April 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN S. HILKEVICH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-09-0470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2008
Before Judges Skillman, Yannotti and LeWinn.
In September 1999, defendant was charged in a twenty-three count indictment with two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(2)(b), one count of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(2)(c), and numerous other lesser sexual offenses involving three male victims between the ages of thirteen and sixteen. At his first trial, defendant was convicted of two counts of aggravated sexual assault and most of the lesser offenses. The trial court sentenced defendant to an aggregate term of forty years imprisonment, with thirteen and one-third years of parole ineligibility. On appeal, we reversed defendant's convictions in an unreported opinion on the ground that the trial court had improperly barred an expert from testifying for the defendant due to the late production of his report. State v. Hilkevich, No. A-3632-00T3 (Mar. 5, 2003).
At the retrial, one of the alleged victims declined to testify, and the charges involving that victim were dismissed. A jury again convicted defendant of the two counts of aggravated sexual assault involving the other alleged victims as well as eight lesser charges. The trial court imposed consecutive fifteen-year terms of imprisonment, with five-year periods of parole ineligibility, for the two aggravated sexual assaults. The court also imposed a concurrent six-year term of imprisonment, with two years of parole ineligibility, for second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, and concurrent five-year terms of imprisonment, with two years of parole ineligibility, for two counts of aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3a. The court merged defendant's other convictions. Consequently, defendant is now serving an aggregate term of thirty years imprisonment, with ten years of parole ineligibility.
Defendant was a middle school science teacher with a master's degree in counseling services and a doctorate in psychology. In addition to teaching, defendant provided counseling and mentoring services to troubled youths through the Mercer County Youth Advocacy Program.
Defendant lived in a rural area surrounded by woods in Woodland Township and participated in a variety of outdoor activities including rappelling, canoeing and hunting. Defendant would bring the children he mentored as well as adults to his home to participate in those activities. Among the activities defendant engaged in with these participants were native American "sweat ceremonies." In such a ceremony, as described by defendant:
A rather large fire is built and rocks are placed on a fire for about two to three hours, then the rocks are brought in with a pitch fork and placed in a pit . . . and there's a bowl of water next to the ceremonial liter.
. . . And prayers are said and water is poured on the rocks and it's a very intense heat, sauna, and there's breaks, the door opens, we can go out and sometimes we leave and hose off or go into the lake and go back so the ceremony would take maybe two, three hours.
. . . [The ceremony] was divided into four phases, prayers were, certain prayers were said at the beginning of each phase and then there was, usually there was silence because of the heat and then discussions.
One of the victims of the sexual assaults the jury found defendant to have committed was A.C., a participant in the Youth Advocacy Program, who lived in a bad neighborhood in Trenton and came from a seriously dysfunctional family. Defendant became A.C.'s youth advocate when he was around twelve and a year or two later also became his counselor. A.C. made approximately twenty-five trips per year to defendant's home during the three or four year period defendant acted as his youth advocate and counselor. During this time, A.C. engaged in a variety of outdoor activities, including canoeing, rock-climbing, swimming, hunting, camping and sweat ceremonies. A.C. also helped defendant build a teepee.
The sexual assault defendant committed upon A.C. occurred around his fourteenth birthday, in the late spring or summer of 1995. The incident, which occurred in defendant's home, started with A.C. and defendant massaging each other. Defendant began massaging A.C. in the pelvic area and at some point asked A.C. how often he masturbated and when was the last time he had masturbated. After A.C. responded, defendant began touching A.C.'s penis, first with his hands and then with his mouth. As he did this, defendant said to A.C.: "[B]oys, men . . . shouldn't have that build up like that. We should get it out, get it tested, send it over to a lab[.]" A.C. did not ejaculate, and after some time elapsed, defendant stopped engaging in oral sex with him and went into the bathroom.
A.C. continued going to defendant's home for two or three years after this incident, and defendant never again attempted to engage in any sexual activity with him. A.C. did not report the sexual assault until two-and-a-half years later when an investigator from the prosecutor's office came to his residence and interviewed him.
