August 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LARRY THOMPSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-02-0320.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Sapp-Peterson and Espinosa.
Defendant, Larry Thompson, a dance instructor, appeals his conviction on numerous charges of sexual assault and related charges he committed against two of his former dance pupils. He was sentenced to an aggregate fifty year prison term, with a twenty-five-year period of parole ineligibility. We affirm.
In a thirty-five-count indictment, a grand jury indicted defendant, Larry Thompson, on six counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b); eight counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); seven counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); three counts of endangering the welfare of children, N.J.S.A. 2C:24-4(a); and eleven counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). A jury convicted defendant of twenty-eight counts contained in the indictment*fn1 and, at sentencing, the court imposed an aggregate custodial term of fifty years with a twenty-five year period of parole ineligibility.
The facts giving rise to the indictment are as follows. C.F. and her sister, M.F., began taking dance lessons from defendant at a dance studio where he worked when they were pre-teens. When he wanted to meet privately with a student, defendant would use the bathroom at the end of the studio as an office. C.F. testified that defendant began touching her vagina and breasts when she was close to thirteen years old.
Defendant eventually opened up his own school. Both C.F. and M.F. continued taking dance lessons with him at this new school. C.F. testified that defendant escalated the sexual abuse at the new school to vaginal digital penetration and intercourse. M.F. testified that defendant inappropriately touched her for the first time at this new school. She was about fourteen years old at that time.
Defendant closed his school and started operating a dance studio out of his home. The two sisters took dance lessons with defendant at this location. Both C.F. and M.F. testified that the sexual abuse continued there. Defendant and M.F. had sexual intercourse for the first time at defendant's home.
Defendant was subsequently successful in opening another dance studio. Once again, M.F. and C.F. followed defendant to this new studio for dance lessons, where the abuse continued. Both girls eventually stopped dancing. At no time while the abuse was occurring did the two sisters discuss the abuse with each other or anyone else. At some point after they stopped taking the dance lessons, M.F. told her mother that she had been molested. C.F. testified that when her mother asked whether she too had been molested, she said no because she did not want to cause her mother more pain.
The girls' mother did not report what M.F. had told her to the police. However, several years later, she told C.F. that M.F. told her about a newspaper article. C.F. decided that defendant "needed to be stopped" and contacted authorities, who filed charges against defendant. The Bergen County Prosecutor's Office then contacted M.F.
Defendant testified on his own behalf and denied sexually abusing either M.F. or C.F. He explained that he used the bathroom at the dance school where he first started instructing the girls as an office because "[t]here was no place to really talk alone to anyone."
The jury convicted defendant of all twenty-eight counts of the thirty-five count indictment related to C.F. and M.F. At sentencing, the court found four aggravating factors and one mitigating factor before imposing a fifty-year period of incarceration, along with a twenty-five-year period of parole ineligibility. The present appeal followed.
On appeal, defendant raises four points for our consideration:
POINT I THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST TO BAR TESTIMONY CONCERNING A NEWSPAPER ARTICLE ABOUT THE DEFENDANT. THE ADMISSION OF THIS EVIDENCE RESULTED IN A DEPRIVATION OF THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT II THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE APPLICATION FOR A MISTRIAL FOLLOWING A WITNESS'S OUTBURST, WHICH IMPLICATED THE DEFENDANT IN ANOTHER CRIME.
POINT III THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A MISTRIAL AFTER THE PROSECUTOR IMPROPERLY ACTED AS AN EXPERT IN CHILD ABUSE DURING HIS SUMMATION.
POINT IV THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We have considered the arguments advanced in light of the record, the briefs submitted and applicable legal principles. We reject each of the arguments advanced.
Just before the testimonial stage of the trial commenced, the State sought a ruling from the trial court permitting C.F. to testify that she "heard that [defendant] was in the newspaper[.]" The prosecutor represented that he did not intend to go any further than that. The prosecutor argued that the "jury should be aware of some context for which this victim came forward at that time. To just say I came forward without any explanation would be misleading and, quite frankly, unfair to the State." Defense counsel objected, arguing that any reference to the newspaper article was "prejudicial in and of itself." Defense counsel also pointed out that C.F. never actually read the article in question and that the natural inference to be drawn from such testimony was that "[s]omething bad must have happened." The court disagreed, indicating that it did not "think there was a negative connotation. There's almost a positive connotation that he's a well[-]known person. He has a dance studio." The court ruled:
I'm going to permit it, [defense counsel], for that reason. That that's what the man does. He's known for that. He may not be well[-]known to certain people but to others he may be very well[-]known if he has his own dance studio and he has his own dance ensemble that travels around. I don't think that's going to prejudice his case.
It would be consistent with the facts and it will make the case easier to understand how this all came about.
When C.F. was questioned about why she eventually came forward, she responded: "My mom came to me later on after I told my husband. I'm not sure exactly how long it was. It may have been quite a few months, possibly even a year or so and she said that my sister had told her about an article in the newspaper."
The prosecutor then posed the next question: "Without telling us anything about the article, what did you decide to do knowing that he was in the paper?" C.F. answered: "I decided that he needed to be stopped." Defense counsel immediately objected and then, outside the presence of the jury, moved for a mistrial. Defense counsel argued C.F.'s testimony went well beyond the court's ruling that C.F. was "only to say she saw the name in the newspaper and that's it." The court denied the motion, concluding that:
[t]here is no inference that his name was in the paper for any reason, for any particular reason, no negative or positive inference can be drawn. The fact that his name was in the paper could be because we've heard so much today that he had these dance studios at different locations. He has [an] ensemble. They danced in New York and they danced in various places.
The court advised counsel that it intended to give the jury a curative instruction. Defense counsel did not object to the court's decision to give a curative instruction. Nor did defense counsel object to how the court phrased the instruction:
Ladies and gentleman, I'm going to give you an instruction. You heard testimony from the witness that she read defendant's name in the newspaper and as a result of reading his name in the newspaper[,] she decided she would report to the police about what occurred. That's all you are to consider in your deliberations[,] that testimony. You understand. Any other words that were said about the newspaper are to be totally disregarded by you. I [am] admonishing [you that] you must follow my instructions. She read his name in the paper. After reading that[,] she decided to do whatever she had to do.
Defendant urges that it was error to admit the testimony in the first instance and the court's curative instruction only made things worse because it essentially directed the jurors to simply consider that the witness read something in the newspaper and then decided she would report to the police. Defendant urges that the clear import of C.F.'s testimony was that another female had lodged sexual misconduct allegations against him.
"[A] trial court's decision regarding the admissibility of evidence is fact sensitive and, therefore, our review is deferential and limited to whether there has been an abuse of discretion." State v. Fortin, 178 N.J. 540, 591 (2004). Accordingly, we will not set aside a jury's verdict on appeal based upon a trial court's evidentiary ruling unless we are convinced that "'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
Here, several years passed between the abuse defendant inflicted upon C.F. and M.F. and when C.F. reported the abuse to police. We agree that some testimony explaining the circumstances surrounding her coming forward to police was relevant. C.F.'s precise testimony did not tell the jury that she read anything about defendant, only that her sister told her about "an" article. It was the prosecutor's subsequent question that alerted the jury to the fact that defendant was referenced in the newspaper. Nonetheless, we agree that given defendant's occupation and the evidence before the jury that he apparently operated successful dance schools, or, at the very least, dance schools where his students performed throughout the area, neither C.F.'s testimony nor the prosecutor's subsequent question implied anything negative by virtue of defendant's name being in the paper.
We do, however, note that the court's curative instruction inaccurately characterized C.F.'s testimony. The court instructed the jury that it heard testimony from C.F. that she "read defendant's name in the newspaper," when C.F. clearly testified otherwise. Prior to giving the jury the curative instruction, the court alerted counsel to what it intended to say. As proposed, the court's instruction included the inaccurate statement that C.F. had read defendant's name in the newspaper. Defense counsel did not object, at that time, to the form of the proposed instruction. Although the instruction ultimately given was not verbatim what the court had represented it would give, it was, in substance, essentially the same and contained the same inaccurate characterization of C.F.'s testimony. Notwithstanding the court's misstatement, the import of the curative instruction was for the jury to consider that portion of C.F.'s testimony only insofar as the jury considered what led her to go to the police at that time. Therefore, the court took appropriate steps to remedy any harm to plaintiff occasioned by her testimony, "I decided he needed to be stopped," and as such did not abuse its discretion in declining to grant defendant's motion for a mistrial. See State v. Winter, 96 N.J. 640, 646-47 (1984) (holding a mistrial is warranted only when an error cannot be remedied by an instruction to the jury or some other curative action).
