December 20, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Carchman and Baxter.
Defendant S.O.G. was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). At the time of sentencing on February 22, 2010, the judge imposed a twenty-year term of imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA), and on counts two and three, ten-year terms of imprisonment, concurrent to each other and concurrent to the sentence imposed on count one.
On appeal, defendant maintains the cumulative effect of a series of errors denied him a fair trial. In particular, he asserts that the judge erred by: permitting the victim to testify to an incident when defendant touched her breasts in 1999, even though the acts of sexual penetration and sexual contact contained in the indictment did not begin until January 1, 2000; admitting the testimony of the victim's cousin as a fresh complaint witness, even though the witness was so young at the time of the conversation in question as to be incompetent to testify; allowing the State to introduce irrelevant and prejudicial evidence of defendant's alcohol abuse; refusing to issue an adverse inference instruction when the State failed to call a friend of the victim as a fresh complaint witness; issuing an erroneous jury charge on fresh complaint and child sexual abuse accommodation syndrome (CSAAS) testimony; and failing to instruct the jury when the defense rested that defendant had no obligation to testify. Defendant also asserts that the judge imposed an excessive sentence, which was the result of double-counting an aggravating factor, omitting an applicable mitigating factor and improperly failing to merge offenses. Finally, defendant argues he was denied the effective assistance of counsel at trial and during the sentencing proceeding.
Having carefully considered defendant's arguments in light of the record and applicable law, we conclude that none of the evidentiary rulings or jury instructions about which defendant complains was sufficient, either individually or in the aggregate, to warrant reversal of defendant's conviction. We do, however, agree that the judge's errors in the finding of aggravating and mitigating factors require us to vacate the sentence and remand for resentencing. We defer defendant's claims of ineffective assistance of counsel to the post-conviction phase.
In 1998, when E.O. was eight years old, she moved from Kenya to Edison, New Jersey with defendant, who was her stepfather, along with her mother Anita, and defendant's son Thomas, who was then six years old.*fn1 The family moved from Edison to North Brunswick at the end of 1999. In 1999, while still living in Edison, E.O. was in her mother's bedroom when defendant entered the room drunk. While engaging E.O. in conversation, defendant suddenly "put his hands on [her] boobs." E.O. ran out of the room, not telling her mother what had happened. Defendant never accosted E.O. again while they were living in Edison; however, in 2000, after the family moved to North Brunswick, at which time E.O. was nearly ten years old, defendant's sexual abuse resumed. From January 1, 2000, through December 31, 2003, while Anita was at work and Thomas was outside playing, defendant sexually abused E.O. as often as three times per week. At the outset, defendant touched her breasts and vagina over and under her clothing. As the sexual abuse progressed, defendant forced E.O. to touch his penis, and on other occasions, he digitally penetrated E.O.'s vagina and had vaginal intercourse with her. He also performed cunnilingus. On some occasions defendant wore a condom, but on other occasions he ejaculated onto the floor.
At times, E.O. attempted to resist defendant's sexual abuse, but sometimes she "just s[a]t there, so that it would just be over and done with." Defendant told her that "[t]his is what you are supposed to be doing at your age." He once played a pornographic video on the computer, commenting "this is how you are supposed to do it." Defendant warned E.O. that if she told anyone, nobody would believe her, and her family would be forced to return to Kenya. E.O. believed his threats.
When E.O. was twelve years old, she visited her ten-year-old cousin Mary in Hershey, Pennsylvania. The two cousins were very close. While with Mary, E.O. began to think about defendant sexually assaulting her. She became upset, and ran out of the house, with Mary following her. When Mary asked what was wrong, E.O. responded that defendant "was having sex with [her] when [she] didn't want to, and it hurt." E.O. swore Mary to secrecy, telling Mary she was "scared" of defendant. Defendant continued to sexually abuse E.O. until December 2003, when E.O. began menstruating. Afraid her mother would not believe her, E.O. never told her mother what defendant had been doing. During 2003, Anita decided to separate from defendant, and she and E.O. moved to Pennsylvania.
In April 2008, when E.O. was eighteen years old, she went to Baltimore for a family party. She and Mary were alone "talking about life" when E.O. confided to Mary that she felt ashamed "because of what happened." E.O. suddenly attempted to run in front of a car to kill herself, but Mary was able to grab E.O. before a car struck her.
