May 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ERIC D. STAHL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-12-1933.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2008
Before Judges Winkelstein and Yannotti.
Defendant Eric D. Stahl pled guilty to second-degree endangering the welfare of a child, by disseminating a photograph or reproduction that depicts a child engaging in a prohibited sexual act, in violation of N.J.S.A. 2C:24-4b(5)(a). The State appeals from the judgment of conviction entered on March 16, 2007, and argues that the judge erred by sentencing defendant to a probationary term. For the reasons that follow, we reverse.
According to the pre-sentence report submitted to the trial court, in February 2005, S.T. reported to the Burlington County Prosecutor's Office (BCPO), that she met defendant through an on-line dating service, and thereafter defendant sent her an e-mail in which he stated that he had engaged in oral and anal sex with juvenile males and females. S.T. provided Detective Cranston of the BCPO with a copy of the e-mail, and he investigated the allegations.
During the course of that investigation, S.T. gave Cranston additional information. She told the detective that defendant had sent her certain e-mails with attached photographs that contained pornographic images of children. Detectives Cranston and Clements met with S.T. on March 15, 2005, at the headquarters of the Evesham Township Police Department (ETPD). At the meeting, S.T. turned over four photographs that defendant had e-mailed to her. Three of the four photos depicted adults engaging in sexual acts with children. The detectives thereafter obtained a warrant to search defendant's apartment for evidence.
Members of the BCPO and officers of ETPD executed the warrant. They informed defendant of his Miranda rights.*fn1
Defendant said that his personal home computer contained between twenty and thirty images of adults engaging in sexual acts with children. Defendant also stated that he sent others images of child pornography on twenty occasions.
Detective Cranston showed defendant two of the photos that S.T. had turned over to him. Defendant said that at times, he sends photos depicting children engaged in sexual acts to others, such as S.T. Defendant's personal computer was seized. Images depicting child pornography were found on the computer.
At sentencing, defendant submitted a report from Dr. Gerald Cooke, who is a clinical psychologist. In his report, Cooke noted that defendant told him that he said things that were not true concerning sex with children in order to "manipulate people[.]" Defendant said that he did so because he was lonely. Defendant told Cooke that S.T. wanted to have a relationship with defendant but "he was just playing with her and did not find her attractive." Defendant admitted that he had images of children involved in explicit sex acts on his personal computer and that he had transmitted some of those images to S.T. as well as to another woman named Kendra, who he "met" on an Internet chat room.
Cooke administered certain psychological tests to defendant, and based on the results of those tests and his interview with defendant, Cooke concluded that there was no evidence that defendant was suffering from a personality disorder or diagnosable mental illness. He wrote that the most appropriate diagnosis for defendant was a paraphilia, not otherwise specified, with voyeuristic and exhibitionistic features.
Cooke additionally wrote that he found no evidence that defendant had a particular or specific interest in prepubescent children. Cooke asserted that in his opinion, defendant "does not pose a significant danger of acting out towards children and does not show the characteristics of a sexually violent predator." He concluded that a diagnosis of pedophilia was not warranted.
Defendant also submitted a report from Dr. Philip Bobrove, who also is a clinical psychologist. In his report, Bobrove noted that defendant had been his patient since 2003 and had been in "nearly weekly" psychotherapy since March 2005. Bobrove stated that defendant has been "sad and depressed for many years[.]" The doctor wrote that he and defendant had worked "assiduously to modify [defendant's] depressive behaviors, but much more remains to be done."
Bobrove additionally wrote that defendant had "already paid dearly for his foolhardy foray into the world of child pornography." Bobrove said that the fact remains that defendant had not engaged in any sexual activity with children, and there was no evidence "that he ever had done so." Bobrove wrote that he strongly believed defendant would "never engage in such behavior."
Bobrove also asserted that he did not believe defendant was a danger to anyone, adult or child. According to Bobrove, defendant's life would be "in shambles" if he was sent to jail. The doctor stated that defendant would be "devastated by a jail experience." Bobrove added that defendant's conduct was "truly offensive and [inappropriate]" but defendant did not "deserve to have the rest of his life ruined."
In addition, defendant provided the sentencing judge with a report by Dr. Robert L. Sadoff, who performed a psychiatric evaluation of defendant. In his report, Sadoff stated that defendant has had anxiety and depression in his life "because of loneliness and rejection." Sadoff asserted that defendant fabricated stories that he communicated to persons on the Internet but Sadoff said these stories were designed "only to interest adult women to meet with him, or perhaps to have sex with him."
