October 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS STILES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-06-00526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Cuff, Lisa and Lihotz.
Tried to a jury, defendant was convicted of second-degree attempted aggravated assault, N.J.S.A. 2C:14-2a(1) and N.J.S.A. 2C:5-1a(3) (count one); third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1a(3) (count two); and third-degree luring, N.J.S.A. 2C:13-6 (count three). Defendant was sentenced on count one to eight years imprisonment, subject to an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On counts two and three, defendant was sentenced to four-year prison terms, concurrent with each other and with count one.*fn1
In the brief submitted by his attorney, defendant raises the following arguments:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S DENIAL OF DEFENSE COUNSEL'S MOTION TO DISCHARGE THE JURY AND BEGIN JURY SELECTION ANEW AFTER A PROSPECTIVE JUROR PROVIDED INFORMATION DURING JURY VOIR DIRE ASSOCIATING THE DEFENDANT WITH THE OFFICE OF THE PUBLIC DEFENDER.
THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM PRESENTING AN IMPORTANT DEFENSE WITNESS.
THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING ENDANGERING THE WELFARE OF A CHILD INTO COUNT I CHARGING ATTEMPTED SEXUAL ASSAULT.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.
In a supplemental pro se brief, defendant raises the following additional arguments:
FIRST POINT OF ARGUMENT
THAT THE ACTIONS OF THE APPELLANT DID NOT VIOLATE THE STATUTES BROUGHT FOURTH BY THE STATE OF NEW JERSEY
SECOND POINT OF ARGUMENT
THAT DETECTIVE DUNN DID NOT HAVE PROBABLE CAUSE. THE APPELLANT WAS DENIED DUE PROCESS OF THE LAW THIRD POINT OF ARGUMENT THAT DETECTIVE DUNN DID NOT HAVE JURISDICTION TO ENTER AOL TO CONDUCT AN INVESTIGATION. THE APPELLANT WAS DENIED DUE PROCESS OF THE LAW FOURTH POINT OF ARGUMENT THAT THE APPELLANT WAS DENIED EQUAL PROTECTION OF THE LAW FIFTH POINT OF ARGUMENT THE JUDGE'S CHARGE TO THE JURY WAS ERRONEOUS, WHICH LEAD TO THE APPELLANT TO ONLY BEING ABLE TO BE CONVICTED BY THE JURY WITH NO AVENUE FOR INNOCENTS, DENYING HIM HIS RIGHT TO A FAIR AND IMPARTIAL JURY, AND VIOLATING HIS RIGHT TOWARDS DUE PROCESS.
With respect to Point VI in counsel's brief, the State concedes and we agree that the matter must be remanded for resentencing on count one pursuant to State v. Natale, 184 N.J. 458 (2005). Accordingly, we will not further address the arguments in Point VI, nor will we address the other sentencing arguments, which are contained in Point V of counsel's brief.
We agree with the merger argument raised in Point IV of counsel's brief, and, for the reasons we will later discuss, we direct that count two be merged with count one.
We reject the remaining arguments in both briefs. The arguments raised in Point III of counsel's brief, and the arguments raised in the Second and Fifth Points of appellant's pro se brief lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we will not discuss them.
Accordingly, we affirm defendant's conviction on all three counts and his sentence on count three, but we remand for entry of an amended judgment of conviction reflecting the merger of count two with count one and for reconsideration of the sentence imposed on count one pursuant to Natale.
When the crimes occurred, in March 2003, defendant was thirty-five years old. Members of the Cumberland County Prosecutor's Office Internet Crimes Against Children Task Force conducted what is commonly referred to as a sting operation. The Task Force registered and paid for an internet account with America Online (AOL). Investigator Keith Dunn, a Task Force member, using invented screen names and corresponding profiles, entered AOL chat rooms. The created names and profiles were of fictitious young boys or girls.
Using the invented screen name, Dunn would enter particular member-created special interest chat rooms. Upon entry into a chat room, it is possible to participate in the chat room's general conversation or engage in private instant messaging (IM) conversations with specific individuals in the room. Dunn complied with the Task Force policy which did not permit an investigator to initiate a private conversation with a potential suspect. Once instant messages would begin to arrive, however, Dunn would exit the general chat room and engage in one-on-one conversations initiated by another.