Later that day, Mary, E.O.'s friend Lucy, and E.O.'s two male cousins, encouraged E.O. to report defendant's sexual abuse to Anita. Upon learning of the abuse, Anita brought E.O. to the Lower Paxton, Pennsylvania police department, where E.O. provided a statement to the police about defendant sexually assaulting her.
The Lower Paxton police referred the charges to the Middlesex County Prosecutor's Office, which obtained an indictment in August 2008 charging defendant with acts of sexual penetration and sexual contact upon E.O. in North Brunswick "between January 1, 2000 and December 31, 2003," and with endangering the welfare of E.O. by engaging in sexual conduct with her during the same dates and at the same location, North Brunswick.
The trial commenced on September 22, 2009. During his opening, defense counsel argued to the jury that defendant was innocent of all charges against him. Counsel asserted that Anita had forced E.O. to file sexual abuse charges against defendant because Anita resented defendant's extra marital affairs, and was angry that defendant had stopped supporting her financially. Defense counsel argued to the jury:
[Their marital] problems centered around money and fighting and jealousy. . . . [A]s time went on, and [defendant] tried to distance himself, . . . he supported [Anita] and the children . . . until 2007. Once he finally broke off [the relationship], there was [sic] just too many problems, too much jealousy, too many accusations going back and forth. [Anita's] anger became greater and greater. Frankly, [defendant] claims that [E.O.] is saying these things, based upon [Anita's] prompting, based on [Anita's] influence.
And, frankly, that [E.O.'s] claims are really retribution from [defendant] cutting them off financially.
E.O.'s testimony at trial was consistent with what we have already described. The State also called Anita, who testified that she was unaware until E.O.'s 2008 suicide attempt that defendant had sexually abused E.O. Anita explained that during the period when the abuse occurred, she was at work while defendant was home alone with E.O. and Thomas. When asked to describe her daughter's relationship with defendant, Anita responded that E.O. was "afraid of [defendant], because of his drinking," but other than that, Anita had observed nothing unusual in her daughter's relationship with defendant. Anita also testified that while living with defendant in North Brunswick between 2000 and 2003, she "moved out a lot" due to his drinking. On all but the last occasion, she returned to defendant because he apologized and promised to stop drinking.
After she left defendant for the last time, he came to her home drunk, and gave her a "hard time," which caused her to call the police.
On cross-examination, defense counsel elicited testimony from Anita about other problems in her marriage to defendant, including financial difficulties, fights over money, and defendant "cheating" on her with other women. Anita admitted that she was jealous and hurt when she learned that defendant had been unfaithful during their marriage.
Anita was also asked on cross-examination if she ever suspected defendant of sexually abusing E.O. Anita answered that because E.O. had become very withdrawn, and was making an obvious effort to avoid defendant, it occurred to her that defendant might be abusing E.O. When she asked, E.O. said "no." Defense counsel also elicited testimony that from the time Anita separated from defendant in 2003, "[h]e never gave [her] a dime."
The State also called Mary as a witness, to describe E.O.'s disclosure in 2002, when Mary was ten, that defendant had been forcing E.O. to engage in sexual intercourse. Before Mary was called to the stand, the judge conducted a hearing outside the presence of the jury, at which he concluded that Mary's testimony satisfied the applicable standards for fresh complaint testimony. In issuing that ruling, the judge expressly rejected defendant's assertion that Mary was so young when the initial disclosure occurred in 2002 that she would have been incapable of understanding what E.O. was telling her. Before the jury, Mary described E.O.'s 2002 disclosure as well as E.O.'s 2008 suicide attempt.
The State also called as witnesses Detective Gordon Goodrow of the Lower Paxton police department, who was on duty at the time E.O. provided her statement to police in 2008, as well as Susan Cohen Esquilin, an expert in CSAAS.
