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State of New Jersey v. Francisco J. Faria

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANCISCO J. FARIA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0300.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 25, 2011 -

Before Judges Fuentes, Ashrafi and Nugent.

Defendant Francisco J. Faria appeals from the judgment convicting him of first degree aggravated sexual assault, sexual assault, and endangering the welfare of a nine-year-old child*fn1 ; and from his sentence to a fifteen-year aggregate prison term. Defendant argues that the trial court committed reversible error by admitting into evidence his confession to investigators, the content of a recorded telephone conversation between him and the victim's mother, and the victim's out-of-court statement to his grandmother; and by omitting to instruct the jury on both the voluntariness of his confession and a lesser-included offense.

We conclude that no error committed by the trial court was clearly capable of either producing an unjust result or leading the jury to reach a verdict it otherwise would not have reached. Accordingly, we affirm.

I.

In November 2007, nine-year-old Jonathan lived in Edison with his mother, Patricia, and his siblings. Defendant was related to Patricia and had been staying at her Edison home. On November 20, 2007, Jonathan's grandmother, Grace, noticed that Jonathan was uncharacteristically angry, purposely breaking things, and "picking on everyone." When Grace confronted Jonathan about his behavior, he started crying and eventually told her that defendant had hurt him. Jonathan explained that defendant had entered his room one night, gone behind him, and started "poking him," "pushing on him," and "touching him." Grace asked Jonathan to illustrate what happened to him on one of her granddaughter's dolls, which he did. Because Jonathan was upset, Grace took him to her home where they stayed until Thanksgiving.

When Grace and Jonathan returned to Patricia's home on Thanksgiving, Grace slapped defendant and asked how he could do something like what he did to Jonathan. Defendant asked her what she was talking about, left without his belongings, and did not return. Later that day Grace told Patricia what Jonathan had said about defendant. Patricia reported the incident to Jonathan's school counselor, who notified law enforcement authorities.

Middlesex County Prosecutor's Investigator Melissa Terpanick was assigned to the case on November 29, 2007. After receiving the assignment, Terpanick met with Jonathan and his mother, and interviewed Jonathan who described two incidents of abuse by defendant. According to Jonathan, the first incident occurred when defendant came into Jonathan's bedroom at night, pulled down Jonathan's pajama bottoms and underwear, anally penetrated him, and touched his genitals. Thereafter, on a date Jonathan could not recall, the second incident took place. During the second incident, Jonathan and defendant remained fully clothed while defendant pressed his genitals against Jonathan's buttocks.

On December 3, 2007, Investigator Terpanick conducted a telephonic intercept of a call between Patricia and defendant. Terpanick had scripted questions for Patricia to ask defendant. The questions were not necessarily truthful, but were designed to elicit specific responses. Patricia's questioning of defendant included references to defendant having been sexually assaulted as a child; to Jonathan's confusion about his sexual orientation as a consequence of the sexual assault; and to Patricia's need to believe her son so that she could get him the help that he needed.

Although defendant initially denied abusing Jonathan, later in the conversation he said that he sought forgiveness from God for hurting Jonathan, that Patricia should hate him, and that Patricia could believe Jonathan's versions of the two incidents. When Patricia specifically asked defendant if he was saying that it did not happen, defendant responded, "I didn't say it didn't." Patricia asked defendant why he did it and defendant replied, "I don't know," and, "I don't even remember."

Investigator Terpanick arrested defendant on December 5, 2007, and interrogated him after informing him of his Miranda*fn2 rights and having him sign a Miranda card. Defendant initially denied any wrongdoing, but eventually admitted to abusing Jonathan twice: the first time by anal penetration and touching Jonathan's genitals, and the second time by rubbing his genitals against Jonathan's buttocks when they were both clothed. According to defendant, both incidents occurred within a week of Thanksgiving.

On February 14, 2008, a Middlesex County grand jury charged defendant with first degree aggravated sexual assault for committing an act of sexual penetration upon a child less than thirteen years old, N.J.S.A. 2C:14-2a (count one); two counts of second degree sexual assault upon a child less than thirteen years old by committing an act of sexual contact with the child, by one at least four years older than the child, N.J.S.A. 2C:14-2b (counts two and four); second degree attempted aggravated sexual assault upon a child less than thirteen years old, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:14-2a (count three); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count five).

Following hearings on defendant's motion to suppress his confession to police, and the State's motion to introduce at trial Jonathan's statements to his grandmother and to Investigator Terpanick, the court denied defendant's motion and granted the State's motion. Defendant's jury trial took place over six days in March 2009. The State presented the testimony of Jonathan, his mother and grandmother, Investigator Terpanick, and a medical expert. The State also played the recordings of defendant's telephone conversation with Patricia and his confession to Terpanick.

At trial, Jonathan testified that defendant had assaulted him not twice, but three times, though he could not remember the first assault. He described the incident in which defendant anally penetrated him and touched his genitals. He also described the final incident, testifying that defendant had anally penetrated him during that assault as well.

Dr. Gladibel Medina, an expert in pediatrics and child sexual abuse examinations, testified that she had examined Jonathan on December 6, 2007. After speaking to Jonathan about the abuse incidents, Dr. Medina performed a physical examination that revealed no residual symptoms indicative of physical trauma. The doctor testified that eighty-five percent of children abused in a similar manner have no obvious signs of physical injuries when examined, and provided a physiological explanation for the absence of such findings.