At 3:36 p.m. on March 18, 2003, Dunn used the screen name "LizD1990" to enter the AOL chat room "Iluvmucholdermen." Dunn had created a profile for LizD1990. Under "name," he entered "Elizabeth, Liz, Lizzy, Cutie." He completed the profile with other playful entries; for example, Liz's "personal quote" was "boys ma age r such DORKS!!!!"
As soon as Dunn entered the chat room, he typed two entries: "Hiyee" and "12 F NJ only guys from near NJ IM me please." These comments sparked a few joke responses, such as, "LOL, jail bait"; "all New Jersey pedophiles line up"; and "[h]ave some Ovaltine, Liz."
Dunn also received an instant message from "Stigol67" at 3:38 p.m. that he did not consider a joke. This AOL user turned out to be defendant. His profile listed his name as "For you to gain my trust and ask." Under hobbies and interests, he listed "[m]ost all, but the best is to [be] found in bed." Stigol wrote that his "favorite gadgets" were "[y]oung and tight . . . well let you figure that out."
An hour-long conversation ensued, featuring increasingly sexual dialog initiated by defendant. He continually asked Liz whether she was "really 12." He inquired whether Liz was a virgin to all things or if she had ever performed oral sex. He asked for her description, and expressed his delight that she was five feet tall and almost ninety pounds.
Defendant pressed for a private meeting, suggesting an isolated location near where she lived, recognizing that at her age she could not drive. She expressed interest in such a meeting but explained the difficulty of getting away from the supervision of her mother. Defendant told Liz to be careful and inquired whether anyone could see her computer screen.
Liz and defendant exchanged pictures during the conversation. Dunn forwarded the childhood picture of a fellow investigator. That photograph is reproduced in the record, and it plainly depicts a child not more than twelve years old.
The two agreed to meet at an abandoned parking lot, although there was a long conversation about Liz's ability to sneak out of dance class and return before her mother got home. The arrangements were made, but because of car trouble, Dunn was unable to intercept defendant at the designated meeting place.
The next morning, Dunn received an e-mail from defendant that had been sent the previous evening, which said, "Hey I waited till 5:30 for you but didn't see you... saw a car that kept going around, so I booked. E-mail me or IM me..I'll be on till midnight." Liz responded at 8:59 a.m. She stated that she could not meet Stigol because her mother came home as she got out of the shower and drove her to the dance studio. There was no further contact on March 19, 2003. However, defendant sent a lengthy e-mail at 4:26 a.m. on March 20. It read:
Hmmm, ok... but I'm still being very careful till you meet and play with me. Still have to be careful till I know you are for real. I was there, no lie... just got spooked because of another car driving around... thought maybe you could have been a cop or called the cops on me. I think we should try on Saturday to meet. In the morning, this way we can meet, talk, kiss and play without rushing. I would like to pick another place easier togo for you to have you wait and I would pick you up and bring you back to my place where we could sit on the couch and show me what you know. Start with a little kissing, feeling and then stripping each other. You want to feel my cock in your hands? Maybe suck on me like the big girls do? I can teach you if you are eager. Do you have tits yet? Small would be nice and flat chested is cool too. I can get off sucking on just your little nipples, but I really want to bury my face inbetween your legs and see if you have red hair down around your pussy too and taste you after you get wet for me. Write to me or IM me later and tell me what you want me to do to you once we get back to my house... tell me anything. Question, when was that pic taken? I love your face, nice smile, pretty eyes and love your red hair... are you going to smile like that when I lick your pussy?
If any of this is too much, that is cool too ... just let me know and we can go at your speed... ok got to go, caught [sic] you later. TJ The parties continued to exchange instant messages. Defendant continued to graphically describe the sexual acts he intended to perform with Liz. Her responses made clear that she was young and sexually inexperienced. Although she continued to express interest in sexual activity, she also continued to express apprehension about whether it would hurt, whether she might get pregnant, whether she might get caught, and the like.
A meeting was arranged at a local car wash at a specified time. In their conversations, defendant suggested that when they met they could drive to his house, where they could be alone and perform the sexual acts.
Dunn and other law enforcement personnel surveilled the car wash. At the designated time, defendant arrived driving a vehicle described in the conversation and proceeded immediately to the specific meeting place that had been discussed. Dunn and another officer arrested defendant for setting up a meeting for the purpose of having sex with a twelve-year-old girl.
