May 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No.05-01-0249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Carchman and Lihotz.
A jury found defendant W.H. guilty of second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial judge sentenced defendant to an aggregate term of imprisonment of eight years subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Although defendant raises a number of issues on appeal, the critical issue for determination is whether the trial judge erred when permitting the jury to watch a videotape of the victim's pretrial interview during the jury's deliberations. We answer the question in the negative and affirm.
These are the facts adduced at trial. On December 30, 1994, M.D. was born to K.D. and defendant, who were, at that time, involved in a romantic relationship. Sometime thereafter, K.D. and defendant ceased their relationship.
When M.D. was 8-years old and in the third grade, K.D. and defendant decided that M.D. would begin to spend more time with defendant, and M.D. was permitted to sleep at defendant's house as well as defendant's girlfriend's house approximately two weekends per month. Generally, defendant would pick up M.D. on Friday afternoons and return her to K.D.'s house on Sunday night to be ready for school on Monday. During this period, between the summer and October of 2003, K.D. noticed that her daughter, who was generally "outgoing" and "talkative", became more reticent and distant, and her grades steadily declined.
On Tuesday, October 21, 2003, K.D. asked M.D. what she did with her father over the weekend. K.D. was surprised when her daughter said that she slept at defendant's house rather than at the girlfriend's house. K.D. continued to probe M.D. regarding what she did with her father that weekend, and M.D. suddenly started "hysterically crying." After K.D. was able to calm her daughter down, M.D. revealed that defendant "touched" her. That same night, K.D. and M.D. went to the Asbury Park police department to report this information. Three days later, K.D. brought her daughter to the Monmouth County Prosecutor's Office to take a statement and conduct a videotaped interview.
In the videotaped interview, conducted by Prosecutor's Detective Michael Magliozzo, M.D. disclosed that her father sexually assaulted her on three occasions between the summer and October 2003 while she was staying with him for the weekend. On one occasion, she was lying on the couch in defendant's living room, not yet asleep, when her father came over to her, took out his penis and tried to put it over her underwear. M.D. maneuvered her body in such a way that he could not do anything else to her, but she said his penis felt "hard."
On another occasion, M.D. was asleep on defendant's bed, and she was not wearing any underwear due to the heat. At some point her father laid down behind her, her back against his front, and defendant attempted to put his penis into her "butt." Defendant did not penetrate M.D., but M.D. described the experience as the "worst ever," because her father's penis "almost went in."
On another occasion, the girlfriend's niece, J.B., was also sleeping at defendant's house. Again, because of the heat, M.D. was only wearing a shirt to bed, without any underwear. After M.D. and J.B. fell asleep, defendant carried them individually into his bedroom. Shortly thereafter, M.D., feeling something pressing against her vagina, awoke to see defendant on top of her. M.D. pushed him off and moved in a manner so he could not continue to attempt to penetrate her. Defendant did not penetrate M.D., but he moved behind J.B. and began touching her. M.D. did not know if defendant's penis penetrated J.B.*fn1
At trial, M.D. testified regarding the three sexual assaults described in the videotaped interview, as well as a previously unmentioned sexual assault. Specifically, M.D. testified that on one occasion she was rubbing lotion on her skin after taking a shower; defendant came into the room, rubbed lotion on her and touched her "front private area." Immediately after M.D. testified, the prosecution played the videotape of M.D.'s pre-trial interview prepared by Detective Magliozzo.
The thrust of defendant's trial strategy focused on discrepancies between M.D.'s in-court testimony and her videotaped interview. For example, on cross-examination, defendant questioned M.D. whether it was true that, prior to testifying, she never mentioned the incident where defendant rubbed lotion on her and touched her "front private area." In closing arguments, counsel argued:
Well, if there's no difference in the questioning, why, then, wouldn't she have on other occasions - -- because she basically testifies on the tape that it happened from August several times, August obviously into October, a third event she talked about --then she gets on the stand and again testifies. But this is important. Here it is three and a half years later and she testifies about an event and one of those events she recalls distinctly that [defendant] had lotion and put it on her and touched her in her private parts.