The victim of the other sexual assault the jury found defendant to have committed was M.F., who came to know defendant while a student in his eighth grade science class. At that time, M.F. was suffering psychological problems as a result of his parents' separation and divorce. M.F. became friendly with defendant and at some point began going on camping trips with him. M.F. also went to defendant's home, where he engaged in various outdoor activities, including canoeing, rappelling and participating in sweat ceremonies. Defendant occupied the role of counselor to M.F. when he was experiencing problems with his parents and siblings as a result of the divorce.
The sexual assault defendant committed upon M.F. occurred when M.F. went to defendant's house in the summer of 1997 to attend his third sweat ceremony. M.F. was fourteen at the time. There were very few people at defendant's house when M.F. arrived, and the sweat ceremony apparently was not held. After dinner, defendant took M.F. for a canoe ride on the lake adjacent to his house. During the canoe ride, defendant brought up the subject of masturbation. Defendant asked M.F. whether he ever had a wet dream and told him that he could go into the woods to masturbate if he wanted to. M.F. did not accept this invitation, and the two of them returned to defendant's house after the canoe ride. When they were alone, defendant began massaging M.F.'s neck, which had been causing him problems. While he was doing this, defendant put his hand down the front of M.F.'s chest and into the top of his pants. After a while, defendant took M.F. to the teepee in his backyard, where they slept on adjoining beds. Defendant began messaging M.F. again, and he then dipped his hands into M.F.'s pants and grabbed his penis. After M.F. became erect, defendant turned M.F. around, pushed M.F.'s head down into his crotch and had him perform oral sex on him. Defendant's penis pushed against the side of M.F.'s mouth during this sexual assault. As a result, M.F. gagged several times and temporarily stopped performing oral sex. When this occurred, defendant pushed M.F.'s head back onto his penis. At some point, defendant ejaculated into M.F.'s mouth and then fell asleep. M.F. went back into the house and vomited. According to M.F., before he left defendant's house the next morning, defendant "hugged me and told me that when people love each other things can happen and it's okay and they don't need to discuss it."
M.F. never returned to defendant's house after this sexual assault. Defendant did not tell anyone about this incident until two years later, when he told a female friend about it. The girl notified her older cousin, who encouraged M.F. to disclose defendant's abuse. M.F. subsequently went to the prosecutor's office and gave a taped statement about the sexual assault.
Defendant took the stand and denied ever engaging in any form of sexual activity with either A.C. or M.F.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT'S EXCLUSION OF EVIDENCE THAT M.F. PREVIOUSLY MADE A FALSE CRIMINAL COMPLAINT WAS CONTRARY TO THE EXCEPTION TO N.J.R.E. 608 CARVED OUT BY THE SUPREME COURT IN STATE V. GUENTHER AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONFRONTATION CLAUSE RIGHTS AND HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE.
II. THE TRIAL IMPROPERLY RESTRICTED THE TESTIMONY OF THE DEFENSE'S PSYCHIATRIC EXPERT.
III. THE TRIAL COURT ERRONEOUSLY PRECLUDED THE DEFENSE FROM REHABILITATING DR. WEISS'S CREDIBILITY WITH TESTIMONY INDICATING THAT IT WOULD HAVE BEEN POINTLESS TO REVIEW THE VIDEOTAPED PORTION OF A.C.'S INTERVIEW BECAUSE THE VIDEOTAPE FAILED TO DEPICT THE FIRST HOUR OF THE INTERVIEW.
IV. THE TRIAL COURT ERRED IN REFUSING TO ORDER A PSYCHIATRIC EVALUATION OF A.C.
V. THE TRIAL COURT ERRONEOUSLY PERMITTED THE PROSECUTOR TO CROSS-EXAMINE DR. HILKEVICH BY CONFRONTING HIM WITH THE IRRELEVANT AND UNDULY PREJUDICIAL MAGNIFIED IMAGE OF HIS ERECT PENIS.