Defendant presented the testimony of character witnesses and testified himself. He denied that he had abused Jonathan. To explain his conduct on the day of his confrontation with Grace, Jonathan's grandmother, defendant disclosed the difficulties he was having in his personal life, and told the jury why he did not spend Thanksgiving with his mother.

I was going through a lot at the time because I was dealing with arguments at home. Me and my family weren't getting along. I was going through arguments with my fiancee [sic]. He's my ex now. But at the time we were going through many arguments and him cheating on me and a bunch of things that were just bringing me down. And it was creating lots of conflicts within my home with my parents. And it was just very difficult for me. It was the holidays, and I wanted to be with my Mom.

We just weren't getting along. I wanted to be with my mother, but . . . my stepfather and I were having a minor argument, and it was all involving my ex. I at the time put him over my family, which was probably the stupidest thing I've ever done in my life.

Defendant insisted that he had no idea where Grace's accusations had come from.

During cross-examination, the prosecutor confronted defendant with his statement to Terpanick. Specifically, the prosecutor questioned defendant about telling Terpanick that he had penetrated Jonathan, but the penetration "wasn't far at all." Defendant responded that he was simply trying to appease the investigators. He explained that he was "a submissive gay[, which] . . . means I don't penetrate. I don't get off on penetrating. . . . It doesn't really sexually gratify me. And I don't do it to sexually gratify myself." Defendant also explained that he confessed to the police because he was scared and wanted to go home, and that the admissions he made to Jonathan's mother during the recorded telephone conversation were untrue.

On March 12, 2009, the jury convicted defendant on all counts. On June 22, 2009, at defendant's sentencing, the trial court merged count two into count one and count four into count three. The court sentenced defendant on count one, first degree aggravated sexual assault, to a fifteen-year prison term with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision upon release under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; to a concurrent prison term of eight years with a NERA parole ineligibility period of eighty-five percent on count three, second degree attempted sexual assault; and to a concurrent four-year term on count five, third degree endangering the welfare of a child. The court ordered that the sentences be served at the Adult Diagnostic and Treatment Center. Finally, the court ordered that defendant be subject to parole supervision for life under Megan's Law, N.J.S.A. 2C:43-6.4, and imposed appropriate fines and penalties.

II.

Defendant raises the following issues in this appeal:

POINT I

THE COURT ERRED IN ALLOWING THE STATE TO PLAY TO THE JURY A TELEPHONIC INTERCEPT CONTAINING INADMISSIBLE AND PREJUDICIAL STATEMENTS THAT WERE SO OFFENSIVE THAT THE JUDGE'S GUTTURAL REACTION UPON FIRST LEARNING OF THE CONTENTS WAS "MY GOODNESS, YOU CAN'T INTRODUCE THIS STUFF"

POINT II THE COURT ERRED IN ALLOWING DEFENDANT'S STATEMENT TO THE POLICE TO BE INTRODUCED BECAUSE HE REQUESTED THAT THE INTERROGATION BE TERMINATED AND BECAUSE THE STATEMENT CONTAINED IRRELEVANT, PREJUDICIAL INFORMATION ABOUT DEFENDANT'S CHILDHOOD; THE COURT ALSO ERRED IN ITS USE OF DEFENDANT'S CONFESSION DURING DELIBERATIONS (PARTIALLY RAISED BELOW)

POINT III THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY FAILING TO GIVE A HAMPTON CHARGE (NOT RAISED BELOW)

POINT IV THE COURT SHOULD HAVE PLACED BEFORE THE JURY THE LESSER INCLUDED OFFENSE OF ATTEMPTED AGGRAVATED SEXUAL ASSAULT ON THE FIRST ALLEGATION NOTWITHSTANDING DEFENSE COUNSEL'S DISINCLINATION FOR SUCH A CHARGE (NOT RAISED BELOW)

POINT V THE COURT BELOW ERRED IN ADMITTING [JONATHAN'S] STATEMENTS UNDER THE TENDER YEARS' EXCEPTION TO THE HEARSAY RULE

POINT VI THE COURT IMPOSED AN EXCESSIVE SENTENCE BASED ON WEIGHING AGGRAVATING FACTOR FOUR, WHICH SHOULD NOT HAVE BEEN CONSIDERED BECAUSE THE LEGISLATURE ALREADY FACTORED DEFENDANT'S POSITION OF TRUST IN MAKING IT A FIRST DEGREE OFFENSE (NOT RAISED BELOW)*fn3

POINT VII DEFENDANT ARGUED BELOW THAT HE DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS

A.

In Point I, defendant contends the court erred by admitting into evidence the unredacted content of his recorded telephone conversation with Patricia. Defendant does not assert that the recording should have been excluded in its entirety; rather, he argues that portions should have been excluded under N.J.R.E. 403 because the probative value of those portions was substantially outweighed by the risk of undue prejudice.

We review the trial court's evidentiary rulings admitting evidence for an abuse of discretion. State v. Harris, 209 N.J. 431, 439 (2012). "Considerable latitude is afforded a trial court in determining whether to admit evidence[.]" State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). A trial court's discretionary decision to admit or exclude relevant evidence is reversible only if "the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Defendant did not file a pre-trial motion to suppress or redact the telephone intercept. He first objected to its use on Wednesday of the week the trial began after the court had given its preliminary instructions to the jury. Defendant objected on the grounds that the phone call was hearsay, there was no exception to the hearsay exclusion of such evidence, and the conversation was not relevant because defendant did not incriminate himself. The court responded:

There [are] portions of the statement which may be -- which clearly contain references to what other people said and felt and did and perceived. And I want to make sure there's nothing particularly overtly prejudicial the Court feels cannot be cured through some kind of instruction before I permit the entire statement to be introduced to the jury.