Defendant was advised of his Miranda*fn2 rights. He acknowledged them and initialed a Miranda form. He acknowledged to Dunn that his reason for being there was "because the girl was really cute." Defendant consented to the search of his home and computer hard drive.
Dunn and other officers went to defendant's home. Defendant told the officers he lived there alone, that no one else used his home computer, and no one else could access his screen name. When the officers arrived at defendant's home, the computer was open and the picture sent by Dunn of the young girl that was purportedly Liz was on the screen.
At the stationhouse, defendant gave a lengthy tape-recorded statement. He acknowledged his ongoing communications with Liz, that he went to the designated parking lot to meet her when she did not arrive, and that he continued pursuing her with the intention of engaging in sexual activity. He gave no indication that he believed he was role-playing with an individual who was actually an adult but was merely pretending to be twelve years old. The taped statement was submitted to the jury at trial.
Defendant testified in his own behalf. He acknowledged that he had frequented the "Iluvmucholdermen" chat room for about one-and-one-half years prior to his arrest. He said he pursued sexual relationships with several women with whom he first spoke online. On this occasion, he did not view Liz's profile until after he initiated the conversation. Nevertheless, he disregarded the profile information because, based on his experience, he knew that no young girl could have an AOL profile or enter a mature chat room. He based his knowledge of AOL's parental controls on his efforts to create a limited screen name for his young son.
Defendant contended that he made the increasingly sexual comments to Liz because he believed he was role-playing with an adult, in spite of the many references to Liz's young age and her mother and grandmother. He said he made the sexual comments because he wanted to discern the sexual experience and proclivities of the woman with whom he was communicating and to indulge her fantasies. He insisted that he believed he was dealing with an adult. He pointed to several aspects of the conversations which to him suggested she was an adult. As to Liz's petite size, defendant described a former adult girlfriend of his who was about the same size. He contended that he believed Liz's "dance class" referred to an adult dance hall or a private gentlemen's club.
Dunn acknowledged under cross-examination that AOL rules require an individual to be at least eighteen to create a profile. He agreed that, when setting up a new screen name, AOL asks the user, "Are you creating this screen name for a child?" AOL then provides a parent disclaimer form encouraging parents to utilize particular parental controls in order to protect the safety and privacy of their children. These parental settings permit the parent to choose the appropriate age category for the child. When a parent selects the "under twelve" age category, the child cannot use AOL's IM service and can only enter monitored chat rooms. The child could not access the "Iluvmucholdermen" chat room.
Dunn agreed with defense counsel that he logged into AOL as someone with no parental controls. However, Dunn refused to believe that this supported defendant's claim that no young child could be present in the chat room. Dunn did not know the date AOL placed the parental control information on its server. Dunn believed an underaged individual could create a screen name and enter a mature chat room if he or she was determined to do so. For example, a knowledgeable thirteen-year-old could get a password cracker to ascertain the master screen name password, and then follow the basic procedure to create his or her own screen name.
The jury obviously rejected defendant's contention that he was role-playing and convicted him of the offenses we have described.
During jury selection, a prospective juror divulged that through her education and work as a probation officer, she knew members of both the prosecution and defense teams. The following colloquy occurred in open court:
THE COURT: Are you familiar with [the prosecutor] in the professional capacity as being a prosecutor in Salem County --
MS. [W.]: Yes.
THE COURT: -- is that correct? Would that in any way affect your ability to be fair and impartial?
MS [W.]: No.
THE COURT: You know him only in a professional capacity --
MS [W.]: Correct.
THE COURT: -- is that correct?
MS [W.]: I also know two of [the defense] witnesses, Detective Suarez, Joel Cassidy. I interned at the Public Defender's Office in 2001.
Defense counsel immediately moved for a mistrial, arguing that the juror's statement would lead the jury panel to conclude that defendant lacked financial resources to hire counsel and would therefore be more likely to commit a crime. The judge excused that prospective juror but denied the motion and continued the jury selection process with the same panel.
On appeal, defendant argues that he was denied the right to a fair trial because the prospective juror's statement linking two defense witnesses, and, by implication, defendant, with the Public Defender's Office required the trial court to discharge the jury panel and select a jury from a new untainted panel. We do not find any mistaken exercise of discretion in the judge's determination.