VI. THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DR. HILKEVICH OF A FAIR TRIAL.
VII. DR. HILKEVICH'S CONVICTIONS MUST BE REVERSED BECAUSE OF CUMULATIVE ERROR.
VIII. DR. HILKEVICH'S SENTENCE IS MANIFESTLY EXCESSIVE.
We reject the arguments presented under defendant's first seven point headings and affirm his convictions. However, we vacate the sentences imposed upon defendant for the two aggravated assaults and remand the case to the trial court for resentencing.
Defendant's first argument is based on the trial court's denial of his application to be allowed to cross-examine M.F. and introduce evidence regarding M.F.'s alleged false accusation that a teacher physically assaulted him in school. The proffer of this evidence was supported by a report of the institutional abuse investigation unit of the Division of Youth and Family Services (DYFS), which stated that M.F. had alleged that a teacher grabbed him by the neck and slammed him against a locker while he was walking down a school hallway and then punched M.F. in the stomach. M.F. also alleged that the teacher called he and a friend he was walking with "faggots." Another student supported M.F.'s version of the incident. A nurse who examined M.F. after the incident found no visible signs of bruising or injury.
After an investigation, the DYFS institutional abuse investigation unit determined that M.F.'s allegation of physical abuse was "unfounded." It also found that the teacher had engaged in physical and verbal horseplay with students and recommended to the superintendent of schools that the teacher receive counseling regarding the inappropriateness of horseplay with students.
In State v. Guenther, 181 N.J. 129, 154 (2004), the Court held that "in limited circumstances and under very strict controls a defendant has the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility." The Court set forth guidelines for determining whether prior false criminal accusation evidence would be admissible:
1. whether the credibility of the victim-witness is the central issue in the case;
2. the similarity of the prior false criminal accusation to the crime [***58] charged;
3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;
4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and
5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time. [Id. at 157.]
The Court also stated that a trial court "must ensure that the testimony of [an alleged prior false criminal accusation] does not become a second trial, eclipsing the trial of the crimes charged." Ibid. The Court's holding in Guenther was codified after the trial of this case by the adoption, effective July 1, 2007, of a new paragraph (b) of N.J.R.E. 608, which provides:
The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.
In denying defendant's application to cross-examine M.F. and introduce testimony regarding M.F.'s alleged prior false accusation, the trial court stated, referring to this new rule before its adoption:
Proposed Rule 608(b) says the credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which the defendant is charged if the Judge preliminarily determines by a hearing pursuant to N.J.R.E. 104(a) that the witness knowingly made the prior false accusation. It is clear that the accusation that was made by [M.F.], whether it was a knowingly made prior false accusation or not, is not in any way, shape, or form similar to the allegation in this case. The allegation is that the teacher punched him in the chest and held him up against the locker, thus being a physical assault rather than anything else and the allegation in this case that the witness is making against the defendant is of an entirely different nature. It is of a sexual assault.
Accordingly, the application by the defense to use this information for cross-examination purposes is denied.
We make the following additional observations regarding the trial court's refusal to allow such testimony. First, although defendant's version of his altercation with the teacher could have constituted a simple assault or the offense of endangering the welfare of a child, there is no indication that M.F. was aware his accusation could constitute a criminal offense, and he did not make the accusation to any person with criminal law enforcement responsibilities. Therefore, we question whether that allegation should be considered a "prior false criminal accusation." Second, the first time M.F. reported that defendant had sexually assaulted him was in August 1997, which was more than two years after he accused the teacher of physically assaulting him. Consequently, the alleged prior false accusation against the teacher was not reasonably proximate to M.F.'s accusation against defendant. Third, there were a number of other witnesses to the altercation between M.F. and the teacher, including one who supported M.F.'s version of what occurred. Moreover, M.F. never recanted the allegation, and the DYFS finding that that accusation was "unfounded" would not have been admissible. Thus, the presentation of evidence regarding this incident could have consumed a substantial amount of time. For all these reasons, the trial court did not abuse its discretion in excluding such evidence.
Defendant argues under Point II of his brief that the trial court improperly restricted the testimony of his psychiatric expert witness, Dr. Kenneth Weiss, in three respects.