It is clear to the Court that the statement is by and large admissible[,] ... but there are questions that are being asked by the victim's mother that are in paragraph dialogue length. I'm talking about what other people said and felt and did. And the responses by the defendant are terse and often denial. And before I permit the jury to hear the entire statement I'd like the opportunity to go through it to see if there's anything particularly prejudicial that I believe the jury will not be able to disregard in taking into consideration the context of the dialogue. [(Emphasis added).]

The court instructed defense counsel to review the transcript, mark what she thought was prejudicial, and provide it to the prosecutor by Friday afternoon since the prosecutor did not intend to introduce it until the following week.

The following day, Thursday, Investigator Terpanick testified. During a break in her testimony, the prosecutor informed the court that she intended to introduce the telephone intercept that day. Defense counsel said she had not marked up the transcript because she had been instructed to do so by Friday. The judge responded that a motion should have been filed pre-trial, that he had read the transcript, and that he believed that it was admissible subject to a proper instruction. Defense counsel then objected that the content of the conversation included discussion about defendant's personal life and other subjects that might be inflammatory and prejudicial. The judge acknowledged that although he initially thought, "[m]y goodness, you can't introduce this stuff, State[, t]he State now has made it clear to me it is . . . not their intention to introduce it for the question, in terms of the truth thereof, but rather for the elicitation of the answer."

Before admitting the audiotape, the court required Terpanick to testify, in accordance with the State's proffer, that she had scripted much of the conversation. Terpanick testified that she had supplied many of the questions asked by Patricia, that the questions were a matter of technique, and that the questions were not necessarily the truth but were "scripted." The judge then gave the following limiting instruction:

I'm going to permit the questions and answers to be played for you. But in doing so, listen to me very carefully. I've read through the transcript. Many of the questions contain facts which simply are not true. And you cannot accept the questions as being truthful because, in fact, as the investigator has indicated, questions are being phrased and created in an effort to elicit a type of response from the defendant. So you may listen to the questions only for purposes of understanding the purpose of the questions, not in any way accepting the facts in the questions [as] being true.

It's kind of like you've all seen, for example, the prosecutor. Now, if I were to call you up and say, hey, did you see that prosecutor? She's six-six with black hair. Well, those facts are not true. But I'm asking you the question to get the response, no, she isn't, she's got blondish hair and is fairly smaller than six-six.

So you cannot and must not accept the facts that are in the question as being true. And . . . the statements in the questions themselves should elicit no response by you. No value should be placed to them except insofar as they elicit a particular response.

The audiotape was played for the jury. At the jury's request, the audiotape was replayed during its deliberations.

Defendant makes two generalizations about the telephone intercept: it "inserted fear of being gay and Defendant's homosexuality into the case"; and Jonathan's mother "presented her opinion on who was telling the truth and who was therefore guilty." Defendant argues that the judge should have conducted a hearing under N.J.R.E. 403 to determine whether references on the audiotape to defendant being gay, defendant's having been molested himself, Jonathan's fear that he might turn gay, and Patricia's statement that a mother can tell when her child is lying, were prejudicial. Defendant maintains that the probative value of the evidence was substantially outweighed by the risk of undue prejudice, and that the court's failure to identify which facts were true and which facts were untrue rendered its instruction meaningless.

The transcript of the intercept is twenty-seven pages long. The transcript discloses that when defendant denied that he sexually assaulted Jonathan, Patricia asked defendant if he was accusing Jonathan of lying. For example, Patricia said to defendant: "So you gonna [sic] tell me that [Jonathan] is lying, so I'm supposed to not believe my son[?]"; and, "You're not lying but you want me to believe that my son is lying[?]"; and, "[J]ust at least tell me so I have that peace of mind . . . to know . . . he's telling me the truth, you know I don't want to sit there and keep living with okay, should I really trust my son, should I not trust my son . . . ."

During the conversation, Patricia twice suggested that she knew her son was telling the truth. She said, "You can't tell me that [Jonathan is] lying[,] you know that's bull---- . . . you can tell when your child's lying[,] just like with your mother[,] she knows when you're lying, she knows when you're full of s--- . . . ." Patricia also said, "I looked my son in his eyes, you know how[] you know when someone is lying[,] . . . for what reason would he lie about this . . . ?"

The content of Patricia's statements and questions about her son were needed to put defendant's responses and admissions, both implicit and explicit, into context. Without the questions the answers would have been unintelligible. And to the extent that the questions were intended to play upon defendant's guilty conscience, they were precisely the "matter of technique" that Terpanick had explained to the jury. Further, the court's clear, explicit instruction that the jurors were not to consider the content of questions to be truthful, nullified the risk of prejudice that may have existed had the court not given the instruction. We presume that jurors will follow the court's instructions. See State v. Loftin, 146 N.J. 295, 390 (1996).

