October 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-03-0576.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2012 --
Before Judges Yannotti, Harris and Hoffman.
Defendant T.J.D. was tried before a jury and found guilty of various offenses, including sexual assault upon his two minor children, endangering the welfare of the children and assault upon a law enforcement officer. He appeals from the judgment of conviction entered by the trial court on May 3, 2010. We affirm.
On March 30, 2007, a Burlington County grand jury returned an indictment charging defendant with first-degree aggravated sexual assault of J.D., N.J.S.A. 2C:14-2(a)(1) (count one); second-degree attempted aggravated assault of J.D., N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:5-1 (count two); second-degree sexual assault of J.D., N.J.S.A. 2C:14-2(b) (count three); second-degree sexual assault of J.D., N.J.S.A. 2C:14-2(b) (count four); second-degree endangering the welfare of J.D., N.J.S.A. 2C:24-4(a) (count five); second-degree sexual assault of T.D., N.J.S.A. 2C:14-2(b) (count six); second-degree sexual assault of T.D., N.J.S.A. 2C:14-2(b) (count seven); second-degree endangering the welfare of T.D., N.J.S.A. 2C:24-4(a) (count eight); third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count nine); and resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count ten).
In May 2009, the trial court conducted a hearing on the State's motion to admit J.D.'s and T.D.'s videotaped statements at trial pursuant to N.J.R.E. 803(c)(27), the "tender years" exception to the hearsay rule. The trial court conducted an N.J.R.E. 104 hearing on the motion. The court determined that J.D.'s statement should be admitted but T.D.'s statement should not.
J.D. testified at trial. She was then nine years old. Using a doll to illustrate her testimony, J.D. demonstrated for the jury that defendant touched her on her "bottom" and vagina. She explained that defendant would touch her vagina with his hands. When asked if it ever hurt when he did this, J.D. said that "[i]t depends how far he went."
J.D. stated defendant touched her "in the vagina part" with his "boy private parts" two or three times. She described defendant's "boy private part" as "sticking out" when he tried to touch her with it. J.D. said defendant would touch her when her mother was not around. She also said that defendant touched her private parts with his hands more than five times. She explained that this occurred mostly in the family home. Defendant directed J.D. "not to tell" anyone about what he had done to her.
J.D. further testified that she saw defendant touch her brother, T.D. According to J.D., defendant would do "[t]he same thing he did with [her]." J.D. explained that defendant would touch T.D.'s front private part and his bottom with his hands. Defendant also made T.D. touch his male private parts, but she never saw defendant touch T.D.'s bottom with his private part.
She said T.D.'s pants would be down if defendant was trying to touch T.D.'s front private part, and defendant's clothes would be off if defendant was trying to get T.D. to touch his private parts.
On cross-examination, J.D. stated that defendant did not put his private part in her vagina but he touched her vagina with it. She explained that defendant would touch the outside of her vagina with his fingers. She said that defendant touched her under her clothes three or four times.
The videotaped statement that J.D. gave to Detective Jonathan Micken (Detective Micken) of the Burlngton County Prosecutor's Office was then played for the jury. J.D. was six years old when she gave the statement. J.D. stated that she saw defendant put his hand down T.D.'s pants. J.D indicated that defendant touched her private areas more than once, and this happened while her clothes were on.
J.D. also stated that defendant touched her under her clothes. J.D. told the detective that defendant asked her to touch his private part. He did so while his pants were up. She said that defendant's private part felt hard. Defendant also asked T.D. to touch his private part.
Thereafter, defendant's counsel questioned J.D. about the differences between her trial testimony and the statement she gave to Detective Micken:
[Defense counsel]: Okay. So when you said today that he touched you underneath your clothes with his hands, that wasn't true. [J.D.]: No. [Defense counsel]: Okay. Thank you. And similarly, when you say that he on three or four occasions tried to put his male private parts against your private parts, that wasn't true either, was it? [J.D.]: It was true. [Defense counsel]: But you expressly denied that three years ago. So were you telling a lie then or are you telling a lie now? [J.D.]: I was telling a lie then. [Defense counsel]: Okay. So what you're saying is [that] in that video sometimes you were telling the truth and sometimes you were telling a lie? [J.D.]: No, I wasn't telling the truth or a lie . . . in the video I was actually scared.
J.D. was asked to clarify whether defendant touched her under her clothes. She answered that he had. On re-direct, J.D. stated that when she gave Detective Mickens her original statement, she was "scared of [her] father."
