February 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
URIAH HANNAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1283.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2011 - Decided Before Judges Fisher, Sapp-Peterson and Simonelli.
In this appeal, we consider and reject, among other things, defendant's contention regarding the admission of expert testimony, which asserted that defendant's conduct was intended to promote prostitution, and, therefore, affirm.
The jury heard testimony during a six-day trial about what took place between defendant and fourteen-year old Sarah,*fn1 as well as others, on February 5, 2007. That day, Sarah and her fifteen-year old friend Clare, went to the home of another friend, Robert, to obtain marijuana. Because Robert and his brother had none, Robert, Sarah and Clare began walking about Egg Harbor City. As they wandered about, a silver car, containing two men and one woman, pulled alongside; neither Robert, Sarah, nor Clare knew the adults in the vehicle. The vehicle's driver, later identified as defendant, asked if they were looking for marijuana; they responded affirmatively and were invited into the vehicle.
Defendant identified himself as "Polo," the other man introduced himself as "Sean," and the woman referred to herself as "J.O."*fn2 Defendant drove to a location where he purchased marijuana and to a liquor store for alcohol. Defendant then invited the juveniles to a hotel party.
Early that evening, the group arrived at the Roadway Inn on Route 30 in Galloway Township. J.O. paid for and rented room 111. Once inside, the group smoked marijuana. Sarah and Clare also drank alcohol and snorted heroin, which defendant provided. Cobb testified that he and defendant agreed the girls would be good recruits for prostitution and that because J.O. was a prostitute, she should discuss the prospect with Sarah and Clare. Shortly thereafter, defendant and Clare left in order to purchase more marijuana; during the car ride, defendant told Clare she was "a pretty girl" and asked if she was interested in becoming a prostitute; she declined and went back to the motel with defendant.
Once defendant and Clare returned to room 111, Sarah went into the bathroom with Cobb and engaged in sexual intercourse with him. Not long after they exited, Sarah went back into the bathroom with defendant. They too had sexual intercourse, during which defendant told Sarah she was "good," "should get paid for it," and "could make a lot of money." He also asked her to call him "Daddy."
Clare decided to leave. Defendant told Clare that if she "told anyone what happened he was going to hurt [her] and come after [her] and [her] family." A man wearing a red hat, whom she had never met before, took her to a friend's house.*fn3 While there, Clare called to see how Sarah was; Sarah was "crying, hysterically" and said she had been "raped." Clare then called Sarah's mother and the police.
Meanwhile, defendant took Sarah to his vehicle. Inside the vehicle, defendant asked Sarah if she would perform oral sex on the man in the red hat for $300; defendant said he would keep $200, and she could have $100. At this point, Sarah's mother arrived and Sarah jumped out of defendant's vehicle, got in her mother's vehicle, and told her "to go." Once home, Sarah told her mother about the drug use and that "something of a sexual nature had occurred."
Sarah was later interviewed, and after she told a detective about the events in the motel room and made an identification, defendant was arrested. Cobb and O'Farrell were arrested with regard to other unrelated matters.
Defendant was charged with: second-degree sexual assault of a child, N.J.S.A. 2C:14-2(c)(4); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); fourth degree child abuse, N.J.S.A. 9:6-3; and second-degree promoting prostitution of a child under the age of eighteen, N.J.S.A. 2C:34-1(b). At the trial's conclusion, the jury found defendant guilty only of third-degree endangering the welfare of a child. The judge granted the State's motion to sentence defendant to an extended term as a persistent offender, in light of his considerable criminal record, and sentenced him to an eight-year prison term subject to a four-year period of parole ineligibility. In addition to imposing various fines and assessments, the judge placed defendant on parole supervision for life and required him to register pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19.
Defendant filed this appeal, presenting the following arguments for our consideration:
I. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO MISUSE IRRELEVANT AND PREJUDICIAL EXPERT TESTIMONY WHICH TAINTED THE ENTIRE TRIAL.
II. THE TRIAL COURT ERRED BY ADMITTING BAD ACTS, VIOLATING N.J.R.E. 404(b) AND DEPRIVING MR. HANNAH OF HIS RIGHT TO A FAIR TRIAL; THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION WAS ERROR.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding defendant's first point.