Defendant also asserts that references to his being gay were unduly prejudicial and should have been redacted. During the telephone conversation, Patricia referred to defendant being molested when he was a child, emphasized that defendant would have no reason to lie about being molested, and suggested that for the same reason Jonathan would have no reason to lie. Patricia stated that defendant did not get help after he was sexually assaulted, that he suffered greatly, and that she needed to arrange for help for Jonathan if indeed defendant had molested him. Patricia also told defendant that Jonathan was confused and had asked, "[A]m I gay now because [defendant] did what he did[?]" Referring to defendant's confusion after he had been molested, Patricia told defendant that she did not want her son to go through the same "torture."

Like Patricia's statement about the need to believe her son, her statements about defendant's childhood trauma, his confusion, and Jonathan's confusion were tactical questions intended to elicit specific responses. The nature of the questions and the manner in which defendant answered them were necessary for the jury to gauge whether defendant's responses were credible admissions. The trial court's limiting instructions provided precisely that focus.

Defendant argues that admission into evidence of the unredacted transcript unnecessarily brought before the jury his sexual orientation. But defendant himself referred both to his companion and to his sexual orientation. And the out-of-state cases he cites as support for his argument that references to his sexual orientation were unduly prejudicial are readily distinguishable from this case.

Defendant did not file a motion in limine to exclude at trial all references to his sexual orientation. He was aware well in advance of jury selection that the State intended to introduce his confession, the court having denied his suppression motion months before trial began. The confession included his explicit references to his fiance. Additionally, defendant had received a transcript of the audiotaped telephone intercept in discovery, so he was aware of the reference in that document to his sexual orientation. More significantly, during his own case, defendant referenced his partner and also explained his preferences during sexual activity in an effort to persuade the jury that he had no desire to anally penetrate another male. His sexual orientation was thus evident from evidence other than the audiotape.

The out-of-court cases cited by defendant have no application here. In United States v. Gillespie, 852 F.2d 475, 477 (9th Cir. 1988), the defendant was charged with transporting his three-year-old goddaughter in interstate and foreign commerce for illegal sexual purposes, 18 U.S.C. §§ 2(b) and 2421 (1987), and with directly and indirectly importing an alien for immoral purposes, 8 U.S.C. § 1328 (1982). The defendant's adoptive father had used a false birth certificate to obtain custody of the child and bring her to the United States. Gillespie, supra, 852 F.2d at 477. At the defendant's trial, the prosecutor introduced evidence that the defendant had a sexual relationship with his adoptive father. Id. at 478. The prosecution argued that the evidence was admissible to demonstrate the defendant's motive, intent, plan, and design as permitted by Federal Rule of Evidence 404(b). Ibid. The Court of Appeals rejected that argument, finding that the defendant's relationship with his adoptive father neither proved nor disproved that the defendant had molested the child. Id. at 478-79. Stated differently, the defendant's sexual relationship with his adoptive father in Gillespie was not relevant to the charges.

Here, the prosecutor made no attempt to introduce defendant's sexual orientation as relevant to his innocence or guilt. Nor did Patricia's references to defendant's partner in the recorded telephone conversation suggest that defendant was guilty because of his sexual orientation. Patricia had asked defendant whether she needed to have Jonathan tested because Patricia was aware that defendant's fiance had cheated on him. Those references did not imply a causal connection between defendant's sexual orientation and his sexual assault of Jonathan.

The prosecutor in United States v. Birrell, 421 F.2d 665, 666 (9th Cir. 1970), referenced the defendant's sexual orientation in an outrageously inflammatory closing argument. Here, the prosecutor never mentioned or alluded to defendant's sexual orientation in her opening and closing statements.

In Blakeney v. State, 911 S.W.2d 508, 515 (Tex. Ct. App. 1995), the court held that admission of evidence of the defendant's sexual orientation in a prosecution for the defendant's sexual assault of a seven-year-old child contained "an impermissible character component" that was improperly adduced to demonstrate the defendant's propensity to molest "little boys." Similarly, in State v. Bates, 507 N.W.2d 847, 854 (Minn. Ct. App. 1993), evidence of the defendant's sexual orientation was improperly admitted because it was irrelevant character evidence. And in State v. Ellis, 820 S.W.2d 699 (Mo. Ct. App. 1991), the prosecution elicited from a witness improper opinion testimony about the defendant's sexual orientation as character evidence demonstrating "a common plan and general proclivity to commit the offense." Id. at 701-02.

As we previously noted, in the case before us, the prosecutor did not attempt to improperly introduce defendant's sexual orientation as character evidence or a character trait. See N.J.R.E. 404(a). Rather, the references occurred in the context of a recorded telephone conversation between defendant and the victim's mother, and had nothing to do with character evidence.

Lastly, in Killie v. State, 287 A.2d 310, 313 (Md. Ct. Spec. App. 1972), the prosecutor improperly argued in a prosecution for possession of marijuana that the defendant possessed the marijuana to lure young boys, a proposition irrelevant to the charges and unsupported by the evidence. No such conduct occurred here.

In view of the court's review of the transcript, determination that its content was relevant, and limiting instruction to the jury, we conclude that the admission into evidence of the content of the telephone intercept was not error. The better practice would have been to evaluate under N.J.R.E. 403 specific objections by defendant to specific statements in the transcript. That would have occurred had defendant filed his objections in a pre-trial motion or in a motion in limine. Defendant's failure to file timely objections to the transcript compelled the court to deal with the issue after the trial began and during the State's presentation of its case. Under those circumstances, the court did not misapply its discretion by admitting the transcript subject to Investigator Terpanick explaining that she scripted many of the questions, and further subject to the court's limiting instructions.

