January 10, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM O'BRIEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-08-00974.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 17, 2012
Before Judges A. A. Rodriguez, Ashrafi, and Fasciale.
Defendant appeals from his convictions for six counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; and one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b). We affirm but remand to vacate the imposition of a Safe Neighborhood Services Fund (SNSF) penalty on Counts Four to Nine.
In August 2006, a grand jury indicted defendant on two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Counts One and Two), pertaining to one victim; one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b) (Count Three); and six counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (Counts Four through Nine), pertaining to a second victim. Defendant's trial in April 2008 was based only on the charges against the second victim, who was defendant's girlfriend's youngest daughter. That victim, however, was not cooperative with the prosecution and did not testify at the trial. Her eldest sister was the State's chief witness and testified about many of her own experiences with defendant, which were not charged in the indictment.*fn1 The sister's testimony and other evidence at the trial showed the following facts.
Defendant and L.H.*fn2 began dating in 1981, four years after she separated from her husband. L.H. had three children: A., born in 1969; B., born in 1972; and C., born in 1976.*fn3
After the separation, L.H. moved into an apartment with her children, at which defendant frequented. Initially, he wore casual or work clothes when visiting. Eventually, however, defendant would visit the apartment after work, remove his clothing, and remain nude while he ate dinner, the family watched television, or the girls did their homework.
A. testified that the household environment became female-dominated, where L.H. was the dominant partner. Defendant began wearing a chain around his genitals every day both at home and work. At home, defendant wore additional chains attached to his wrists. Defendant also wore handcuffs attached to the chains, so that his hand would have to stay on his genitals. According to A., defendant never objected to wearing the chains and L.H. never forced him to wear them.
Every day, defendant masturbated in the living room in front of whoever was present, including L.H.'s daughters and A.'s friends. According to A., there were times when she and her friends masturbated defendant, whipped him with a belt, put makeup on him, and inserted a dildo into his anus. Defendant also masturbated in front of the girls when L.H. was not present. Both A. and L.H. took pictures and videos of defendant engaged in these activities.
From 1983 to 1987, L.H., her daughters, and defendant moved three times into different secluded homes, where they continued this lifestyle, which now included defendant going outside in the nude. The day after A.'s seventeenth birthday, L.H. filmed defendant masturbating in front of C. and one of A.'s friends. In yet another video, defendant masturbated in front of the three daughters and one of A.'s friends. In 1987, A. was eighteen, B. was fifteen, and C. was eleven. In their newest home, L.H. would attach defendant's chain to a hook in the living room's ceiling. A. also recalled that she, her sisters, and mother used defendant's chain as a "lead" while "putting him through his paces," or as a leash when walking outside.
A. and B. moved out in 1989 and 1990, respectively. When A. visited, the same lifestyle continued. After C. completed high school in 1994, L.H. separated from defendant. She and the youngest daughter moved to another home. In early 1996, A. contacted her mother and sisters to discuss defendant's conduct. They agreed that if they were to contact law enforcement, they must all be in it together. C., who was then about twenty years old, refused to cooperate, and law enforcement was not contacted at that time.
In December 2003, L.H. emailed the Morris County Prosecutor's Office to inform the authorities that defendant had sexually abused her daughters. In 2004, police officers searched defendant's home and found numerous pictures, videos, chains, handcuffs, locks, padlocks, key locks, and dildos, and also a leather whip device. Thereafter, the police arrested defendant and charged him with the offenses.
At an evidentiary hearing in June 2005, a judge ruled that defendant may admit expert testimony from a psychologist in support of his affirmative defense of duress. N.J.S.A. 2C:2-9. In March 2008, the court conducted a hearing and concluded that certain other crimes evidence was admissible. On April 3, 2008, the judge granted the State's motion for severance of Counts One and Two because of a medical emergency that prevented the first victim, B., from appearing at trial.
