August 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY H. TANNER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-128-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2007
Before Judges R. B. Coleman and Gilroy.
Defendant Jeffrey H. Tanner appeals from the denial of his application for admission to the Pretrial Intervention Program (PTI) and the denial of his motion for reconsideration post-trial. On June 26, 2003, defendant and co-defendant Raul R. Angeles, were charged in Monmouth County Indictment No. 03-06-128-S with fourth degree endangering the welfare of children based on possessing or viewing child pornography, contrary to N.J.S.A. 2C:24-4b(5)(b) (count four). Angeles was also charged with three counts of second degree official misconduct, contrary to N.J.S.A. 2C:30-2 (counts one, two, and three).
Defendant was indicted after New Jersey authorities were informed that a computer website with child pornography, www.boyswillbeboys.net, was operating in Hackensack. Police seized over five-thousand images of alleged child pornography, as well as the website's subscription database, which contained the names of defendant and co-defendant, their e-mail addresses, and password information. After further investigation, State Police executed a search warrant on the home that defendant and Angeles shared in Asbury Park. Defendant waived his Miranda*fn1 rights, told the police both he and Angeles had subscription accounts to the www.boyswillbeboys.net website, and acknowledged visiting the website on "several handfuls" of occasions and viewing images of unclothed individuals. He denied viewing sexually explicit images or saving anything that he viewed.
The police seized three computers from the home and a large quantity of storage media, including zip discs, floppy diskettes, undeveloped film and VHS cassettes. One of the computers, a Macintosh Apple, was found in the upstairs bedroom and was operational. A Compaq Presario was also found in the bedroom, but it was disconnected. The third computer, a Quantex, was located in the basement underneath a table and it was disconnected. All of the storage media were found in the attic.
Computer forensic examiners discovered an array of suspected child pornography on the computers seized from defendant and co-defendant. Eighty-five images of suspected child pornography were found in the "allocated"*fn2 space on the hard drive of the computers. Suspected child pornography was found on two videos and on one floppy diskette recovered from the attic.
Following his indictment, defendant applied for admission into PTI. The application was denied, and defendant appealed.
On September 22, 2003, Judge Anthony J. Mellaci, Jr. entered an order remanding the matter back to the Attorney General for reconsideration, determining that defendant had been rejected solely because of the nature of the offense without properly considering the other statutory factors. The State reconsidered defendant's PTI application, but again denied him admission on October 10, 2003. Defendant appealed, and Judge Mellaci affirmed the denial of PTI.
Defendant and co-defendant Angeles were jointly tried before Judge Ira E. Kreizman and a jury for eight days commencing on September 22, 2004. At trial, the State introduced the images retrieved from the defendants' computers and storage media. The majority of the images depicted casually posed, unclothed young men. Many of the pictures were of a single person; few contained two persons engaged in a sexual act. Most of the images were retrieved from "unallocated" space. Several of the images were of a young man identified as Jesse. Detective Paul Cales of the Kentucky State Police identified Jesse as the person in at least thirteen images on defendant's computer. Detective Cales knew Jesse as a young man born in 1985 and identified those photos as having been taken when Jesse was fourteen years of age.
When defendant testified at trial, he admitted that the Macintosh and Compaq computers belonged to him, and that he subscribed to the www.boyswillbeboys.net website. He admitted viewing pictures of individuals on the www.boyswillbeboys.net website*fn3 , but denied that any of the individuals appeared to be youthful or that any of the images depicted anyone engaged in a sexual act. Defendant denied that he ever viewed any videos on the website, and denied that he saved any of the images or knew that the computer had automatically done so. Defendant testified that both he and Angeles used the computers, that he did not know what Angeles did when he was on the computer, and specifically denied viewing, downloading or saving any of the alleged pornographic images introduced into evidence. Similarly, defendant denied viewing or saving the videos or images on the floppy diskette.
Defendant was convicted of the charge of endangering the welfare of children. Defendant then renewed his application for admission into PTI and moved for a new trial, arguing that the conviction was against the weight of the evidence. After a hearing on February 25, 2005, Judge Mellaci denied the motion for reconsideration. Judge Kreizman then denied the motion for a new trial.