T.D. also testified at trial. He was then eight years old. T.D. stated that "bad things" used to happen with defendant. He explained that T.D. would "put stuff in [his] behind." He was asked if defendant ever touched his front private parts, and T.D. said, "I think." T.D. also said that he felt "mad" and "sad" because of "the things that daddy did to us."
Officer Steven Meyers (Officer Meyers) of the Beverly City Police Department testified that he assisted Detective Micken serve an arrest warrant upon defendant at his residence. The officers intended to take defendant into custody so that he could be questioned about the alleged criminal sexual conduct. Defendant answered the door. Detective Micken told defendant he was being arrested, but defendant said he would not go with the officers. A scuffle ensued. During the altercation, Detective Micken fell and hit his nose on a couch.
Detective Micken testified that he is assigned to the child abuse unit of the Burlington County Prosecutor's Office, and his job duties include interviewing children regarding allegations of sexual assault. Micken said he had received training through "Finding Words," which is a "forensic training course geared towards interviewing children." He stated that in the "Finding Words" course, participants "polish [their] skills and do actual interviews."
Detective Micken further testified that he interviewed J.D. at the Child Advocacy Center in the Prosecutor's Office. He was told very little about the case before the interview. After he interviewed J.D., Detective Micken told J.D.'s mother what J.D. said and, thereafter, charges were brought against defendant. Detective Micken also testified about service of the arrest warrant on defendant and the injury he sustained when doing so.
After the State rested, defendant moved for a directed verdict on count one, which charged aggravated sexual assault of J.D. The court denied the motion. Defendant did not testify, nor did he call any witnesses on his behalf. The jury found defendant guilty on all counts in the indictment.
On May 3, 2010, the court sentenced defendant to an aggregate forty-nine years of incarceration, with a period of parole ineligibility of about thirty-three years. This appeal followed.
Defendant raises the following issues for our consideration:
DETECTIVE MICKEN'S OPINION TESTIMONY REGARDING J.D.'S ALLEGATIONS OF SEXUAL ABUSE WAS INADMISSIBLE AS IT IMPROPERLY BOLSTERED THE CREDIBILITY OF THE COMPLAINING WITNESS, AND DENIED DEFENDANT BOTH DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (Partially Raised Below).
J.D.'S VIDEOTAPED STATEMENT WAS UNRELIABLE AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
THE TRIAL COURT'S FAILURE TO REDACT OTHER CRIMES EVIDENCE FROM THE VIDEOTAPE DENIED DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. Amends. V, VI AND XIV; N.J. CONST. Art. I, ¶¶ 1, 9, and 10 (Not Raised Below).
1. ALLEGED ANAL PENETRATION.
2. ALLEGED DIGITAL AND ATTEMPTED PENILE PENETRATION OF J.D.
N.J.S.A. 2C:14-2(A)(1) AS APPLIED TO THIS DEFENDANT IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AS ITS STRICT LIABILITY ENCOMPASSES AN INORDINATE NUMBER OF BENIGN, NON-CRIMINAL CIRCUMSTANCES INCLUDING THOSE IN THIS CASE WHICH, LACKING SUFFICIENT EVIDENCE IN THE RECORD, CANNOT SUPPORT A GUILTY VERDICT.
THE CONVICTIONS FOR ENDANGERING THE WELFARE OF A CHILD WERE IMPROPERLY BASED ON CONDUCT NOT NECESSARILY OF A SEXUAL NATURE THEREBY DIMINISHING THE STATE'S BURDEN OF PROOF AND THE UNCLEAR INSTRUCTIONS TO THE JURY RESULTED IN UNTRUSTWORTHY VERDICTS.
THE IMPOSITION OF FIVE CONSECUTIVE NEAR-MAXIMUM SENTENCES WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We turn first to defendant's contention that Detective Micken improperly bolstered J.D.'s credibility in his testimony at trial. Defendant's argument is premised upon the following testimony, which defense counsel elicited on cross-examination:
[Defense Counsel]: . . . . So you had some training and you had something approaching a year of experience [with interviewing children]? [Detective Micken]: Correct. [Defense Counsel]: And based on your experience, I'm not asking for an expert opinion because that wouldn't be fair, but based on your experience, did [J.D.] seem calm? [Detective Micken]: I feel that I did the best I could to make her feel comfortable. . . . . [Defense Counsel]: . . . she was quite clear in most of her responses, was she not? [Detective Micken]: Yes. [Defense Counsel]: In fact, she was even emphatic about some of her responses, was she not? [Detective Micken]: Yes, because she lived them. [Defense Counsel]: Yes. And so when she said ten times that daddy did not touch me under my clothes, you could take that as her fair recollection, right?
