. THE STATE FAILED TO SHOW THAT THE CRITERIA FOR THE ADMISSIBILITY OF THE CHILD'S OUT-OF-COURT STATEMENT HAD BEEN SATISFIED.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, USING THE TACTIC OF CHARACTER ASSASSINATION TO PROVE HER CASE (Partially Raised Below).
THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT S.F. AND J.B. WERE VICTIMS, THEREBY VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A KOCIOLEK CHARGE) (Not Raised Below).
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.
THE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD MERGES WITH THE CONVICTION FOR SEXUAL ASSAULT (Not Raised Below).
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
C. THE TRIAL COURT MADE FINDINGS OF FACT INCONSISTENT WITH JURY FINDINGS TO IMPOSE AN EXCESSIVE SENTENCE.
We conclude that the arguments presented in Points II, III, IV, and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's Point I, however, does merit discussion, and requires that we set out the facts in some detail. We also address Points VI and VII.
The jury could have found the following from the State's evidence at trial. Eleven-year-old S.F. spent a lot of time with her grandmother, who lived in Long Branch, during August 2001. She would often play with J.B., the three-year-old daughter of her grandmother's neighbor, D.B. Defendant was the superintendent of the apartment complex where the grandmother of S.F. lived. Defendant was known to children in the area, including S.F., because "he used to play around with all of the kids there because he had a train set in the house."
On August 21, 2001, defendant asked S.F. if she would like to visit his apartment to see the train set that he kept there. S.F. had been there on a prior occasion with D.B.'s son to play on the computer. After obtaining her grandmother's permission, S.F. went by herself to defendant's apartment. Once there, she went to view the train set, which was located in a corner of the bedroom and was situated in such a way that it was possible to stand in the middle of it, which S.F. did.
While S.F. was viewing the train set, defendant produced two pornographic magazines from the closet. Defendant attempted to show the magazines, which depicted nude males and females, to S.F. by putting them in front of her face. S.F. told defendant that she did not want to look at them.
After she had finished playing with the train set, S.F. went to the kitchen to tell defendant that she was leaving. As she was leaving, defendant gave her a bag that contained Christmas candy, about nineteen dollars in quarters, and a game. Defendant also told S.F. that if she told anybody, then "something would happen." S.F. did not tell anyone about the incident afterwards because she was "scared that something would happen." She had been in the apartment about forty-five minutes.
On August 28, 2001, S.F. was sitting on the front porch of her grandmother's house with J.B. as the two played. Defendant approached and asked them if they would like to see different colored pieces of wood that were in the basement of the building. The two girls then followed defendant into the basement. When the girls got to the basement, S.F. turned the lights on, but defendant then turned them back off.
After turning off the lights, defendant undid his belt and pulled down his pants. Although the overhead lights were out, ambient light allowed S.F. to see what defendant was doing and also allowed S.F. and J.B. to see the front and back of defendant. J.B. was standing next to S.F. when defendant pulled his pants down. Defendant then walked over to J.B. and pulled down her pants and underwear. When defendant tried to pull up S.F.'s skirt, she slapped his hand away. Defendant did not touch S.F. again, but she saw him rub both his hands on J.B.'s backside while her pants were down. According to S.F., J.B. looked scared and had her head down. While this was occurring, defendant shook his backside in view of the girls.
S.F. took J.B.'s hand and tried to leave the basement but defendant took hold of J.B.'s other hand to prevent her from leaving, creating a tug-of-war situation. S.F. told defendant that she had to use the bathroom and ran out of the basement.
Once out of the basement, S.F. ran straight to the apartment of D.B., J.B.'s mother, and told her what happened and that J.B. was still in the basement. D.B. stated that S.F. looked panicky and frightened when she spoke to her. As D.B. was leaving her apartment to locate J.B., she saw a frightened-looking J.B. climbing the steps to their apartment. D.B. took hold of J.B., took her inside and then examined J.B.'s vagina and buttocks for bleeding, redness or any other signs of abuse. D.B. did not locate any physical injuries. When D.B. asked J.B. if anything hurt, J.B. responded by pointing to her vagina and buttocks and said "it hurts."