The defense rested without calling any witnesses. Before the attorneys began their summations, they asked the judge to instruct the jury that a defendant has no obligation to testify or present a defense, and that the jury was prohibited from drawing an adverse inference from defendant's decision not to testify. The judge declined to issue such an instruction, noting that he had already done so during his preliminary instructions to the jury at the beginning of the trial, and that he intended to repeat that instruction during his final charge to the jury. As promised, the judge issued such an instruction to the jury during his final jury charge. He also issued a limiting instruction on the CSAAS testimony Esquilin had provided. Defendant made no objection to the judge's charge to the jury.
On appeal, defendant raises the following claims:
I. THE CUMULATIVE EFFECT OF THE ERRORS THAT BOLSTERED THE TESTIMONY OF THE STATE'S COMPLAINING WITNESS PREJUDICED [DEFENDANT], DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, U.S. Const. Amend. V and XIV (Partially Raised Below).
II. COUNT THREE SHOULD HAVE BEEN DISMISSED AT THE END OF THE STATE'S CASE INSOFAR AS IT CHARGED A SECOND DEGREE OFFENSE (Not Raised Below).
III. DEFENDANT WAS DENIED THE RIGHT TO CONFLICT-FREE COUNSEL. U.S. Const. Amend. V, VI, and XIV; N.J. Const. Art. 1, Para. 10 (Partially Raised Below).
IV. THE TRIAL JUDGE FAILED TO MERGE OFFENSES, IMPROPERLY DOUBLE COUNTED ELEMENTS OF THE OFFENSES AS AGGRAVATING FACTORS AND, THE MAXIMUM SENTENCES IMPOSED WERE EXCESSIVE FOR THIS FIRST OFFENSE NOT ONLY BECAUSE THEY WERE CONTRARY TO THE CONCEPT OF PROGRESSIVE PUNISHMENT INHERENT IN OUR SENTENCING SCHEME BUT BECAUSE THEY PENALIZED [DEFENDANT] FOR DEFENDING AGAINST THE CHARGES, EXCEEDED THE SENTENCE SOUGHT BY THE STATE AND WERE CLEARLY INFLUENCED BY THE PREJUDICIAL CONDUCT OF DEFENSE COUNSEL AT SENTENCING.
B. Aggravating and Mitigating Factors
C. The Excessive Maximum Terms
In Point I, defendant argues that the cumulative effect of evidentiary and instructional errors unfairly "bolstered" the testimony of E.O., thereby denying him a fair trial. Notwithstanding the requirement of Rule 2:6-2(a)(5), which requires parties to separately number each distinct legal argument being raised on appeal, defendant has combined virtually all of his claims of error into a single point heading in Point I. For ease of discussion and analysis, we have inserted subheadings.
A. E.O.'s testimony describing the 1999 incident in Edison that predated the events alleged in the indictment
We turn first to defendant's claim that the judge erred when he failed to sua sponte prohibit the State from presenting E.O.'s testimony about defendant fondling E.O.'s breasts in 1999 in Edison. Defendant asserts that because the three counts of the indictment are expressly limited to the time period of January 1, 2000 through December 31, 2003, concerning events that occurred in North Brunswick, the judge should not have permitted the State to introduce testimony concerning an event in Edison in 1999. Because defendant failed to interpose any objection to this testimony at the time of trial, we will not reverse on this ground unless any such error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).
Defendant maintains that "[E.O.'s] credibility as to the conduct charged in the indictment was bolstered by her being permitted to testify to other crimes, without proper limiting instruction, contrary to N.J.R.E. 404(b) and 105. She testified about an incident that occurred prior to the period covered by the indictment" in a manner that included "explicit detail oriented to time, place, age and offensive conduct for only this one incident," thereby improperly bolstering her subsequent testimony on the three charges contained in the indictment that "was bereft of detail and had no orientation to time."
The State urges us to reject defendant's claim that the judge should have barred E.O.'s testimony about the 1999 incident. The State maintains that the testimony in question helped to "present a full picture of the relationship between [E.O.] and her stepfather." Relying on State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995), the State asserts that evidence explaining the nature of, and presenting "a full picture of the crime to the jury," should not be excluded under N.J.R.E. 404(b) as evidence of a prior bad act. The State also draws our attention to the Supreme Court's recent decision in State v. Rose, 206 N.J. 141, 177-78 (2011), in which the Court held that evidence "intrinsic" to a charged crime is admissible so long as it satisfies the relevance requirement of N.J.R.E. 401, without also being subjected to scrutiny under N.J.R.E. 404(b).
