June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN FULLENWIDER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-00591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2008
Before Judges Skillman and Yannotti.
A jury found defendant guilty of sexual assault, in violation of N.J.S.A. 2C:14-2b, and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. The trial court sentenced defendant to a nine-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged defendant's conviction for endangering the welfare of a child into his conviction for sexual assault.
The victim of the offenses that the jury found defendant to have committed was his girlfriend's twelve-year-old daughter. At the time of the offenses, defendant was living in a small apartment with the victim's mother, his three-year-old son, the victim, her older brother and her younger sister. The victim slept in the same bedroom as her younger sister. The victim's mother generally left the apartment to go to work around 5 a.m.
According to the victim, one morning in September 2003, shortly after her mother had gone to work, defendant came into the bedroom she shared with her sister and asked her to stay home from school. The victim said she had to go to school because she had a test. Defendant then asked her to get out of bed and took her to his bedroom. Defendant put his hand under her shirt and started touching her "chest" and next put his hand on her vagina over her clothing and started rubbing. At this point, the victim left the room and went back to bed.
However, about five minutes later, defendant came back into the victim's bedroom, picked her up and carried her back to his bedroom. Defendant took his penis out and told the victim to feel his penis. The victim did what the defendant told her because she was scared. The victim touched defendant's penis for about fifteen seconds, then stopped and went back to her bedroom. Defendant came into her bedroom again and said, "this is going to be our secret. Don't tell anyone."
According to the victim, a few days later, when her mother was again away at work, a glass fell and broke while she and her sister were cleaning their room. When they began to clean up the glass, defendant came into the room and told her sister that she could leave and that the victim would finish the clean-up herself. After her sister left the room, defendant attempted "to put his hand up [her] shirt." However, the victim stopped him and, "said no, because I'm too young[,]" and left the room.
The victim told her younger sister what defendant had done to her but did not tell her mother or any other adult. She also told her sister not to tell anyone else about the incidents.
Around the end of September, the victim's mother, who has Lupus, had to be rushed to the hospital in an ambulance. Defendant was not in the apartment at the time. The neighbor who had called the ambulance asked the victim and her sister to stay in her apartment for the night. After her sister had gone to bed, the neighbor initiated a conversation with the victim, who appeared to be troubled. Prompted by the neighbor's questions, the victim told her about the two incidents with defendant. The neighbor later called the victim's father, who called the police.
At trial, defendant took the stand and denied that either of the incidents with the victim had occurred.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
II. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT ELICITING HIS PRIOR CRIMINAL RECORD AFTER IT HAD BEEN FULLY DISCLOSED BY DEFENSE COUNSEL DURING DIRECT EXAMINATION. (NOT RAISED BELOW).
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject the arguments presented under the Points I and II of defendant's brief and affirm his conviction. However, we remand for resentencing.
Under Point I of his brief, defendant argues that a new trial is required because of several comments by the prosecutor in his summation. The first comment that defendant claims was improper reads:
What rules DYFS has set up for this family to live under we don't know about. We know right now there are no winners. There's no -- people can't even be with their loved ones.
What did they gain?
He got Michael Jackson's money? What's the purpose?
Everybody is getting trashed here because he had to touch a kid.
We perceive nothing improper about this comment. Defense counsel presented an aggressive summation in which he argued that the victim had fabricated her accusation against defendant in order to get out of her mother's apartment and move in with her father and that the neighbor had encouraged the victim's false accusation by making suggestive comments to her. The prosecutor's comment regarding "Michael Jackson's money" was simply a colorful way of pointing out to the jury that the victim and neighbor could not have been motivated to make a false accusation against defendant in order to extract money from him. In any event, the trial court instructed the jury to disregard the comment.
The other part of the prosecutor's summation that defendant argues was improper reads:
But he was talking with his attorney. She had to stop him, and correct him, one point, because he said -- forget exactly. I even know, if the father was there or not there, he was saying that the father was not there, and she had to go no, no, you meant that he was there. And then caught himself, oh, yeah, he was in and out.
Even on that version, that little --they had to like catch that little thing when he was testifying. If -- if you recall that bit of the testimony, you'll think about it and discuss it. If it's my imagination, it's my imagination, but there was some testimony about the father not being there by the defendant or being there. It was just kind of interesting that that point, even on that -- on that day they can't seem to keep it straight. But the defendant presumably presented these statements to show that he couldn't have sexually abused the child because he wasn't in Elizabeth at the time of the offenses.
