May 22, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HOWARD L. RYAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 08-11-00495.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2012
Before Judges Reisner and Simonelli.
Defendant Howard L. Ryan appeals from his conviction for attempting to lure or entice a minor into a motor vehicle, N.J.S.A. 2C:13-6, and from the sentence imposed, seven and one-half years in prison with a five-year parole bar.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE STATE COMMITTED PREJUDICIAL MISCONDUCT IN BOTH ITS CROSS-EXAMINATION OF DEFENDANT AND IN ITS SUMMATION, NECESSITATING REVERSAL. US. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below.)
A. The Prosecutor's Cross-Examination Attempted To Force Defendant To Characterize The State's Witnesses As Liars.
B. The Prosecutor's Comments During Summation Were Improper As He Continued To Assert That Defendant Had Characterized The State's Witnesses As Liars And, Furthermore, The Prosecutor Vouched For The Credibility Of The State's Witnesses.
POINT II: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.
POINT III: THE SENTENCE IMPOSED ON DEFENDANT IS EXCESSIVE.
Having reviewed the record, we conclude that the arguments in Point I, raised for the first time on appeal, do not establish plain error; the verdict was not against the weight of the evidence; and there was no error in the sentence. Accordingly, we affirm.
S.W., who was fourteen years old at the time of the relevant events, and was fifteen at the time of the trial, testified that she and most of her extended family lived in Salem City. On September 27, 2008, she was walking to her aunt's house from her mother's house when a balding man with "grayish hair," who was driving a red or burgundy "truck," pulled up next to her and said "hey." She turned and looked at him and turned away. The man then asked her if she "wanted any money" and offered her $100 to talk to him. She was frightened because he was a stranger, and she declined his offer. He then "drove off" and turned the corner at the next intersection.
S.W. kept walking toward her aunt's house, but the man once again drove up to her and stopped his vehicle. This time, S.W. looked at his license plate and then, because she did not want to be alone, walked across the street and stood near a group of younger girls, whom she thought were about ten years old. The man, however, persisted in talking to her, once again asking her to get into his car. This time he offered her $200 to get into the vehicle. S.W. asked him why he wanted her to get in the car, and he said "just to talk." She testified that he did not ask her about finding a place to go fishing, nor did he ask for directions. However, he also did not ask her for any sexual favors.
As the man was talking to her, S.W. spotted a police officer in a car nearby and "waved him down." At that point, the man in the burgundy vehicle "sped off." S.W. reported to the officer that a man had tried to "pick [her] up in his car," and she gave the officer a description of the man and his burgundy vehicle, and the license plate number. S.W. continued on to her aunt's house and described the incident to the aunt, who took her to the police station. She confirmed that these incidents occurred on Walnut Street.
Salem Police Officer Leon Daniels testified that on September 27, 2008 he was patrolling in his police vehicle when he saw a burgundy SUV parked at the corner of Sinnickson and Walnut Streets. As he approached in his car, he saw the SUV "spin out" and drive down Walnut Street. Daniels then saw a group of young girls on the corner. The "taller female," whom he later learned was S.W., was waving at him and screaming excitedly. She told Daniels that the man driving the SUV had offered her "$200 to get in the truck with him."*fn1 She described the driver and the vehicle and gave Daniels the license number.
Daniels pursued the SUV and stopped it farther down Walnut Street. In court, he identified defendant as the driver. When stopped, defendant appeared nervous and his hands were shaking. When Daniels asked defendant what he was doing "with those little girls" he first claimed he was doing "nothing." But after Daniels asked defendant if he was "going to tell [him] the truth," defendant stated that he thought the girls were "adults" and he offered them "some money to get in the truck with him."
After checking with headquarters for outstanding warrants and finding none, Daniels let defendant go. Daniels was then directed to return to the police station, where he met S.W. and her aunt. Later in the day, he returned to patrol duty, encountered defendant a second time, and once again stopped him. Daniels told defendant that the "child" had made a complaint, which he was investigating. This time, defendant told Daniels that he "worked for a real estate company" and was in Salem on company business. Daniels once again let him go.
On cross-examination, Daniels testified that during the first encounter with defendant, he did not say anything about looking for "a fishing hole" or looking for a site to house homeless people. Daniels admitted he did not interview any of the young girls, other than S.W.