Lastly, we reject defendant's argument that the court erred by not indicating to the jury which of Patricia's questions and statements were true, and which were not. Patricia's questions and statements were not admitted for the truth of their content, but rather as the context for defendant's responses and admissions. The court properly instructed the jury not to consider Patricia's comments and questions for the truth of their content.

B.

In Points II and VII, defendant challenges the trial court's admission of the videotaped*fn4 confession he gave to police. His attack is fourfold: he was "emotionally coerced" into confessing; the police should have terminated the interrogation when he said that he wanted to go home; the confession included inadmissible and prejudicial information; and the court compounded its error in admitting the statement by granting the jury's request to see a replay of the video.

Both the United States Constitution and New Jersey law guarantee the right against self-incrimination. U.S. Const. amend. V ("[n]o person . . . shall be compelled in any criminal case to be a witness against himself"); N.J.S.A. 2A:84A-19 ("every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty"). "To ensure that an individual [has] a meaningful opportunity to exercise the privilege," an individual subject to a custodial police interrogation "'must be adequately and effectively apprised of his rights[.]'" State v. O'Neill, 193 N.J. 148, 168 (2007), (quoting Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719).

When a defendant challenges a confession, "the State must prove beyond a reasonable doubt that the confession was voluntary and not the product of official misconduct." State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). To determine whether an individual subject to custodial police interrogation has invoked the right to remain silent, a judge must "employ[] a totality of the circumstances approach that focuses on the reasonable interpretation of the defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012). "If that invocation is clear and unambiguous, . . . it [must] be scrupulously honored." Ibid.

As it relates to the invocation of the right to remain silent, both the words used and the suspect's actions or behaviors form part of the inquiry into whether the investigating officer should have reasonably believed that the right was being asserted.

As a result, the court's inquiry necessarily demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right had been invoked. [Id. at 565]

When reviewing a motion to suppress evidence, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citation omitted). "An appellate court 'should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We also defer to the "trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Nevertheless, when a "trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, . . . appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself." Diaz-Bridges, supra, 208 N.J. at 565-66.

The trial court found Investigator Terpanick's testimony to be "very credible," and found defendant's testimony not "to be credible at all," stating that defendant "appears to be in total denial of . . . the very credible confession that he gave." The court considered the totality of the circumstances of defendant's confession. The court found that defendant was treated appropriately, not physically abused, and not threatened. The investigators did not promise defendant that he would not go to jail. Defendant was twenty years old, had a high school education, and his mental and physical condition appeared to be fine. [Defendant's emotional reactions were] appropriate to the answers he was giving, the remorse that he showed when he indicated that he, in fact, did sexually assault the child. . . .

[E]verything was very appropriate in terms of his remorse at that.

Defendant acknowledged that the investigators read him his Miranda rights. They did more than that. The video of his confession shows that Investigator Terpanick read to defendant his Miranda rights, had him sign the Miranda card acknowledging that he understood his rights, had him read the acknowledgment out loud, and asked him if he had any questions about those rights.

Based on the totality of the foregoing facts, the trial court rejected defendant's argument that he had been emotionally coerced into confessing, and found that defendant's confession was knowingly and voluntarily made. The court's findings were fully supported by sufficient credible evidence in the record.

Defendant next contends that during his interrogation, when he said he wanted to go home, he was invoking his Fifth Amendment right against self-incrimination, and therefore the investigators should not have continued to question him. Defendant did not raise that issue when he filed his suppression motion, and did not make that claim when he testified at the suppression hearing. The context of his statement, captured on videotape, does not suggest that he was invoking his right to remain silent when he stated during an emotional display that he wanted to go home.

At one point during his interrogation, defendant said that he had climbed into bed with the victim, but "stopped himself." When asked to put into his own words what happened when he stopped himself, defendant began to cry and said that he wanted to go home. Shortly thereafter, as Terpanick continued to question him, he said that what he did was not him, that he did not know why he did it, and that he was sorry. This was one instance where, as the trial court noted in its decision, defendant's emotional response was "appropriate to the . . . remorse that [defendant] showed when he indicated that he, in fact, did sexually assault this child." The court's observation is supported by the video. Viewed in the context of the entire interrogation, nothing about defendant's statement that he wanted to go home suggests that he intended to invoke his right to remain silent. Cf. Diaz-Bridges, supra, 208 N.J. at 570 (explaining that, though "the more prudent course, in hindsight, might have been to immediately seek clarification of why defendant wanted to speak with [his mother], nothing in the words that defendant used suggested that he was asking for the questioning to stop or intended to invoke his right to silence").

Defendant next argues that "testimony about [his] childhood . . . should never have been presented to the jury [because]

[t]he clear implication from reciting [his] childhood woes is that [he] is a child molester." Because defendant did not present this argument to the trial court, he must demonstrate plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2. Under that standard, the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Defendant does not explain how a reasonable juror could logically deduce from the fact that he was molested during childhood the proposition that he in turn is a child molester. Defendant offers no support for this seemingly faulty generalization. Moreover, the State presented substantial qualitative and quantitative evidence of defendant's guilt, independent of any references in defendant's confession to him having been molested as a child. The alleged error was insufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached. Ibid.

