On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-11-0447.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Defendant Michael Parlin appeals from his conviction and sentence after trial by jury on charges of sexual assault and endangering the welfare of a ten-year-old girl. We affirm.
The prosecution presented evidence at trial from which the jury could have found the following facts. Defendant was a life-long friend of the child's mother, and he stayed at their home from time-to-time. They affectionately called defendant "Uncle Big Bird" because of his size.
On the night of December 28-29, 2005, defendant was in the basement with the girl playing video games and watching television. The mother went to bed in her own room at about 10:00 p.m. The girl fell asleep on a couch in the basement next to defendant. She woke up in the middle of the night and felt one of defendant's hands down her pants and the other under her shirt touching her breast. Startled, the girl got up and went to her room.
At about 2:00 a.m., the mother woke up and saw that her daughter's bedroom light was on and the girl was awake looking "shocked." She questioned her daughter, and the girl said: "it's Uncle Big Bird . . . I fell asleep down there and when I woke up his hands were in the wrong place." The girl then described in detail what she felt, demonstrating on her knee how defendant was "twirling his finger around [her] nipple." To make sure her daughter understood the seriousness of her accusation, the mother said she would order defendant to leave the house and asked whether she understood she would never see Uncle Big Bird again. The girl answered she understood and wanted defendant to leave. The mother went to the basement, awakened defendant by hitting him with a shoe, and screamed at him to leave the house. Defendant left.
The next day, the girl complained of pain when she used the bathroom, and the mother took her to the police. A detective from the prosecutor's office spoke to the girl, videotaping the entire interview. The girl explained and demonstrated on a doll that defendant had touched her breast and vaginal area. Her statement indicated some level of digital penetration, although not in literal or detailed language. Despite police advice, the mother decided not to have her daughter examined by a doctor.
On December 30, 2005, a detective from the State Police interviewed
defendant after defendant signed a form waiving his Miranda*fn1
rights. Defendant denied any wrongdoing. He said he had been
playing video games and watching television with the girl, but he fell
asleep on a couch and the girl went upstairs
to her room. After the initial police interview, defendant was held in
On January 2, 2006, defendant agreed to a polygraph examination. Before the examination began, a State Police lieutenant again advised defendant of his Miranda rights, and defendant again signed a waiver form. After questioning defendant in separate segments during a two-hour period, the lieutenant told defendant that the polygraph had detected deception about the sexual conduct. Defendant then made the following admission:
I was sitting on the couch next to [the girl], I fell asleep, when I woke up my hand was down the front of her pants . . . My other hand was on her breasts outside of her shirt . . . I woke up, realized what I had done. I said whoa, and took my hand off of her . . . I'm not proud of what I did.
Another detective entered the room to interrogate defendant further. He advised defendant of his Miranda rights once again. Defendant signed a waiver form for a third time and gave a videotaped statement in which he made admissions similar to those quoted above.
Defendant was indicted in November 2006 on three counts: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second-degree sexual assault of a child under the age of thirteen, N.J.S.A. 2C:14-2b; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He filed a number of pretrial motions, including motions to suppress his statements to the police and to suppress the videotaped statement of the girl and the statements she had made to her mother soon after the incident. The trial court conducted pretrial evidentiary hearings and denied defendant's motions.
Trial before the jury was conducted over six days in April 2008. The prosecution presented the testimony of the girl and her mother, as well as the police detectives who had taken statements from the girl and defendant. Both videotaped statements were admitted in evidence and were available for the jury's viewing during its deliberations.
Defendant elected not to testify. He presented the testimony of his mother and a friend to establish that he suffered from sleep disturbances. The prosecution then presented rebuttal testimony to refute his allegations of sleep walking or any other sleep disorder.
In summation, defense counsel argued to the jury that defendant was not aware of the sexual conduct alleged because he was asleep and his disorder was the cause of the alleged contact with the girl. Among other points, the prosecutor's summation challenged the credibility of those defense arguments.
The jury found defendant not guilty of first-degree aggravated sexual assault, which required a finding of penetration, but guilty of second-degree sexual assault and third-degree endangering the welfare of a child, both of which did not require penetration as an element of the crimes. The court subsequently denied defendant's motion for a new trial.
At the sentencing hearing on September 4, 2008, the court merged the two counts of conviction and sentenced defendant on the charge of second-degree sexual assault to ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, which means that defendant is not eligible for parole until he serves eighty-five percent of that term and he must serve three years of parole supervision upon release from prison. In addition, defendant was sentenced to pay mandatory fines and penalties and advised that he is subject to the requirements of Megan's Law, including the registration, notification, and supervision for life requirements contained in N.J.S.A. 2C:7-2 to -11. Defendant filed a timely notice of appeal.
Defendant now raises the following arguments:
THE INCRIMINATING STATEMENT MADE BY MR. PARLIN SHOULD NOT HAVE BEEN ADMITTED DURING THE STATE'S CASE-IN-CHIEF AS MR. PARLIN DID NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHTS BEFORE TALKING TO POLICE (NOT RAISED BELOW).
THE ADMISSION OF HEARSAY TESTIMONY DEPRIVED MR. PARLIN OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE PROSECUTOR'S COMMENTS ON MR. PARLIN'S SILENCE DURING POLICE INTERROGATION VIOLATED HIS RIGHT AGAINST INCRIMINATION AND DEPRIVED HIM OF A FAIR TRIAL (NOT RAISED BELOW).
THE PROSECUTOR'S COMMENTS IN SUMMATION DENIGRATED THE DEFENSE AND DEPRIVED MR. PARLIN OF A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING MR. PARLIN'S MOTION FOR A MISTRIAL AT THE CONCLUSION OF THE STATE'S SUMMATION AND FOR A NEW TRIAL BEFORE SENTENCING BASED ON IMPROPER COMMENTS BY THE PROSECUTOR IN SUMMATION REGARDING MR. PARLIN'S FAILURE TO SEEK TREATMENT FOR HIS SLEEP DISORDER AFTER THE ALLEGED OFFENSE.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY IN ACCORDANCE WITH A CHARGE ON DIMINISHED CAPACITY DEPRIVED MR. PARLIN OF A FAIR TRIAL (NOT RAISED BELOW).
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER ...