April 15, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Wefing and Grall.
A jury found defendant J.S. guilty on eleven counts of an indictment charging sexual offenses committed against his daughters, E.S. and V.O., between Spring 2004 and July 17, 2006. During that time, E.S. was under the age of sixteen and V.O. was under the age of thirteen. Defendant's convictions for crimes against the children include: two counts of first-degree aggravated sexual assault by penetration, one upon each child, N.J.S.A. 2C:14-2a; four counts of second-degree sexual assault, two against each child, N.J.S.A. 2C:14-2b, N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:14-2c(4); two counts of second-degree endangering the welfare of a child by engaging in sexual conduct, one for each child, N.J.S.A. 2C:24-4a; one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and two counts of fourth-degree criminal sexual contact, one for each child, N.J.S.A. 2C:14-3b. Defendant was also convicted of contempt of an order restraining him from the home the children shared with their mother, N.O. N.J.S.A. 2C:29-9.
The judge merged defendant's convictions for sexual assault and sexual contact against each child with his convictions for first-degree aggravated sexual assault against each child. He was sentenced to two consecutive twelve-year terms of incarceration for first-degree aggravated sexual assault, both subject to periods of parole ineligibility and parole supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2; two concurrent seven-year terms for second-degree endangering the welfare of a child; and a consecutive three- month term for contempt. Appropriate fines, penalties and assessments were also imposed.
Defendant and N.O. have four children. When they met, N.O. was fifteen. Their first child was born when N.O. was eighteen. E.S. was born in June 1991 and V.O. was born in October 1993.
The testimony presented at trial, viewed in the light most favorable to the State and with the benefit of all favorable inferences, was adequate to permit the jurors to find defendant guilty of the charges.
Defendant was a strict parent who wanted his children to do well in school and help at home. As punishment, he required his daughters to stay in their room, read rather than watch T.V. and not use the telephone. At times, the punishment was terminated before the period initially stated by defendant expired.
When his eldest daughter, E.S. was about thirteen, defendant came to her room and told her that if she wanted to return to her normal activities she would have to do what he told her. For that reason, she submitted to sexual conduct. Between that first incident and the last, she was subjected to digital penetration, touching of her vaginal area and breasts, and she performed fellatio on defendant. Although her mother and brothers were often at home when these things happened, the incidents were brief.
V.O. was ten when defendant had her engage in sexual conduct to commute her punishment. Thereafter, he abused her almost every time she saw him. The incidents involved touching of her breasts and vagina and digital penetration. On one occasion defendant had V.O. touch his penis and on another he attempted intercourse, which she resisted. When she refused, defendant told her he would marry her when she was eighteen.
Although the children discussed defendant's conduct, they kept it secret from everyone else for about two years. Finally, when V.O. asked her older sister to help her, E.S. told their mother. N.O. called the police. Physical examinations of E.S. and V.O. did not permit the examiner to substantiate or rule out the sexual conduct defendant's daughters alleged.
N.O. had obtained a restraining order against defendant in 2005. Although she soon resolved to seek dismissal of the order, she never did and despite its existence allowed defendant to come to her home.
Defendant testified and denied his daughters allegations. He acknowledged that his children's education was very important to him and that he probably was "a little too hard on them," but he explained that he was pushing them "to do their best" and had some success; both of his daughters "made the honor roll," one with straight "A"s. He explained that he punished them by not allowing them to go outside, use the phone or watch TV and requiring them to stay in their room and read books. He said he usually told them the punishment would last a month, but "it would only last like a week, two weeks." When asked about the early termination, defendant said it was "[b]ecause they would be, they would be good, listening to their mother, doing the chores in the house like they are supposed to . . . ."
Defendant raises the following issues on appeal:
I. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (PARTIALLY RAISED BELOW).
II. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF TESTIMONY ELICITED BY THE PROSECUTOR CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT.
III. THE TRIAL COURT ERRED BY FAILING TO QUESTION A JUROR EXCUSED FOR CAUSE WHETHER SHE HAD CONVEYED HER STRONG PERSONAL BELIEF REGARDING THE DEFENDANT'S GUILT TO OTHER MEMBERS OF THE JURY PANEL.