Defendant next argues that the court erred when it replayed the video of his confession at the jury's request. The jury retired to deliberate at 2:25 p.m. on Wednesday, March 11, 2009. At 3:40 p.m. the jury requested to hear playbacks of the telephone intercept and defendant's confession. The court replayed the telephone intercept that afternoon and the video of defendant's confession the following morning. Defendant did not object to the playbacks. Both were replayed in open court. After the video of defendant's confession was replayed, the judge reminded the jury that its verdict should be based "on an objective analysis without sympathy for either side. Review all the information you have objectively, fairly, appropriately and draw those reasonable inferences from the testimony and the evidence that you believe ought to be drawn."

Defendant contends that the court should have asked the jury if a read-back would suffice, and should have determined whether any additional testimony should be provided to place the contents of the video into context. Defendant asserts that the court's failure to take either of those precautionary measures "had the capacity to produce an unjust result by allowing the jury to give undue weight to the video." We disagree.

Trial courts "have broad discretion as to whether and how to conduct read-backs and playbacks." State v. Miller, 205 N.J. 109, 122 (2011). See also State v. Burr, 195 N.J. 119, 135 (2008); State v. Michaels, 264 N.J. Super. 579, 644-45 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). When "responding to a request to review testimony, the trial court's focus should be on the proper controls and limits needed to ensure a fair proceeding, not the medium used to create a record." Miller, supra, 205 N.J. at 122. When implementing such controls and limits, trial courts should (1) generally honor a jury's request to play back testimony; (2) replay the entire testimony after redacting sidebars and inadmissible testimony to which counsel objected, but (3) honor a jury's request to hear only limited parts of a witness's testimony, provided that the playback includes relevant direct and cross examination; (4) replay the testimony in open court; (5) take precautions to prevent undue emphasis on the playback by instructing jurors to consider all of the evidence and not give undue weight to the playback; (6) make a precise record of what was played back; and (7) exercise their discretion to deny playing back all or part of testimony that may result in unfair prejudice to a defendant. Id. at 122-123.

If a defendant objects to all or part of a playback, then he or she must specify the reasons for the objection:

The party opposing a playback has the burden to object and demonstrate prejudice. That party must offer specific reasons why the particular testimony would be unduly prejudicial if played back. Generalized arguments that the nature of videotaped testimony is prejudicial will not suffice.

In evaluating an objection, trial judges should consider ways to ameliorate any prejudice, like editing out portions of the video testimony or playing the audio track without video if feasible. [Id. at 124.]

Although the trial occurred before the Miller decision, the trial court honored the jury's request to replay the video of defendant's confession, replayed the video in its entirety, replayed it in open court, and reminded the jurors that it was to base its verdict on all of the information before them. Defendant objected to neither the playback nor the court's instruction, and thereby failed to carry his burden of demonstrating prejudice. Under those circumstances, we are unpersuaded by defendant's conclusory assertion that the court's failure to (a) ask the jury whether a read-back would suffice, and (b) determine whether additional testimony should have been provided, had the capacity to produce an unjust result. R. 2:10-2.

C.

Defendant argues in Point III that when the court gave its final charge, it omitted to instruct the jury to disregard defendant's confession to the police if the jury found that the statement was not credible. See N.J.R.E. 104(c). See also State v. Hampton, 61 N.J. 250, 271-72 (1972). Although defendant did not request the instruction and did not object to its omission, he now contends that "the failure to include a Hampton charge regarding Defendant's statement to the police constitutes plain error." Because defendant did not object to the court's omission, "we consider the court's failure to provide [the] instruction[] sua sponte under a plain error standard, that is, whether [the] omission was clearly capable of producing an unjust result." Feaster, supra, 156 N.J. at 71 (citing R. 2:10-2). We do not find plain error.

There was independent evidence that defendant had sexually assaulted Jonathan. Jonathan testified at trial, describing the details of the offenses, and his grandmother recounted his disclosure to her shortly after the offenses occurred. As to the confession, when defendant testified, he did not dispute that before confessing he had been informed of and had waived his Miranda rights. Because his confession was videotaped, defendant could not dispute the words he spoke. In fact, while testifying, defendant acknowledged that "when I see the tape now, it scares me because I look so believable and I was so stupid, and I can't believe that I said those things."

Despite defendant's concession that he "look[ed] so believable," he also testified that he "actually lied to the police -- to the investigators, to Investigator Terpanick." He lied because he felt that if he cooperated they would set him free, and because when he told them the truth "and [said he] didn't do it, they kept yelling at [him] and getting angry and . . . cutting [him] off."

The jury had to judge defendant's credibility and determine whether he lied to the police or lied at trial. In its preliminary instructions to the jury, before any testimony was presented, the court explained the jury's function in deciding credibility, and enumerated many factors that should be considered in making that determination, including evaluating testimony in the context of all evidence presented during the trial. In its final charge to the jury, the judge repeated the instructions on credibility, and referred to "the tapes" before explaining that the jury would have to decide whether "the testimony from the witnesses is worthy of belief."

In view of the evidence of defendant's guilt independent of his confession, defendant's testimony that he lied to the investigators when he confessed, and the court's preliminary and final instructions on credibility, we conclude that the court's failure to give a Hampton charge did not constitute plain error. Cf. State v. Candelaria, 311 N.J. Super. 437, 450 (App. Div.), certif. denied, 155 N.J. 587 (1998) (holding that in view of substantial evidence establishing defendant's guilt, and the court's general instructions on credibility in its preliminary and final charges, omission to give a Hampton charge did not require reversing defendant's conviction).

D.

