On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-10-0720.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
Defendant J.F.G. appeals from his March 20, 2006 conviction on thirteen counts of endangering the welfare of a child, consisting of: two first-degree convictions under N.J.S.A. 2C:24-4b(3) (counts one and two); two second-degree convictions under N.J.S.A. 2C:24-4b(3) (counts three and four); four second-degree convictions under N.J.S.A. 2C:24-4b(4) (counts five through eight); four second-degree convictions under N.J.S.A. 2C:24-4a (counts 9 through 12); and one fourth-degree conviction under N.J.S.A. 2C:24-4b(5)(b) (count thirteen). The first twelve counts of the indictment charged defendant with filming his nine and ten-year-old sons, as well their ten and twelve-year-old male friends, while the four children were naked, for purposes of defendant's own sexual gratification, and with causing the children to appear while naked. Count thirteen charged defendant with possession of a videotape that showed unidentified naked male children.
After appropriate merger of counts, the judge sentenced defendant on counts one and two to concurrent fifteen-year terms of imprisonment. On counts three through eight, the judge imposed concurrent seven-year terms of imprisonment, which were ordered to be served consecutively to the sentence imposed on counts one and two. On count thirteen, the judge imposed a one-year term of imprisonment concurrent to the sentence on count one. The aggregate sentence was therefore twenty-two years imprisonment.
On appeal, defendant asserts the judge erred when he: admitted N.J.R.E. 404(b) prior bad act evidence; issued confusing jury instructions and a faulty recharge of those instructions; failed to provide the jury with criteria to assess whether defendant's intention when photographing the children was prurient; and imposed a manifestly excessive sentence. Defendant also maintains his conduct fell outside the intended ambit of the relevant statutes, and asserts that the statutes in question are unconstitutionally vague and deprive him of his constitutional right to free speech and expression under the United States and New Jersey Constitutions. We affirm.
In the fall of 1997, defendant and his wife adopted two half-brothers, ages three and two.*fn1 As soon as the boys arrived, defendant took a leave of absence from his employment and stayed home to raise them, while his wife continued to work at a job that required her to leave the house at 6:00 a.m. and not return home until 6:00 or 7:00 p.m. On many occasions, she was away overnight on business trips. Defendant's wife testified that defendant began to videotape their sons at a young age, sometimes filming them running about the house unclothed. She testified she never observed any improper conduct between her husband and her sons and never received any complaints from the boys about their father.
In 2003, the older son became friendly with a classmate named Scott.*fn2 Scott's brother David was nearly three years older, but the four boys got along well and frequently played together. David and Scott's mother testified that in the summer of 2004, three of the four boys went to summer school, and after the program ended for the day, the four would go to defendant's home to play. On those occasions, defendant was home while his wife was at work. In July 2004, defendant took the four boys to Great Adventure and because they returned home after 10:00 p.m., David and Scott slept over at defendant's house.
On August 11, 2004, David's mother asked him to go to defendant's house to mow the lawn. David, then age twelve, refused to go and started to cry. After some prodding from his mother, David told her that defendant had filmed him and Scott while they were naked. Speaking with Scott, she confirmed that defendant had filmed him as well. In particular, Scott described an incident in which defendant filmed the four boys while they were naked playing baseball in defendant's basement. She immediately called police.
David testified that during the trip to Great Adventure, defendant did not take any pictures of them at the amusement park, but when they returned to defendant's house, defendant insisted that all four boys get undressed to take showers. Defendant's wife was not home. David testified that defendant had a video camera in his hands right before the four boys began to undress. David was uncomfortable with standing in the hallway naked and used his hands to cover his penis. According to David's testimony, defendant "tried to pull [David's] hands away from his penis."
Scott's description of what occurred the night of the Great Adventure trip matched his brother's. He, too, described defendant forcing the four boys to line up in the hallway naked while defendant was holding a camera. Scott also testified that when he and David tried to cover their "private parts," defendant insisted they remove their hands. In fact, according to Scott, when he and David tried to retrieve their pants, defendant pushed the two boys so they were not able to do so. Scott also explained that on other occasions, defendant pulled down their pants and underwear. Last, Scott described playing baseball in defendant's basement, adding that defendant instructed them to place foam discs around their penises whenever they hit a home run with the foam baseball.
The prosecutor elicited little testimony from defendant's two sons, merely asking them to confirm that their father owned a video camera and that there were occasions when the four boys played naked in the basement of the house. Both of defendant's sons confirmed that their mother was not at home on those occasions. The older son was a bit more specific, testifying that his father had his camera with him while the four boys played in the basement unclothed.