[Detective Micken]: After the interview --after reviewing the transcript of the interview, after asking her questions that I felt through my experiences that she was, in fact, sexually assaulted I did ask her on more than one occasion, yes. And I do believe that she was, that's why I asked her on more than one occasion for clarification. [Defense Counsel]: The question was didn't she say ten times that daddy did not touch my privates under my clothes? [Detective Micken]: I do not know the number of times, it was more than once.
Defendant argues that the detective's statement that he "felt" J.D. had been sexually assaulted was unresponsive to the question, went beyond the scope of testimony that could be offered by a legally qualified expert, and represented an impermissible opinion on J.D.'s credibility. Defendant's counsel did not, however, object to the testimony nor did he ask the court to instruct the jury to disregard it. Thus, we consider whether the admission of the statement constituted plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2.
As the foregoing exchange indicates, Detective Micken said he "felt" J.D. had been sexually assaulted in order to explain why he had asked J.D. to clarify her responses to his questions. Moreover, as noted, the detective's explanation was in response to questions of defendant's attorney. Nevertheless, assuming that the detective's statement was an improper comment on J.D.'s credibility, we are satisfied that the admission of Detective Micken's statement was not an error that led the jury to reach a result it would not have otherwise reached. State v. Taffaro, 195 N.J. 442, 454 (2008).
In his closing argument, defense counsel emphasized the inconsistencies between J.D.'s trial testimony and her videotaped statement. At one point, he stated that the jurors would "have to decide whether the six year old girl on the tape was telling the truth, that's your job." In his closing argument, the assistant prosecutor did not mention Detective Micken's statement.
In addition, the trial court told the jurors that they were "the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness." We have no reason to believe that, in discharging that duty, the jurors gave undue weight to the detective's errant remark, or reached a decision that they would not otherwise have reached based on the evidence presented at trial.
Next, defendant argues that the trial court erred by admitting J.D.'s videotaped statement into evidence. Defendant contends that the statement did not meet the requirements for admission under N.J.R.E. 803(c)(27).
N.J.R.E. 803(c)(27) provides in pertinent part that:
A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if
(1) the proponent of that statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . (i) the child testifies at the proceeding . . . .
In determining whether the statement offered for admission under N.J.R.E. 803(c)(27) is probably trustworthy, the trial court must consider "the totality of the circumstances." State v. P.S., 202 N.J. 232, 249 (2010) (quoting State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991)). Relevant factors to be considered in determining the reliability of the child's statement include "spontaneity, consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate." Ibid. (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S. Ct. 3139, 3150, 111 L. Ed. 2d 638, 656 (1990)).
A trial court's determination that a child's statement meets the trustworthiness requirement of N.J.S.A. 803(c)(27) must be affirmed unless the decision is an abuse of discretion. Id. at 250. The trial court's decision will not be disturbed "unless, after considering the record and giving the deference owed to the court's credibility findings, it is apparent that the finding is 'clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]'" Id. at 250-51 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
Here, the trial court conducted a N.J.R.E. 104(a) hearing on the admissibility of J.D.'s videotaped statement. Detective Micken testified at the hearing, and the court viewed the videotape. After hearing the arguments of counsel, the court found that J.D.'s statement met the threshold for admission under N.J.R.E. 803(c)(27).
We are satisfied that the trial court's determination was not an abuse of discretion. The court noted that Detective Micken used open-ended and closed-ended questions in his interview. The court found that J.D.'s responses to the open-ended questions were "totally appropriate and very consistent." The court also found that, while at times Detective Micken had to use follow-up questions, the use of such questions did not render J.D.'s statement inadmissible. The court stated that J.D. led the interview "where she wanted to take it, not where [the detective] wanted to take it."
The court additionally found that J.D. was spontaneous in responding to the questions. J.D. used terminology expected of a child of her age, and there was no evidence that she had been manipulated in any manner. The court said there was no issue as to J.D.'s mental state and she had no motive to fabricate her answers. We are satisfied that the court's findings are supported by sufficient credible evidence in the record.