Defendant testified that in September 2008, he was managing a real estate company. He and his wife had bought a house in Carney's Point but he lived in Trenton during the week because he was the resident manager of a building there. He testified that he went to Salem for two reasons. First, he was an avid fisherman and wanted to go "striper fishing" at a nearby location, and second, his boss had asked him to locate an available property in Salem as a site to provide services to homeless people. His wife was planning to go with him, so they could fish together, but she got sick the night before and he went to Salem by himself. According to defendant, he drove around Salem asking directions to the fishing hole, but the people he asked were very unfriendly, called him a "honky," and told him to "get the F out of the area." He then drove around and looked at a possible site for his company's project. As he drove away from that site, he saw a "Spanish girl" crossing the street. He rolled down the window, and asked directions, and she asked if he "was a cop." He gave up on getting directions from her and drove on.
A short distance down Walnut Street, he saw a "young lady" whose age he did not know. He rolled down the car window and "yelled across the street" asking if she knew where people "go fishing for stripers." When she twice answered "huh" to his question, he said "if I offered you $100 you would hear what I was saying wouldn't you?" He testified that the "young lady" continued walking and he "left" to continue his search for the fishing hole. According to defendant, shortly after he drove away from her, a police officer pulled his car over. The officer told defendant he was being stopped for attempting "to solicit a 14 year old female." Defendant told the officer that was not what happened. He explained that he was only looking for a place to go fishing. Defendant denied telling the officer that he thought the female he had spoken to was an adult.
Defendant testified that after the officer released him, he finally found the fishing spot and caught several fish. On his way home, he drove back through Salem, got lost, and got pulled over again by the same police officer. This time the officer told him that the girl and her aunt were "going to file a complaint against you for soliciting" the girl. Defendant testified that he "just threw [his] hands up and said, okay, they've got to do what they've got to do." According to defendant, he only encountered the young lady once, not twice, and he never offered her $200. He denied ever offering her money to get into his car.
On this appeal, defendant contends that the verdict was against the weight of the evidence. We disagree, substantially for the reasons stated by the trial judge in his oral opinions of March 24, 2010 and July 1, 2010. We add the following comments.
To prove a violation of N.J.S.A. 2C:13-6, the State must establish that defendant attempted "to lure or entice a child or one who he reasonably believes to be a child into a motor vehicle . . . with a purpose to commit a criminal offense with or against the child." See State v. Perez, 177 N.J. 540, 552-53 (2003). Defendant argues that the State failed to prove the third element, his intent to commit a criminal offense against S.W. He contends that he innocently offered S.W. money to give him directions to a local fishing hole. As the trial judge cogently observed, $200 is an absurd amount of money to offer someone for directions. Given defendant's admission to Officer Daniels that he thought S.W. and the other girls were adults and he offered them money to get into his car, reasonable jurors could readily infer that he intended to lure S.W. into his car for the purpose of having sex with her, which would be a criminal offense. Ibid. Reasonable jurors could also have inferred that no one in defendant's position would have thought that a fourteen-year-old and a group of ten-year-olds were adults and that defendant's trial testimony was preposterous. This point warrants no further discussion here. R. 2:11-3(e)(2).
Defendant also contends that the prosecutor inappropriately cross-examined him on whether S.W. and Officer Daniels were "lying" and improperly referred in his summation to the officer's lack of an interest in the outcome of the case. We agree that this transgressed the boundaries of proper cross-examination and summation. See State v. Bunch, 180 N.J. 534, 549 (2004); State v. Goode, 278 N.J. Super. 85, 90-91 (App. Div. 1994). However, defense counsel did not object, and on this record we cannot conclude that the few inappropriate questions, and one or two remarks in summation, rose to the level of plain error. Bunch, supra, 180 N.J. at 549; see R. 2:10-2.
Finally, we find no abuse of discretion or other error in the sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 368 (1984). Defendant had three prior convictions for sexual assaults, although they were from decades earlier. The judge gave appropriate consideration to defendant's relatively long period of law abiding conduct and his service to the community. There is no evidence that defendant's medical condition cannot be treated while he is incarcerated. Defendant's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).