December 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS E. HARRIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009 -
Before Judges Grall and LeWinn.
Atlantic County Superseding Indictment No. 07-01-0075 charged defendant, Thomas Harris, with the following ten counts:
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts one and three); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts four, seven and nine); second-degree sexual assault, N.J.S.A. 2C:14-2(c) (counts five, six and eight); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count ten).
Tried to a jury on June 11 and 13, 2007, defendant was found guilty of the second-degree sexual assault charge in count two; the three counts of third-degree endangering the welfare of a child; and fourth-degree criminal sexual contact. On September 21, 2007, after proper mergers of counts, the trial judge sentenced defendant as follows: on count two, to a nine-year term subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2, and a three-year period of parole supervision; on count seven, to a consecutive four-year term with a two-year parole ineligibility period; and on count nine, to a consecutive five-year term with a two-and-one-half-year parole ineligibility period.
The pertinent factual background may be summarized as follows. The charges involve the ongoing sexual abuse of a minor, L.A., which occurred during three separate episodes in 2002, 2003 and 2004. In 2002, L.A. was eleven years old and defendant was forty-six years old.
Defendant met L.A. in 2001; at that time L.A. was living with his mother and older sister and was estranged from his biological father. L.A. described defendant as being like a "stepfather" to him. Defendant spent time with L.A. and his family on a regular basis.
Two weeks before L.A.'s twelfth birthday in 2002, defendant began sexually abusing him. L.A. and defendant had been wrestling in the living room of L.A.'s home when the wrestling progressed into fondling and L.A. touched defendant's genitals.
L.A. and defendant went into L.A.'s bedroom, closed the door, and continued to fondle one another.
L.A. testified about a second sexual encounter before his twelfth birthday, which involved fondling and oral sex. L.A. also testified about incidents of sexual abuse between April and May 2002 which involved anal and oral penetration. The first round of abuse stopped in May 2002 when defendant left New Jersey for a period of time.
The sexual abuse resumed when defendant returned to New Jersey in 2003 and ended in September 2003 when defendant again left the state. L.A. testified that during this period, he and defendant engaged in more incidents of fondling and anal and oral sex. L.A. specifically recalled a sexual encounter after a wedding reception in which defendant performed oral sex on L.A.
Defendant returned to New Jersey in early summer 2004.
L.A. testified that he and defendant engaged in incidents of oral sex and fondling until October 2004, at which time defendant again left the state.
L.A. did not tell anyone about these incidents until January 25, 2005, when he met with his school guidance counselor, Jill Pappas. L.A. told Pappas that he and defendant had engaged in fondling activity between three and five times; he did not tell Pappas about the other sexual activities because he was "ashamed, embarrassed, afraid, [and] worried." That night, L.A. also disclosed the abuse to his mother.
After speaking with L.A., Pappas called the police. On January 26, 2005, Patrolmen Michael Finnerty, of the Egg Harbor Township Police Department, responded to L.A.'s residence in response to a telephone call from L.A.'s mother informing the officer that defendant was there. Finnerty asked defendant to come back to police headquarters with him and defendant agreed to follow him there in his own vehicle.
At some point after being advised of his Miranda*fn1 rights, defendant voluntarily gave the police a taped statement in which he described several sexual encounters with L.A. in 2003 and 2004.
Also on January 26, 2005, L.A. spoke to Detective Tricia DiMarco, and told her that the abuse began in 2001, stopped when defendant left New Jersey and then resumed in 2003. L.A. told DeMarco that he and defendant fondled one another but, again, did not disclose information about incidents of oral or anal sex.
Atlantic County Investigator Luke Ireland testified that he met with L.A. on three or four occasions, commencing in February 2006. At their first meeting, L.A. advised Ireland that he had mistakenly told DiMarco that the abuse began in 2001, when it actually began in 2002.
In November 2006, Ireland met with L.A. to prepare for trial. Ireland testified that "[t]hrough the experiences that [he] . . . had with other kids . . . with the length of time . . . that . . . these abuses occurred, [he] believe[d] that there was more that . . . may have happened than just fondling over that long period of time." Through further questioning,
L.A. then disclosed to Ireland the incidents of anal and oral sex.
The State also presented the testimony of Dr. Julie Lippmann as an expert in Child Sexual Assault Accommodation Syndrome (CSAAS). Dr. Lippmann testified that children who have been sexually abused by someone close to them often present in ways that are counter-intuitive, namely that some children do not report the abuse at all, while others delay reporting and, if they do report, often do so in a piecemeal fashion. Dr. Lippmann described the five elements of CSAAS: secrecy; helplessness; accommodations on the child's part to the abuse; delayed, inconsistent or unconvincing disclosure; and recantation or retraction.