In State v. Rose, the Court analyzed the defendant's argument that he was denied a fair trial when the judge, over defendant's objection, admitted evidence that defendant had been jailed for the attempted murder of the same person for whose murder he was presently on trial. Rose, supra, 206 N.J. at 153-55. The State sought to justify the admission of that evidence, despite its highly inflammatory character, on the grounds that testimony from a fellow inmate that defendant hired him to kill the victim was made more understandable if the fellow inmate was also permitted, as background, to explain that defendant was then in jail for the attempted murder of the very same person. Id. at 153-54.
Characterizing the challenged evidence as res gestae, the Court invalidated the use of res gestae as an independent basis for the admission of other, uncharged bad acts when offered as background information helpful to the jury's analysis of the crimes charged in the indictment. Id. at 180-82. The Court reasoned that allowing evidence of uncharged prior bad acts under a res gestae theory "derail[s]" the rigorous strictures of N.J.R.E. 404(b). Id. at 176. In reaching that conclusion, the Court observed that the century-old res gestae doctrine had outlived its usefulness in light of the adoption of formal rules of evidence. Id. at 146. Henceforth, all evidence of uncharged conduct must be submitted to the rigors of an N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992), analysis.
However, the Court created a narrow exception to its holding that all evidence of uncharged crimes be subjected to a Cofield analysis. The Court concluded that evidence that is "intrinsic" to the crime charged need be evaluated only under a standard relevance analysis under N.J.R.E. 401, subject to the N.J.R.E. 403 balancing test. Rose, supra, 206 N.J. at 177-78. Noting that "[t]he difficulty lies in determining what evidence is intrinsic," id. at 178, the Court adopted the definition applied by the Third Circuit Court of Appeals in United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010):
[W]e . . . reserve the "intrinsic" label for two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." But all else must be analyzed under Rule 404(b). [Rose, supra, 206 N.J. at 180 (emphasis in original) (quoting Green, supra, 617 F.3d at 248-49, cert. denied, ___ U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).]
In view of that test, we cannot agree with the State's contention that the evidence of the 1999 incident satisfies the Rose/Green definition of "intrinsic," as it does not "directly prove" events charged in the indictment, which occurred from 2000 to 2003. Consequently, the evidence of the 1999 incident must be subjected to an N.J.R.E. 404(b) analysis. Id. at 179-80.
The record demonstrates that neither side asked the judge to conduct an N.J.R.E. 404(b)/Cofield analysis. Although we will uphold a trial judge's decision to admit N.J.R.E. 404(b) evidence absent a "clear error of judgment," we will conduct our own Cofield analysis when the judge has neglected to do so. Id. at 158. As the Court observed in Rose, the four-prong Cofield test remains the definitive standard for evaluating the admissibility of uncharged crimes. Id. at 159-60. The four Cofield factors are as follows:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Cofield, supra, 127 N.J. at 338 (citation omitted).]
In determining whether the first prong of the Cofield test is satisfied here, we note that evidence of prior molestation is admissible on material issues such as access and feasibility, and to counter a claim of bias, such as that arising in the context of the so-called "vendetta defense." State v. G.V., 162 N.J. 252, 264-65 (2000). Here, as is evident from defendant's cross-examination of E.O., he expressly argued that E.O.'s mother had "influenced [her], to have [her] say these things about [defendant], to get back at him," thereby constituting a "vendetta defense." Such evidence satisfies the first Cofield prong.
We are likewise satisfied that the second prong is met, as the evidence concerning the 1999 incident was unquestionably similar in kind to the offenses charged in the indictment. Moreover, the evidence of the 1999 incident in Edison was reasonably close in time to offenses charged in the indictment, which began on January 1, 2000. As for the third Cofield prong, the evidence from E.O. concerning the 1999 incident was clear and convincing. In light of its strong probative value to negate the "vendetta defense" urged by defendant, the probative value of the 1999 evidence was not outweighed by its apparent prejudice, thereby satisfying the fourth prong. All four Cofield prongs are satisfied.