The State's case included a seventy-four minute compilation of video footage seized from defendant's camera, as well as sixteen still photographic images depicting all four boys naked, as described by David and Scott. In one photograph, one of the boys is shown naked flexing his biceps while straddling another one of the four who was lying naked on the floor. The footage had an audio portion in which defendant could be heard directing the boys to adopt certain poses, such as "mooning" the camera. One scene depicted defendant essentially spying on David, the oldest boy, while he showered, and then directing David to smile and strike poses. On another occasion, defendant told the boys to thrust their pelvises forward and shake their "winkies." While the boys were playing the baseball game we have described, the camera was frequently focused on their genitals.
The State also presented video footage filmed in 1997 and 1999 depicting a seven-year-old boy naked in a second-floor bedroom of an adjacent house, and children removing their wet bathing suits after stepping out of a swimming pool. A man's heavy breathing could be heard during the videotape. The 1997 and 1999 videotapes had been the subject of a pretrial hearing, during which the State sought to introduce the 1997 and 1999 footage as other-crimes evidence under N.J.R.E. 404(b), arguing that the 1997 and 1999 films were probative of defendant's purpose of sexual gratification when he filmed the four boys naked in 2004.
Despite defendant's contention that the videos were not probative and highly prejudicial, that there was a lack of proof that defendant took the videos, that the videos did not demonstrate motive or intent, and that the videos were too old, Judge Edward Coleman in a comprehensive and well-reasoned oral opinion concluded that the 1997 and 1999 tapes at issue were admissible as other-crimes evidence under N.J.R.E. 404(b) and that their admission satisfied the four factors the Court identified in State v. Cofield, 127 N.J. 328, 338 (1992). The judge reasoned:
This is not a case where you have the children engaging in sexual conduct or acts of sexual conduct. Rather, you have young boys dancing around naked, playing basketball naked,... putting rings around their penis naked, and so there is a difficult issue to prove; that is, that the depiction here was for the purpose of sexual stimulation, gratification.
[T]he jury has to take into consideration the totality of the circumstances, and... it's important that the jury receive this background information about the pursuits of the defendant and his video camera... so they can make a decision, was this for... the purpose of sexual stimulation, gratification by any viewer? Obviously, disputed, hotly disputed issue in the case.
And, the jury would need every piece of information available to assist them in making those decisions. And so it should be admissible.
The judge asked counsel for their input in developing the limiting instruction required by Cofield, and after a brief discussion, both sides agreed that the model jury charge on N.J.R.E. 404(b) evidence would be acceptable so long as "the knowledge part of it" was deleted. Before the State introduced the 1997 and 1999 videotapes pursuant to N.J.R.E. 404(b), the judge observed that the jury was about to view "photographs or videos of either [David and Scott] and/or young boys apparently in the neighborhood." Relying on Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2005),*fn3 the judge instructed the jury that such evidence was being introduced "to demonstrate the defendant's motive in filming the children as alleged in the indictment with regard to his state of mind, his intent, absence of mistake or accident." Immediately thereafter, the judge twice used the term "those" or "these" "specific purposes" in referring back to the above exclusive reason for which the evidence could be considered. At the end of the limiting instruction, the judge reiterated that the evidence could only be used "to help decide the specific questions we just talked about: The defendant's motive, his intentions, his state of mind, absence of mistake or accident. You may not consider it for any other purpose."
Although defendant did not take the stand, he never denied having photographed his own children and Scott and David in July 2004 while the four boys were naked; however, he maintained that he had not done so for purposes of sexual gratification. In fact, he told police during a taped statement given on August 16, 2004, which the State presented to the jury, that the only reason he photographed the boys after their return from Great Adventure was because "they were so peppy" when they left in the morning "and now they're dragging," although he acknowledged that he never videotaped the boys before they left, and only videotaped them upon their return. When the detectives asked him whether any of the boys had objected to the videotaping or expressed embarrassment, he answered no. When asked why he had pulled the boys' underpants down, defendant stated that he had "depantsed" them because he objected to boys "go[ing] around with their boxers showing half their butt" because it made them "look like they're from the [']hood." Thus, throughout his statement, which was played for the jury, defendant denied that he videotaped the children for purposes of his own sexual gratification.
