October 30, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2225.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Weissbard and S.L. Reisner.
Defendant C.H. was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2A, for drugging and raping his daughter when she was eighteen years old, a crime resulting in her pregnancy and the birth of a child. He was also convicted of four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-2, for sexually molesting his daughter over a period of several years while she was a minor, beginning when she was eleven years old. He was sentenced to sixteen years in prison for the aggravated sexual assault conviction and four consecutive eight-year sentences on the child endangerment convictions, resulting in an aggregate sentence of forty-eight years. He appeals from his convictions and the sentence. We affirm.
Defendant's daughter I.C. was twenty-three at the time she testified at trial. She testified that defendant began molesting her when she was eleven years old. He began by beating her on her bare buttocks. Then, on three occasions, he inserted his finger in her anus. When she was thirteen, he began forcing her to have vaginal intercourse. He began forcing her to have anal sex with him when she was fourteen. He forced her to watch pornographic videotapes and tried to force her to perform the oral sex acts depicted on the tapes. She testified that his sexual assaults occurred frequently during a period of several years.
Defendant was also generally physically abusive to her, and would threaten to kill her if she told anyone about the sexual assaults. On one occasion he tried to choke her. On another occasion, he forced her head underwater in a bathtub and threatened to drown her. At some point, when she was fifteen, defendant expressed remorse and told her he wanted to have a normal father-daughter relationship. He continued to be physically abusive, but his sexual abuse ceased until 2000, when I.C. was eighteen.
She testified that in November 2000, she was at defendant's home and complained that she did not feel well. Defendant gave her some pills that he said would help her go to sleep. While I.C. was sleeping, she awoke and felt someone taking off her clothes and having sex with her. She could not open her eyes because she felt physically helpless. Some time later, she discovered that she was pregnant. She gave birth to a daughter. DNA testing revealed that defendant was the baby's father.*fn1 In July 2003, I.C. finally told her mother about the sexual abuse she experienced as a child.
In his trial testimony, defendant acknowledged that I.C. was his daughter and that he was the father of her child. He denied that I.C. visited him at all when she was eleven years old. He admitted beating her with a belt on one occasion when she was fourteen. However, he denied sexually molesting I.C. in any way when she was a minor. He claimed that I.C. made up the allegations to "cover up" because she did not want her boyfriend to know that defendant was the baby's father. He denied that he attempted to drown I.C., but he admitted running a bathtub full of cold water and telling I.C. to look at it and imagine what it was like to drown. He claimed he did this because I.C. took his young niece to the movies and left her alone there. He contended that the niece was molested while at the movies and later said she felt like she was drowning while she was being molested.
Defendant's explanation of the incident in which I.C. was impregnated was as follows. He testified that he was taking medication because he was not feeling well, and he called I.C. to come to his house to take care of him. He contended that I.C. "slept" with him in the course of taking care of him. "I don't know the reason why. When I asked, she told me she wanted to have a baby to show her mother how to love a child. This is what she told me. I really don't know why she did it." He claimed that I.C. had sex with him although he was incapacitated from the medication and did not know what was happening. He contended he did not know he had had sex with I.C. until two weeks later, when she told him about it. However, he admitted that in a statement to the police, he claimed that he and I.C. had voluntarily had sex a number of times after she turned eighteen. At trial, he claimed he made this up to protect I.C.'s reputation lest the police discover that she "just sexually assaulted me."
After the jury was charged, the attorneys brought to the judge's attention that one of the jurors had spoken briefly to defense counsel and told her that he thought his daughter knew defense counsel. The trial judge questioned the juror, who denied having discussed the case with his family, other than to mention the names of the attorneys. The juror also confirmed that defense counsel told him that she could not have a conversation with him and walked away. The juror confirmed that he could continue to deliberate impartially. Neither attorney asked to have the juror removed and the judge did not remove the juror. The jurors deliberated for a short time and were sent home for the night.
The next day, the judge indicated on the record that juror number twelve had advised the court that she had left for Florida and would not return to continue deliberations. Both counsel agreed that the court should choose an alternate juror. Neither counsel objected to the judge selecting alternate juror number one instead of choosing an alternate juror by lot.
The jury convicted defendant of aggravated sexual assault and child endangerment. In a lengthy and thorough oral opinion placed on the record on March 24, 2006, the trial judge sentenced defendant to sixteen years flat for the aggravated sexual assault and four consecutive eight-year terms for the child endangerment counts. Given an opportunity to address the court, defendant expressed no remorse, but instead told the judge to get on with the sentencing because the proceedings were interfering with his nap time. The judge noted that defendant had refused, despite a contempt citation, to be evaluated for placement in the sex offender unit at Avenel.*fn2 Consistent with State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed 2d 308 (1986), the judge gave a detailed explanation for imposing consecutive sentences.
On this appeal, defendant presents the following arguments for our consideration:
POINT I: THREE ERRORS RENDERED THE TRIAL PROCESS UNFAIR, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND TRIAL BY JURY AND NECESSITATING REVERSAL OF HIS CONVICTIONS AND SENTENCE. (Not Raised Below)
A. The Trial Court Violated Defendant's Right To A Jury Trial.
1. The Court Should Not Have Substituted An Alternate Juror After Deliberations Had Already Proceeded For Two Hours; It Should Have Declared A Mistrial.
2. The Court Should Not Have Permitted Juror 7 To Remain On The Panel After It Learned That He May Have Discussed The Case With His Family And Was Acquainted With The Daughter Of The Defendant's Counsel.
B. The Jury Was Not Instructed About The Effect Of Defendant's Claimed Intoxication On The Specific Mental State Required For The Aggravated Sexual-Assault Charge Under Count 12, Nor On How The Victim's Alleged Consent To The Act (As Defendant Claimed It Occurred) Affected The Crime's Elements.
C. The Prosecutor Skewed The Jury's Assessment Of The Victim's Credibility----The Key Issue In The Case----By Asking Defendant At Least Four Times To Comment On The Victim's Testimony.
POINT II: SENTENCING DEFENDANT TO MORE THAN THE MID-RANGE TERM FOR EACH CONVICTION, AND RUNNING EACH SENTENCE CONSECUTIVE TO EACH OTHER, RESULTED IN A MANIFESTLY-EXCESSIVE SENTENCE, REQUIRING REMAND.
Having reviewed the entire trial record, we conclude that defendant's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comment.
While defendant's sentence was severe, it was justified given the facts of this case. We cannot say it was an abuse of discretion, shocking to the conscience, or inconsistent with Yarbough, supra. See State v. Roth, 95 N.J. 334, 364-66 (1984). Defendant subjected the victim to repeated acts of violence and sexual degradation over a period of several years when she was a child. Finally, he drugged her and raped her when she was an adult. The principle that there shall be no free crimes is entirely applicable to this case. See Yarbough, supra, 100 N.J. at 643; N.J.S.A. 2C:44-5a ("There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.").