In Point IV defendant contends the court erred by failing to instruct the jury on the lesser included offense of attempted aggravated sexual assault on the first count of the indictment. Defendant argues that "the evidence . . . fell short of satisfying the elements for aggravated sexual assault [because] [n]obody testified that defendant actually penetrated [Jonathan] and the State's own expert offered evidence tending to disprove penetration." From that premise, defendant argues that the evidence supported a charge of attempted aggravated sexual assault and attempted sexual assault. Defendant's argument is flawed because its factual premise is inaccurate.

Defendant's premise is factually inaccurate because all of the evidence presented with respect to count one established that defendant had anally penetrated Jonathan. During his videotaped interview with Investigator Terpanick, Jonathan said defendant had pushed his, defendant's, "private part" inside of Jonathan's butt. At trial, after the prosecutor had elicited Jonathan's testimony that defendant had entered Jonathan's bedroom, climbed in bed, and touched Jonathan with his private part, the prosecutor asked, "What did [defendant] do with his private part in your back," to which Jonathan responded, "Put it in." When asked where, Jonathan said his "behind." Jonathan also testified that he could feel defendant's private part in his butt. During his confession, defendant admitted penetrating Jonathan two or three times.

Defendant's argument about the State's expert's testimony is equally frivolous. The expert did not suggest that the absence of trauma indicated the absence of anal penetration. To the contrary, the expert testified that the absence of trauma did not indicate the absence of anal penetration.

Defendant testified at trial and denied the incident in its entirety. Consequently, the conflicting testimonial evidence was, on the one hand, that defendant anally penetrated Jonathan; and, on the other hand, that nothing happened, and, by implication, that Jonathan made up the story. There was no evidence from which the jury could infer that defendant attempted but failed to penetrate Jonathan.

The absence of evidence of an "attempt" is evident from the colloquy between the court and counsel during the charge conference. During that conference, the prosecutor represented that the first two counts of the indictment "go to the first incident," and "[t]he second two go to the second incident." The court then asked defense counsel:

[Court]: Now let me ask defense counsel. Are you asking me to place a lesser included of attempted aggravated sexual assault on Count 1? [Defense Counsel]: And then it would be a second degree, right? [Court]: It would be a second degree, I guess. Would it be a second degree? Yes. [Prosecutor]: Yes. [Defense Counsel]: No. [The Court]: No. [Defense Counsel]: No. [The Court]: It's your belief, and I --that, in fact, based upon the testimony no rational fact[-] finder could come back on a second degree attempted based upon the first -- and I'll call it the first incident where there's alleged penetration? [Defense Counsel]: Right. Because, your Honor, the allegations and the testimony -- I think it would just confuse the issue because this is the kind of case where he did it or he didn't do it. [The Court]: All right. [Defense Counsel]: He didn't try to do it.

Because if they find that he attempted to do it, then they're still going to find him on a second degree. [The Court]: There's a --[Defense Counsel]: There is already an attempted second -- attempted aggravated, goes to the second incident.

Defendant did not merely fail to raise this argument before the trial court, but stated that he did not want the court to instruct the jury on the lesser included offense on the first count. Nevertheless, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). The trial court's obligation, however, "is not self-executing, and . . . arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, 205 N.J. 472, 489 (2011).

In determining whether an unrequested jury charge should be given, the notion that the facts must "'clearly indicate' the appropriateness" of the jury instruction is paramount: "'The trial court does not have the obligation on its own meticulously to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge.'" [(Id. at 489-90) (citations omitted).]

A person commits aggravated sexual assault by committing "an act of sexual penetration with another person . . . [when] [t]he victim is less than 13 years old[.]" N.J.S.A. 2C:14-2a. "Sexual penetration" includes, among other things, anal intercourse between persons. N.J.S.A. 2C:14-1c. Criminal attempt is defined, in relevant part, as follows:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. [N.J.S.A. 2C:5-1(a).]

The evidence presented by the State, if believed, proved that defendant had anal intercourse with Jonathan. Defendant's testimony, if believed, proved that the incident did not occur. Those conflicting proofs did not support the crime of criminal attempt.

Defendant's assertions that "[n]obody testified that defendant actually penetrated [Jonathan] and the State's own expert offered evidence tending to disprove penetration" are simply wrong. Defendant's misconstruction of the evidence does not constitute "record evidence [that] clearly indicates the need for or clearly warrants the unrequested jury instruction." Rivera, supra, 205 N.J. at 489. Defendant has failed to point to any competent evidence that supports such an instruction, and the trial court was not obliged "on its own meticulously to sift through the entire record . . . to see if some combination of facts and inferences might rationally sustain [the lesser included offense]." State v. Choice, 98 N.J. 295, 299 (1985). The court's failure to charge attempt under these circumstances did not constitute error, let alone plain error.

E.

Lastly, defendant argues that the trial court erred by admitting under N.J.R.E. 803(c)(27) Jonathan's statements to his grandmother and to Investigator Terpanick. Defendant argues that both statements "were [un]reliable and the product of [Jonathan's grandmother's] suggestiveness." Defendant also argues that they were cumulative and should have been barred under N.J.R.E. 403. We find these arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

The court conducted a hearing pursuant to N.J.R.E. 104 to determine the trustworthiness of Jonathan's statements to his grandmother and to Investigator Terpanick. Both witnesses testified. Following the hearing, the court determined that the State had established all of the elements for admissibility contained in N.J.R.E. 803(c)(27). The court found that Jonathan's grandmother was credible and forthright. The court also found that Jonathan and his grandmother enjoyed a very close relationship, that Jonathan lacked a motive to fabricate his version of what occurred, and "was particularly likely telling the truth when the statement was made." The court concluded that there was "a very high probability that [Jonathan's] statement [to his grandmother] is trustworthy."