Defendant additionally contends that the trial court's decision to admit J.D.'s videotaped statement was erroneous because the decision was in part the result of prosecutorial misconduct. Defendant maintains that in his summation at the N.J.R.E. 104(a) hearing, the assistant prosecutor improperly addressed facts that were not in evidence, thereby filling in gaps in the State's presentation.
We are convinced that this argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). The trial court was certainly capable of distinguishing comments that were and were not based on the evidence. As we stated previously, the court's decision was based on sufficient credible evidence in the record. Furthermore, defense counsel did not object to the assistant prosecutor's remarks, thereby indicating that counsel did not view the remarks as prejudicial when they were made. State v. Frost, 158 N.J. 76, 83-84 (1999).
Accordingly, we conclude the trial court did not err by admitting J.D.'s videotaped statement.
Next, defendant argues the trial court erred by allowing T.D. and J.D. to testify about wrongful acts other than those with which he was charged. Defendant's attorney did not object to this testimony. We therefore consider whether the admission of this testimony was erroneous and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2.
N.J.R.E. 404(b) provides that evidence of "other crimes, wrongs or acts" may not be admitted "to prove the disposition of a person in order to show that such a person acted in conformity therewith." The rule additionally provides that "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.
A. T.D.'s statements.
At trial, T.D. testified that defendant "put stuff" in his "behind." Defendant argues that the testimony was improper because he was not charged with penetration of T.D. However, T.D.'s testimony was not elicited to establish defendant's propensity to commit the crimes with which he was charged. Moreover, T.D.'s testimony was relevant to whether defendant committed an act of sexual assault by touching T.D.'s buttocks and whether he engaged in sexual conduct that would impair the child's morals. Thus, T.D.'s testimony related to the offenses with which defendant was charged, not other crimes, wrongs or acts.
B. J.D.'s statements.
In her videotaped statement, J.D. said that, when they were in West Virginia, defendant touched her "butt" with his hand, touched her private part with his private part, and tried to place his "dinker" in her private part. Defendant argues that the trial court erroneously allowed J.D. to testify about these sexual assaults because he was not charged, nor could he be charged, with these alleged out-of-state acts.
Defendant concedes, however, that the portion of J.D.'s statement relating to the incidents that occurred in West Virginia was not played before the jury. Furthermore, defendant's attorney did not attempt to establish in his cross-examination of J.D. that the acts about which J.D. testified occurred in a State other than New Jersey. Also, defense counsel did not make an application to strike J.D.'s testimony and provide the jury with a curative or limiting instruction.
We are therefore satisfied that J.D.'s testimony did not constitute evidence of crimes, wrongs or acts other than those for which he was charged. As we have explained, the portion of J.D.'s videotaped statement admitted at trial and her testimony pertained to incidents that occurred in New Jersey. J.D.'s testimony related to the charged offenses.
Defendant argues that his convictions should be reversed for several other reasons.
A. Overbreadth and Vagueness
Defendant contends that N.J.S.A. 2C:14-2(a)(1) is unconstitutionally overbroad. The statute provides that a person is guilty of "aggravated sexual assault if he commits an act of sexual penetration with another person" who is less than thirteen years old. Ibid. The term "sexual penetration" is defined in N.J.S.A. 2C:14-1(c) as vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the commission of the crime.
A statute is overbroad if it reaches a "'substantial amount of constitutionally protected conduct.'" State v. Walker, 385 N.J. Super. 388, 402 (App. Div.) (quoting Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S. Ct. 1186, 1191, 70 L. Ed. 2d 322, 369 (1982)), certif. denied, 187 N.J. 83 (2006). "The standard is . . . whether the reach of the law extends too far in fulfilling the State's interest." State v. Lee, 96 N.J. 156, 165 (1984).
Defendant maintains that N.J.S.A. 2C:14-2(a)(1) is unconstitutionally overbroad because it reaches a number of benign, non-sexual interactions between a parent and child. Defendant therefore argues that the statute impermissibly invades constitutionally-protected parental rights. We are not convinced that the statute covers a "substantial amount" of constitutionally-protected actions. We accordingly reject defendant's contention that the statute is overbroad.
Defendant further argues that N.J.S.A. 2C:14-2(a)(1) is impermissibly vague. A statute will not be considered unconstitutionally vague, either facially or as applied, "so long as a person of ordinary intelligence may reasonably determine what conduct is prohibited[.]" State v. Saunders, 302 N.J. Super. 509, 521 (App. Div), certif. denied, 151 N.J. 470 (1997). In our view, N.J.S.A. 2C:14-2(a)(1) is sufficiently clear on its face to warn individuals of the conduct that is prohibited.