S.F. called her mother, T.B., who immediately left work to join her at the apartment complex. Then, D.B. called the police, who arrived within one-half hour of the call. S.F., T.B., J.B. and D.B. then left the apartment to speak with the police outside. After T.B. and S.F. had left, but before D.B. and J.B. left, J.B. said, "Mommy, he touched me" and she pointed to her vagina and buttocks.
As they were speaking with the police, defendant returned to the complex and D.B. pointed him out to the police. The officers then approached defendant and told him of the allegations against him and asked him to accompany them to the police station.
At the police station, Detective Mazza advised defendant of the allegations, and then read defendant his Miranda*fn1 warnings. Defendant acknowledged the Miranda warnings by initialing next to each as set out on the waiver form and by signing the form.
Following attempts to have defendant give a timeline of events, officers asked him to handwrite a statement of everything that he had done that day. Mazza then used this document to ask follow-up questions. In his statement, defendant said that while in the basement, the older girl had been asking numerous sexual questions, such as whether he had ever had sex. He also stated that the older one lifted up the dress of the younger one and said, "this is what I look like," to which defendant responded, "what do you want me [to do], show you mine and you'll show me yours[?]" Defendant then opened his pants to the older girl in order to scare her and to make her leave.
Following this, defendant then gave a formal written statement in a question and answer format that was dictated and typed. Defendant stated substantially the same version of events and again denied touching either S.F. or J.B., while claiming that S.F. had exposed the younger child to him.
Following his statement, defendant signed a consent to search form allowing the police to search his apartment and to seize pornographic magazines. Police found two pornographic magazines as a result of the search.
The following day, J.B. and S.F. went to the Monmouth County Prosecutor's Office to be interviewed by Prosecutor's Detective Zuppa. Zuppa's interview with S.F. was videotaped, and S.F. told substantially the same story as previously set out. Zuppa also attempted to interview J.B., but she was unresponsive to questioning.
Defendant attacks the admission of J.B.'s out-of-court statements on two grounds. First, that the statements did not meet the standards of N.J.R.E. 803(c)(27), and, second, that admission of the statements violated his right to confrontation as explicated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004).
On the first prong of his argument, defendant claims that J.B.'s statements to her mother did not meet the standard of trustworthiness set out in N.J.R.E. 803(c)(27) because J.B. contradicted herself at the voir dire proceeding. Admission of the statements was allegedly error because the statements served to bolster the testimony of S.F. which, otherwise, would have been uncorroborated.
The trial judge held an N.J.R.E. 104(a) hearing to determine if statements by S.F. and J.B. to D.B. were admissible through D.B.'s testimony. At the hearing, D.B. testified that approximately twenty minutes after the girls had gone out to play, S.F. returned alone to D.B.'s apartment. D.B. stated that S.F. looked frightened and that she invited her in to find out where J.B. was. S.F., who was nervous, did not initially say anything, but eventually told D.B. that she and J.B. had gone to the basement with defendant and that he was doing things to J.B.
D.B. went to find J.B., and as she was leaving her apartment, she saw J.B. climbing the stairs to the apartment looking frightened, nervous and very scared. D.B. grabbed J.B. and took her to the apartment bathroom to examine her. During this time, J.B. responded to D.B.'s question of what happened by stating, "Mommy, it hurts" and pointing to her vagina and buttocks. D.B. called the police and S.F.'s mother. S.F.'s mother arrived within one-half hour and the police arrived shortly after that. D.B. related what occurred next as follows:
Q: Did you meet the police officer inside the -- your apartment or did you go meet him outside?
A: We met him outside.
Q: Now, before you went outside to talk to the police -- did the four of you go out as a group together or?
A: Yes, we did, yes.
Q: Now, before you went out to talk to the police officer, did you talk to [J.B.] again?
A: Yes, I did.
A: I stopped her at the door, and I told her when the police arrive try to talk to them, tell them what happened.
Q: Now, where was [S.F.] and her mother?
A: They were outside waiting for the police.
Q: And exactly how do you go about saying this to [J.B.], where is she standing, where are you standing, are you sitting, what's the position of your bodies?
A: I was kneeling down. She was standing right next to me. We were by the front door. I said to her, I looked at her and I said, it's okay. Everything is going to be okay. I said when the police arrive they want to help you. I said so try to tell them everything.