Is there anything, is there anything on that tape, is there anything when I questioned her regarding her testimony at the grand jury, both events, the tape being only three or four days after the incident, and the grand jury which was less than about a year, where is the question about the lotion? And the important part about that is if we're talking about an eight-year-old child and she is confused as to certain dates, all right, or certain actions regarding where he put his private part --on my rear or on my vagina -- wouldn't it make sense that at least a common, something that she would say, well, wait a second. I know on one of these occasions he used lotion and he put it on me. But there's nothing in the tape about that and there's nothing in the grand jury testimony about that. [(Emphasis added).]
At the conclusion of the trial, the judge charged the jury and, without objection from defendant, informed the jury that they would take the videotape of M.D.'s pre-trial interview into the jury room. The judge also stated that there was a television in the jury room with the video player, and if the jury had any difficulty operating it, they should "let us know and we will help you out." The jury deliberated and found defendant guilty.
At defendant's January 11, 2008 sentencing hearing, the judge determined that the only pertinent mitigating factor was that defendant's imprisonment would "entail an excessive hardship to certain of his children[,]" N.J.S.A. 2C:44-1b(11). However, the pertinent aggravating factors included: the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, N.J.S.A. 2C:44-1a(2); the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and the need for deterrence, N.J.S.A. 2C:44-1a(9). As we previously noted, defendant was sentenced to an eight year prison term with an eighty-five percent parole disqualifier. This appeal followed.
On appeal, defendant raises the following issues:
THE TRIAL COURT ERRED BY PROVIDING TO THE JURY THE VIDEOTAPE OF THE VICTIM'S PRETRIAL INTERVIEW DURING DELIBERATIONS ALONG WITH A TELEVISION WITH A VCR, THEREBY PERMITTING IT TO HAVE UNFETTERED ACCESS TO ITS CONTENTS WITHOUT ANY GUIDANCE FROM THE COURT PURSUANT TO GUIDELINES ESTABLISHED IN STATE V. BURR, 195 N.J. 119 (2005), THEREBY DENYING TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On the same day the jury rendered its verdict, we rendered our decision in State v. Burr, 392 N.J. Super. 538 (App. Div. 2007), aff'd, as modified, 195 N.J. 119 (2008). One of the many issues that we addressed in that opinion was the propriety of a playback in the courtroom of the victim's pretrial videotaped statement. We held that the video replay was error but noted that "because of our reversal on other grounds, we need not decide if this error alone would require a new trial." Burr supra, 392 N.J. Super. at 576. On review, the Supreme Court framed the issue as to "whether a taped pretrial statement, which has been introduced into evidence, may be reviewed by the jury during deliberations...." Burr, supra, 195 N.J. at 132. The Court established procedures for such viewing in the courtroom. Burr's mandate as applied to the jury room forms the gravamen of defendant's appeal.
We first observe that the issue was not raised at trial and must be considered as plain error. R. 2:10-2; State v. Brown, 190 N.J. 144, 160 (2007). We "may reverse on the basis of unchallenged error if we find the error was 'clearly capable of producing an unjust result.'" Brown, supra, 190 N.J. at 160 (citing R. 2:10-2). An error must create a "possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442, 454 (2008) (citing State v. Macon, 57 N.J. 325, 336 (1971)). Under that standard, "defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Koskovich, 168 N.J. 448, 530 (2001) (citations omitted).*fn2
In Burr, supra, the Court recognized, as a general rule, that "once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use." 195 N.J. at 133-34 (citing R. 1:8-8). A videotape, however, is "different from a demonstrative exhibit[,]" in that it is a "hybrid" between testimony and evidence. Id. at 134. "[A]llowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations[,]" which is permitted only with the application of restrictions delineated in State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). Burr, supra, 195 N.J. at 134. Therefore, "in the future... the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements."*fn3 Ibid. (Emphasis added).
As defendant's trial was completed before Burr was decided, and because by its terms, Burr is to apply prospectively, the trial court, here, did not err by failing to abide by its holding. Cf. State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009). Therefore, the issue is whether, notwithstanding Burr, the court abused its discretion in granting the jury unfettered access to the videotaped interview. Michaels, supra, 264 N.J. Super. at 644.