Defendant also contends that the statute is impermissibly vague as applied to him. An individual "'who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'" Saunders, supra, 302 N.J. Super. at 521 (quoting Hoffman Estates, supra, 455 U.S. at 494-95, 102 S. Ct. at 1191, 70 L. Ed. 2d at 369).
Here, the State presented evidence from which a jury could find beyond a reasonable doubt that defendant engaged in conduct that N.J.S.A. 2C:14-2(a)(1) clearly proscribes. There is no evidence in the record that the penetration described by J.D. was for some benign purpose. We therefore reject defendant's contention that the statute is impermissibly vague as applied to him.
B. Instructions concerning defendant's prior convictions. Defendant was convicted in 1990 of aggravated sexual assault and sexual assault. Defendant argues that because he believed the jury would be told of the nature of that prior conviction, he did not take the stand to explain the "context" of the conduct at issue in this case. Defendant contends that the trial court erred by failing to explain that if he testified, his prior offense would be "sanitized." See State v. Gillispie, 208 N.J. 59 (2011); State v. Baraden, 195 N.J. 375, 390 (2008). The record does not support this contention. At trial, the court engaged in the following colloquy with defendant:
[The Court]: Sir, you understand that [the assistant prosecutor] would be free to disclose [your prior convictions] to the jury if you testified? [Defendant]: Yes, I do. [The Court]: Okay. Do you understand, sir, that he wouldn't be able to tell them what you were convicted of, do you understand, he wouldn't be able to say it was for a particular crime, he would only be able to say that it was a second degree crime; do you understand that? [Defendant]: Yeah....
C. The court's instructions to the jury.
Defendant argues that the trial court erred by failing to tailor the jury instructions to acknowledge the defense theory that whatever transpired between defendant and his children was for benign parenting purposes. This contention is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). There was no evidence indicating that defendant's conduct had any benign purpose whatsoever.
Defendant further argues that the trial court erroneously instructed the jury that penetration of the vagina included "penetration of the space between the labia majora and the outer lips of the vulva." This contention is without merit. The instruction was entirely consistent with State v. J.A., 337 N.J. Super. 114, 115 (App. Div. 2001) (holding that penile penetration of the space between the labia majora and the outer lips of the vulva constitutes "vaginal intercourse" under N.J.S.A. 2C:14-2(a)(1)).
D. The endangering convictions.
Defendant maintains that his convictions for endangering the welfare of J.D. and T.D. should be reversed because those convictions were based on conduct that was not necessarily of a sexual nature. N.J.S.A. 2C:24-4(a) provides that a person is guilty of a second-degree offense if he or she has "a legal duty for the care of a child or has assumed responsibility for the care of a child" and "engages in sexual conduct which would impair or debauch the morals of the child[.]"
In State v. Bryant, 419 N.J. Super. 15, 34 (App. Div. 2011), we held that to obtain a conviction for endangering the welfare of a child, the State must establish beyond a reasonable doubt that the defendant knowingly engaged in sexual conduct. We explained that [s]ome forms of sexual contact with a child, such as sexual intercourse, or touching the child's intimate parts, are by their nature, so obviously of a sexual nature that it would seem superfluous to require proof that the actor knew he was engaging in "sexual conduct" within the meaning of N.J.S.A. 2C:24-4(a). Almost by definition, one cannot engage in such conduct without a recognition that it is sexual in nature.
Other forms of behavior, especially those that do not involve the touching of the child, are more ambiguous in their nature and may not be understood by the actor as being "sexual conduct."
Thus, because some forms of sexual conduct are by their nature more ambiguous, and involve no touching of the child, it stands to reason that the Legislature would have intended to require proof that the defendant knowingly engaged in sexual conduct. If no mental culpability element were to be required, a defendant could be convicted of a violation of N.J.S.A. 2C:24-4(a) without any awareness that his conduct was sexual in nature. [Ibid.]