Q: And how old was [J.B.] at this point?
A: At that time she was three.
Q: What tone did you use when you said this to [J.B.]?
A: Soft. It was a very soft tone.
Q: And what, if anything, did [J.B.] say to you back?
A: What did she say back? I don't remember. I don't think she said anything.
Q: Now, at any point did [J.B.] tell you what happened in the basement?
THE COURT: Other than what she's already testified to, you mean?
[ASST. PROSECUTOR]: Yes.
A: Could you repeat that?
Q: At any point did [J.B.] tell you what happened in the basement?
A: She said that -- she said that he touched her. This was when we were outside, and this is when the police were talking to [S.F.].
Q: And how is it that she comes to tell you this, did you ask her what?
A: Yeah. I kept asking her, you know, what happened? Why are you hurting? And she said she finally came and said that he touched me.
Q: Are those the words she used?
Q: And did you ask her where?
A: Yes, I did.
Q: And what did she say?
A: She pointed. She didn't say. She pointed to her vagina and to her butt.
Q: Okay. And does she give you -- does she say anything else about what happened?
Q: And after that you talked to the police officer?
Q: Now, did you tell the police officer what happened?
A: She wouldn't say anything to the police officer.
After D.B. testified, J.B. took the stand for voir dire. When asked about the incident in the basement on August 28, 2001, J.B. stated that she did not recall if anything had happened. She also stated that she did not know why she was in court and that no one had touched her in a way that made her feel sad.
Following this, the judge held that J.B. was available to testify and the fact that she did not recall if anything happened in the basement was just a factor that the court had to consider in the totality of the circumstances. The court found that: on the basis of the time immediately thereafter, the content, it comports with what I assume is going to be testified to by [S.F.] and circumstances of the statement, circumstances being - it was kind of res gestae, happened immediately after whatever did occur between the defendant and the two girls. I find as a probability that the statement is trustworthy, and I'll permit [D.B.] to testify in regard to the statements that she received from S.F. and also the verbal responses from her daughter J.B.
As stated earlier, D.B. testified at trial to J.B.'s statements made to her on the day of the alleged incident.
N.J.R.E. 803 (c)(27) provides:
A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.
When determining whether a particular statement is trustworthy, a court should utilize the following factors: "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 827, 110 S.Ct. 3139, 3150, 3153, 111 L.Ed. 2d 638, 656, 659-60 (1990)). Nonetheless, these factors are not exhaustive, and "'courts have considerable leeway in their consideration of appropriate factors.'" Ibid. (quoting Idaho v. Wright, supra, 497 U.S. at 822, 110 S.Ct. at 3150, 111 L.Ed. 2d at 656). The court may not determine trustworthiness by looking to other evidence adduced at trial. State v. D.G., supra, 157 N.J. at 125.
As noted, defendant attacks the trustworthiness of the statement made by J.B. to her mother. Specifically, defendant points to the fact that D.B. questioned J.B. about the incident and that improper and suggestive questioning can lead a child to admit to things that never happened, citing State v. Michaels, 136 N.J. 299 (1994). Defendant also points to the fact that J.B. contradicted her earlier statements during voir dire and stated that she did not remember any such incident occurring.
This case is clearly distinguishable from State v. Michaels, where the Court noted:
Twenty-three of the thirty-four children were asked questions that suggested the occurrence of nudity. In addition, many of the children, some over the course of nearly two years leading up to trial, were subjected to repeated, almost incessant, interrogation. Some children were re-interviewed at the urgings of their parents.
The record of the investigative interviews discloses the use of mild threats, cajoling, and bribing. Positive reinforcement was given when children made inculpatory statements, whereas negative reinforcement was expressed when children denied being abused or made exculpatory statements.
Throughout the record, the element of "vilification" appears. Fifteen of the thirty-four children were told, at one time or another, that [the teacher] was in jail because she had done bad things to children; the children were encouraged to keep [the teacher] in jail. For example, they were told that the investigators "needed their help" and that they could be "little detectives." Children were also introduced to the police officer who had arrested defendant and were shown the handcuffs used during her arrest; mock police badges were given to children who cooperated. [Id. at 314-15.]