The charges pertaining to C. were tried for eight days in April 2008. The State presented testimony from A. and two detectives. Regarding the absence of her younger sisters, A. stated that B. was unable to travel because of a medical condition, and C. consistently refused to discuss their upbringing. Defendant testified on his own behalf, and presented testimony from his expert and his girlfriend. Defendant stated that L.H. controlled him, she drugged him, he did not willingly participate in their sexual activities, and she threatened to show others his pornographic photographs. The jury found defendant guilty on all counts.*fn4
The judge sentenced defendant to three consecutive maximum ten-year terms with a fifteen-year mandatory minimum on three counts of sexual assault (Counts Four, Five, and Six); three concurrent ten-year prison terms for the remaining three sexual assault counts (Counts Seven, Eight, and Nine); and a concurrent one-year term for endangering the welfare of a child (Count Three). The judge ordered defendant to pay a total of $525 in SNSF assessment penalties.
On appeal, defendant raises the following points:
THE INTRODUCTION OF OTHER CRIMES EVIDENCE, IN THE FORM OF DEFENDANT'S SEXUAL CONDUCT IN THE PRESENCE OF THE ALLEGED VICTIM'S SISTERS AND FRIENDS, WITHOUT A LIMITING INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶¶ 1, 9, 10. (Raised in part below).
THE JUDGE'S REFUSAL TO PROVIDE A CLAWANS INSTRUCTION ON THE ABSENCE OF A CRUCIAL STATE'S WITNESS (THE ALLEGED VICTIM) DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const. amend. XIV; N.J. Const. art. I, ¶¶ 1, 9, 10.
THE IMPOSITION OF CONSECUTIVE AND MAXIMUM TERMS WAS MANIFESTLY EXCESSIVE.
THE SAFE NEIGHBORHOOD SERVICES FUND (SNSF) ASSESSMENTS FOR OFFENSES THAT PRECEDED THE EFFECTIVE DATE FOR THEIR IMPOSITION MUST BE VACATED.
Defendant argues that the judge's failure to provide the jury with a limiting instruction regarding other crimes evidence, pursuant to Rule 404(b), violated his right to a fair trial. We disagree.
We apply the plain error standard because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). "[I]f the error does not deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence, the conviction should not be impugned." State v. Simon, 79 N.J. 191, 207 (1979); see also State v. Lair, 62 N.J. 388, 392 (1973) (holding failure to give limiting instruction was harmless error based "largely upon the overwhelming nature of the testimony pointing to defendant's guilt").
N.J.R.E. 404(b) prohibits the admission of evidence of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule permits, however, admission of such evidence "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. "Although N.J.R.E. 404(b) enumerates certain instances when other crimes evidence will be admissible, the specification of particular instances is only illustrative." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 to N.J.R.E. 404(b) (2012).
In State v. Cofield, 127 N.J. 328, 338 (1992), our Supreme Court provided a rule of "general application" to prevent overuse of other-crimes evidence:
1. The evidence of the other crime must be admissible as relevant*fn5 to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [(Quoting Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
We must apply the Cofield test to determine whether evidence at defendant's trial pertaining to the conduct that A. testified to, but which did not directly involve C., was properly admitted.
Endangering the welfare of a child is defined as the knowing possession of any "photograph, film, videotape, computer program or file, video game[,] or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act." N.J.S.A. 2C:24-4b(5)(b). Pursuant to N.J.S.A. 2C:14-2b, the State was required to prove that defendant committed acts of sexual contact with C. while she was less than thirteen-years-old, and he was at least four years older than her. Masturbation in the presence of a child constitutes sexual contact. N.J.S.A. 2C:14-1d.*fn6 The judge instructed the jury that sexual contact was an intentional touching of the intimate parts of another person or the actor's own intimate parts whereby he knew another person was present, and that he had the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying himself.
Here, prong one of the Cofield test is met because A.'s testimony of defendant's other crimes is relevant to establishing his common scheme or plan and to counter his argument that he acted under duress and did not receive sexual gratification from the activity. Prong two is also satisfied. The other crimes pertain to what A. witnessed during the period of time at issue. Prong three requires clear and convincing evidence "that the person against whom the evidence is being used actually committed the [act]." Biunno, supra, comment 8(c) on N.J.R.E. 404 at 215. The State offered corroborating evidence, which included photographs and videos depicting defendant engaging in the charged crimes.