Moreover, we reject defendant's contention that the State unfairly benefited from the testimony about the 1999 Edison incident, which he asserts was far more specific in its detail and in its date than the balance of E.O.'s testimony. We disagree. As is evident from the record, E.O. only specified that the incident happened while the family was living in Edison, which was at some time during the year 1999. She was no more specific than that. For all of these reasons, we reject defendant's claim that the testimony concerning the 1999 incident in Edison was error, much less plain error.
B. Anita's testimony about defendant's bad character
As his next claim of cumulative error, defendant asserts that the judge erred by failing to sua sponte exclude Anita's testimony about defendant's bad character, namely, his adultery and domestic violence, without the defense having first introduced evidence of defendant's good character. Defendant has mischaracterized the record, as all of the testimony from Anita concerning defendant's adultery and domestic violence was elicited on cross-examination.*fn2 As is evident from an analysis of the record, it was defendant himself, not the State, who elicited the testimony of defendant's bad character. His argument requires no further analysis.
C. Failing to issue an adverse inference instruction concerning Lucy
Next, defendant maintains that the State's choice of E.O.'s cousin Mary, rather than E.O.'s friend Lucy, as a fresh complaint witness should have been evaluated "with a view toward providing" a State v. Clawans, 38 N.J. 162, 174 (1962), adverse inference instruction. Defendant maintains that Lucy was E.O.'s more natural confidante, as they were "school friend[s]" and were the same age, whereas Mary was two years younger than E.O. In light of the close relationship that both E.O. and Mary described, we discern no error, much less plain error, in the judge's failure sua sponte to issue an adverse inference instruction concerning the State's failure to call Lucy as a fresh complaint witness.
D. Error in admitting Mary's fresh complaint testimony
As an additional component of his cumulative error argument, defendant maintains that the judge erred by failing to rule on the trustworthiness of Mary's testimony, which defendant characterizes as inconsistent in its description of the relevant dates. Defendant also asserts the judge should have evaluated Mary's trustworthiness not from the prospective of how old she was at the time of the trial, seventeen, but instead based upon how old she was at the time of E.O.'s initial disclosure, when Mary was ten years old. As for any inconsistencies in the dates Mary described, we agree with the judge's conclusion that such discrepancies "might be some fodder for cross-examination, [or] for closing arguments," but were not a basis for excluding Mary's testimony. Moreover, we are satisfied, as was the trial judge, that a ten-year-old child would be able to understand her cousin's statements, which Mary quoted in the following terms: "I'm being abused. I'm getting touched -- being touched."
We likewise reject defendant's contention that the judge abused his discretion when he concluded that Mary's fresh complaint testimony satisfied the standards established by the Court in State v. Bethune, 121 N.J. 137, 145 (1990) (holding that the State is entitled to present as fresh complaint evidence the testimony of the person to whom the victim confided, so long as the witness is someone to whom the victim would ordinarily turn for support, and the victim's disclosure occurred within a reasonable time after the alleged assault and was spontaneous and voluntary).
E. Evidence of E.O.'s 2008 suicide attempt
Defendant further contends that E.O.'s 2008 "alleged suicide attempt" was improperly admitted because it "served only to bolster [her] credibility with the jury" and was irrelevant to the issues at trial. We disagree. Esquilin's CSAAS testimony explained to the jury that victims of child sexual abuse often delay for many years reporting their victimization. So viewed, the testimony from E.O. and Mary describing E.O.'s 2008 suicide attempt was relevant, as it explained to the jury the poignant and compelling circumstances that led to E.O.'s much-delayed disclosure of the abuse she had suffered years earlier. At trial, defendant interposed no objection to this testimony. We therefore evaluate it under the plain error standard, and will not reverse on this ground unless any error was clearly capable of producing an unjust result. R. 2:10-2. We perceive no error, much less plain error, in the admission of this testimony.
F. Errors in the judge's instructions to the jury
Defendant asserts that the judge's instructions to the jury concerning Mary's fresh complaint testimony and Esquilin's CSAAS testimony were flawed. As to Mary's fresh complaint testimony, defendant asserts that the judge erred by failing to issue the fresh complaint limiting instruction required by Bethune at the time Mary's testimony was offered. He asserts that Bethune requires such an instruction be given at the time of the testimony as well as during the judge's final instructions at the close of the trial. We do not agree. Bethune contains no such requirement, Bethune, supra, 121 N.J. at 148, although it may be the better practice to do so. Moreover, defendant did not request such an instruction during Mary's testimony. Even if the judge's omission was error, we do not deem it unduly harmful in light of the comprehensive limiting instruction the judge issued as part of his final instructions to the jury.
As for the CSAAS instruction the judge provided to the jury, any of the judge's deviations from the Model Jury Charge on that subject were so minor as to be unworthy of any further discussion. R. 2:11-3(e)(2).
G. Difficulties in cross-examining E.O. as a result of her emotional state during testimony
Defendant next argues that his ability to cross-examine E.O. "was restricted as a result of her inability to control her emotions even with an intervening weekend" between the end of direct examination and the beginning of cross-examination. The record reflects that E.O. was emotionally distraught during her direct examination. The judge handled the matter appropriately by ending the day's proceedings. Because it was 4:00 p.m., the judge's decision to end the testimony for the day would not have unfairly emphasized E.O.'s emotional upset.
When the trial resumed on September 28, 2009, four days later, nothing in the record of the proceedings of that day suggests that defense counsel was experiencing difficulty in cross-examining E.O. or that E.O. was emotionally distraught during the cross-examination. Moreover, defense counsel made no requests of the judge during his cross-examination of E.O. For all of these reasons, we reject defendant's assertion that his ability to cross-examine E.O. was impaired by her emotional state.
H. The judge's handling of defendant's election not to testify
As we have noted, the parties asked the judge to instruct the jury at the time the defense rested that a criminal defendant has no obligation to testify, and that the jury is prohibited from drawing an adverse inference from his failure to do so. The judge declined to issue such an instruction, reasoning that he had already done so during his preliminary remarks. As defendant argues, and as the State concedes, the record reflects that the judge was mistaken, as he issued no such instruction in his preliminary remarks. For that reason, the judge should have provided that instruction when defendant rested without taking the stand. We deem this error harmless, however, because the defense rested on the very same day that the judge provided his final charge to the jury. At most, only an hour or two elapsed between the time defendant rested and the time the judge instructed the jury that defendant had no obligation to testify. For these reasons, even though the judge erred by declining to issue the instruction when requested to do so, the error was harmless.
Defendant has asserted nine claims of error. Even if the failure to issue a limiting instruction at the time Mary testified is deemed error, we have found only two: the failure to issue a fresh complaint limiting instruction at the time Mary testified and the failure to instruct the jury when the defense rested that defendant had no obligation to testify. We have deemed both of these errors to be harmless. Relying on State v. Jenewicz, 193 N.J. 440, 473 (2008), defendant asserts that even if none of the errors, standing alone, was sufficient to warrant a new trial, the cumulative effect of multiple errors entitles him to a new trial. We disagree. The two errors in question were errors of timing, not of substance. Notably, the judge provided both a fresh complaint limiting instruction and an instruction on defendant's election not to testify. The judge's error was confined to the timing of those instructions. Under such circumstances, defendant's claim of cumulative error fails. We reject the claim defendant advances in Point I.
In Point II, defendant asserts that count three should have been dismissed at the end of the State's case as the evidence was insufficient to establish his guilt on a charge of second-degree endangering the welfare of a child. N.J.S.A. 2C:24-4(a) provides that a person is guilty of third-degree endangering the welfare of a child if he engages in "sexual conduct which would impair or debauch the morals of the child." If, however, a defendant has "assumed responsibility for the care of [the] child," the crime is elevated to a second-degree offense. N.J.S.A. 2C:24-4(a). Defendant's argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, the testimony from both E.O. and Anita established that defendant was frequently left to care for E.O. while her mother was at work. Defendant's supervisory responsibility for E.O. occurred several times a week and lasted for years. Under such circumstances, the judge did not err by failing to sua sponte dismiss the second-degree charge of endangering the welfare of a child.
Rather than proceed next to the claim defendant advances in Point III, we turn to the sentencing arguments defendant advances in Point IV. In Point IV, defendant maintains that the judge imposed an excessive sentence, which was the result of the judge's failure to merge count two with count one, the judge's double-counting of an element of the offense as an aggravating factor, and the judge's failure to find defendant's lack of a prior record to be a mitigating factor.
