June 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-05-0744.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2011
Before Judges Sabatino and Alvarez.
Following a three-day jury trial in January 2008, defendant G.L.D. was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts one and two); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts three, nine, and thirteen); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a) and (c) (counts four, five, six and ten); and four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (counts seven, eight, eleven, and twelve). The minor victim of these sexual offenses was defendant's stepdaughter, who at the relevant times had been staying at or visiting his residence.
At sentencing, defendant received three consecutive fifteen-year prison terms, each subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on counts five, six, and ten. On count four, the court imposed a fifteen-year term, also subject to NERA, to run concurrent to counts five, six, and ten. On counts one, two, three, nine and thirteen, the court imposed prison sentences of seven years flat, to run concurrent to each other and to counts four, five, six, and ten. On counts seven, eight, eleven, and twelve, the court imposed sentences of four years flat, to run concurrent to counts one, two, three, four, five, six, nine, ten, and thirteen. The court also imposed the requirements under Megan's Law, including mandatory registration as a sex offender and parole supervision for life, plus applicable fines and penalties.
Defendant now appeals, principally arguing through his appellate counsel that his right against self-incrimination was violated by references at trial to his pre-arrest silence; that the prosecutor improperly alluded to his flight from the family residence after his sexual encounter with the minor victim was discovered by the child's grandmother; and that his aggregate forty-five-year sentence was excessive. Defendant also raises various other contentions of error in a pro se supplemental brief.
For the reasons that follow, we sustain defendant's conviction and his sentence.
The relevant proofs adduced at trial are as follows. In essence, defendant was caught by his mother-in-law in the act of a sexual encounter with his stepdaughter. The child corroborated the incident, as well as other prior sexual attacks by defendant, in her trial testimony. Defendant, on the other hand, denied initiating any sexual contact with the child. He contended that she had falsely accused him of sexual wrongs in an effort to manipulate him and his relationship with her mother. We discuss the facts with these competing theories of the case in mind.
In August 2000, defendant and the child's mother, B.E., were married. One month prior to the marriage, B.E. and her daughter D.P.,*fn1 who was then ten years old, moved into defendant's four-bedroom home in Browns Mills. Defendant had been living in the home with his two minor sons, both of whom moved out of the residence shortly after the marriage. After the households combined, Diana began to exhibit behavioral problems. Those problems were exacerbated after her mother gave birth to a son, fathered by defendant, in August 200l. A few months later, in January 2002, Diana moved in with her own father, R.P. The mother explained that, at the time, she thought Diana's "outbursts" were attributable to a number of experiences, i.e., a new school, new friends, a new stepdad, and a new baby.
In August 2003, Diana's maternal grandmother, J.E., moved into the marital home. A short time later, extensive termite damage was discovered in the master bedroom, causing defendant and his wife to take over the room that Diana had previously occupied. Consequently, by the summer of 2006, Diana was sleeping in the living room on the occasions when she stayed overnight with defendant, her mother, and her grandmother.
On September 9, 2006, Diana went to sleep on the couch in the living room at approximately 9:30 or 10:00 p.m. Shortly thereafter, her grandmother J.E., who had retired to her own bedroom at about 7:00 or 8:00 p.m., went to the kitchen to get a drink. J.E. then observed defendant "humping over [her] granddaughter," for "about forty-five seconds." She asked, "[w]hat the hell's going on[?]" J.E. then watched defendant pull up the front of his pajama bottoms. Believing that she had just seen defendant and Diana "having oral sex," J.E. proceeded to hit and punch defendant and call him foul names.*fn2
That night, Diana, who was then still lying on the couch, did not say anything. When she made eye contact with her grandmother, she "pulled the blanket over her head." J.E. called for B.E., who had been asleep in the bedroom. When J.E. told her what she had seen, B.E. backed up into a storage cabinet, turned sideways and slid down the cabinet, wrapped her arms around her body, and began rocking back and forth saying, "God, no, please, God, no."
At that point, defendant went to the kitchen, got his keys, and left the house. He then came right back in the house, grabbed a knife from a knife block on the kitchen counter, and went out the door again. B.E. called 9-1-1, and the police arrived within about ten minutes.
