On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-1076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Payne, Miniman and Waugh.
Defendant David Roth appeals his conviction on fifteen counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b), based upon his possession of child pornography. He also appeals the aggregate sentence of imprisonment for seven-and-one-half years, consisting of one eighteen-month term and six consecutive twelve-month terms on the seven counts remaining after merger. We affirm.
We discern the following facts from the trial testimony. Roth began dating April Nelson in September 2002. In June 2003, Nelson moved into Roth's apartment in Blackwood. At that time, David Carp was also residing in Roth's apartment. The apartment had one bedroom. The dining room, which had been converted into a second bedroom by a curtain barrier, was used by Roth and Nelson.
Roth owned a Compaq computer that he kept in the living room. Both Nelson and Carp had access to the computer. According to Nelson, at some point after she moved in with Roth, she approached the computer to use it. After she moved the mouse to deactivate the screen saver, Nelson saw that the computer was downloading something from Kazaa, a searchable, peer-to-peer file-sharing service. Nelson testified that the files being downloaded had "weird titles," such as "Daddy's Little Girl." She clicked on the files and saw images of a little girl approximately nine to ten years old in sexually explicit poses.
When Nelson questioned Roth about the images, he told her "it was like looking at a car wreck. He couldn't take his eyes off it." Roth told Nelson that the girl in the pictures was named "Vickie." Roth promised Nelson that "he would get rid of it, erase it and not look at it again."
A few days later, because she did not believe that Roth had actually deleted the pictures, Nelson went through his computer disks and found that he had downloaded the pictures onto a disk. Nelson testified that during the two weeks she lived with Roth, she saw him look at the images six or seven times.
In February 2004, Nelson anonymously reported Roth to the National Center for Missing and Exploited Children (NCMEC), using an online form. She reported that Roth was downloading child pornography and that hard evidence of his crime existed "on a disk." Nelson testified at trial that she had waited so long to report Roth because she was "scared" and "embarrassed." She also explained that she "didn't want to have [Carp] be involved in anything."
NCMEC forwarded Nelson's report to the Camden County Sheriff's Department, which eventually identified Nelson as the source of the report. In May 2004, Nelson was contacted by Sheriff's Officer Tom Brett, to whom she gave a statement. Based on the information obtained from Nelson, Brett decided to conduct a "knock and talk" at Roth's residence.
On the early morning of June 4, 2004, Brett, Sergeant Brian Penn, and two State Troopers, Stanley Field and Gordon Samartino, went to Roth's apartment. Brett knocked on the door and Roth answered. Brett identified himself as a law enforcement officer and told Roth that he was there because of suspicion that Roth had child pornography on his computer. Roth asked the officers to wait while he locked up his dog and then let them into the apartment. Roth agreed, orally and in writing, to allow the officers to search his computer and computer related materials.
Brett testified that the computer was on a desk in the living room. The desk "wasn't very organized" and had "[a] lot of disks" on it. Field first examined Roth's hard drive, but found no images of child pornography. Brett, who had been advised by Nelson that the pictures were on a disk marked "Vic Simone," located that disk and brought it to Field's attention.
Field brought up an image from the "Vic Simone" disk. According to Brett, the image "[a]ppeared to be a preteen female. No clothes on. Fully unclothed." The second image was of "a naked prepubescent girl on top of a male . . . having sexual intercourse." A third image viewed in Roth's home was similar to the second. After seeing the images, the officers "secured that [disk] as well as the other DVDs and searched for any more DVDs that were there."
At that time, Roth had a new roommate, Earl McCart, who was sleeping in the bedroom. The officers knocked on McCart's door. He consented to a search of his room. The officers seized a loaded weapon and a computer from McCart's room. Because he had a previous felony conviction, McCart was arrested for unlawful possession of a firearm. N.J.S.A. 2C:39-7. However, McCart was never charged with any crimes involving child pornography.
The officers placed Roth under arrest and read him his Miranda*fn1 rights. Once transported to the Gloucester Township Police Department, Roth made a statement in which he denied possessing any child pornography.
Roth was indicted in March 2006 on fifteen counts as follows: (1) possession of a photograph depicting children engaging in prohibited sexual acts designated "kid girl 12 yr," N.J.S.A. 2C:24-4(b)(5)(b); (2) possession of a photograph designated "Jessica 012," N.J.S.A. 2C:24-4(b)(5)(b); (3) possession of a photograph designated "Jessica 013," N.J.S.A. 2C:24-4(b)(5)(b); (4) possession of a video clip designated "Jessica 014," N.J.S.A. 2C:24-4(b)(5)(b); (5) possession of a video clip designated "Jessica 015," N.J.S.A. 2C:24-4(b)(5)(b); (6) possession of a video clip designated "Jessica 016," N.J.S.A. 2C:24-4(b)(5)(b); (7) possession of a video clip designated "Jessica 017," N.J.S.A. 2C:24-4(b)(5)(b); (8) possession of a video clip designated "Jessica 018," N.J.S.A. 2C:24-4(b)(5)(b); (9) possession of a video clip designated "Jessica 019," N.J.S.A. 2C:24-4(b)(5)(b); (10) possession of a video clip designated "Jessica 020," N.J.S.A. 2C:24-4(b)(5)(b); (11) possession of a video clip designated "Jessica 021," N.J.S.A. 2C:24-4(b)(5)(b); (12) possession of a video clip designated "Jessica 022," N.J.S.A. 2C:24-4(b)(5)(b); (13) possession of a video clip designated "Jessica 023," N.J.S.A. 2C:24-4(b)(5)(b); (14) possession of a video clip designated "Jessica 024," N.J.S.A. 2C:24-4(b)(5)(b); and (15) possession of a video clip designated "Child Lover/Little Collection," N.J.S.A. 2C:24-4(b)(5)(b).