We first note that the prospective juror's comment was very general and ambiguous. It would not necessarily lead anyone hearing it to conclude that defendant was in fact represented by a public defender. Further, the trial judge, hearing the comment in the context of the overall jury selection process and viewing the participants when it occurred, had the feel of the case and was in a better position than we, on viewing the cold record, to assess its potential impact. This circumstance induces us to defer to the trial judge's assessment.
Even if other prospective jurors were able to deduce from the statement that defendant was represented by a public defender, we do not believe there was any prejudicial impact. Comments tending to show a defendant's indigence could prejudicially influence a jury verdict in the trial of a "crime involving financial gain." State v. Mathis, 47 N.J. 455, 471 (1966). See also State v. Sherman, 230 N.J. Super. 10, 17 (App. Div. 1988) (applying Mathis to a robbery conviction); State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978) (same). Defendant in this case was on trial for sex crimes. There is no logical nexus between any perceived indigency and a motive to commit such crimes.
In view of the overall record of this trial, we cannot conceive that the prospective juror's fleeting comment had any influence on the jury's verdict.
We next address defendant's contention that the trial court committed reversible error in precluding the testimony of an important defense witness. During the course of the trial, in May 2004, defense counsel presented the prosecutor with a report of its investigator of an investigation conducted during the trial. According to defendant, the testimony of the investigator, as reflected in that report, was "vital to the success of the defense." Essentially, the investigator accessed AOL on May 13, 2004 and set up four screen names, each using a different age level parental control setting. The investigator reported she was unable to access the "Iluvmucholdermen" chat room under the account set up for a child twelve or under or from thirteen to fifteen years old, but was able to access it under the accounts set up for a child sixteen to seventeen years old or an individual eighteen or over.
The judge barred this evidence because of the discovery violation. Obviously, this investigation could have been conducted at any time within the fourteen months that elapsed between defendant's arrest and the trial. However, in ruling that the defense investigator would not be permitted to testify regarding the late discovery, the judge informed defense counsel that he would allow wide latitude in the cross-examination of Dunn covering the same subject matter.
Defendant effectively introduced the substance of the investigative report through a thorough cross-examination of Dunn. The judge required Dunn to sit in front of a computer and adhere to defense counsel's particular instructions about the necessary procedure to utilize AOL's chat rooms. This step-by-step instruction demonstrated to the jury that the user would encounter parental disclaimers during the creation of a screen name. It supported defendant's contention that he reasonably believed he was role-playing with an adult because a twelve-year-old girl could not access the mature chat room. We have compared the investigative report to this portion of Dunn's testimony and note that defense counsel's cross-examination followed the exact steps described in the report.
Thus, defendant was afforded the opportunity to present the substance of his investigative report through other means, namely through the testimony of and demonstration by the State's key witness. Evidence tending to favor the defense has a more favorable impact with the jury when it comes from a State's witness. For these reasons, while we are not persuaded that the judge mistakenly exercised his discretion in barring the defense witness from testifying, we conclude that if there was any error in that regard, it was harmless.
We begin our merger analysis by first looking at the charges in the indictment. Count one charged that between March 18 and 20, 2003, defendant engaged in a series of acts constituting substantial steps in a course of conduct planned to culminate in his commission of an aggravated sexual assault by stating to an individual on the internet whom he believed to be a child less than thirteen years old his intent to engage in acts of sexual penetration with her and then traveling to a predetermined location with the intent to engage in those acts. Count two charged that on the same dates defendant engaged in "substantial steps in a course of conduct planned to culminate in his commission of the crime of attempted endangering the welfare of a child, specifically by knowingly engaging in sexual conduct which would impair or debauch the morals of a child whom the actor believed to be under the age of 16 . . . ."
In his charge to the jury on the endangering count, the judge explained that the first element the State must prove is that the victim was a child under the age of sixteen. The judge then explained the second element thusly:
The second element that the State must prove beyond a reasonable doubt is that the defendant knowingly engaged in sexual conduct. Here the State alleges that the attempted sexual conduct on the part of the defendant were acts of aggravated sexual assault, and those acts have been described and are part of the evidence that you will be assessing and considering today. [Emphasis added.]