Sadoff noted that Cooke and Bobrove had found that defendant was not a pedophile, and defendant did not have an interest in prepubescent children. Sadoff also noted that Cooke had made a diagnosis of a paraphilia, not otherwise specified, with voyeuristic and exhibitionist features. Sadoff said that he agreed with Cooke's and Bobrove's findings.
Sadoff stated that defendant was not psychotic, and he is not severely mentally ill. Sadoff said that defendant had character problems, which required treatment to help defendant with his self-confidence and his relationships with others. Sadoff strongly recommended that defendant be placed on probation.
He additionally stated that defendant "has a positive and constructive outlook on life and does not pose a threat of harm to others." Sadoff opined that, with therapy and community service, defendant "could lead a constructive life." He added that, placing defendant in a prison setting could be very harmful to defendant, "as he has little self-confidence and is likely to be victimized in a prison setting."
At the hearing conducted by the sentencing judge on March 16, 2007, defendant's brother David Stahl, Jr., stated that his brother was a "very good person" who had done "some very terrible things." He said that defendant was doing his best "to get himself on track" and "putting him in jail would kill him." Defendant's father, David Stahl, Sr., also addressed the court. He stated that he did not "want [his] son to go to prison." He noted that defendant had only himself to blame for his actions and asked the judge to allow defendant to "pay the debt he owes to society by serving a probationary community service term." In addition, David Confer, pastor of the Bethany Lutheran Church in Palmyra, New Jersey, stated that he thought it would be "counterproductive" to incarcerate defendant.
Dr. Bobrove also appeared. He told the judge that defendant had engaged in "reprehensible, horrendous, [and] stupid" behavior. Bobrove noted that since March 2005, he had been providing therapy to defendant on a weekly basis, and he and defendant had been exploring the reasons that defendant had engaged in this behavior.
Bobgrove stated that he had found "no evidence that . . . [defendant] would do anything but engage in this kind of Walter Mitty fantasy behavior which he ha[d] been engaging in much to his detriment and in a very stupid and foolish way." Bobrove asserted that he and the other professionals who evaluated defendant had concluded that "there is an extremely minimal danger of [defendant] actually acting out . . . on these impulses in terms of being a danger to children. Bobrove stated that, in his opinion, "if [defendant] were to be incarcerated for any length of time, it would be extremely detrimental to him."
Defendant also addressed the court. He stated that he was not a pedophile but he would be thought of in that way by other members of the community. Defendant asserted that after he was arrested, he had to resign from his job with an insurance company. He said that he spent nine months looking for other employment before he was hired by another insurance company, where he was working at the time. Defendant noted that members of his family had stood by him after his arrest.
Defendant said that he also had received support from members of a Masonic Lodge, where he was a member. Defendant asserted that he "made a big mistake" and, since his arrest, he had suffered greatly. Defendant asked the court to sentence him to probation so that he could continue his therapy with Dr. Bobrove and "try to rebuild [his] life."
In imposing her sentence, the judge first noted that the experts who evaluated defendant had opined that there was little chance that defendant would act on any of his fantasies. However, the judge stated that the evaluations missed the point because defendant did not plead guilty to an offense involving the touching or molesting of a child.
The judge stated that in order to sentence defendant as a third-degree offender, she had to find that the mitigating factors substantially outweighed the aggravating factors. The judge found an aggravating factor under N.J.S.A. 2C:44-1a(9), specifically the need to deter defendant and others from violating the law. She also found mitigating factors under N.J.S.A. 2C:44-1b(7) (defendant lived a law-abiding life for a substantial period of time before the instant offense), and N.J.S.A. 2C:44-1b(11) (imprisonment will entail excessive hardship to defendant). The judge found that the mitigating factors substantially outweighed the aggravating factors.
The judge additionally noted that in order to impose a non-custodial sentence, she had to find that defendant's character and the circumstances are such that a term of incarceration would result in a serious injustice. The judge stated:
. . . [Defendant] talked quite emotionally about the impact that going to prison would have on him and I'm glad that he recognizes that going to State prison would cause a major and dramatic change in his life. Dr. Bobrove talked about it in terms of . . . what kind of real impact [a prison sentence] would have on [defendant] and in his reports and in Court this morning, he indicates how completely disruptive of [defendant's] psychiatric and psychological situation it would be - that he currently suffers from depression and anxiety. [Dr. Bobrove] sees [defendant] weekly and that it would be very harsh on [defendant]. I have taken all of these factors into consideration.