This is certainly not what happened in this case. Here, D.B. used open-ended questions, such as, "what happened?" and "why do you hurt?" when seeking to find out what happened in the basement. It is undisputed that D.B. questioned J.B. However, defendant fails to show evidence in the record that such questioning was suggestive in any way.
As to J.B.'s testimony during the voir dire, the court correctly noted that this is but one factor to be considered when determining whether the statement is trustworthy. Furthermore, the Court has recognized that "the reliability of in-court testimony of a young child victimized by a sexual assault is often affected by the stress of the courtroom experience, the presence of the defendant, and the prosecutor's need to resort to leading questions." State v. D.R., 109 N.J. 348, 360 (1998). Additionally, the lapse of time between the testimony and the event can also affect the child's ability to recall the incident. Ibid.
Here, defendant has not pointed to any motive to fabricate on the part of D.B. nor does the record indicate any. D.B. questioned J.B. very close in time to the happening of the event, thereby significantly limiting the opportunity for manipulation by other adults. J.B. was also described as being "frightened, nervous and very scared," an emotional state that is consistent with the content and subject matter of her statement. Finally, when asked what happened, J.B. referred to D.B. as "Mommy" and pointed to her vagina and buttocks. This response is one that would be expected from a three-year-old, and did not in any manner utilize vocabulary that would be unexpected of a child her age.
Finally, the second prong of the exception requires that the child either testify at the trial or, if unavailable, that there be "evidence corroborating the act of sexual abuse." Here, while J.B. did not testify, there was corroborating evidence in the form of S.F.'s testimony. Although S.F. did not witness the entire assault on J.B., we are satisfied that she saw enough to meet the corroboration requirement. We note that the rule does not require a certainty of trustworthiness, but only a "probability." Thus, there was sufficient credible evidence in the record to support the court's decision to admit the statements under N.J.R.E. 803(c)(27). See State v. Locurto, 157 N.J. 463, 472-74 (1999).
Having determined that the statement was properly admitted under the terms of the N.J.R.E. 803(c)(27) exception, we address defendant's claim that because J.B. did not testify at trial, the admission of her out-of-court statements was a violation of the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, supra.
In Crawford, the Supreme Court held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. The Supreme Court, however, declined to define "testimonial," but did note the following: "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203.
In Davis v. Washington, __ U.S. __, 126 S.Ct. 2266, 2273-74, 165 L.Ed. 2d 224, 237 (2006), the Supreme Court recently clarified the meaning of "testimonial," stating:
Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis made clear that "interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator," constituted "testimonial hearsay." Id. at ___, 126 S.Ct. at 2276, 165 L.Ed. 2d at 240. "[I]t is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Id. at ___ n.1, 126 S.Ct. at 2274 n.1, 165 L.Ed. 2d at 237 n.1. The Supreme Court found it "unnecessary to consider whether and when statements made to someone other than law enforcement personnel are 'testimonial[.]'" Id. at ___ n.2, 126 S.Ct. at 2274 n.2, 165 L.Ed. 2d at 238 n.2.
In State v. Buda, 389 N.J. Super. 241 (App. Div. 2006), certif. granted, ___ N.J. ___ (2007), we recently addressed the effects of Crawford and Davis on out-of-court statements in the context of the abuse of children. There, we held that statements made by a non-testifying three-year-old victim to a DYFS worker were testimonial and, thus, inadmissible under the Confrontation Clause. Id. at 256. The DYFS worker spoke with investigators from the Prosecutor's Office before speaking with the child, was called to the hospital to conduct an investigation, the statement was taken when the child was no longer in danger, and there was no "ongoing emergency." Id. at 255.
However, we also held that a statement by the child victim to his mother about the abuse was admissible. Id. at 256. There, the child blurted out to his mother that the mother's fiancé had beaten him, without any questioning by the mother. Id. at 244. We found support for our holding in State in the Interest of J.A., 385 N.J. Super. 544 (App. Div. 2006), where we noted that "spontaneous or volunteered statements to law enforcement officers, or statements that are in response to open-ended or minimal question by law enforcement, particularly those at the scene of the crime" are admissible, as are responses to "on-the-spot police questioning" provided that it was not aimed at the preservation or production of evidence. Id. at 555-56. We also noted that most courts seem to treat statements to family members, "particularly in close proximity to the event and not in response to any interrogation at the request of the police or otherwise as non-testimonial." Buda, supra, 389 N.J. Super. at 256 n.11.