Defendant argues that these comments denigrated defense counsel. However, we are satisfied that the comments, to which defendant did not object at trial, were properly directed at the inconsistency and uncertainty in defendant's testimony and at the fact that defense counsel had to seek clarification of that testimony, and that these comments did not improperly denigrate defense counsel.
Under point II of his brief, defendant argues that it was improper for the prosecutor to cross-examine him about his prior conviction in Georgia because defense counsel had elicited testimony on direct regarding that conviction. "Evidence of prior criminal convictions is admissible to affect the credibility of a defendant as a witness and for no other purpose." State v. Johnson, 65 N.J. 388, 391 (1974). The fact that a defendant's prior criminal convictions are admissible only to attack credibility does not preclude a prosecutor from questioning a defendant about his convictions on cross-examination simply because defense counsel has elicited testimony about those convictions on direct examination. The prosecutor's questioning of defendant regarding his prior conviction was relatively brief and did not suggest that defendant should be found guilty of the sexual assault because he had previously been convicted in a federal district court in Georgia of making false statements in connection with the acquisition of firearms. In fact, the only reference the prosecutor made to that conviction in his summation specifically asked the jury to consider the conviction in evaluating the credibility of defendant's testimony, which is the purpose for which such evidence is admitted:
But you got to consider his prior conviction, what his prior conviction is for. His prior conviction is specifically for a falsehood, for providing false information. Providing -- making false statements in the acquisition of firearms, a federal crime, he got 18 months in federal custody for.
So when you're judging his credibility, whether or not you feel he's telling you the truth, that's information that the Judge is going to tell you that you can use.
In imposing a nine-year term of imprisonment upon defendant, the trial court stated:
In reviewing the sentence, the first thing that the Court considers is that there is a presumption of incarceration in this matter. I find that Aggravating Factor 3 applies. I'm satisfied that based upon his prior history, this is his second indictable conviction, based upon his federal weapons offense in 2002, that there is a possibility that he could reoffend in the future.
I find also that there's a need to deter him and others from committing crimes like this. So, I find that Aggravating Factors 3 and 9 apply and they outweigh nonexistent Mitigating Factors.
In determining what the appropriate sentence is, Justice Albin spoke to us in . . . STATE v. [NATALE] talking about once the presumptive terms have been done away with, how courts will impose sentence. He said some may work from the top up and others may work from the bottom -- from the bottom down. From the top down and others from the bottom up.
In this case, I think that based upon the seriousness of this offense, this Court is inclined to start at the upper range and work down. I think in determining and fashioning my sentence I am not going to impose the maximum term, but it is going to be the upper range.
Based upon the weighing of Aggravating and Mitigating in this fact -- in this case, I'm imposing a term of nine years in the New Jersey State Prison[.]
We conclude that the trial court misread State v. Natale, 184 N.J. 458 (2005) in concluding that because sexual assault is a serious offense, the court should "start at the upper [end of the] range" for second-degree offenses in determining defendant's sentence. The Court concluded in Natale that "the Code [of Criminal Justice]'s system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury[,]" id. at 484, and that to bring the Code into compliance with the Sixth Amendment, presumptive terms had to be eliminated from the sentencing process, id. at 485-89. The Court also expressed its views on the effect of elimination of presumptive terms from the sentencing process:
Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive. We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. That would be one reasonable approach, but it is not compelled. Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone. [Id. at 488.]
We do not find any authorization in Natale for a trial court to start at the upper end of the sentencing range for what the court considers to be a serious offense. Rather, the Court indicated its expectation that trial courts would generally "pick the middle of the sentencing range as a logical starting point for the balancing process" involved in sentencing. Ibid. We perceive no reason for departure from this approach in the present case. We also note that defendant had only one prior conviction for an indictable offense and thus is not an example of a "defendant with [a] long criminal record" who would ordinarily be "sentence[ed] toward the upper part of the sentencing range." Ibid.
Moreover, the trial court erred in failing to identify the hardship from defendant's incarceration to his five-year-old son, over whom he had custody at the time of the offense, as an applicable mitigating sentencing factor. N.J.S.A. 2C:44-1b(11); see State v. Christensen, 270 N.J. Super. 650, 657 (App. Div. 1994); State v. Mirakaj, 268 N.J. Super. 48, 51-52 (App. Div. 1993).
Accordingly, we affirm defendant's conviction but vacate the sentence and remand the case to the trial court for resentencing in conformity with this opinion.
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