Turning first to defendant's merger argument, we note that the imposition of consecutive sentences for different types of sexual assaults committed on a single occasion does not constitute an excessive sentence. See State v. Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986). Because consecutive sentences are permissible for different types of sexual assault, it stands to reason that the offenses do not merge.
We do, however, agree with defendant's argument that the judge double-counted an element of the offense when he concluded that aggravating factor two, N.J.S.A. 2C:44-1(a)(2), applied.
Aggravating factor two requires a finding that "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, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]" N.J.S.A. 2C:44-1(a)(2). Defendant points out that the forms of aggravated sexual assault and sexual assault contained in counts one and two of the indictment, respectively, were premised upon E.O. being less than thirteen years of age. See N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b). He asserts that because the victim's young age was an element of the offense, the judge was prohibited from relying on that same circumstance as grounds for aggravating factor two.
The State urges us to reject defendant's claim that the judge double-counted an aggravating factor. The State argues that in finding the existence of aggravating factor two, the judge did not rely on E.O.'s young age, but rather relied upon the extent of the harm defendant inflicted. In support of that argument, the State points to the judge's comment that at the conclusion of her direct testimony, E.O. bolted out of the courtroom and vomited in the hallway. While the State is correct that the judge made such an observation, we do not agree that the judge's reference to E.O.'s emotional reaction to defendant's conduct was offered in support of his finding of aggravating factor two. Instead, the judge's brief discussion of the aggravating factors supports defendant's argument that the judge relied on E.O.'s young age as support for the finding of aggravating factor two.
Where a child victim is substantially below the age of thirteen, the child's young age does not constitute an impermissible double-counting of an element of the offense as an aggravating factor. State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988). Here, however, the Taylor exception does not apply as defendant's sexual abuse of E.O. began when she was ten and continued until she was thirteen, the maximum age to which N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b) apply. We agree with defendant's argument that by finding the existence of aggravating factor two, the judge impermissibly double-counted an element of the offense as an aggravating factor.
Turning to the mitigating factors, the judge found none. This was clearly an error, as defendant had no prior criminal record and was forty-two years old at the time of sentencing.*fn3
For that reason, the judge was obliged to find the existence of mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]" Thus, the judge incorrectly found the existence of aggravating factor two, and incorrectly failed to find the existence of mitigating factor seven.
On count one, the judge imposed the maximum sentence of a twenty-year term of imprisonment subject to NERA. Under those circumstances, we cannot find the errors in the aggravating and mitigating factors to be inconsequential. See State v. Roth, 95 N.J. 334, 364-66 (1984) (observing that a reviewing court will not disturb the exercise of a trial judge's sentencing discretion so long as the judge's findings of the aggravating and mitigating factors are supported by the record and the judge observed the applicable sentencing guidelines). We reverse the sentences imposed on counts one, two and three and remand for resentencing, at which time the judge shall refrain from relying upon E.O.'s age as an aggravating factor, and shall apply defendant's lack of a prior record as a mitigating factor. We express no opinion on the proper length of the sentence to be imposed.
Our disposition of the sentencing arguments defendant advances in Point IV makes unnecessary any consideration of defendant's argument in Point III that he was prejudiced at sentencing when trial counsel read to the judge a damaging letter. Defense counsel's letter was presented in response to defendant's claim that he was entitled to a new trial because counsel had not represented him zealously. In the letter defense counsel read aloud, defense counsel asserted, "the only person you [defendant] have to blame for the conviction is yourself." Counsel also described as "absurd" defendant's claim that trial counsel refused to call witnesses who would have provided favorable testimony. Because we have already concluded that defendant's sentence must be reversed, we need not determine whether trial counsel's letter denied defendant's right to the effective assistance of counsel at sentencing. We trust that counsel will not issue a similar letter on remand, and we direct the judge not to consider the contents of the letter in question during the resentencing proceeding.
As for the balance of defendant's claims of ineffective assistance of counsel, we defer them to the post-conviction phase. See State v. Preciose, 129 N.J. 451, 460-61 (1992).
In sum, we affirm defendant's conviction, remand for resentencing, and defer defendant's claims of ineffective assistance of counsel for post-conviction review.