In rejecting defendant's merger argument at sentencing, the judge reasoned that there was sufficient evidence from which the jury could find that defendant's explicit sexual language in the course of the exchange of e-mails could provide a basis independent of the attempted aggravated sexual assault to support an attempted endangering conviction.
However, the jury rendered only a general verdict on the attempted endangering count, and any suggestion that it could have found an independent basis for attempted endangering is speculation. More importantly, the judge's instruction limited the jury to consideration of the same conduct that supported the attempted aggravated assault charge. This was consistent with the State's theory of the case.
Therefore, based upon the charges in the indictment, the evidence presented, and the judge's instructions to the jury, the same conduct supported the charges in count one and count two. As a result, the conviction under count two must be merged with the conviction under count one. See State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992) (merging convictions "where the record suggests no basis for the endangering conviction beyond the sexual assault").
In his pro se brief, defendant argues that his alleged conduct could not violate any law because no actual child victim existed. We do not agree.
Defendant's argument of factual impossibility fails to account for the Criminal Code's definition of attempt, which provides:
a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. [N.J.S.A. 2C:5-1.]
Under this statutory scheme, it is clear that the absence of an actual child victim does not exonerate defendant. See, e.g., State v. Condon, 391 N.J. Super. 609, 611, 617-18 (App. Div.) (concluding that "substantial step" attempt liability can be charged even in the absence of an actual child victim), certif. denied, 192 N.J. 74 (2007). Here, the relevant inquiry is whether the allegedly wrongful conduct would constitute a substantial step toward the commission of sexual assault and child endangerment "under the circumstances as a reasonable person would believe them to be," not as the circumstances actually were because of deception. The jury determined that the circumstances would suggest to a reasonable person that the online personality was a twelve-year-old girl. That determination is well supported by the record.
It is equally clear that defendant's conduct constituted a substantial step toward the commission of aggravated sexual assault and endangering the welfare of a child. "[T]he substantial step requirement in the attempt statute is satisfied if a defendant acts in a way that is strongly corroborative of the firmness of his purpose to carry out the crime." State v. Farrad, 164 N.J. 247, 258 (2000) (citations and internal quotation marks omitted). Defendant not only made many graphic and explicit sexual comments in the e-mails and online conversations, but also arranged a meeting and arrived at the scene. This conduct constituted a substantial step toward the commission of the charged crimes. See State v. Davis, 390 N.J. Super. 573, 589-90 (App. Div. 2007). Accordingly, the statute covered defendant's conduct and supports his conviction. See also Condon, supra, 391 N.J. Super. at 611, 617-18.
In the Third and Fourth Points of his pro se brief, defendant sets forth, for the first time on appeal, a claim of due process entrapment. Although the issue is not properly before us because it was not raised in the trial court, we nevertheless address it on the merits.
Defendant claims that Dunn did not have authority to enter a private AOL chat room with the avowed purpose to trap individuals wrongly alleged to be sexual predators. He argues that Dunn manufactured this sting to entice innocent chat room users to commit criminal acts. We reject this argument.
We dealt with a factually similar Internet sex sting in Davis, supra, 390 N.J. Super. at 580. In that case, an undercover investigation yielded an arrest of an individual claiming "he had committed no crime as he was fantasy role-playing with women he thought to be over the age of sixteen." Ibid. We rejected the entrapment argument because the defendant initiated almost all contact with the alleged child and escalated the sexual tenor of the conversations. We added that "[n]othing prohibits the police from creating characters to conduct undercover investigations. Rather, 'decoys, traps, and deceptions properly may be used to apprehend those engaged in crime or to obtain evidence of the commission of crime.'" Id. at 593 (quoting State v. Rockholt, 96 N.J. 570, 575 (1984)).
As in Davis, and contrary to defendant's assertions, Dunn did not goad defendant into criminal conduct. Dunn did not initiate the private IM chat with defendant. Rather, defendant began the conversation with his question about Liz's true age. When Liz responded that she was twelve, defendant quickly began to discuss sexual matters and to attempt to arrange a meeting. The facts do not support a finding of entrapment.
For the reasons stated, defendant's convictions on all three counts and his sentence on count three are affirmed. We remand for (1) entry of an amended judgment of conviction reflecting the merger of count two with count one (as a result of which the sentence on count two is vacated and count two is dismissed under the doctrine of merger), and (2) reconsideration of the sentence on count one pursuant to Natale.