Pemberton Township Police Officers Vincent Cestare and Brian Warrick arrived at the family's home shortly before midnight. A "flash," i.e., an immediate notification, was communicated over the police radio, advising that the police were looking for defendant and that he should be detained. Shortly thereafter, the police shift supervisor, Officer Gregory Hale, also arrived at the home. Moments after Officer Hale's arrival, defendant telephoned the house, and J.E. answered the phone. Defendant asked to speak to the police, and J.E. handed the phone to Officer Hale. According to Officer Hale's trial testimony, the first thing defendant said to him on the call was, "I f[***]ed up, man, I f[***]ed up."
Officer Hale informed defendant that a "flash" had been put out for him, and that he should return to the house. When defendant arrived back at the home about eight to ten minutes later, he was taken into custody. An indictment ensued, charging defendant with the aforementioned thirteen counts of sexual offenses and other crimes.
In her testimony at trial, Diana stated that, on September 9, 2006, "[she] was woken up by [defendant] rubbing his penis on her chest." She estimated that "it was probably going on for like 45 minutes to a half hour" before her grandmother walked in.
Diana stated that she loved defendant "like a boyfriend" and that she did not tell anyone that this had happened before because she "didn't want to get him in trouble." She testified that, when she was about ten years old, defendant started to touch her and kiss her "[i]n [her] breast area and [her] vagina and on [her] lips." She stated that this happened "[e]very weekend that [she] was there." She testified that when she was around twelve or thirteen, the contact progressed to oral sex. She stated that this happened "[a]bout once every weekend."
The child further explained that when she was age fifteen, defendant's sexual contact with her progressed to vaginal intercourse, which she said happened "[e]very once in a while. It only happened like three times." She added that, in a typical weekend, she and defendant would engage in "sexual acts" every day. According to Diana, she thought defendant was going to leave her mother and instead be with her once she turned eighteen.
In his own trial testimony, defendant insisted that he had not sexually assaulted Diana on September 9, 2006, or at any other time. He contended that the child had inappropriately initiated sexual contact with him and, moreover, had fabricated allegations against him as a means of blackmail. Defendant stated that the child's efforts to blackmail or threaten him began approximately one year prior, in 2005.
Defendant described an earlier incident in 2005, in which Diana allegedly came into his bedroom, got into his bed, and fondled him. According to defendant, he yelled at her and told her he was going to tell her mother. He alleged that, in response, Diana cautioned him that "if [he] told her mother anything she was going to tell her [mother, B.E.] that [he'd] been molesting her." Defendant further contended that Diana would send him text messages "almost constantly," so much so that his wife and Diana's father had to intervene to stop them.
With respect to the critical events of the night of September 9, 2006, defendant testified that when he leaned over the couch to give her a hug, Diana "reached up and grabbed [his] crotch." Defendant contended that he responded by grabbing her left wrist with his right hand and telling her to let go. He asserted that "she was pulling at [him] and [he] was trying to get her to let go, then she pulled so hard [he] almost fell on top of her so [he] reached out to brace [him]self." Defendant denied any effort on his part to initiate sexual contact with Diana, or to gratify himself. He also maintained that he told Officer Hale that the child had been attempting to blackmail or threaten him for approximately a year.
In addition to hearing these narratives from the principals (Diana and defendant), the jury also heard testimony from J.E., B.E., the three responding police officers (Cestare, Warrick, and Hale), a detective from the Burlington County Sexual Assault Unit, and a prior co-worker of defendant's. Upon considering these proofs, the jury found defendant guilty on all counts of the indictment.
Following the verdict, defendant moved to relieve his trial counsel. That motion was granted by the trial judge after a hearing. Defendant then filed a motion to vacate the verdict, and for a new trial. The trial judge denied that motion, observing that "[t]he jury's verdict was consistent in all regards, [and] in all respects[,]" and that there was not "a manifest denial of justice in this case."
On January 9, 2009, defendant, represented by new counsel, appeared for sentencing. At that time, the court imposed the aggregate forty-five-year sentence and the associated Megan's Law conditions, as previously described.