Accordingly, I sentence [defendant] . . . to probation for a period of four years condition upon [your serving] 364 days in the Burlington County Jail. The record reflects that you have credit of one day, March 23rd, 2005. The condition of your probation when you are released from jail is that you are to continue your counseling. It does not have to be with Dr. Bobrove. . . . If you wish to find someone else, that's fine. I'm not . . . going to tell you whether it has to be once a week, once a month or anything else. I'm not the psychologist. I'm not the expert. That's between you and your psychologist.
I'm also going to require as a condition of your probation that when you are released, you are not to live [in a place that has] Internet access nor are you to use any public Internet; for example, at the libraries and places like that.
The judge entered a judgment of conviction dated March 16, 2007, in accordance with her findings, and this appeal followed. The State does not challenge the judge's decision to impose a sentence appropriate for a third-degree offense. However, the State argues that the trial judge erred by sentencing defendant to probation rather than a custodial term.
As noted previously, defendant pled guilty to second-degree child endangerment. That offense carries a presumption of imprisonment pursuant to N.J.S.A. 2C:44-1d, which states in part that a person convicted of a second-degree offense shall be subject to a sentence of imprisonment unless, having regard to the character and condition of the defendant, [the court] is of the opinion that [the defendant's] imprisonment would be a serious injustice which overrides the need to deter such conduct by others. [Ibid.]
Here, the State agreed to recommend that defendant be sentenced to a term within the range for third-degree offenses. The judge found that the mitigating factors substantially outweighed the aggravating factor and a down-grade of the offense was permitted by N.J.S.A. 2C:44-1f(2). The presumption of imprisonment applies because its applicability is determined "not by the sentence imposed[,] but by the offense for which a defendant is convicted." State v. Evers, 175 N.J. 355, 388 (2003) (quoting State v. O'Connor, 105 N.J. 399, 404-05 (1987)).
However, under N.J.S.A. 2C:44-1d, the trial court has a "'residuum of power'" not to impose a sentence of imprisonment "'in those few cases where it would be entirely appropriate to do so.'" Id. at 389 (quoting State v. Roth, 95 N.J. 334, 358 (1984)). This power may only be exercised "in those 'truly extraordinary and unanticipated' cases where the 'human cost' of punishing a particular defendant to deter others from committing his offense would be 'too great.'" Ibid. (quoting State v. Rivera, 124 N.J. 122, 125 (1991)). To overcome the presumption of incarceration, a defendant must show that his circumstances are "so rare and extraordinary that the human cost of [his] punishment exceeded the need to deter others from committing like offenses." Id. at 390.
In reviewing a trial court's sentencing determination, we are not permitted to "'substitute [our] judgment for that of the trial court.'" Evers, supra, 175 N.J. at 386 (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). We may reverse or modify a sentence only when the trial court is "'clearly mistaken.'" Ibid. (quoting State v. Jabbour, 118 N.J. at 1, 6 (1990)). We are satisfied the judge was "clearly mistaken" in sentencing defendant to a probationary term rather than to a term of incarceration.
We note initially that a trial judge may not impose a probationary term conditioned on a period of incarceration in county jail unless the presumption for imprisonment has been overcome. O'Connor, supra, 105 N.J. at 405-10. In O'Connor, the defendant pled guilty to second-degree arson, and the State agreed to recommend that the defendant be sentenced in the range of sentences appropriate for a third-degree offense. Id. at 402. The trial court determined that the presumption of incarceration applied but sentenced the defendant to a "split sentence," specifically a three-year probationary term that was conditioned on service of fifteen, consecutive weekends in the county jail. Ibid. The Supreme Court held that "a split sentence is invalid where the defendant has committed a second-degree offense, except in cases where the presumption of imprisonment has been overcome." Id. at 410.
In this case, the trial judge correctly found that the presumption of incarceration applied but erroneously concluded the presumption had been overcome. The judge found that defendant's life would be disrupted by his incarceration. The judge additionally found that defendant was suffering from anxiety and depression and a jail sentence would interfere with his ongoing psychological treatment. These are not "rare and extraordinary" circumstances that override "the need to deter others from committing" offenses like child endangerment involving the dissemination of child pornography. Evers, supra, 175 N.J. at 390.
Indeed, the trial judge's decision in this matter cannot be reconciled with Evers. In that case, the defendant pled guilty to second-degree child endangerment, which involved the distribution of child pornography through the Internet. Id. at 367. Defendant also pled guilty to forty counts of fourth-degree possession of child pornography. Ibid. The trial judge downgraded the second-degree offense to a third-degree offense for sentencing purpose. Ibid.
The judge sentenced defendant to a probationary term, conditioned on his serving 364 days in the county jail. Ibid. The judge also suspended the county jail term and ordered defendant to receive counseling and treatment at the Adult Diagnostic and Treatment Center at Avenel. Ibid. The sentences on the possession counts were made concurrent to each other, and concurrent to the sentence imposed on the endangering charge. Ibid.
The sentencing judge in Evers found that the defendant previously had lived a life that was free of any criminal behavior. Id. at 396. The judge stated that the defendant had accidentally found the child pornography on the Internet. Ibid. The judge also found that the defendant had a stable long-term marriage, reared a child, and supported his family by working in the construction field. Ibid. The judge stated that, although the defendant had participated in the market for Internet child pornography, others who participated in that market would not be deterred by sending the defendant to prison. Ibid.
The trial judge in Evers additionally observed that the defendant should be viewed differently from someone who manufactured or originated the offensive materials. Ibid. The judge stated that the deterrence of the defendant would be accomplished by the embarrassment and anxiety caused by the pending charges, as well as long-term supervision, treatment, and compliance with Megan's Law. Ibid.
In Evers, the State appealed the probationary sentence and argued that the sentence was not permitted by the presumption of incarceration. Id. at 397. The Supreme Court agreed and reversed. The Court concluded that the "serious injustice" standard in N.J.S.A. 2C:44-1d had not been met. Ibid. The Court found no support for the trial judge's finding that the defendant had entered a child-pornography "chat room" merely by accident, noting that he had admitted to knowing about and interacting with hundreds of such web sites. Ibid.
The Evers Court also noted that, although the defendant had entered into long-term psychological treatment, this treatment did not begin until approximately seventeen months after the defendant had been arrested and six months before his sentencing. Id. at 397-98. In addition, the Court noted that while the defendant did not commit more serious crimes such as creating child pornography, that was "irrelevant to defendant's culpability for the sole second-degree crime that he was charged with and convicted of: the knowing distribution of child pornography." Id. at 398-99.
The Court also rejected the trial judge's belief that incarceration of the defendant would not deter others from creating or disseminating child pornography. The Court stated:
[D]efendant readily admitted that he distributed the offending photographs for the express purpose of encouraging the recipients to reciprocate by sending him more child pornography in return. That is exactly the type of trafficking the Legislature meant to shut down in order to stop the demand for and perpetuation of the sexual exploitation of children. Defendant's so-called "bit player" role in the child pornography industry nevertheless brought him within the sweep of the second-degree crime of distribution and does not dispel the notion that his imprisonment would deter others from, in the trial judge's words, "perpetuat[ing] the growing market for . . . cyber-porn" by soliciting and disseminating child pornography. The statute treats the distribution of child pornography as severely as a robbery, burglary, and significant theft. However harsh the grading of this offense may appear, that was the intent of the Legislature.
[Id. at 399-400.]
The Court additionally stated that the defendant's status as a first-time offender, a "family man" and a "breadwinner" were not extraordinary and did not support the conclusion that his incarceration would be a "serious injustice overriding the need for deterrence." Id. at 400.
In this matter, we similarly conclude that the trial judge erred by finding that the circumstances override the presumption of incarceration that applied to defendant's second-degree offense. In our view, the totality of circumstances relied on by the trial judge are not so "rare and extraordinary" that incarceration of defendant would exceed "society's imperative need to deter others from disseminating child pornography." Id. at 401. The trial judge was clearly mistaken in concluding otherwise and sentencing defendant to a probationary term rather than a term of incarceration. We therefore reverse the judgment of conviction and remand for the re-sentencing of defendant to a term of incarceration within the range applicable to third-degree offenses.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.