Roth was tried by a jury in March 2007. Nelson, Brett, and Penn testified to the facts recounted above. Carp also testified for the prosecution. Carp testified that he did not own a computer when he lived with Roth, and that there was one computer in the apartment, which was located in Roth's living room. According to Carp, he had only used Roth's computer "three or four times" to check his email.
Carp testified that, on one occasion, Roth knocked on his door and "said come out and take a look at this thing I found on the Internet." When Carp did so, he saw child pornography on Roth's computer screen. Carp testified that he told Roth: "You should get rid of it. Furthermore, I don't want to see it. [You] shouldn't bring anything like that to my attention."
Carp also testified that, approximately a month after that incident, Nelson came to him and said that she had gone through Roth's computer and "found a large amount of child pornography and . . . was very concerned about him." Later that same day, Nelson and Roth had an argument about what Nelson had found on the computer.
During cross-examination at trial, Carp denied having planted the "Vic Simone" disk in Roth's apartment when he moved out in March 2004. He acknowledged that he did not like Roth and that they did not have an "amicable parting." Carp also testified that he and Nelson were friends and that she would drive him to go shopping.
Carp also admitted that, in return for his testimony, the Prosecutor's Office had "turned all [of his outstanding] warrants into court dates." The warrants were for unpaid fines associated with two prior municipal court convictions for possession of drug paraphernalia and possession of marijuana in a motor vehicle.
Detective Denman Powers, a forensic examiner with the New Jersey Regional Computer Forensic Laboratory, testified at trial as the State's expert on computer forensics. He identified Kazaa as a searchable, peer-to-peer file-sharing service from which files could be downloaded. Powers also described the process used to investigate the current and deleted contents of a computer's hard drive.
Powers related his examination of the "Vic Simone" computer disk, on which he found "three pictures and approximately twelve movies . . . that depicted young children." Five of the videos were played in open court. Defense counsel then stipulated that the remaining videos and pictures showed "child[ren] under the age of sixteen engaging in sexual acts."
While reviewing the hard drive of Roth's computer, Powers found a "link file" to a picture entitled "d:/preteengirlkid12yr.jpg." While the hard drive did not contain the actual image, Powers testified that the link file "contains the pointer to the .jpg as if the [disk] was in the drive and the file was viewed, . . . you can click here and it will point you to the file found on the [disk]." The .jpg file in the link file was from the "Vic Simone" disk. The time stamp on the "link file" suggested that the file on the disk had been created on October 10, 2003, and viewed on the computer on November 27, 2003. There was also a general "link file" on the hard drive pointing to the entire "Vic Simone" disk.
Powers also found a video from the "Vic Simone" disk, entitled "Jessica 016," on the hard drive of Roth's computer. The file had been deleted and "purged from the recycler, but [the investigators] were able to . . . recover the file from the hard drive." Powers also discovered that the movies entitled "Jessica 017" and "Jessica 021" had been viewed on Roth's computer and deleted because "the reference point showing . . . that the file existed" was still present, "but the contents of the file had already started to be overwritten."
In the temporary internet files on Roth's computer, Powers found a movie entitled "Pedo.mpg." While the movie had a different file name, it was identical to one of the movies contained on the "Vic Simone" disk. The time-stamp on that file was June 3, 2004, the day before Roth's arrest.
Powers testified that it was not unusual during an investigation to find evidence of only a few of a larger number of movie files because, once purged from the recycler, the "data is overwritten randomly." He also testified that the computer, which had two user accounts, was not password protected.
On cross-examination, Powers testified that a Kazaa account would be required to access material through file sharing. However, he did not investigate who created the account used on Roth's computer because anyone with physical access to the computer could use the account.
Roth did not call any witnesses at trial. In summation his attorney suggested that the child pornography had been planted by Nelson and Carp, and that it had come from a computer belonging to Nelson's brother, which had been in Roth's apartment.
The jury returned its verdict on March 28, 2007, finding defendant guilty of all charges. Roth was sentenced on June 1, 2007. Judge Stephen M. Holden applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6), finding that Roth had four prior felony convictions, one involving a Megan's Law violation; and aggravating factor three, N.J.S.A. 2C:44-1(a)(3). Judge Holden found no mitigating factors. He noted that there were images of seven different underage girls on the disk. Consequently, citing State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 ...