To counter the assumption that persons in the position of A.C. and M.F. would not have admitted to being the victim of a homosexual assault unless the assaults had actually occurred, defendant sought to elicit testimony by Dr. Weiss that a person may obtain "secondary gains" from such an accusation. Dr. Weiss described this proposed expert testimony in his second report:
Another point regarding the reliability of these boys' adopting the role of victim is that there is "secondary gain" involved in taking on the role of victim rather than perpetrator. By this we mean that certain benefits or rewards come to an individual in the sick or victim position by virtue of the status accorded to such individuals by society. . . . There is another dimension to the social status given to victims of sexual abuse, namely, that they are given extra attention and status that would accrue to them in an institutional setting. Such dynamics could have been in play here.
At a hearing under N.J.R.E. 104, Dr. Weiss described the possible secondary gains a person may obtain by making a false accusation of sexual abuse:
One is that someone might be sympathetic toward them, they might get benefits or attention that they might not get otherwise, people might feel sorry for them, they might ingratiate themselves, they might be part of a class or a group and reap benefits by virtue of being a member of that group that they might not have otherwise, for example.
However, Dr. Weiss conceded on cross-examination that he could not relate this phenomenon specifically to A.C.'s and M.F.'s accusations against defendant:
Q: So when you say such dynamics could have been at play here, those dynamics could be at play in any case of sexual abuse, is that fair to say?
A: Yes. They should be considered.
Q: And so how do you make your finding to a reasonable degree of scientific certainty or medical certainty that they would be at play here?
A: I don't think that's what my testimony is.
Q: Cause you can't say to a reasonable degree of medical certainty or psychiatric certainty that those dynamics were at play with respect to [A.C.], can you?
A: No, not yet, not without examining him.
Q: And you can't make that finding with respect to [M.F.] either, can you?
A: That's right. I cannot.
In refusing to allow Dr. Weiss to testify on the subject of possible secondary gains to A.C. and M.F. from falsely accusing defendant of sexually assaulting them, the trial court stated:
Dr. Weiss has very candidly admitted he cannot say to a reasonable degree of medical certainty that with regard to either [A.C.] or [M.F.] that they had any secondary gain motive or avoidance motive or anything else in this case. It does this jury no good to hear that in the world in general it is possible that victims -- that people who are not victims of sexual abuse would characterize themselves inaccurately as victims of sexual abuse for this secondary gain motive. He admitted that it would not be in play some three or four years after the incident occurred, certainly not some nine or 11 years after the incident occurred, and absent all of that linkage, the testimony of the expert would not clarify any of the issues for the jury and more than that would confuse and muddy the issues for the jury.
We conclude that the trial court did not abuse its discretion in prohibiting Dr. Weiss from testifying about the possible secondary gains from reporting alleged sexual abuse because he was unable to link this psychological theory to the circumstances under which A.C. and M.F. reported defendant's sexual assaults and testified at trial.
Defendant also sought to elicit testimony from Dr. Weiss that a person in the position of defendant, who was educated in the field of psychology, would not have encouraged the placement of A.C. in a state facility for troubled teens if he had sexually assaulted him because defendant would have been aware that A.C. would be more likely to report the sexual assault in that environment than if he lived with defendant, as A.C. wanted to do. In State v. Cavallo, 88 N.J. 508, 520-26 (1982), the Court upheld the exclusion in a rape case of proposed expert testimony that the defendant did not have the psychological traits of a rapist because such testimony was not shown to have sufficient scientific reliability to warrant its admission. Dr. Weiss's proposed testimony that a sexual assailant would not encourage his victim to enter a residential treatment facility and instead would want the victim to live with him was similarly not shown to have sufficient scientific reliability to warrant its admission. This proposed testimony rested on a number of unstated and unproven premises: that defendant still would have feared such disclosure of his sexual activity with A.C. several years after the incident; that defendant would have been aware it was more likely A.C. would disclose the incident in an institutional setting; and that defendant's primary motivation in recommending a residential placement for A.C. would have been his own interest in avoiding disclosure. No evidence was presented regarding these implicit premises of Dr. Weiss's proposed testimony. It is also noteworthy that neither A.C. nor M.F. reported defendant's alleged sexual assaults in an institutional setting and that defendant never took any steps to place M.F. in an institution. Under all these circumstances, we perceive no abuse of the trial court's discretion in the exclusion of this part of Dr. Weiss's proposed expert testimony.