Defendant contends his right to a fair trial was prejudiced by what he claims was inadmissible expert testimony. Specifically, defendant refers to Sergeant Angelo Maimone's testimony, which was offered to illuminate defendant's motive and intent. Sergeant Maimone was qualified as an expert based on, among other things, his considerable experience over many years in combating prostitution in the Atlantic City area. Once qualified, Sergeant Maimone offered an opinion based upon the prosecutor's suggestion of the following hypothetical circumstances:
[A] 30 year old male approaches a 14 and 15 year old female in his vehicle and picks them up off the street with the promise of providing them with marijuana. He has a 19 year old girl already with him, and the vehicle he is driving is a rental. Once the girls get inside the vehicle, the male then offers to buy them alcohol and invites them to a party in a motel.
The male never identifies himself by real name, but rather identifies himself with various nicknames, including the name Daddy. When they arrive at the motel, the 19 year old girl that was already with the male rents the motel room. Once inside the motel room the male provides the 14 and 15 year old girls with . . . drugs and alcohol. The male then takes the 14 year old into the motel bathroom and has sexual intercourse with her.
The male talks to both girls about buying them nice things like cars, jewelry, and anything else in the world they would want. Shortly after having sex with the 14 year old girl[,] the male asks the 14 year old to perform oral sex on another male for $300, of which the male would keep 200, and the female would get 100. The male tells her it would only take five minutes.
The prosecutor then asked whether the male in the hypothetical was a "promoter of prostitution." Sergeant Maimone responded in the affirmative, basing that conclusion on numerous factors.
Sergeant Maimone explained that the girl's age was significant and was a typical age for starting in this field because girls of that age are not "as street-wise, and therefore more susceptible to an older person." He also found the drug and alcohol use to be informative because they "help desensitize and lower inhibitions." In addition, the witness testified that nicknames are frequently used, as are rented vehicles, and the presence of another prostitute, who has felt empowered by her involvement in procuring the vehicle and the motel room, helps indoctrinate the recruit. Sergeant Maimone found the promise of money and cars, and the engaging in sex with the recruit, "continues the quick indoctrination period, [by] showing how easy it is to gain . . . money and to become part of the business or family." Defendant claims that the judge erred in permitting this testimony.
A trial court's evidentiary rulings, including the admission of expert testimony, are "entitled to deference absent a showing of an abuse of discretion." State v. Brown, 170 N.J. 138, 147 (2001), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2003). See also State v. Wakefield, 190 N.J. 397, 491 (2007). We find no abuse of discretion here.
"If . . . specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. Admissibility turns on three basic requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. [Agha v. Feiner, 198 N.J. 50, 62 (2009) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).]
Sergeant Maimone's testimony satisfied these requirements. His testimony regarding the modus operandi of prostitution promoters was relevant and beyond the ken of the average juror. See United States v. Long, 328 F.3d 655, 666 (D.C. Cir.), cert. denied, 540 U.S. 1075, 124 S. Ct. 921, 157 L. Ed. 2d 747 (2003); United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001); State v. Hall, 704 P.2d 461, 464 (N.M. Ct. App. 1985); State v. Simon, 831 P.2d 139, 148 (Wash. Ct. App. 1991), aff'd in part, rev'd in part, 840 P.2d 172 (Wash. 1992). The manner in which prostitution is promoted has also reached a sufficient state of the art as to meet the second requirement. See United States v. Anderson, 560 F.3d 275, 281 (5th Cir. 2009); Long, supra, 328 F.3d at 665; Taylor, supra, 239 F.3d at 998; United States v. Anderson, 851 F.2d 384, 392 (D.C. Cir. 1988), cert. denied, 488 U.S. 1012, 109 S. Ct. 801, 102 L. Ed. 2d 792 (1989). And Sergeant Maimone's considerable experience working in the prostitution unit of the Atlantic City Police Department, and his approximate 1000 arrests of individuals engaged in or promoting prostitution, provided an ample basis for his testimony.
The manner in which this expert testimony was elicited was entirely appropriate. Moreover, even if we were to find merit in defendant's argument that the testimony was erroneously admitted, defendant suffered no prejudice as demonstrated by the fact that the jury acquitted him of promoting prostitution.