As to Jonathan's statement to Investigator Terpanick, based upon its timing, its content, and the circumstances under which it was taken, the court concluded that the statement was trustworthy. The court commented that the videotaped statement demonstrated that Jonathan's behavior was appropriate for a boy of his age, that Investigator Terpanick had not been suggestive in her questioning, and that she had been "scrupulous in terms of separating the mother, separating the child, [and] not talking about the case in any way, shape or form."

The trial court's findings were fully supported by the evidence adduced at the hearing, including the video. Those findings are entitled to our deference, and there is nothing in the record to suggest that they should be disturbed. See Locurto, supra, 157 N.J. at 471-72.

The judgment of conviction is affirmed.

ASHRAFI, J.A.D., concurring.

I write separately only to address the sentence imposed upon defendant. Not only do we have a limited role in reviewing the sentencing discretion of the trial court, State v. Carey, 168 N.J. 413, 430 (2001); State v. Roth, 95 N.J. 334, 364-66 (1984), but we can only address what has been raised on appeal, cf. In re Howard D. Johnson Co., 36 N.J. 443, 445-46 (1962) (appellate court may itself raise an issue not raised by the parties where the circumstances involve important public policy or warrant intervention to correct a "manifestly unjust result").

In his brief on appeal, defendant challenged only one aspect of his sentence, the trial court's finding of aggravating factor four, N.J.S.A. 2C:44-1a(4), that is, defendant's taking advantage of a position of trust or confidence to commit the offenses. After the State filed its responding brief, defendant withdrew that argument. Consequently, we have not reviewed defendant's sentence.

In fact, we have not been provided a full record of defendant's sentencing proceedings and the documentary evidence provided to the trial court to aid its determination of an appropriate sentence. We do not have the presentence investigation report, the report from the Adult Diagnostic and Treatment Center ("Avenel"), N.J.S.A. 2C:47-1, -2, the written sentencing submissions of defendant and the State, and the letters of family and friends submitted in support of defendant for purposes of sentencing. We have only a short transcript of the sentencing hearing and the judgment of conviction.

Under the New Jersey Code of Criminal Justice, the sentencing range for a first-degree crime is ten to twenty years imprisonment, N.J.S.A. 2C:43-6a(1), and for a second-degree crime, five to ten years imprisonment, N.J.S.A. 2C:43-6a(2). The court imposed a sentence of fifteen years on defendant's conviction of first-degree aggravated sexual assault, and a concurrent sentence of eight years on his conviction for second-degree sexual assault. Both terms of imprisonment are subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, which means that defendant is not eligible for parole until he serves eighty-five percent of the term, that is, twelve years and nine months, and he must also serve five years of parole supervision upon release from prison.*fn5 In addition, defendant 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.

At the time he committed the crimes, defendant was twenty years old and had no criminal record or record of juvenile delinquency. Vague reference in the sentencing transcript reveals that the Avenel report found defendant eligible for and amenable to sex offender treatment. N.J.S.A. 2C:47-2, -3. Defendant asked for sex offender treatment, and the court imposed such a sentence under N.J.S.A. 2C:47-3. However, because of the length of the sentence imposed and the NERA period of parole ineligibility, this twenty-year-old, first-time-offender will not be eligible for sex offender treatment until five years from the time his period of parole ineligibility will end, N.J.S.A. 2C:47-3h(3), that is, after he completes seven years and nine months of his sentence in a State prison other than Avenel.

The trial court found applicable aggravating factors two, three, four, and nine, N.J.S.A. 2C:44-1a(2), -1a(3), -1a(4), -1a(9), and mitigating factor seven, N.J.S.A. 2C:44-1b(7). In finding aggravating factor two, the court stated that the victim was particularly vulnerable and incapable of resistance because of his extreme youth. Although State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988), held that the extreme youth of the victim could support a finding of aggravating factor two on a charge of aggravated sexual assault of a young victim, the victim in that case was four years old. In this case, the victim was nine years old, much closer to the statutory element of less than thirteen years old, N.J.S.A. 2C:14-2a(1). We have not been asked on this appeal to decide whether application of aggravating factor two was improper double-counting of a necessary element of the first-degree offense. See State v. Kromphold, 162 N.J. 345, 353 (2000).

The trial court also found that aggravating factor three, risk of committing future offenses, applied because defendant committed two offenses for which he was convicted. In making that finding, the court made reference to "the reports" without stating what information supported that aggravating factor. In State v. Bieniek, 200 N.J. 601, 608 (2010), the Court stated that Rule 3:21-4(g) requires an explanation of the reasoning behind the sentencing court's findings. The court stated further: "That explanation is important for meaningful appellate review of any criminal sentence challenged for excessiveness. The reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" Ibid. (quoting Roth, supra, 95 N.J. at 364-65). Unlike Bieniek, id. at 610, our record does not reveal the evidence supporting a finding that defendant was a risk of committing crime in the future.

We have not been asked, or given an adequate record, to review the trial court's application of aggravating factors two and three to defendant's sentence.


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