We question the trial court's exclusion of Dr. Weiss's proposed testimony that teenagers such as A.C. and M.F. are suggestible and that the failure of the prosecutor's office investigator, Detective Charles Loftus, to tape-record the beginning of his interviews of A.C. and M.F. prevented Dr. Weiss from determining whether their taped statements were the product of suggestion. This testimony would have been relevant, and we perceive no basis for exclusion. Moreover, the trial court's concern that such testimony would have improperly conveyed the impression to the jury that Detective Loftus had acted improperly by not recording the entire interview could have been easily avoided by allowing testimony that this method of questioning was consistent with then-prevailing practice. But even though we perceive no basis for the exclusion of this part of Dr. Weiss's testimony, we are satisfied that any error was harmless because testimony concerning the suggestibility of the alleged victims, particularly A.C., was elicited from Dr. Weiss.
Dr. Weiss testified at length regarding A.C.'s developmental disabilities and psychological problems:
My records indicate that [A.C.] is developmentally disabled and that he has been classified for educational purposes as multiply handicapped. Whether he's mentally retarded is on the border so his intellect may be in the low average range or might be what we call borderline intellectual functioning. Nevertheless, his intellectual endowment is below what we would consider the average person to have. He has had some documentation of behavioral problems as well going back to the mid '90s, at least the records that I abstracted into my report. And some of these things include assaulting his mother and sister, chronic truancy, substance abuse. One can say he has a lot of different kinds of problem. He was psychologically tested. The psychological testing showed that he perceives the world in a different way or in a distorted way perhaps than the average person might so, for example, [A.C.] perceives the world as rejecting, lacking in support of him, lacking in stability. [A.C.] tends to feel threatened and insecure and he tends to be defensive and he tends to be oppositional as his means of protecting himself against this world which in his own distorted way he feels as threatening to him. The label that's put to that oppositional behavior is sometimes called oppositional defiant disorder which is a disorder of childhood which is really a description of just what it sounds like. A kid where if you say stop, you know, he goes and he just does things to obstruct and to disrespect authority. And finally, the records indicate that what he says may be unreliable and I noticed in the record review that at another proceeding he said that he had lied.
. . . [A.C.] may witness the same things that you and I may witness, the brain that those perceptions go into may color it, may spin it and may distort it so that when the individual is asked about it later, to some degree all bets are off as far as what you're going to get. Now there might be some factual areas in which memory is preserved but it isn't so much memory that we're talking about here, it's the ability to accurately understand one's environment so the description such as I testified about a few moments ago about [A.C.]'s abilities or lack thereof, it's likely in my opinion that he would tend to see things in his own way and not necessarily be the gold standard of accuracy in a factual way.
Dr. Weiss also testified that A.C. was more susceptible to suggestion than an ordinary person:
Q: Is [A.C.] because of his deficiencies more susceptible to suggestion than someone else?
A: I would believe so. Yes.
Q: And those suggestions could turn into false memories?
A: Yes. It can turn into ideas that get trapped within his memory that for all intents and purposes to him seem like actual occurrences but they may not be. They may be distortions but may be repeated and the more they're repeated and the more they're talked about, it becomes very real and the individual himself such as [A.C.] would never know the difference.
In addition, defense was able to cross-examine Detective Loftus regarding his questioning of A.C. and M.F. before he turned on the tape recorder and to imply that the questioning could have been suggestive:
Q: And are you saying that teenagers or adults are not susceptible to suggestions?
A: They're much less susceptible, sir.
Q: And we can eliminate that by taping them as well; is that correct?
A: Again, there would be a case --you could, yes.
Q: And how about when an individual is slow, would you think it might be prudent to treat him like a child and videotape the entire thing?
A: What do you mean slow, sir?