As to prong four, that "the probative value of the evidence must not be outweighed by its apparent prejudice," A.'s testimony regarding defendant's sexual activities was inflammatory and prejudicial, but it was at the heart of the charges against defendant. A.'s testimony was not "clearly capable of producing an unjust result" because it was the entire pattern of conduct in the household during many years, in several different locations, and in the presence of different minors that the State relied upon to show defendant's knowing and purposeful state of mind and to refute his defense.
Also, the State presented overwhelming evidence pointing to defendant's guilt. See State v. Hunt, 115 N.J. 330, 364 (1989) (indicating that the failure to give a limited instruction did not constitute harmless error due to the substantial evidence that the State produced); Lair, supra, 62 N.J. at 392. Numerous photographs and videos showed defendant engaging in the type of conduct that A. described. Moreover, as part of defendant's duress defense, he testified to having committed such acts, despite contending that he did not receive any sexual gratification. Therefore, the judge's failure to provide a limiting instruction was not plain error.
We reject defendant's contention that the judge erred in denying his request for a Clawans charge to permit the jury to draw an adverse inference from the State's failing to produce C. at trial. To grant a Clawans charge, the court must first conclude (1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be excepted to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior than already utilized in respect to the fact to be proven. [State v. Hill, 199 N.J. 545, 561 (2009) (quoting State v Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]
Further, a party seeking a Clawans charge must "advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case, of his intent to so request and . . . the reasons for the conclusion that the  [witness] ha[s] superior knowledge of the facts." Clawans, supra, 30 N.J. at 172.
Here, the judge found that C. is domiciled in a distant state. She has continuously refused to cooperate, and her lack of cooperation began before the initial police involvement. She was not in the control or power of the prosecution, nor practically or physically available to testify. The judge observed that C.'s absence would not cause any reasonable juror, under the case's circumstances, to generate an adverse inference. The judge "could not fathom that she would have been in any way favorable to the defense."
Defendant argues that the judge's imposition of consecutive and maximum terms is manifestly excessive. He argues that because his alleged crimes occurred before the Legislature amended N.J.S.A. 2C:44-5a, which provides that "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses," the court violated the guidelines limiting consecutive sentences as established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied sub nom. Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded in part by statute, N.J.S.A. 2C:44-5.*fn7 We disagree.
The Court designed the Yarbough guidelines "to guide courts in the exercise of their discretion in fashioning consecutive or concurrent sentences." State v. Rogers, 124 N.J. 113, 117 (1991). The Yarbough guidelines provide that
(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 overall 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. [Yarbough, supra, 100 N.J. at 643-44.]
"Where the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim." State v. Miller, 108 N.J. 112, 122 (1987) (emphasis added). A trial judge must provide a statement of reasons for sentencing. Ibid. However, Yarbough's purpose "is not to remove judicial discretion from the concurrent [and/or] consecutive decision, but to offer guidelines, all of which a judge should consider when he exercises that discretion." State v. Rogers, 236 N.J. Super. 378, 383 (1989), aff'd, 124 N.J. 113 (1991). "The decision to impose a maximum sentence concomitantly requires the finding and analysis of the aggravating and mitigating factors identified in N.J.S.A. 2C:44-1a [and] b." State v. Randolph, 210 N.J. 330, 353 (2012) (emphasis added).
Before N.J.S.A. 2C:44-5a was enacted, Yarbough indicated that: "ordinarily there should be an overall outer limit of two consecutive sentences where multiple offenses are involved." State v. Rodgers, 230 N.J. Super. 593, 603 (App. Div.), certif. denied, 117 N.J. 54 (1989). Despite that general guideline, we recognized that "there are [some] cases so extreme and so extraordinary that deviation from the guidelines may be called for." Ibid. (quoting Yarbough, supra, 100 N.J. at 647); see State v. Day, 216 N.J. Super. 33, 38 (App. Div.), certif. denied, 107 N.J. 640 (1987) (upholding forty-nine year term for five counts of first degree sexual assault and six counts of second degree aggravated assault based, in part, on "the myriad of additional convictions with which the sentences were made concurrent and the weeks of suffering endured by the victim, [which warranted] the greater punishment"). The Yarbough Court "repose[d] the paramount responsibility for fair and certain sentencing justice in [the] trial courts." Yarbough, supra, 100 N.J. at 647.
