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State v. Miller

Supreme Court of New Jersey

February 20, 2019

State of New Jersey, Plaintiff-Appellant,
v.
Michael D. Miller, Defendant-Respondent.

          Argued November 28, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 449 N.J.Super. 460 (App. Div. 2017).

          Lisa Sarnoff Gochman, Legal Assistant, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Lisa Sarnoff Gochman, of counsel and on the briefs).

          Michael T. Denny, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Michael T. Denny, of counsel and on the briefs, and William Welaj, Designated Counsel, on the briefs).

          Regina M. Oberholzer, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the brief).

          FERNANDEZ-VINA, J., writing for the Court.

         In this appeal, the Court first considers whether it is an abuse of discretion for a trial court to apply aggravating factor one when sentencing a defendant convicted of possessing and distributing child pornography. Second, the Court considers whether defendant Michael Miller was appropriately sentenced to consecutive terms of imprisonment for his possession and distribution of child pornography.

         Miller was convicted of possessing and distributing over 900 images and videos of child pornography through the use of online peer-to-peer file-sharing programs. He was also in possession of thirty-three CDs and DVDs, eleven of which contained photographs and recordings of child pornography separate from those found on his computer.

         At Miller's sentencing hearing, the trial judge applied aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), because the pornography possessed and distributed by Miller depicted the rape, penetration, and sexual assault of extremely young children, at least one of whom was an infant. The court also applied aggravating factor two, the gravity of harm to the victim; aggravating factor three, the risk defendant will commit another offense; and aggravating factor nine, the need for deterrence. The court applied mitigating factor seven, no prior criminal history, as the sole mitigating factor. The court then concluded that it would not merge counts one and two together, explaining that "[Miller]'s possession of the child pornography was not fleeting and was for a substantial period of time. And his use of the child pornography [was] distinct from his making the files available by way of the [p]eer-to-[p]eer programs." The court ultimately sentenced Miller to seven years' imprisonment for the distribution charge and one year of imprisonment for the possession charge. The court determined that the sentences must run consecutively, reasoning that Miller's crimes "were independent of one another, involv[ing] separate acts committed at different times."

         The Appellate Division reversed and remanded Miller's sentence. The panel concluded that the trial court "engaged in impermissible double-counting," reasoning that "[b]y its nature, child pornography inherently is especially heinous, cruel and depraved, and [Miller]'s possession and distribution of it in this case was no different." 449 N.J.Super. 460, 476 (App. Div. 2017). The panel asserted that, "under the specific facts presented" in this case, Miller's convictions for fourth-degree possession of child pornography and second- degree distribution of child pornography should have been merged. Id. at 477. The panel opined that Miller's "crimes were reasonably proximate in time and place, and [Miller's] use of the file-sharing programs was a necessary ingredient and [an] integral part of both his possession" and his distribution of the child pornography. Ibid. The panel ultimately affirmed Miller's conviction but remanded the matter, directing the trial court to re-sentence him without consideration of aggravating factor one, and to merge count one with count two. Ibid.

         The Court granted the State's petition for certification. 234 N.J. 1 (2018).

         HELD: The Appellate Division's opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. Miller's possession charge involved child pornographic material beyond that involved in his distribution charge -- there was pornographic material in Miller's possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes.

         1. Aggravating factor one requires the trial court to consider "[t]he 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." N.J.S.A. 2C:44-1(a)(1). When it assesses whether a defendant's conduct was especially "heinous, cruel, or depraved," a sentencing court must scrupulously avoid double-counting facts that establish the elements of the relevant offense. The Court has recognized that facts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence. Nevertheless, a sentencing court may consider aggravating facts showing that a defendant's behavior extended to the extreme reaches of the prohibited behavior. Thus, in appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense. (pp. 17-19)

         2. At the time Miller committed the relevant offenses in this case, the statute he violated defined a "child" as any person under sixteen years old and prohibited the possession of material depicting a child engaging in a "prohibited sexual act," defined as "sexual intercourse" and "nudity," among other things. N.J.S.A. 2C:24-4 (2012). At Miller's sentencing hearing, the court explained that the child pornography found on defendant's computer "depicted rape essentially, penetration, bondage, really horrific displays of . . . cruel treatment to these children." The extraordinary brutality depicted in defendant's pornography demonstrated that his possession and distribution of such content extended to the extreme reaches of the behavior prohibited by N.J.S.A. 2C:24-4. Further, the trial judge appropriately considered the victims' ages when applying aggravating factor one. N.J.S.A. 2C:24-4 contained an element of age, but that element did not preclude consideration of the victims' ages for sentencing purposes because it did not distinguish between a sixteen-year-old girl who sends an explicit photo to her fifteen-year-old boyfriend and an individual who acquires violent child pornography involving the sexual assault of toddlers. Like any other fact, age is for the determination of the factfinder. The immaturity and extreme youth of the victims in this case allowed the trial judge to determine that "infants" and "very young children" were caused to engage in sexual activities. The appellate panel's opinion in this case deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. (pp. 19-21)