Q: Okay. Let's talk about [A.C.]. Did he have some developmental or cognitive issues?
A: Not that I'm aware of.
Q: Did you inquire about that?
A: No, sir, I didn't.
Q: And in fact, he denied any sexual abuse initially by Dr. Hilkevich, isn't that true?
A: I don't recall specifically, sir.
Q: That would be important to know that, wouldn't it?
A: Yes, sir.
Q: It's fair to say you don't remember any specific questions you asked?
A: That's fair, sir, at this time.
Q: It's also fair to say you don't recall any specific answers given? I'm talking about off tape.
Q: You don't recall any questions that he asked?
A: No, sir. . . . .
Q: Now when you spoke to [M.F.], that was approximately an hour where you weren't on tape with him as well, correct?
Q: You don't remember what questions you asked him off the tape, do you?
A: Well, I can tell you the questions I asked him off tape were the same questions I go back and ask him on tape.
Therefore, even if the trial court erred in excluding proposed testimony by Dr. Weiss that teenagers such as the alleged victims are suggestible and that Detective Loftus's failure to record his interviews of them prevented Dr. Weiss from determining whether their taped statements were the product of suggestion, we conclude that this error did not have a clear capacity of producing an unjust result and therefore does not warrant reversal. R. 2:10-2.
Defendant argues under Point III that the trial court erred in denying him the opportunity, on re-direct examination of Dr. Weiss, to elicit testimony that his examination of the videotaped statements of A.C. and M.T. would have had limited value because the videotape did not depict the first hour of questioning. The purpose of this proposed testimony was for rehabilitation, to respond to the part of the State's cross-examination that elicited testimony from Dr. Weiss that he had not seen the videotapes of A.C.'s and M.F.'s interviews. We perceive no basis for the court's preclusion of this proposed testimony. Defendant could have elicited testimony by Dr. Weiss that he would need both the videotaped and pre-videotaped portions of the interviews to determine whether the videotaped portions were the product of suggestive questioning in the prevideotaped portions, without stating or implying that Detective Loftus acted improperly in not videotaping the entire interview. However, we are satisfied that the preclusion of this proposed testimony played such an insignificant role in the overall trial of this case that it was not "clearly capable of producing an unjust result," Rule 2:10-2, and therefore was harmless error.
Under the fourth point of his brief, defendant argues that the trial court erred in denying his motion to allow Dr. Weiss to conduct a psychiatric examination of A.C. In denying this pretrial motion, the judge who had presided over defendant's first trial and heard A.C. testify at that trial concluded that there was no genuine question concerning A.C.'s competency to testify and that the only question was whether Dr. Weiss should be allowed to examine A.C. to assist him in testifying about A.C.'s credibility as a witness. That judge concluded the jury could evaluate A.C.'s credibility without the aid of expert testimony and that it would not be appropriate to allow a psychiatric examination for this purpose.
Defendant filed a motion for reconsideration of his motion to allow Dr. Weiss to examine A.C. based on additional records regarding his developmental and psychiatric problems. The trial judge (a different judge than the one who presided over defendant's first trial) reconsidered the issue based on those additional records but reaffirmed the decision not to allow Dr. Weiss to conduct a psychiatric examination of A.C.
A court may allow a psychiatric examination of an alleged crime victim only upon a showing of "substantial need." State v. R.W., 104 N.J. 14, 22 (1986). Such an examination is ordinarily not allowed because it may "inconvenience [victims of sex crimes], invade their privacy, deter many of them from disclosing such offenses, and serve as a tool for harassment." Id. at 29 (quoting Murphy v. Superior Court of Maricopa County, 689 P.2d 532, 535 (Ariz. 1984)). A trial court's denial of a motion for a psychiatric examination of an alleged crime-victim may be disturbed on appeal only upon a showing of an abuse of discretion. Id. at 31.