On appeal, defendant raises the following contentions for our consideration:
POINT I SINCE THE JURY FOUND THE DEFENDANT NOT GUILTY OF COUNT VIII CHARGING SEXUAL ASSAULT (FELLATIO), AND SINCE COUNT IX CHARGING ENDANGERING THE WELFARE OF A CHILD WAS PREMISED SOLELY UPON THE ACT OF FELLATIO, ITS GUILTY VERDICT REGARDING COUNT IX WAS FATALLY DEFECTIVE AS A MATTER OF LAW, REQUIRING THAT THE CONVICTION AND SENTENCE IMPOSED THEREON BE REVERSED. (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY FROM A POLICE OFFICER WHO IMPROPERLY PROVIDED LAY OPINION TESTIMONY ESSENTIALLY SUPPORTING THE VICTIM'S CREDIBILITY, THEREBY DENYING TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
POINT III THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S IMPROPER REDIRECT EXAMINATION OF THE VICTIM REFERENCING HIS ADHD AS A BASIS FOR THE INCONSISTENCIES IN HIS TESTIMONY, THEREBY IMPROPERLY BOLSTERING HIS CREDIBILITY. (PARTIALLY RAISED BELOW)
POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Having reviewed these contentions in light of the record and the controlling legal principles, we are convinced they are without merit and, therefore, affirm.
Count eight of the indictment charged defendant with sexual assault, specifically fellatio, "about and between July 1, 2004 through October 31, 2004 . . . ." Defendant was acquitted on this count. Count nine charged defendant with endangering the welfare of a child during the same time period identified in count eight.
When charging the jury on count nine, the judge stated:
Count [n]ine, you'll recall I told you again is endangering the welfare of a child. And in Count Nine we're talking about dates of July 1, '04 through October 31, '04. And again, the elements of that, as I read to you, are:
One, that [L.A.] was a child, meaning under sixteen.
Two, that . . . [d]efendant knowingly engaged in sexual conduct with [L.A.].
And Three, that . . . [d]efendant knew that such conduct would impair or debauch the morals of [L.A.].
Again, the same set of elements apply.
They must be proved, beyond a reasonable doubt, and the alleged acts under that endangering would be fellatio between July 1, 2004 and October 31, 2004. If the elements have been proved beyond a reasonable doubt, . . . [d]efendant shall be found guilty of Count Nine[,] endangering the welfare of a child. If they ha[ve] not been proved to your satisfaction, beyond a reasonable doubt, . . . [d]efendant shall be found not guilty of that charge.
Defendant contends that the jury's verdict of guilty on count nine was fatally defective because the jury found defendant not guilty of count eight which charged sexual assault, specifically fellatio. Therefore, defendant maintains that his conviction and sentence on this count should be reversed. We disagree.
"Inconsistent verdicts are accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004). New Jersey has adopted the so-called Dunn/Powell rule as "control[ling] inconsistent verdicts in this State." Id. at 54. In Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358 (1932), the United States Supreme Court held:
"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." The premise that "inconsistent verdicts are acceptable[,]" Banko, supra, 182 N.J. at 53, was reaffirmed in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed. 2d, 461 (1984), wherein the Supreme Court rejected "as imprudent and unworkable . . . allow[ing] criminal defendants to challenge inconsistent verdicts on the grounds that in their case the verdict was . . . the product of . . . some error that worked against them . . . ." Id. at 66, 105 S.Ct. at 477, 83 L.Ed. 2d at 469.
"We accept inconsistent verdicts . . . 'so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" Banko, supra, 182 N.J. at 54-55 (quoting State v. Petties, 139 N.J. 310, 319 (1995)).
Our jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room. In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty. Instead, we determine whether the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty. We do not speculate whether verdicts resulted from jury lenity, mistake or compromise. [State v. Muhammad, 182 N.J. 551, 578 (2005).]
Here, the trial judge did refer to the fellatio charge in count eight when defining the elements of the endangering the welfare charge in count nine, for the time period between July and October 2004. When first instructing the jury on the charge of endangering the welfare of a minor in count four, however, the judge stated:
To find . . . [d]efendant guilty of this [c]ount [f]our, along with counts seven and nine, depending on the dates, the State must prove the following beyond a reasonable doubt.
The second element [of the offense of endangering the welfare of a child], beyond a reasonable doubt, is that [d]efendant knowingly engaged in sexual conduct. The State alleges that the sexual conduct committed by the defendant consisted of a sexual assault. [Emphasis added.]
This charge was consistent with the language in those three counts of the indictment, each of which charged endangering by "engag[ing] in sexual conduct which would impair or debauch the morals of L.A. . . ."
L.A. testified that, during the period from June to October 2004, he and the defendant engaged in "oral sex and fondling." Thus, although the judge may have erred in referring only to the act of fellatio when charging the jury on the endangering charge in count nine, nonetheless the judge's earlier instruction on the endangering charge in all three counts of the indictment referred to the second element of that offense as sexual conduct consisting of "a sexual assault."