Moreover, we assess a trial judge's finding of "aggravating and mitigating factors to determine whether they were based upon competent credible evidence in the record." State v. Bieniek, 200 N.J. 601, 608 (2010) (internal quotation marks omitted). We are "not to substitute [our] assessment of aggravating and mitigating factors for that of the trial court." Ibid. Nevertheless, we maintain the authority to modify a sentence that "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
Here, the judge found aggravating factors (1), (4), and (9) pursuant to N.J.S.A. 2C:44-1a. These statutory aggravating factors provide, in pertinent part:
(1) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;
(4) A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust . . ., or the defendant took advantage of a position of trust or confidence to commit the offense;
(9) The need for deterring the defendant and others from violating the law. [N.J.S.A. 2C:44-1a.]
The judge did not find any mitigating factors. N.J.S.A. 2C:44-1b. With respect to aggravating factor (1), the judge stated:
Because the Legislature could not in its wildest dreams [have] ever envisioned a case such as this case where this was not an isolated incident or even several incidents to [defendant] masturbating, among other acts, in front of these young girls. . . . I consider [the victims] to be plural, not just one victim.
The . . . Legislature could not have envisioned that one would engage in this conduct not over days, not over weeks, not over months, but over years. . . .
Regarding aggravating factors (4) and (9), the judge stated:
Again, the [c]court cannot . . . conceive of a greater breach of trust th[a]n for someone who is in a position of authority with these children, which [defendant] was, to have engaged in this conduct.
The [c]court finds [a]ggravating
[f]actor [(9)] as well. . . . [T]hose who prey upon young children, those who act in this manner, those who choose to violate our laws, particularly when it involves children, need to know that they should expect lengthy prison terms, if convicted.
On the nature of the sentences, the judge noted:
As to Yarbough, pursuant to [N.J.S.A.] 2C:44-5, the [c]court makes the following findings. First, that these crimes continued over the course of many years, if not on a daily basis, almost on a daily basis. Further, that these crimes and their objectives, although arguably not independent of each other, they demonstrated a pattern of abuse and depravity of an almost unspeakable kind. The capacity to harm the victims, plural, was immeasurable. Yet[, defendant] carried out [these acts] without thought or care as to their impact.
The objectives of the offenses were for the defendant's perverse pleasure. As for violence, one often thinks of physical conduct or physical abuse when we think of violence. But in this case, the violence done to the victims was equally as devastating as any physical violence. These children had their right to be raised in an environment free from atrocities such as those carried out in front of their very eyes. These atrocities were carried out . . . by this defendant . . . .
It had the effect of stealing from them something that should have been protected in childhood. . . . This behavior was not a single period of aberrant behavior. It was a protracted period of unending abuse. These crimes included multiple victims . . . . The crimes were numerous.
And, . . . under Yarbough[,] the [c]court finds in applying those guidelines as it has . . . that there are no free crimes. The [c]court . . . finds the following as the aggravating factor for imposing consecutive sentences.
The gravity of harm and the vulnerability of these victims. . . .
[T]his [c]court finds that the magnitude of what was done and what took place, the injuries inflicted upon innocent individuals must not and cannot be countenanced. And[,] there must be an appropriate punishment to fit the crime.
Here, the jury convicted defendant on multiple offenses. The judge did not sentence defendant to consecutive terms on "each offense," Miller, supra, 108 N.J. at 122. Instead, in imposing maximum sentences, the judge found certain aggravating factors based upon "competent credible evidence in the record," Bieniek, supra, 200 N.J. at 608, and found the circumstances of the case so extreme as to render necessary three consecutive sentences, Rodgers, 230 N.J. Super. at 603. The judge exercised proper judicial discretion in imposing the sentences. Rogers, supra, 236 N.J. Super. at 383. As such, we find no error; the punishment does not "shock the judicial conscience," Roth, supra, 95 N.J. at 364.
Defendant argues that the judge erred in imposing SNSF penalties on Counts Four to Nine because the dates of the offenses preceded N.J.S.A. 2C:43.2's enactment, which authorizes the SNSF. The State concedes such was error. Therefore, we remand to vacate the SNSF penalties pertaining to Counts Four to Nine. The SNSF penalty as to Count Three remains.
Affirmed and remanded to vacate the SNSF assessment on Counts Four to Nine.