There was no abuse of discretion in the trial court's denial of defendant's motion to allow Dr. Weiss to conduct a psychiatric examination of A.C. Defendant had a full opportunity to cross-examine A.C. regarding his troubled background and psychiatric problems. Moreover, as indicated earlier in this opinion, Dr. Weiss testified at length about A.C.'s developmental disabilities and psychological problems and how these problems made him more susceptible to suggestion than an ordinary person. Dr. Weiss may have been able to gain additional insight into those psychological conditions, and his opinions may have been more persuasive to the jury, if he had been allowed to conduct a psychiatric examination of A.C., but that does not provide a basis for concluding that the denial of the right to conduct such an examination constituted an abuse of discretion.
Defendant argues in Point V that the trial court committed reversible error in allowing the prosecutor to confront him with a magnified image of his erect penis during cross-examination. M.F. testified that while he was performing oral sex upon defendant, defendant's penis pushed against the side of his mouth, causing him to gag, because the penis was bent. To corroborate this testimony and to show that M.F. was familiar with the shape of defendant's penis, the State presented the testimony of defendant's former wife, Susan Hilkevich, who stated that defendant's penis was bent and that she "would have to readjust coming back up because my teeth would rub on him" when she performed oral sex. To counter this testimony, defendant proposed to present testimony by a urologist that defendant's penis was straight. In connection with this proposed testimony, defendant provided the State with a set of photographs of defendant's erect penis taken by the urologist. In cross-examining defendant, the prosecutor confronted defendant with a magnified image of one of those photographs, which apparently seemed to show a bend, and asked: "And that's the penis that you testified to in 2000 was straight?" Defendant responded that although his penis was not as straight as a pen, it was straight within a common understanding of straightness for anatomical features.
Although the trial court could well have sustained defendant's objection to this cross-examination on the ground that defendant had not testified about the shape of his penis on direct examination, the jury would have seen the magnified image of defendant's erect penis during the prosecutor's cross-examination of the urologist who subsequently testified regarding the relative straightness of defendant's penis. We also note that any distortion that may have resulted from the magnification of the photograph of defendant's penis was a proper subject for re-direct examination of defendant and the urologist and argument by defense counsel. It did not require exclusion of the evidence. Therefore, despite the unpleasantness of such evidence, there was no prejudicial error in this part of defendant's cross-examination.
Defendant argues under Point VI of his brief that the prosecutor committed various improprieties during the course of the trial that deprived him of a fair trial. Based on our examination of the trial record, we are satisfied that the prosecutor properly presented the State's case and that defendant received a fair trial.
The only alleged prosecutorial impropriety that merits brief comment is defendant's argument that the prosecutor created the misleading impression that Dr. Weiss was professionally deficient in failing to conduct a psychiatric examination of A.C. by asking him "a series of questions which highlighted the fact" that he did not conduct a psychiatric examination when the real reason Dr. Weiss did not examine A.C. was the prosecutor's successful objection to defendant's motion for such an examination. The trial court could have instructed the jury that Dr. Weiss did not examine A.C. because of a legal ruling by the court in order to prevent the jury from inferring that Dr. Weiss had not seen fit to conduct such an examination. However, it was proper for the prosecutor to elicit testimony on cross-examination of Dr. Weiss that his opinions regarding A.C.'s developmental disabilities and psychological problems were based solely on his records and not on a psychiatric examination.
Moreover, we disagree with defendant's assertion that the prosecutor "highlighted" Dr. Weiss's failure to conduct a psychiatric examination of A.C. and created the impression that he was "professionally deficient" in not doing so. The prosecutor only asked a few brief questions regarding this subject:
Q: Dr. Weiss, everything in your report is predicated upon your review of records and documentation, correct?
A: That is the source of the information on this matter.
Q: Well, when you say that that is the source, that's the sole source, isn't that fair?
A: Yes, but my report is a synthesis of what I gleaned from the records and my expertise in psychiatry.
Q: I understand that but with respect to [A.C.] and the information you learned about him, that's all predicated upon your review of documentation?
A: Yes. This was a record review.
Q: That documentation most extensively -- strike that. That documentation deals with a review of reports from his schooling, correct?
Q: At Woodbridge?
Q: You reviewed some court documentation?
A: Yes, I did.