On April 29, 2005, defendant was sentenced to a probationary term of one year with the condition that he have no contact with children under the age of sixteen. All appropriate penalties and assessments were imposed.
On appeal, defendant argues:
TANNER'S REJECTION FROM PTI WAS A PATENT ABUSE OF THE PROSECUTOR'S DISCRETION.
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION FOR POSSESSION OR VIEWING OF CHILD PORNOGRAPHY.
DOUBT ABOUT THE JURY'S CONSENSUS REQUIRES THE VERDICT TO BE SET ASIDE.
After carefully considering defendant's arguments, in light of the facts and the applicable law, we affirm.
Prosecutors have great discretion in selecting whom to prosecute and whom to divert to an alternative program such as PTI. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). A prosecutor's refusal to admit a defendant into an alternative program will be overturned only where a defendant can show, by clear and convincing evidence, that the decision was a patent and gross abuse of discretion. State v. Wallace, 146 N.J. 576, 584 (1996); Leonardis II, supra, 73 N.J. at 382.
A patent and gross abuse of discretion is a "prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Wallace, supra, 146 N.J. at 583-84 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)). In State v. Bender, 80 N.J. 84 (1979), the Court elaborated:
Ordinarily an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. [Id. at 43 (citation omitted).]
Defendant argues that his rejection from PTI was a patent abuse of the prosecutor's discretion, however, there is no evidence to support that contention. The prosecutor had multiple reasons to deny defendant's admission into PTI: (1) defendant was a paid subscriber to an internet website that contained pornography; (2) eighty-five images of child pornography were found in allocated space on the hard drive of defendant's computer; (3) several video files containing child pornography were found on the computer; (4) over one-thousand images were found in unallocated space on the computer; (5) thirty-four images of suspected child pornography were found on the floppy disks. Weighing those factors, it was not a patent and gross abuse of discretion for the prosecutor to deny defendant entry into PTI. There has not been a showing that the prosecutor failed to consider those facts, and, therefore, his decision should not be disturbed.
Defendant further argues that the evidence at trial was insufficient to sustain his conviction. However, the definition of endangering the welfare of a child includes:
Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree. [N.J.S.A. 2C:24-4b(5)(b).]
While defendant argues that there was not enough evidence to support a conviction on the possession of child pornography, we note that the statute proscribes either the viewing of that pornography, or the possession, and the jury did not necessarily need to find both to sustain a conviction.
Generally, to determine the sufficiency of the evidence, the court gives the State the benefit of all favorable inferences, and determines whether a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967). Here, the evidence that defendant viewed child pornography was overwhelming. He was a paid subscriber to a website that contained thousands of images of child pornography; he admitted visiting the website and viewing the images; defendant's computer and name were linked to the images; and although he gave a different version at trial, there is evidence in a pre-trial admission that he was aware that some of the images were of children under sixteen years of age.
Lastly, defendant argues that the trial judge should have presented the jury with an interrogatory to determine whether or not his conviction was based upon knowingly possessing child pornography, or viewing child pornography, and to identify which images the jury found to constitute child pornography. There are some circumstances when a general charge on jury unanimity may not be sufficient. State v. Parker, 124 N.J. 628, 635-36 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483; 117 L.Ed. 2d 625 (1992). These circumstances include: (1) when a single crime can be proved by different theories based on different acts and at least two of these theories rely on different evidence, and when the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory; (2) where the facts are exceptionally complex; (3) where the allegations in a single count are either contradictory or only marginally related to one another; (4) where there is a variance between the indictment and proof at trial; or (5) when there is a genuine possibility of jury confusion. State v. Frisby, 174 N.J. 583, 597-98 (2002); Parker, supra, 124 N.J. at 635-37; State v. Chavies, 345 N.J. Super. 254, 276 (App. Div. 2001).
There is nothing in the record to reflect that a general charge on jury unanimity was not sufficient. The viewing or possession of child pornography were related to each other, involved the same proofs and were not contradictory. The State presented one consistent theory of prosecution, that defendant used his computer to access a website in order to view and possess images of child pornography. Furthermore, there was no indication of jury confusion. See Parker, supra, 124 N.J. at 639. The general unanimity instruction was sufficient because the viewing or possessing of child pornography allegations in the endangering count of the indictment were alternative factual bases for the offense and they were not complicated or confusing.