Here, the trial court instructed the jury in accordance with the model jury instructions. Model Jury Charge (Criminal), "Endangering the Welfare of a Child (Second Degree)" (2003). The court told the jurors that, in order to convict defendant of endangering the welfare of a child, the State had to prove beyond a reasonable doubt: (1) that the alleged victim was a child, specifically a person under sixteen years of age at the time of the offense; (2) defendant knowingly engaged in sexual conduct with the child named in the indictment; (3) defendant knew the conduct would impair or debauch the morals of the named child; and (4) defendant had a legal duty to care for the child.
The court also instructed the jury that the State had to prove beyond a reasonable doubt that the defendant engaged in the sexual conduct knowing that it would impair or debauch the morals of the child named in that count. . . . Sexual conduct which would impair or debauch the morals of a child is conduct which tends to corrupt, mar or spoil the morals of a child under [sixteen] years of age. The State does not have to show that the sexual conduct actually impaired or debauched the morals of the child named in any particular count. In analyzing the proofs to determine whether the evidence demonstrates that defendant's conduct would tend to impair or debauch the moral[s] of that child, evaluate the evidence in the context of objectively contemporary standards.
Defendant did not seek an instruction to include the claim that the alleged conduct was for benign parenting rather than sexual purposes. Indeed, as we stated previously, there was no evidence supporting such a claim. We are therefore convinced that the absence of such an instruction was not erroneous, let alone an error "clearly capable of producing an unjust result." R. 2:10-2.
Defendant further argues that his sentences are excessive. Here, the trial court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense and the role of the defendant therein, including whether the offense was committed in an especially heinous, cruel or depraved manner); two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted on the victim); three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); four, N.J.S.A. 2C:44-1(a)(4) (lesser sentence will minimize the seriousness of the offense because he took advantage of a position of trust or confidence); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors.
The court imposed the following sentences: count one, first-degree aggravated assault upon J.D., eighteen years, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; count two, second-degree attempted aggravated sexual assault upon J.D., nine years, subject to NERA; count three, second-degree sexual assault upon J.D., nine years, subject to NERA; count four, second-degree sexual assault upon J.D., nine years, subject to NERA; count five, second-degree endangering the welfare of J.D., nine years, flat; count six, second-degree sexual assault upon T.D., nine years, subject to NERA; count seven, second-degree sexual assault upon T.D., nine years, subject to NERA; count eight, endangering the welfare of T.D., nine years, flat; count nine, third-degree aggravated assault upon a law enforcement officer, four years, flat; and count ten, third-degree resisting arrest, four years, flat.
The court ordered that the sentences on counts one, two, three and four be served concurrently, and the sentences on counts six and seven be served concurrently with each other but consecutive to the sentences imposed on counts one, two, three and four. The court additionally ordered that the sentence on count five run consecutive to the sentences on counts one to four and counts six and seven.
In addition, the court ordered that the sentence on count eight be served consecutively to the sentences on counts one to seven. The sentences on counts nine and ten are concurrent to each other but consecutive to those on counts one to eight. As we stated previously, the aggregate sentence is forty-nine years, with a period of parole ineligibility of about thirty-three years.
Defendant argues the trial court erred by failing to find any mitigating factors. We disagree. A sentencing judge must find and consider mitigating factors only when they are "amply based in the record[.]" State v. Dalziel, 182 N.J. 494, 504-05 (2004). Although defendant points to various personal difficulties and problems he has experienced, this information did not provide a sufficient basis for finding any mitigating factors.
Defendant further argues the trial court erred by imposing the aforementioned consecutive sentences. He also contends that the court failed to provide adequate reasons for the consecutive sentences. Again, we disagree.
In State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.2d 308 (1986), the Court established criteria to be applied by the courts when determining whether to impose consecutive or concurrent sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.*fn1
[Id. at 643-44.]
We are convinced that the trial court did not abuse its discretion by imposing consecutive sentences because the crimes for which such sentences were imposed were predominantly independent of each other, involved separate and distinct acts of violence or abuse, and were committed against multiple victims. Moreover, the court provided sufficient reasons for imposing these sentences.
Furthermore, the court's decision to impose consecutive sentences for the sexual offenses and endangering was consistent with State v. Miller, 108 N.J. 112 (1987). There, the Court held that convictions for aggravated sexual assault and endangering the welfare of a child do not merge and may warrant the imposition of consecutive sentences. Id. at 120-21.
We are therefore satisfied that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
We note, however, that the judgment of conviction does not accurately reflect the court's findings of aggravating factors. We therefore remand the matter to the trial court for entry of a corrected judgment of conviction.
Affirmed and remanded for entry of a corrected judgment of conviction.