Finally, as part of its final charge to the jury, the court instructed the jury that the jury alone is the judge of the facts and that "[r]egardless of what counsel may have said in recalling the evidence in this case or what [the court] may have said[,] it is your recollection of the evidence that should guide you as judge of the facts." We presume the jury understood and followed the court's instructions. See State v. Winder, 200 N.J. 231, 256 (2009). Hence, the court's misstatement was harmless and we find no error in the admission of this testimony from C.F. Even assuming the testimony went beyond the bounds of the court's ruling, any error in permitting this testimony was not an error so egregious and so wide of the mark that a manifest injustice resulted, warranting reversal of defendant's conviction. Marrero, supra, 148 N.J. at 484.
Defendant claims the trial court improperly overruled defense counsel's objection to the prosecutor's explication to the jury about statutory rape laws. Defense counsel argued to the trial court that in overruling his objection the court permitted the prosecutor to lead the "jury to believe that there's a law in the State of New Jersey and that it's a fact and it's a law that children don't have the ability to report child abuse. That is simply incorrect." Additionally, defendant argues the court failed to give a curative instruction immediately after the improper remarks and when the curative instruction was ultimately given, fifty pages into the court's jury charge, the court also failed to specifically direct the jury to the prosecutor's improper comments.
The prosecutor told the jury:
I think everybody here will agree that it is a good idea for us as a society to have what we call statutory rape laws. That's a good thing. It's a good thing that our laws say that children are not capable of consenting to sexual activity with adults and when we talk about statutory rape laws[,] this is exactly what the Judge is going to read [sic] you.
It's not entitled statutory rape but it's about the age of the victim. Under sixteen not [sic] able to consent[.]
Between sixteen and eighteen can't consent under these circumstances. And that's a good thing. It's a good thing because I think you'll all agree that children do not have the intellectual and emotional development to understand the nature and the consequences of sexual activity. Children do not have the emotional and intellectual development to be able to say I have a right to say no and I don't want to do this. Children don't have the strength to be able to report abuse, especially when it comes from a person of authority, a supervisor -- Defense counsel promptly objected to the offending remarks but the court overruled the objection. Later, the court expressed its belief that a limiting instruction was appropriate and asked defense counsel to prepare a proposed limiting instruction for consideration. The court then recessed trial until the following Tuesday.
When trial resumed, the court presented its proposed curative instruction, a modified version of the instruction proposed by defense counsel:
During the State's closing arguments in this case, near the end of his remarks, the Assistant Prosecutor made certain statements that children do not have the strength to report abuse and other purported statements on how children act in an attempt to explain the failure of these two sisters to come forward earlier.
There was no evidence or testimony admitted to support these statements, and [they] are unsupported by any evidence in this record.
The jury is not to consider them in any fashion whatsoever.
How about that?
The prosecutor objected to the proposed instruction because it inaccurately conveyed to the jury what he was attempting to explain. He argued further that while he understood the need for a curative instruction because he made a statement that was "not necessarily accurate," his misstatement was "unintentional." Additionally, the prosecutor objected to the proposed curative instruction because it "specifically identif[ied] me as making certain comments in my closing argument. I think that almost has a flavor of chastising the State for those remarks."
In response, defense counsel urged the court to give the instruction as proposed because the prosecutor's statements were not made in the "abstract[,]" but were instead directed to "one of the important issues in the case, why didn't [the victims] come forward earlier." Insofar as the prosecutor's objection to the instruction identifying him, defense counsel argued that "[t]he jury has to be focused back on what the error was. If you don't want to say 'Assistant Prosecutor' you can say 'by the State.' That's the error. That's what we're trying to cure. They have to be directed back to what the error in the case was."
The court was apparently persuaded by the State's argument because the curative instruction given omitted any reference to the "State" or the "Assistant Prosecutor":
Now, you have heard statements about statutory rape laws and the purposes for those laws in our society. Statutory rape laws are designed to recognize that children are not capable of consenting to sexual activities due to their age. Such laws are not designed to address a child's ability to report sexual abuse.
There was no evidence or testimony admitted to support these statements which are unsupported by any evidence in the record. You, ladies and gentlemen of the jury, are not to consider them in any fashion whatsoever. If the attorneys said anything to you that differs from my instructions regarding the definitions of these or any other laws in this case, you must disregard their comments and follow the law as I have instructed you.
Prosecutors are afforded considerable leeway in closing arguments, as long as their comments are "reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999). A prosecutor commits misconduct when he or she goes beyond the facts given to the jury. State v. Harris, 156 N.J. 122, 194 (1998). "Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). In reviewing a claim of prosecutorial misconduct, we consider whether defense counsel objected to the remarks, whether the remarks were promptly withdrawn and whether the court gave the jury a curative instructions. Id. at 322-23.
Here, defense counsel promptly objected but the court overruled the objection. Thereafter, the court agreed that a curative instruction was warranted. Because of the weekend recess, the instruction was not given until several days later. Under these circumstances, it may have been more prudent to redirect the jury to the prosecutor's specific statement in his summation. We agree, however, as the trial judge reasoned, it was the misstatement of the law that was the harm, not the fact that it was uttered by the prosecutor. The curative instruction the court ultimately delivered to the jury properly remedied any harm occasioned by the prosecutor's misstatement. "The type of necessary curative instruction is in the discretion of the trial court judge who is in the best position to decide what is needed." See State v. Hawke, 327 N.J. Super. 276, 283 (App. Div. 2000). Moreover, the defense was not entitled to the curative instruction it proposed but an instruction that effectively remedied the harm. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002); State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999).
Defendant argues that the sentence imposed was excessive because the court double-counted many of the aggravating factors and elements of the crime, namely, the "need to deter" and the "risk that defendant will commit another crime." Defendant urges that these elements have minimal penal significance because defendant had no prior criminal record, and that the court did not consider the one mitigating factor it found in the sentencing decision. We reject these arguments and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 1:11-3(e)(2). We add the following brief comments.
"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Thus, upon appellate review, it is our duty to make certain that the trial judge followed the sentencing guidelines in the Criminal Code. On appeal, a sentence will be affirmed unless we conclude the legislative policies involved in the use of the aggravating and mitigating factors were violated, that the factors found were not supported by the evidence, or that the sentence imposed is so unreasonable that it shocks the conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
The fact that defendant had no prior record did not preclude the court from considering the risk that defendant would commit another offense, aggravating factor number three, N.J.S.A. 2C:44-1(a)(3). We have previously held that consideration of aggravating factor three is appropriate even where there has been no criminal record or a minor criminal record. State v. Varona, 242 N.J. Super. 474, 491-92 (App. Div.) certif. denied, 122 N.J. 386 (1990); State v. T.C., 347 N.J. Super. 219, 244 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003). Defendant was an established businessman in his community with a portable business, the nature of which not only allowed him to change locations for his business, but also facilitated his access to other aspiring youthful dancers in other locations, as was evident here, and who, possibly, would be unaware of his past. Therefore, the court properly considered this aggravating factor.
We next turn to aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant from committing further offenses in the future. Consideration of this factor is appropriate for both personal deterrence as well as general deterrence. State v. Jarbath, 114 N.J. 394, 405 (1989). Here, the trial court correctly found that the sentence imposed was intended to deter defendant from committing sexual abuse with dance students in the future, and served to generally deter other dance teachers from abusing their students.
The record also supports the court's consideration of the remaining aggravators. Aggravating factor four, N.J.S.A. 2C:44-1(a)(4), "breach of trust," was properly considered because, as the court found, it was "clear that the victims looked up to defendant" as "their teacher, as their friend," and he "violated that trust[.]" Likewise, the court properly considered aggravating factor two, N.J.S.A. 2C:44-1(a)(2), "harm to the victim," in light of the evidence before the court of how the abuse affected their lives. Moreover, there was no double counting of this factor since the psychological harm to the victims is not an element of any of the offenses for which defendant was convicted. See State v. Rivers, 252 N.J. Super. 142, 152-53 (App. Div. 1991) (noting that consideration of aggravating factor two should not have occurred because the seriousness of the bodily injury inflicted upon the victims was an element of the offense of second degree aggravated assault under N.J.S.A. 2C:12-1b(1)).
Further, contrary to defendant's argument, the trial judge considered mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), "lack of a prior criminal record," but in qualitatively weighing this factor against the aggravating factors, the judge found that the aggravating factors "substantially and overwhelmingly outweigh[ed] the mitigating factors." Finally, the court properly imposed consecutive sentences. Defendant committed numerous offenses against multiple victims, at different times and separate places. 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); State v. Miller, 108 N.J. 112, 121-22 (1987).
In short, from this record we discern no basis to disturb the sentence imposed. The aggravating and mitigating factors considered were not inconsistent with legislative policies, were supported by the record, and the sentence imposed did not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.