We do not believe these simple questions were designed to or could have had the effect of conveying the impression to the jury that Dr. Weiss was professionally deficient in failing to conduct a psychiatric evaluation of A.C.
Defendant's other arguments regarding alleged prosecutorial improprieties at trial do not have sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Defendant argues that his conviction should be reversed because of cumulative error in the conduct of his trial. We have concluded that the only errors in defendant's trial were the trial court's failure to allow Dr. Weiss to testify that teenagers such as A.C. and M.F. are suggestible and that the failure of Detective Loftus to tape-record all of his interviews of A.C. and M.F. prevented Dr. Weiss from determining whether those interviews were suggestive; and the court's refusal to allow testimony by Dr. Weiss that his examination of the videotaped statements of A.C. and M.F. would have had limited value because the videotape did not depict the first hour of questioning. We are satisfied that, for the reasons discussed in sections II(C) and III of this opinion, those errors, considered either separately or together, were not sufficiently prejudicial to warrant a new trial.
Finally, we consider defendant's argument that the sentence imposed upon him was excessive.
The trial court found two aggravating sentencing factors, the gravity and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1a(2), and the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9), and one mitigating factor, that defendant has no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1b(7). The court also found that the two aggravating sentencing factors substantially outweighed the one mitigating factor. The court did not explain the basis for this finding. Based on these findings, the court imposed sentences of fifteen years imprisonment, with five years of parole ineligibility, for the aggravated sexual assaults upon A.C. and M.F., and required defendant to serve these sentences consecutively. The court also imposed concurrent sentences for endangering the welfare of a child and aggravated criminal sexual contact, which are not challenged on appeal.
Defendant argues that the trial court improperly found the two aggravating factors. Defendant also argues that the court erred in finding that the aggravating factors substantially outweigh the mitigating factor and in imposing fifteen-year base terms and five-year periods of parole ineligibility based on this finding. Defendant does not challenge the consecutiveness of the sentences imposed for the two aggravated sexual assaults.
In reviewing a sentence, an appellate court must "determine, first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984).
A.C. did not testify at trial about the effect defendant's sexual assault had upon him, and he did not submit a written statement or address the court orally at defendant's sentencing. Nor did the State present any other evidence regarding the effect of the crime upon A.C. Therefore, there was no factual foundation for the court's finding that "[t]he gravity and seriousness of harm inflicted on the victim" was an aggravating sentencing factor with respect to the sexual assault upon A.C. However, M.F. addressed the court at sentencing and stated that defendant had "turned my life upside down" by sexually assaulting him and that he still has trust issues and anxiety attacks as a result of that assault. The statement provided an adequate basis for the court's finding that the gravity and seriousness of the harm inflicted upon M.F. was an aggravating sentencing factor. See State v. Kromphold, 162 N.J. 345, 357 (2000).
Moreover, in view of the fact that defendant committed aggravated sexual assaults upon two victims, the first in 1995 and the second in 1997, and the nature of these offenses, we believe deterrence also was properly identified as an aggravating factor. See State v. Carey, 168 N.J. 413, 426 (2001).
However, the court did not state reasons justifying the conclusion that these aggravating factors substantially outweighed the mitigating factor that defendant had no prior criminal record. The fact that a sentencing court identifies more aggravating than mitigating sentencing factors does not justify the conclusion that the aggravating factors outweigh or substantially outweigh mitigating factors. See State v. Kruse, 105 N.J. 354, 359-60 (1987). The Code requires a qualitative, rather than a quantitative, analysis of applicable aggravating and mitigating factors. See id. at 363. The trial court failed to undertake this required analysis. It simply stated in conclusionary language that "the aggravating factors substantially outweigh the mitigating factors[.]" Therefore, the case must be remanded to the trial court for reconsideration of defendant's sentences for the aggravated sexual assaults.
Accordingly, we affirm defendant's convictions. We also affirm the sentences imposed upon him for endangering the welfare of a child and aggravated criminal sexual contact. We vacate the sentences imposed for the two aggravated sexual assaults and remand to the trial court for resentencing in conformity with this opinion.
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