At the outset, we note our disagreement with the judge's finding that J.B. was "available" to testify. While she was physically present, her responses on voir dire demonstrate that cross-examination would have been utterly fruitless. As a result, she was unavailable for Confrontation Clause purposes. Nevertheless, we conclude that J.B.'s several statements to her mother were not testimonial. The statements were made before any police involvement. The first statement made to D.B. was made before the police were even contacted about the incident. Additionally, the statement was made shortly after the incident occurred when J.B. was frightened, nervous and very scared. The record also shows that while the statements were in response to questioning, the questions were open-ended and designed to determine if J.B. was physically injured. The second statement came within an hour of the alleged assault when D.B., while waiting for police, sought to determine the events that caused J.B. to point to her vagina and buttocks and to say, "Mommy, it hurts." There is no indication in the record that D.B. was asking these questions in the hopes of obtaining evidence for a future prosecution against defendant. This was simply a situation where a mother was attempting to determine if her young daughter was injured, and if so, how and to what extent. There was no confrontation violation under the circumstances.
Defendant argues that there was no factual basis for the endangering conviction beyond the commission of the sexual assault and therefore the convictions should merge. Defendant relies upon State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992), as support for this proposition. We disagree.
In Still, the court held that merger of sexual assault and endangering the welfare was appropriate, "at least in  circumstances where the record suggests no basis for the endangering conviction beyond the sexual assault." Ibid. Defendant argues that because he was acquitted of the August 21 incident (the acquittal for luring), the August 28 incident (the basement) was the only basis upon which he could be convicted of endangering the welfare of a child. However, as the State points out, defendant fails to recognize that at the beginning of the trial the indictment was amended, without objection, to reflect that the events underlying count ten of the indictment encompassed August 21 through August 28, 2001. The indictment charged that the victims of the endangering were J.B. "and/or" S.F.
"[A] court considering whether to merge convictions should focus on elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case." State v. Dillahay, 127 N.J. 42, 47 (1992). In examining merger, the court may consider factors such as: the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. [State v. Allison, 208 N.J. Super. 9, 23-4 (App. Div.), certif. denied, 102 N.J. 370 (1985).]
Turning to the two convictions at issue in this case, a person is guilty of endangering the welfare of a child in the third degree if he or she "engages in sexual conduct which would impair or debauch the morals of the child." N.J.S.A. 2C:24-4(a). On the other hand, the offense of luring is defined as follows:
A person commits a crime of the second degree if he attempts, via electronic or any other means, to lure or entice a child or one who he reasonably believes to be a child into a motor vehicle, structure or isolated area, or to meet or appear at any other place, with a purpose to commit a criminal offense with or against the child. [N.J.S.A. 2C:13-6.]
In this case, the judge noted that the basis for the endangering conviction was the showing of pornographic magazines to S.F. on August 21, 2001. This was an entirely permissible conclusion because, as noted earlier, the indictment was amended to include conduct on August 21, 2001, as to the endangering charge, and S.F. was listed in the indictment as one of the victims of the endangering. Even if defendant did not "lure" S.F. into his apartment on August 21, the evidence supported a conclusion that he still engaged in conduct proscribed by N.J.S.A. 2C:24-4(a) when he showed S.F. the pornographic magazines and attempted to force her to look at them. In any event, it is not necessary to speculate as to what the jury may have been thinking because "consistency in the verdict is not necessary. Each count in an indictment is regarded as if was a separate indictment." State v. Banko, 182 N.J. 44, 53 (2004) (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-58 (1932)).
Therefore, because there were two separate acts on separate days, and a separate factual basis for each, the convictions did not merge.
As stated earlier, the judge sentenced defendant to the following terms of imprisonment: a term of seven years with an eighty-five percent parole disqualifier on count three; a term of seven years on count six, to be served concurrently with count three; a term of eighteen months on count eight, to be served concurrently with counts three and six; and a term of four years on count ten, to be served consecutively to the other counts.