IV. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
V. PAGE ONE OF THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO ACCURATELY REFLECT THE 12 YEAR TERM IMPOSED ON COUNT II RATHER THAN THE 15 YEAR TERM SET FORTH THEREIN.
We have reviewed the record in light of the arguments presented. For the reasons stated below, no relief other than correction of the judgment of conviction to reflect the sentence actually imposed is warranted.
Reversal of a conviction on the basis of prosecutorial error is appropriate when the prosecutor's improper argument was "'clearly and unmistakably improper,' and . . . substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021 (1996)). In assessing prejudice, we must consider the judge's response to any objection raised and assume that the jury followed curative instructions given by the judge. State v. Atwater, 400 N.J. Super. 319, 335, 337 (App. Div. 2008). The ultimate question is whether the defendant was deprived of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987).
Defendant's argument is based on several passages included in the State's summation. With respect to the argument on the credibility of E.S. and V.O., defendant contends that in suggesting reasons for the jurors to discount the importance of the two-year period during which the children tolerated the abuse without turning to their mother, the prosecutor relied on a theory about which there was no evidence - Child Sexual Abuse Accommodation Syndrome.
Things that you do not want to think about, that Dad sexually abused me. You want to bury that. You do not want to talk about it. You do not want to think about it. And here you have all these strangers coming at you, saying, What happened? What did he do next? Where did he do it? What happened? You do not want to think about it so you bury it.
And delayed disclosure is a very common element in this kind of thing, especially young kids. They might tell you a little bit and then they might tell you a little bit more, and then they might tell you a little bit more. So it's not unusual.
In response to defense counsel's immediate objection, the judge sustained, reminded the prosecutor that there had been no expert testimony and directed the jurors to disregard the argument about delayed disclosure.
Defendant also argues that the prosecutor vouched for the children's credibility. He points to the prosecutor's observation that E.S. was "very candid, very credible as to when she answered the questions." In addition, he relies on a portion of the summation addressing V.O.'s testimony:
If [V.O.] was going to lie about something, I mean if she's going to make something up, she's asked did anything ever happen at the aunt's house, and she said no, nothing happened there. She, if she wanted her story to get better, wouldn't she have said yes, yeah, it happened there? And she didn't do that because she was telling the truth.
On defense counsel's prompt objection to that argument, the judge directed counsel and the jury:
All right, both of you have the right to argue to the jury what evidence they should consider and how they should consider it, just as normally you feel what's true.
The jury will make their own evaluation as to what they heard and what is true, but you may argue what they should accept or not accept. That's within your right.
There is no clear and unmistakable impropriety that could have prejudiced defendant in light of the measures the judge took to address the problems posed. Although it was improper for the State to suggest reasons for the children's delayed report to their mother that were not supported by evidence adduced at trial, the judge promptly directed the jurors to disregard the argument. With that exception, there is no clear impropriety. Most important, any danger of the jurors inferring guilt based on facts not in evidence or the prosecutor's argument on credibility was addressed by the judge's clear instructions to the jurors.
In short, there is no basis to conclude that the summation deprived defendant of a fair trial. Ramseur, supra, 106 N.J. at 322.
Defendant's claim that the judge erred in denying his application for a mistrial is based upon the prosecutor eliciting N.O.'s testimony about her age at the time of the birth of her first child. The argument is that the testimony was evidence of prior bad acts that should have been excluded pursuant to N.J.R.E. 403 and N.J.R.E. 404.
Recognizing the irrelevance of the testimony, the judge denied a mistrial and in clear terms directed the jury to disregard the evidence.
Members of the jury, you've heard some testimony as to the age, when this witness got pregnant with one of her children. It is not relevant to the evidence in this case or to the issues that are before you in this case.
I'm going to ask you to disregard that response. I'm going to ask the prosecutor to ask the next question.
"Generally, a motion for a mistrial should be granted only in those situations which would otherwise result in manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). When a curative instruction will adequately address the prejudice, that is the appropriate course of action. See id. at 384. Given the nature of the testimony and the judge's decision to strike it, there is no support for a conclusion that the course of action the judge chose was an abuse of her discretion or that her determination harmed defendant in any way. State v. LaBrutto, 114 N.J. 187, 207 (1989).