Through his appellate counsel, defendant now raises the following points on appeal:
THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT UNDER THE NEW JERSEY PRECEDENT BY REPEATEDLY COMMENTING ON HIS PRE-ARREST SILENCE. (Not Raised Below)
THE PROSECUTOR COMMITTED MISCONDUCT BY CIRCUMVENTING THE JUDGE'S REFUSAL TO CHARGE FLIGHT IN THAT SHE REPEATEDLY REFERRED TO THE DEFENDANT'S ALLEGED FLIGHT IN HER SUMMATION. (Not Raised Below)
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In a pro se supplemental brief, defendant presents the following additional arguments:
[SUPPLEMENTAL] POINT I
DEFENDANT'S POST-TRIAL PRO SE MOTION FOR A NEW TRIAL SHOULD BE ALLOWED AS FILED IN TIME DUE TO COUNSEL'S INTENTIONAL FAILURE TO TAKE ANY POST TRIAL ACTIONS. (Partially raised below) [SUPPLEMENTAL] POINT II
TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO HAVE THE VERDICT SET ASIDE AS AGAINST THE WEIGHT OF THE EVIDENCE. (Partially Raised Below)
A. The State's proofs failed to prove that any crime was committed on the night of September 9, 2006 or at any other time alleged.
B. The State's proofs support the defense theory, that there was time to fabricate despite the Prosecutor's misrepresentation of the facts during summation.
C. The State's proofs failed to prove the existence of a "mutual" love affair between D.E. and the defendant.
D. The State's proofs failed to prove the existence of any "sexually" explicit text messages or email communications between D.E. and the defendant.
E. The testimony supports an inference of recently fabricated statements.
F. The evidence produced at trial corroborates defendant's claims that he was appropriately fulfilling his responsibilities as a husband and father.
G. The State failed to prove material elements of the crimes charges; specifically that the defendant acted "purposely, knowingly" or with "intent". [SUPPLEMENTAL] POINT III
THE PROSECUTOR COMMITTED EGREGIOUS AND CUMULATIVE MISCONDUCT THROUGHOUT THE TRIAL, WHICH SUBSTANTIALLY PREJUDICED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. 1, PARAS. 1, 10. (Not raised below)
A. The Prosecutor knowingly solicited false testimony from the victim; failed to correct that false testimony; and interfered with defense attempts to subpoena a corroborating State's witness. (Not raised below)
B. The Prosecutor's opening and closing statements were inflammatory and designed solely to evoke sympathy for the victim and hatred for the defendant. (Not raised below)
C. The Prosecutor improperly commented on forensic evidence that amounted to "testifying" on the Prosecutor's part. (Not raised below) [SUPPLEMENTAL] POINT IV
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A CONTINUANCE TO FACILITATE DEFENSE'S ATTEMPTS TO SUBPOENA A NON-APPEARING STATE'S WITNESS; VIOLATING DEFENDANT'S RIGHT TO COMPULSORY PROCESS AND RIGHT TO CONFRONTATION. (Partially raised below) [SUPPLEMENTAL] POINT V
THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE A CAUTIONARY INSTRUCTION ON THE MULTIPLE REFERENCES TO DEFENDANT'S CUSTODY/INCARCERATED STATUS. (Partially raised below) [SUPPLEMENTAL] POINT VI
CONSIDERATION OF ISSUES RAISED FOR THE FIRST TIME ON APPEAL IS WARRANTED TO ADDRESS ERRORS OF CONSTITUTIONAL DIMENSION AFFECTING DEFENDANT'S RIGHT TO A FAIR TRIAL. [SUPPLEMENTAL] POINT VII
THE CUMULATIVE EFFECT OF THE ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL.
Having fully considered these arguments in light of the record and the applicable law, we conclude that none of them have merit. Our analysis of the issues follows.
The first issue raised by defendant through his appellate counsel is his contention that the prosecutor, while cross-examining him at trial and in her summation, improperly alluded to his pre-arrest silence, and thereby infringed upon his rights against self-incrimination. Defendant further argues that, at a minimum, he is entitled to a new trial because the court issued no limiting instruction to the jury concerning these references to his pre-arrest silence. We disagree.
As a general matter, the privilege against self-incrimination embedded
in the Fifth Amendment of the United States Constitution has been
construed to preclude the State's admission of a defendant's
post-arrest silence following the administration of Miranda*fn3
warnings. Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct.
2240, 2245, 49 L. Ed. 2d 91, 98 (1976). Our State's case law extends
that protection even further to certain evidentiary uses of a
defendant's pre-arrest silence. A suspect has "the right to remain
silent when in police custody or under interrogation." State v.
Muhammad, 182 N.J. 551, 571 (2005) (quoting State v. Brown, 118 N.J.