At neither the N.J.R.E. 104(a) hearing nor at trial did defendant ask the judge to sanitize the video clips by requiring the prosecutor to delete the audible heavy breathing. In fact, defense counsel acknowledged after the clips were played for the jury that he "had intended [but] simply neglected to make an application for the [c]court to exclude the sound of the neighborhood video." Defendant did not request a limiting instruction regarding the breathing and did not seek any additional instructions pertaining to the other-crimes evidence. Similarly, at the charge conference, the defense made no request for any additional limiting instruction.
During the charge conference, the parties and the judge also discussed the endangering the welfare of a child model jury charges for counts one through twelve. As the judge progressed through the counts, defendant voiced his agreement with each of the twelve proposed jury charges. Although there was no model jury instruction for count thirteen, which charged a violation N.J.S.A. 2C:24-4b(5)(b), defendant agreed with the State's proposed jury charge for that count. When asked whether he wanted the judge to modify the model charges by tailoring them to the facts alleged in the indictment, defendant said no. At the end of the charge conference, the defense agreed that the suggested charges on all thirteen counts were appropriate.
During his charge to the jury, the judge repeated his earlier limiting instruction, warning the jury that it could not use the 1997 and 1999 videotape evidence to find that defendant had a propensity to commit crimes. He explained that such evidence was "introduced to demonstrate the defendant's motive in filming the children named in the indictment in July of 2004, his state of mind, his intention, the absence of any mistake or accident."
During its deliberations, the jury sent a note advising the judge that it had several questions regarding the elements of, and the differences between, the offenses. Specifically, the jury asked three questions: (1) "the definition of knowing, four elements, [d]o all four have to be met?"; (2) "[l]ayman's terms of differences of three indictments";*fn4 and (3) "copy of the written transcript of video evidence." The judge and the parties agreed to bring the jury back into the courtroom to ask the jurors to clarify their requests.
The judge summoned the jury and told them he and the parties found it difficult to understand their requests. He did, however, explain that the transcript of the videos was not available because it was not introduced into evidence, but that the videotapes could be replayed. The judge then suggested that the jury consider breaking the jury instructions into sections and deal with one section at a time. The jury then returned to deliberate.
Fifteen minutes later, the jury returned a note that read: "A recap of New Jersey Statutes regarding charges 1 through 4, 5 through 8, 9 through 12 and 13." The note also read, "Definitions of: Prohibited sexual act, knowingly, and make available all videos to view." The jury returned to the courtroom, and the judge explained that he would address the request the next day.
The judge then advised counsel that the next day, he would ask the jurors whether they wanted him "to just give them the charges regarding counts 1 through 4, go back and deal with that, and then give them the charge on the next four, sort of break it up[.]" The defense objected to this proposed format because the State "decided what order those charges happened to flow in the indictment."
The next day, with the jury in the courtroom for clarification of the note it sent the previous day, the foreperson told the judge the jury was having difficulty not with the counts, but with "charges 1, 2 and 3, and they are very similar, and it's like we are having a hard time differentiating from each charge." The judge responded that he would recharge them on those counts, and asked if the jury wanted him to explain the first four counts and then allow the jury to deliberate, and then proceed to the next four counts, or if they preferred to hear all counts at once. The foreperson expressed a preference for the first option. None of the other jurors disagreed.
In keeping with the jury's expressed preference, the judge proceeded to recharge the jury at first only on counts one through four. The instructions given were very similar to the instructions on counts one through four given the previous day, except that this time the judge also explained that counts one and two pertained to defendant's own children, while counts three and four did not. The judge again defined the term "knowingly," using the same definition given the previous day. In his definition of "prohibited sexual act," the judge explained that under counts one through four "[t]he first element requires that the defendant act knowingly, knowingly cause or permit a child to engage in or simulate a prohibited sexual act." The judge also explained that the "prohibited sexual act referred to is nudity, but nudity if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction."
After recharging the jury on counts one through four, the judge suggested that the jury deliberate and then reconvene for the next portion of the recharge. Approximately an hour later, the jury asked to view the video "regarding Great Adventure and the basketball tapes." After watching the video, the jury deliberated for an additional twenty minutes, after which it returned a verdict of guilty on all thirteen counts.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRONEOUSLY RULED THAT HIGHLY PREJUDICIAL VIDEO FOOTAGE COMPILED ON A COMPOSITE DVD FROM VIDEO FOOTAGE SHOT FIVE TO SEVEN YEARS BEFORE THE TIME FRAME OF THE ...