Defendant's final challenge to his conviction is based upon an incident during the second day of jury selection. A juror asked to address the judge at sidebar, expressed her concern about value that she would lose on her bus pass if required to serve on the jury and added that she would "definitely not be impartial." The judge asked why and the juror said "because I am prejudiced." The judge inquired about the source of the prejudice. This exchange followed:
Just the fact that he looks like a white trash piece of garbage and walks in here with sneakers on I think he would absolutely do it and you just don't get charges against you like this for no reason and I totally would --[Defense Counsel]: Maybe she should be excused now before everybody hear's [sic] what she says, Judge. She is talking loud.
The judge excused the juror. Defense counsel asked the judge to make additional inquiry as to whether the excused juror had shared her opinion with other prospective jurors during the lunch recess. He made that request three times, but the judge did not grant it.
In response to the final request, the judge reiterated and summarized her reasons:
[Counsel], I said to you yesterday that it's not an uncommon experience that this court has when I refuse somebody on one count that they start to tell me how prejudiced they are. And whoever my defendant is, they turn around to look at the man or woman sitting at the table and say I look at them, and they've got guilty eyes. It is so very common. This woman was very explicit in her statements, but it was no different than I've heard over and over again in dealing with jury selections.
I instructed this jury panel the first time they came in, the second time they came in, the third time they came in not to talk to each other about this case and not to talk with others. I assume that they listened to my instructions. I have no reason to doubt it. I have no reason to doubt this woman spoke to anyone else about her feelings. If they were that strong, I think she would have issued them first before telling me about her bus pass.
A defendant has a right to be tried to a jury untainted by prejudice, and the judge has an obligation to take appropriate measures to protect that right in impaneling a jury. State v. Tyler, 176 N.J. 171, 181 (2003). Like other determinations relevant to voir dire, the decision to grant or deny defense counsel's request was one requiring an exercise of discretion by the judge who had an opportunity to observe the events and the prospective jurors. State v. Papasavvas, 163 N.J. 565, 595 (2000).
There is no reason to disturb the course of action taken here. The judge had twice directed the prospective jurors not to discuss the case, and there is no reason to assume that they disregarded that mandate. Moreover, after defense counsel and the prosecutor acknowledged their satisfaction with the panel, the judge again asked the members if they could be impartial.
That additional effort to detect any juror who was not impartial evoked no response. Under the circumstances, we cannot conclude that the judge abused her discretion in declining to inquire further.
As there is no reason to disturb defendant's conviction, we consider his claim that his sentence is excessive. Our obligation is to determine whether the sentence is based upon findings supported by competent and reasonably credible evidence and whether the judge applied the sentencing laws and considered the criteria for consecutive sentences established in State v. Yarbough, 100 N.J. 627, 643-44, cert. denied, 475 U.S. 1014 (1986). See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. Cassady, 198 N.J. 165, 180-83 (2009).
This sentence comports with the sentencing laws and Yarbough. The presumption of incarceration applied because defendant was convicted of two first-degree crimes. N.J.S.A. 2C:44-1d. The twelve-year sentences are at the lower end of the range for crimes of the first degree, N.J.S.A. 2C:43-6a, and the duration is based upon findings relevant to the statutory aggravating and mitigating factors that are supported by the record, N.J.S.A. 2C:44-1a-b. The judge's decisions to have defendant serve the sentences for first-degree crimes against two victims consecutive to one another and a third consecutive sentence for an unrelated crime of the fourth degree are not inconsistent with the principles enunciated in Yarbough, supra, 100 N.J. at 643-44. Accordingly, without principled basis for concluding that the sentence is shocking to the judicial conscience, we must affirm. Bieniek, supra, 200 N.J. at 612.
Defendant's specific arguments about the judge's findings on aggravating and mitigating factors lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
The judgment of conviction includes a typographical error that must be corrected. The sentence for one of the two aggravated sexual assaults is erroneously recorded as "15" years.
Affirmed and remanded for correction of the judgment.
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