595, 610 (1990)).
Thus, under New Jersey law, a defendant's "silence 'at or near' the time of his arrest may not be introduced to impeach his credibility." Muhammad, supra, 182 N.J. at 571 (quoting Brown, supra, 118 N.J. at 610); see also State v. Deatore, 70 N.J. 100, 108-09 (1976).
The limitation on the use of a defendant's pre-arrest silence is not, however, absolute. Our Supreme Court has held that "[o]nce a defendant chooses to take the stand in his or her own defense, pre-arrest silence has a bearing on the credibility of the defendant." State v. Pepshi, 162 N.J. 490, 493 (1999) (citing Brown, supra, 118 N.J. at 610). The Court reasoned that "there is no legal constraint one way or the other -- either to speak or not to speak -- prior to an arrest. Consequently, evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination." Brown, supra, 118 N.J. at 613 (emphasis added). "Under New Jersey law, a defendant's pre-arrest silence can be used for impeachment purposes (1) 'if that silence significantly preceded his arrest and did not arise in a custodial or interrogation setting,' and (2) if a jury could infer that a reasonable person in the defendant's position would have come forward and spoken." State v. Taffaro, 195 N.J. 442, 455 (2008) (quoting Muhammad, supra, 182 N.J. at 571-72) (internal citations omitted).
On appeal, defendant contends for the first time that "the prosecutor harped on [his] failure to tell the police (and his family) his side of the story, particularly at the point when he returned home, before he was actually placed under arrest." Despite defense counsel's failure to raise an objection at trial, defendant highlights two specific instances of alleged violations of his right against self-incrimination during cross-examination, and two specific instances during summation.
First, defendant characterizes as improper the following line of questioning by the assistant prosecutor during his cross-examination:
Q. . . . . Did you tell Officer Hale on the phone that this was all a misunderstanding and you'd been framed?
Q. You'd known Officer Hale for years, hadn't you?
Q. You knew him to be a good guy?
Q. Would you have trusted him?
Q. But yet you didn't trust him to tell him that this had been a set-up and you had done nothing?
Although not cited in defendant's brief, the testimony continued as follows, which we present for sake of completeness:
A. I told him [Officer Hale] later that night at the police station.
Q. It's your testimony you later denied to him [sic]?
A. Yes, I did.
Q. What explanation did you allegedly offer to him later that night?
A. I told him exactly what [Diana] had been doing.
Q. And when is your testimony you told him that?
A. At the police station after they had told me I was going to be incarcerated.
Q. You told him on the phone multiple times that you f[***]ed up, man, to use the phrase, correct?
Q. You remember saying that?
A. Yes, I do.
Q. And you didn't offer any further explanation to him on the phone then, did you?
A. He told me at that point, he said you need to come home.
Q. Did you offer him an explanation as to what you meant by that?
A. He didn't allow it.
Q. He wouldn't let you talk?
A. He said I needed to come in. He changed the conversation.
Q. But if you wanted to tell him I did nothing, you could have blurted that out, couldn't you?
A. I asked him where he wanted to talk and he said come to the house and that's what I did.
As a second alleged violation of his self-incrimination rights, defendant points to this later segment of his cross-examination:
Q. Did you tell the cops when you came back to the house that you had been injured?
Q. Did you tell them that she [Diana] had grabbed you.
Notwithstanding these two segments cited from his cross-examination, defendant does not contend that he was continually silent when he was on the phone with or in the presence of Officer Hale. In a footnote to his brief, defendant acknowledges his separate testimony contending that he had "explained to the police what had happened much later, prior to being put into the jail cell. The officer [Hale], however, denied this version."
Defendant further asserts that the prosecutor made two improper statements during her closing argument that impinged upon his right to remain silent. Again, no objection was made by his trial counsel to either of these statements. The first set of comments is as follows:
You heard from Officer Hale who had known [defendant] for many years and got along well with him. He didn't bear any grudge against him. You heard how [defendant] had repeatedly told him, I f[***]ed up, man, and made no other explanations and made no denial to him during that brief conversation on the phone or as you heard again this morning at any time thereafter, back at the station or anywhere else, he didn't offer that explanation to Officer Hale. [. . . ]
He now tells you that he took that knife because he wanted to kill himself. And I ask you, does an innocent man who has nothing to hide respond to accusations like that? The evidence is overwhelming that [defendant] said nothing that night and took that knife because he was wrestling with a guilty mind.