In Michaels, we determined that although the "replay[ing] of child-testimonial videotapes is [not] prejudicial per se[,]" Id. at 644, "it is error to allow the jury to have videotaped testimony and a means of playing it in the jury room." Id. at 643. Other jurisdictions have recognized that the trial judge has discretion to decide whether evidentiary exhibits should accompany the jury into the jury room, but that discretion should be exercised with limitations. See, e.g., United States v. Zepeda-Santana, 569 F.2d 1386, 1391 (5th Cir.) (holding that the trial court did not err in replaying an audiotape in the courtroom, rather than behind closed doors during deliberations where there "was no assurance the jury would listen to the whole tape or would correctly operate the recorder"), cert. denied, 437 U.S. 907, 98 S.Ct. 3098, 57 L.Ed. 2d 1138 (1978); Flonnory v. State, 893 A.2d 507, 525 (Del.) (recognizing that while a trial judge has broad discretion to "admit a witness's out-of-court written or recorded... statement as a trial exhibit that goes into the jury room during jury deliberations[,]" this "should be the exception rather than the rule"), cert. denied, 549 U.S. 834, 127 S.Ct. 66, 166 L.Ed. 2d 59 (2006); Holloway v. State, 809 So. 2d 598, 610 (Miss. 2000) (holding that it is "[w]ithin the discretion of the trial court... to 'regulate the presentation of [a videotape] to the jury, such as limiting the number of replays'") (citations omitted). Even in Michaels, supra, we "refuse[d] to hold that it is never permissible, at a jury's request during deliberations, to replay a videotape of testimony in its entirety for the jury, with the defendant present, in open court." 264 N.J. Super. at 644.
While permitting the jury to have unfettered discretion to re-watch a videotape of a pre-trial interview or statement may be an abuse of discretion, other times, a defendant may agree to and expect to benefit from the jury being granted such ability. See Commonwealth v. Fernette, 398 Mass. 658, 666-67 (1986) (finding that a "substantial likelihood of a miscarriage of justice " did not arise where prosecutor and defendant agreed to allow the jury unrestricted access to the defendant's taped statement during the deliberations); Adams v. State, 183 Md. App. 188, 203-05 (Md. Ct. Spec. App. 2008) (finding no abuse of discretion where the judge refused to allow the jury to review a videotape of an out of court conversation, despite defendant's request that the jury be permitted to do so, out of fear that the jury "would overemphasize" the videotape), certif. denied, 407 Md. 529 (2009).
The factual scenario here is markedly different from that posed in Michaels and Burr. Defendant did not object to the jury being granted unfettered discretion to re-watch M.D.'s pretrial interview. His trial strategy was premised on the jury having access to M.D.'s statement and his argument that her testimony was both inconsistent with her pre-court statements and unreliable. Factually, he focused on M.D. not having mentioned the incident wherein defendant rubbed lotion on her legs and touched her genitalia; M.D. was cross-examined about this fact, and defendant emphasized this fact in summation. He remained silent when the judge made the tape available to them and at least, we may infer that, "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008).
While Michaels and Burr recognize that a "read back" of the transcript of M.D.'s pre-court interview would, in most cases, be preferable to replaying the videotape and often less prejudicial to the defendant, defendant did not request a read back, and because M.D.'s interview was recorded via videotape, it is not clear that a read back would have been available in this case. See State v. Miller, 411 N.J. Super. 521, 531 (2010) (noting that "a 'read back' was not an option available to th[e] judge" because the "proceedings [we]re videotaped rather than memorialized by a stenographer[,]" and therefore a "'read back' would not have been possible without an adjournment of sufficient duration to permit preparation of either a transcript or stenographic record of the testimony from the recording").
As we have noted, defendant's trial strategy focused on the jury's consideration of the tape. To allow the jury to see the tape, served defendant's strategy but has now prompted an assertion of error.
We analogize this circumstance to "invited error." Where a party "urged the lower court to adopt the proposition now alleged to be error[,]" Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996), we will not ordinarily review that party's claim.
Pressler, Current N.J. Court Rules, comment 2.2 on R. 2:10-2 (2010). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Jenkins, 178 N.J. 347, 358 (2004) (citing State v. Pontery, 19 N.J. 457, 471 (1955)). Ordinarily, to constitute "invited error," a party must have "urged," "beseech[ed]," "request[ed]," Brett, supra, 144 N.J. at 503, "induced," State v. Corsaro, 107 N.J. 339, 346 (1987), or "ask[ed] the court to take his [or her] proffered approach[.]" Jenkins, supra, 178 N.J. at 358.
However, the Court has recently recognized that a defendant's silence was sufficient to constitute "invited error." N.J. Div. of Youth and Family Servs. v. M.C., ___ N.J. ___, ___ (2010) (slip op. at 25-27). In M.C., the defendant "consented" to the admission of documents alleged to contain hearsay, and defense counsel made a "strategic decision to try the case based on the documents[.]" Id. at ___ (slip op. at 25-26). The Court considered it "unfair" to reverse based on this issue, and the defendant was barred from contesting the admission of these documents under the invited error doctrine. Id. at ___ (slip op. at 26-27).
The judge's decision to permit the jury to take the videotaped pre-trial interview into deliberations derived from defendant's trial strategy, and defendant sought to benefit from the jury's additional viewings of the videotape. In essence, defendant's silence was tacit approval of the judge's decision to submit the tape to the jury. We decline to find an abuse of discretion for the judge to enable the jury to re-watch M.D.'s videotaped interview during deliberations.
Defendant next argues that his sentence was excessive and disputes the sentencing court's factual findings as to the pertinent aggravating and mitigating factors. First, defendant claims that the court erred in finding N.J.S.A. 2C:44-1a(2), the gravity and seriousness of harm inflicted on the victim in light of the victim's youth, was a pertinent aggravating factor, because M.D.'s youth is a necessary element of the offense and therefore cannot constitute an aggravating factor. Defendant also argues that neither N.J.S.A. 2C:44-1a(3), the risk that the defendant will commit another offense, nor N.J.S.A. 2C:44-1a(6), the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, were supported by the record.
Finally, defendant alleges that the judge failed to consider allegedly pertinent mitigating factors: defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); and defendant's character and attitude indicate that he is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9).
The standard of review informs us as to how we resolve the issue of defendant's sentence. Where a trial judge "properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" the sentence is subject to "limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). We will not "second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. The exception to this general rule is where the sentence "shocks the judicial conscience." Id. at 215-16.
"In the end, '[t]he touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court.'" Cassady, supra, 198 N.J. at 180 (citing State v. Natale, 184 N.J. 458, 488 (2005)). Where the sentence is reasonable, we "[are] bound to affirm a sentence, even if [we] would have arrived at a different result[.]" Ibid. (quoting O'Donnell, supra, 117 N.J. at 215). We will not "substitute [our] judgment for that of the trial court." Ibid. (quoting State v. Evers, 175 N.J. 355, 386 (2003)).
N.J.S.A. 2C:44-1a(2) provides that "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to... extreme youth" is an aggravating factor. Here, the sentencing judge stated: "In terms of the statutory, aggravating and mitigating factors, of the gravity and seriousness of the harm inflicted, I say this because it was an eight year-old child and her youth was involved in this particular case, and I think that implicates aggravating factor number two."
While "facts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence[,]" State v. Kromphold, 162 N.J. 345, 353 (2000) (citing State v. Yarbough, 100 N.J. 627, 633 (1985)), the "extreme youth" of a victim is an aggravating factor which may be properly considered by a sentencing court. See N.J.S.A. 2C:44-1a(2); State v. Balfour, 135 N.J. 30, 40 (1994); State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (finding that the aggravating factor for "extreme youth" was satisfied when the victim was the defendant's four year-old niece).
A defendant will be found guilty of second-degree sexual assault if that defendant "commit[ted] an act of sexual contact with a victim who is less than 13 years old and the [defendant] is at least four years older than the victim." N.J.S.A. 2C:14-2b. M.D. was eight years old at the time of the sexual assaults, and defendant was forty-four years old. The difference between defendant's and M.D.'s respective ages were more than sufficient to satisfy N.J.S.A. 2C:14-2b as well as a finding that M.D.'s age, especially compared to defendant's, was a pertinent aggravating factor. The judge's conclusion that extreme youth was a pertinent aggravating factor is well-supported by the record.
With regard to the remaining challenged aggravating factors, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and the need for deterrence, N.J.S.A. 2C:44-1a(9), the judge stated:
The risk the defendant will commit another offense, it's hard not to look at 34 entries and nine municipal convictions, one Superior Court conviction, and say that there's not a risk of that happening again for this particular man.
The extent of his prior criminal record, and the seriousness of the offenses of which he has been convicted. Well again, we've talked about nine municipal offense [sic]. They are not serious in terms of his criminal record. He had one prior criminal conviction that he, I believe, pled to, which cost him his fire department job. And you would have though that that would have ended his criminal involvement, but apparently it did not.
The need for deterring the defendant and others from violating the law, is certainly present in this particular case involving his own child, a victim of his sexual advances.
The judge's findings are well-supported by the record. With regard to "risk that  defendant will commit another offense," N.J.S.A. 2C:44-1a(3), and the "extent of  defendant's prior criminal record," N.J.S.A. 2C:44-1a(6), defendant's presentence report (PSR) indicates that defendant has had numerous municipal and superior court charges, dating back to 1986, and a conviction for conspiracy to commit aggravated assault. Defendant has extensive contacts with the criminal justice system, yet continues to re-offend. The judge's findings as to N.J.S.A. 2C:44-1a(3), N.J.S.A. 2C:44-1a(6) and N.J.S.A. 2C:44-1a(9) are well-supported by the record.
His findings with regard to the mitigating factors are also supported by the record. With regard to defendant's claims that his "conduct was the result of circumstances unlikely to recur[,]" N.J.S.A. 2C:44-1b(8), and that his "character and attitude... indicate he is unlikely to commit another offense[,]" N.J.S.A. 2C:44-1b(9), the sentencing judge stated:
I share some of the concerns that the Prosecutor expressed about, it's everybody else's fault, it's somebody else's fault, it's not my fault....
In terms of mitigating factors, because of the record that's presented, even though there are some positive things, I can't say that mitigating factor eight applies, that this wouldn't happen again. In the Avenel report it indicated that they could find that it was repetitive, but they could find nothing to say it was compulsive.
And again, it's not the first time he faced sexual charges. He was found not guilty. I certainly can't factor that into my sentencing of the defendant. He's presumed to be innocent. And it turned out that he was, in fact, innocent of those particular charges.
But in evaluating the whole man, having gone through those experiences, you would think that he would not have gotten himself involved in the type of situation that he got himself involved with, in this particular case.
The character and attitude indicate that he's unlikely to commit another offense, I can't say that....
First, as noted, defendant has had extensive contact with the criminal justice system and still committed the present offenses. Defendant also has not accepted responsibility for his actions. The PSR notes that defendant "has no regard for others and feels he can do just about anything without consequences to himself. He appears to have little or no insight as to how his behavior affects others." The judge's findings with regard to N.J.S.A. 2C:44-1b(8) and N.J.S.A. 2C:44-1b(9) are well supported by the record.
In reaching an appropriate sentence, the "logical starting point" is the "middle of the sentencing range[.]" Natale, supra, 184 N.J. at 488. While it is reasonable to conclude that "if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence[,]" such an approach "is not compelled." Ibid. "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." Ibid.
As the aggravating factors outweighed the mitigating factors, defendant's eight year sentence was appropriately on the higher end of the sentencing range. Furthermore, a court must impose a minimum term of eighty-five percent of the sentence, during which the defendant shall not be eligible for parole, for a defendant convicted of second degree sexual assault. N.J.S.A. 2C:43-7.2a; N.J.S.A. 2C:43-7.2d(8). Defendant's sentence was appropriate. Under the circumstances presented, the imposed sentence was appropriate.