Defendant begins his attack on the sentence by claiming that the judge improperly found and balanced the aggravating and mitigating factors. First, we note a discrepancy between the aggravating and mitigating factors found on the record and those entered on the Judgment of Conviction. In such circumstance, it is the sentencing transcript that controls. State v. Murray, 338 N.J. Super. 80, 91 (App. Div.) (citations omitted), certif. denied, 169 N.J. 608 (2001). Therefore, we only address those factors mentioned in the transcript.
In his oral opinion, the judge found the following aggravating factors: N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of the harm inflicted on the victim); N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and N.J.S.A. 2C:44-1(a)(9) (need for deterring defendant and others from violating the law). The judge then balanced these with the following mitigating factors: N.J.S.A. 2C:44-1(b)(7) (no prior record) and N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond positively to probation). The judge found the cited factors to be of equal weight.
When dealing with sentence review, we must ensure that "an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence"; "that the factfinder apply correct legal principles in exercising its discretion"; and that sentences will only be modified when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). We must also make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable. Id. at 364-65.
Defendant's first argument is that the court should not have found aggravating factor (2) because the age of the victim is an element of the offense. In finding aggravating factor (2), the judge stated that it was based on the extreme youth of J.B., who was three years old at the time of the assault. Given the extreme youth of the child, this did not constitute double counting. See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (finding that extreme youth ( age four) of the sexual assault victim was a proper aggravating factor at sentencing).
Defendant also argues that it was improper for the court to find aggravating factor (3) (likely to re-offend) based on the fact that defendant had no prior record other than the current conviction. The defendant also contends that the fact that the court found him a good candidate for probation also counsels against the application of this factor. However, in applying aggravating factor (3), the judge did not rely on the conviction itself, but rather on the fact "that [defendant's] behavior, his comments to the probation department, his behavior that day, his testimony on the stand, all those things are bizarre. And I do find that there's a risk he'll commit another offense. . . ." Thus, the record shows that the judge did not impose this factor based solely on the conviction.
As to the mitigating factors, defendant incorrectly states that the court found mitigating factor (2). The record does not support this assertion. Defendant also concludes that the judge should have invoked mitigating factor (7) based on the defendant's lack of criminal history. However, the judge did so. Defendant's final argument is that the court should have considered the fact that he cooperated with police by consenting to a search of his home (N.J.S.A. 2C:44-1(b)(12)). However, the record also indicates that defendant was initially very evasive during his questioning. As a result, there was evidence in the record to support the judge's decision not to apply this factor. Thus, the judge did not abuse his discretion in balancing and weighing the aggravating and mitigating factors.
Defendant's next effort to reduce his sentence focuses on the judge's decision to impose consecutive, rather than concurrent, terms for the substantive sex offenses and the endangering conviction.
When dealing with whether or not to impose concurrent versus consecutive sentences, a court must conduct the analysis articulated in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). The so-called Yarbough factors are as follows:
(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;
(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.*fn2
Defendant's arguments are, again, based on a mistaken reading of the indictment and its subsequent amendment. He premises his argument on the fact that he was acquitted of luring and on the judge's statement that the offenses did not occur at the same time. As discussed previously, the endangerment charge included the incident on August 21, 2001.
Here, the judge decided to sentence defendant consecutively on the endangering charge because it was a separate offense occurring at a different time. The judge acknowledged his obligation to apply the Yarbough factors and his determination is supported by the record based on the amended indictment. Therefore, it was not a misapplication of discretion to sentence defendant to consecutive terms.
Defendant's next argument is that the judge impermissibly made findings of fact independent of the jury. Defendant bases this on the fact that the judge found the endangering offense to happen at a separate time, even though the jury acquitted defendant of luring. Again, defendant fails to consider the amendment of the indictment. As discussed in the section on merger, the jury found defendant guilty of child endangerment, thereby supporting the judge's statement that the offenses occurred at separate times. There was no independent fact finding by the judge. Defendant was sentenced based on facts found by the jury, and there was no error in that regard.
Defendant's final argument is wholly without merit. Defendant argues that he is entitled to a remand for resentencing because the court used a presumptive sentencing scheme. Defendant is incorrect. Because he was not sentenced above the former presumptive term, he is not entitled to a remand for reconsideration of his sentence pursuant to State v. Natale, 184 N.J. 458 (2005).