The second challenged passage from the prosecutor's summation is:
[W]hen you look at his [defendant's] words 'or in this case more telling is the lack of any words from him and his actions at that house before he left and thereafter . . .' were indications of his guilt.
Again, for sake of completeness, we provide another portion of the prosecutor's summation that puts her above-quoted words into context:
I submit to you when you look at his [defendant's] words or in this case more telling is the lack of any words from him and his actions at that house before he left and, thereafter, ascribed by him and the others who were present, there's no question that [defendant's] actions were indicative of guilt. [Emphasis added.]
Defendant maintains that these questions posed during his cross-examination and the prosecutor's comments in her summation impinged upon his rights against self-incrimination and thereby deprived him of a fair trial. Because these issues were not raised in the trial court, we evaluate them under a plain error standard of review. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); Macon, supra, 57 N.J. at 336; R. 2:10-2. Applying that standard, we detect no plain error on these issues warranting our intervention.
The prosecutor permissibly questioned defendant on cross-examination about his conduct after J.E. had discovered him with the victim, and about his ensuing interactions with the police. The prosecutor also permissibly commented about those matters in her summation. After being encountered by J.E., who is obviously not a police officer, defendant did not say anything to her or to his wife to explain or defend his behavior. Instead, he left the house, taking a knife with him. Defendant's silence in the presence of his family members was relevant to an assessment of his state of mind, and clearly not "pre-arrest" silence covered by any privilege.
In the next step of the chronology, defendant initiated a telephone call to his house. He requested to speak to the police who were there, and he then volunteered to Officer Hale on the phone, without any prompting or questions, that he had "f[***]ed up." What defendant chose to say and not to say in that phone call was relevant proof. It was not improper for the State to develop that proof through cross-examination, and to comment about it in summation. No violation of pre-arrest silence principles occurred. The conversation with Officer Hale over the telephone "significantly" preceded defendant's arrest and "did not arise in a custodial or interrogation setting." See Muhammad, supra, 182 N.J. at 571. Moreover, a jury could infer that "a reasonable person" in defendant's position "would have come forward and spoken." See Taffaro, supra, 195 N.J. at 455.
Furthermore, the prosecutor's references, both in cross-examination and in summation, to defendant's silence after he met with Officer Hale at the house and prior to his arrest were also permissible. Defendant affirmatively asserted that he had told Officer Hale at the police station that he had done nothing wrong. The State was entitled to impeach that assertion by highlighting his earlier pre-arrest silence when he was with Officer Hale and the other patrolmen. See Brown, supra, 118 N.J. at 613. The silence focused upon by the prosecutor here was not silence in the context of any "official interrogation." Id. at 613.
Even if we were to construe any of the prosecutor's references about silence to have such an investigative nexus, we discern no harmful error resulting from those references. See Pepshi, supra, 162 N.J. at 494 (similarly concluding that improper references to the defendant's silence in the presence of arresting officers were harmless). The State's proofs against defendant largely hinged upon the credibility of Diana's testimony and J.E.'s observations of defendant with the child, coupled with defendant's clearly-admissible and unprompted admission to Officer Hale over the telephone that he "f[***]ed up." Defendant's silence was not misused in a fashion that deprived him of a fair trial, or that undermines our confidence in the jury's guilty verdict. The absence of a limiting instruction was inconsequential. In sum, we reject defendant's contentions of reversible error on these issues.
Defendant next argues that the prosecutor improperly referred in her closing argument to his flight from the residence after his mother-in-law discovered him in a compromising position with Diana. In particular, defendant criticizes the prosecutor for noting to the jury that defendant had "fled from the house," that he had engaged in a "bizarre flight," and that he was "fleeing from the panic that had set in when he was caught." Defendant argues that these allusions to his departure from the residence were unfair, and that they deprived him of a fair trial. Because no objection to these comments was raised in the trial court, we again evaluate defendant's contentions under a "plain error" review standard. See Macon, supra, 57 N.J. at 337.
To be sure, the trial judge appropriately declined in this case to issue a charge to the jury inviting them to draw on adverse inference from defendant's flight, as there was no specific evidence that defendant had fled from the authorities with a consciousness of his guilt. See State v. Ingram, 196 N.J. 23, 47 (2008) (holding that, in the analogous context of a defendant's absence from trial, a flight charge is unwarranted "unless separate proofs are tendered to sustain the claim that the defendant's absence was designed to avoid detection, arrest, or the imposition of punishment"); see also State v. Mann, 132 N.J. 410, 418-19 (1993).