To find a defendant guilty of the offense of endangering the welfare of a child, the State must prove beyond a reasonable doubt that (1) the victim was under the age of sixteen years at the time of the offense; (2) the defendant knowingly engaged in "sexual conduct" with the child; and (3) the defendant engaged in the "sexual conduct" knowing it would impair or debauch the morals of the child. N.J.S.A. 2C:24-4. "The term sexual conduct is not defined. Clearly included are sexual assaults and sexual contacts as those terms are used in Chapter 14." Cannel, Criminal Code Annotated, Comment 2 on N.J.S.A. 2C:24-4 (2009).*fn2
We are satisfied that the record provides sufficient evidence that defendant knowingly engaged in sexual conduct with L.A. between July and October 2004, based upon L.A.'s testimony. The charge as a whole properly directed the jury to consider whether defendant engaged in such conduct during each of the three pertinent time periods, in conjunction with the second element of the endangering offense. Because we conclude that "'the evidence was sufficient to establish guilt of the substantive offense beyond a reasonable doubt[,]'" Banko, supra, 182 N.J. at 55, we find the inconsistent verdicts in this case to be "permitted[,]" and we "accept" them. Id. at 54-55.
Defendant's other claims of trial error are "without sufficient merit to warrant discussion" in this opinion, R. 2:11-3(e)(2), beyond the following comments.
Investigator Ireland neither gave an improper expert opinion nor impermissibly vouched for L.A.'s credibility by his testimony that "[t]hrough the experiences that [he] . . . had with other kids and . . . with the length of time . . . that these abuses occurred," he "believe[d] that . . . more may have happened than just fondling over that long period of time." Nor did the investigator's statement that L.A. "[a]t the end . . . seemed like a weight had been lifted off his shoulder, seem[ed] relieved" constitute improper testimony, as defendant contends. We are satisfied that the trial judge properly ruled, in response to defendant's objection to this testimony, that Ireland "can testify what his observations were and the way he interpreted his observations." This testimony was clearly permissible under N.J.R.E. 701, which permits opinion testimony by a lay witness if that testimony "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witnesses' testimony or in determining a fact in issue."
The prosecutor's redirect examination of L.A., during which she asked him if he had "ever been diagnosed as ADHD[,]" prompted an immediate objection by defense counsel and a sidebar conference at which counsel requested that the judge instruct the jury to disregard the question and answer. The judge properly ruled that such testimony would be inadmissible without "an expert opinion to explain what ADHD is," and promptly instructed the jury to "disregard the question and disregard the answer to that question."
Defense counsel questioned L.A. about the discrepancy in his statements to the authorities as to whether defendant's abuse began in 2001 or 2002, as well as L.A.'s failure to disclose incidents of oral and anal penetration until much later in the investigation when he spoke to Investigator Ireland. Therefore, on redirect, the trial judge permitted the prosecutor to ask L.A. whether he had trouble remembering things," to which
L.A. replied, "Yes."
Under the circumstances, we are satisfied that the trial judge's instruction that the jury disregard the question on ADHD appropriately and adequately met defendant's objection. We are further satisfied that the redirect questioning permitted by the judge was within the scope of cross-examination. State v. Knight, 63 N.J. 187, 192-93 (1973).
Finally, defendant argues that his sentence is excessive because the court abused its discretion (1) by imposing a nine-year term on the second-degree offense in count two and the maximum term of five years on count nine; (2) by imposing the maximum parole ineligibility period on counts seven and nine; and (3) by ordering all terms to be consecutive rather than concurrent. Here again, we disagree.
In imposing sentence, a trial judge must "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how [he] arrived at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354, 359-60 (1987)). New Jersey's "sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002).
Here, Judge Michael A. Donio rendered a twenty-two-page statement of reasons for the sentence imposed. In that statement, the judge painstakingly reviewed the evidence and engaged in a thorough weighing and analysis of the relevant aggravating and mitigating factors. N.J.S.A. 2C:44-1(a) and (b).
The judge justified imposition of maximum periods of parole ineligibility "due to the overall fact that the incidents of which . . . [d]efendant was convicted . . . show a clearly manipulating and cunning individual who took advantage of a minor's friendship, obtained in a church setting, and committed these assaults and endangering offenses in the minor's home."
In determining that the sentences should be served consecutively, the judge reasoned that, after the merger of counts four and ten, the remaining counts are separate and distinct sexual assaults. Defendant's series of sexual assaults were committed not over a span of months but a span of 2 1/2 years against this victim. They were separate and distinct events that . . . demonstrate the need to punish this [d]efendant separately. In evaluating the factors, the [c]court finds that there should be no free crimes in a system where punishment shall fit the crime, and furthermore, that separate crimes deserve separate punishment.
We find no basis to disturb the terms of incarceration and parole ineligibility periods imposed. Nor is there a basis to disturb the imposition of consecutive sentences which, we are satisfied, comport with State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d, 308 (1986). We affirm defendant's sentence substantially for the reasons set forth in Judge Donio's written statement.