The present scenario is distinctive because it concerns a defendant's flight from his own residence, after being confronted by his mother-in-law about apparently molesting his stepdaughter. There was nothing improper in allowing the jury to consider the significance of defendant's sudden departure, as bearing upon his overall state of mind and in weighing his claim that he had been manipulated by the child and had been the target of false accusations. If, as defendant maintains, his observed physical encounter with Diana in the living room was totally benign, one could reasonably wonder why he left the premises abruptly with a knife, rather than attempt to explain to his wife and mother-in-law what had occurred.
The prosecutor did not impermissibly argue to the jury that defendant left the residence "with an intent to avoid apprehension for [a] crime." See Ingram, supra, 196 N.J. at 46 (quoting State v. Wilson, 57 N.J. 39, 49 (1970). Rather, the prosecutor alluded to defendant's departure as part of the overall sequence of events, in an effort to portray defendant's benign narrative as beyond belief. We regard the prosecutor's comments as within the bounds of fair advocacy, and conclude that they were based upon inferences that can be "reasonably drawn" from the evidence. See State v. Morton, 155 N.J. 383, 457 (1998). There was no error, much less plain error, by the court's allowance of these closing arguments. No new trial is warranted.
The final argument raised by defendant through his counsel on appeal is a contention that his sentence is excessive. We find no manifest injustice, nor any abuse of discretion, in the sentence imposed by the trial court.
In rendering consecutive fifteen-year sentences on the three counts for aggravated sexual assault, the trial judge found five aggravating factors applied: (1) the nature and circumstances of the offenses, N.J.S.A. 2C:44-1a(1); (2) the gravity and seriousness of the harm inflicted upon the minor victim; N.J.S.A. 2C:44-1a(2); (3) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); (4) a lesser sentence would depreciate the seriousness of the offense because defendant took advantage of a position of trust or confidence to commit the offenses; and (9) the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Offsetting these aggravating factors, the sentencing judge further considered mitigating factor (7), i.e., defendant's lack of prior criminal history, N.J.S.A. 2C:44-1b(7).
The judge reasonably considered all of these sentencing factors in imposing fifteen-year custodial terms, which are at the midpoint of the applicable range for first-degree crimes. See N.J.S.A. 2C:43-6a(1) (providing for a range of ten to twenty years for such offenses). The judge appropriately took into account the five-year span in which defendant, according to the victim's testimony, repeatedly committed sexual assaults and other sexual acts upon her; the position of trust and authority inherent in a stepparent-stepchild relationship; the disparity in their relative ages; and the overall seriousness of the offenses. Although defendant had no prior record, that does not overcome the strong reasons justifying the sentences that were imposed.
Moreover, the consecutive sentences imposed for the three discrete proven acts of aggravated sexual assault are justified under the factors expressed in 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). In particular, the assaults were "predominantly independent of each other," were committed "at different times," were not committed "so closely in time and place as to indicate a single period of aberrant behavior," and resulted in "numerous" convictions. See Ibid.
In upholding the sentence imposed by the trial court, we apply well-settled principles of appellate deference. A sentence that adheres to the sentencing guidelines should be modified on appeal only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). We are not to "second-guess" the sentencing court's overall assessment of aggravating and mitigating factors. See State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Ghertler, 114 N.J. 383, 384 (1989)). A sentence should only be disturbed on appeal if the aggravating and mitigating factors are unsupported by the record. Bieniek, supra, 200 N.J. at 608 (citing State v. Carey, 168 N.J. 413, 430 (2001)). That is not the case here.
Defendant's sentence is consequently affirmed in all respects.
We have fully considered the arguments set forth in defendant's pro se supplemental brief, and are satisfied that they lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2). In particular, there is no merit to defendant's contention that the trial judge incorrectly denied his motion to set aside the verdict as being against the weight of the evidence. The trial judge, applying the appropriate legal standards for a new trial, had ample grounds to conclude that the jury's verdict, when viewing the evidence in a light most favorable to the State, was supported by the record. There was no clear and convincing showing of a miscarriage of justice. See R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74 (1974).