         3. State v. Brown sets forth the Court's general approach to merger issues, a "flexible approach . . . that requires . . . focus on the elements of the crimes and the Legislature's intent in creating them, and on the specific facts of each case. The overall principle guiding merger analysis is that a defendant who has committed one offense cannot be punished as if for two." 138 N.J. 481');">138 N.J. 481, 561 (1994) (citations and internal quotation marks omitted). Such an approach entails "[the] analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed." State v. Davis, 68 N.J. 69, 81 (1975). Guidance also arises from the principle that "the [L]egislature is empowered to split a single, continuous transaction into stages, elevate each stage to a consummated crime, and punish each stage separately." Id. at 78. In Davis, the Court considered the issue of merger in the context of the crimes of possession and distribution of a controlled dangerous substance, and found them to be separate offenses subject to separate punishments. Ibid. The Court explained that if a defendant's "possession were contingent upon and inseparable from the sale itself, a 'mere fleeting and shadowy incident of the sale,' then only one offense ha[d] been committed." Id. at 83. The Davis Court then explained that there was "ample evidence to support the conclusion that Davis was not engaged in 'fleeting and shadowy' possession preceding and purely incidental to imminent distribution, as would be true of an agent of or go-between for a seller," but rather was in possession for a "substantial period of time separate and apart from his possession merely incident to a particular imminent sale." Id. at 83-84. (pp. 21-24)

         4. In this case, prior to the period during which Miller began to distribute the pornography, there was a period of over two years in which he possessed it but had not yet distributed it. Further, in addition to the over 900 child pornographic images and videos stored on Miller's computer, there were eleven CDs and DVDs containing photographs and video recordings of child pornography that were found inside his home, separate from the pornography on his computer. The possession and distribution offenses were therefore distinct and the trial court appropriately determined that they did not merge for sentencing purposes. (pp. 24-25)

         The judgment of the Appellate Division is REVERSED and Miller's sentence is REINSTATED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA'S opinion.

          OPINION

          FERNANDEZ-VINA JUSTICE

         In this appeal, we first consider whether it is an abuse of discretion for a trial court to apply aggravating factor one when sentencing a defendant convicted of possessing and distributing child pornography. Second, we consider whether defendant Michael Miller was appropriately sentenced to consecutive terms of imprisonment for his possession and distribution of child pornography.

         Miller was convicted of possessing and distributing over 900 images and videos of child pornography through the use of online peer-to-peer file-sharing programs. He was also in possession of thirty-three CDs and DVDs, eleven of which contained photographs and recordings of child pornography separate from those found on his computer. At Miller's sentencing hearing, the trial judge applied aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), because the pornography possessed and distributed by Miller depicted the rape, penetration, and sexual assault of extremely young children, at least one of whom was an infant. After considering the relevant aggravating and mitigating factors, the trial judge sentenced Miller to seven years' imprisonment for the distribution charge, and one year of imprisonment for the possession charge, to be served consecutively. Miller subsequently appealed.

         The Appellate Division reversed and remanded Miller's sentence. In a published opinion, which instructed the trial court to re-sentence Miller without consideration of aggravating factor one and to merge Miller's possession and distribution convictions. The appellate panel determined that the trial court engaged in impermissible double-counting when it applied aggravating factor one because child pornography is inherently heinous, cruel, and depraved, and Miller's possession and distribution of such pornography in this case was no different. The panel further held that the trial court should have merged Miller's possession and distribution convictions because the crimes were reasonably proximate in time and place, and Miller's use of the file-sharing programs was a necessary ingredient and an integral part of both his possession and his distribution of the child pornography.

         We conclude that the panel's opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. We further conclude that Miller's possession charge involved child pornographic material beyond that involved in his distribution charge -- there was pornographic material in Miller's possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes. Accordingly, we reverse the judgment of the Appellate Division and reinstate Miller's sentence.

         I.

         A.

         From 2010 to 2012, Freehold Township Police Officer Richard Hudak was assigned to the Computer Crimes Unit of the Monmouth County Prosecutor's Office (MCPO) as part of the Internet Crimes Against Children (ICAC) task force. By using "undercover computers," Hudak was able to locate computers within Monmouth County that were making suspected images and videos of children performing prohibited sexual acts available for download. As was the case with defendant Michael Miller, these pictures and videos were oftentimes shared via peer-to-peer file-sharing. Peer-to-peer networks allow computer users to exchange audio, video, and image files with each other over the internet, with the computers being referred to as "peers." When users download a particular peer-to-peer software program, they offer their computers and files to other users for sharing, and can download files from others using the same software.

         Through his investigation, Officer Hudak was able to determine that Miller's computer was sending and receiving files containing child pornography via peer-to-peer networks. On February 1, 2012, Hudak and other members of the MCPO ICAC task force executed a search warrant at Miller's Keansburg residence. The officers seized thirty-three CDs and DVDs, and several computers -- including an Acer Aspire 4315 laptop. Eleven of those CDs and DVDs were found to contain images or videos of child pornography. Miller was brought to the Keansburg Police Station, where he was read and waived his Miranda[1] rights. While being questioned by police, Miller acknowledged that he had been living alone at his residence for two years and that he previously used the peer-to-peer file-sharing program LimeWire until it was shut down in 2010, at which time he began using FrostWire. When asked if he was admitting to downloading child pornography, Miller replied "Yes."

         Miller was then asked about his understanding of peer-to-peer networks and responded, "[I]f you have a song on your computer, I can download it and share [it]." Miller explained, "I know it's wrong to distribute. I didn't realize that I was distributing [it], because it was on my library," but he later acknowledged, "I never thought it through . . . that if I have it on here, other people can get it from me. And I know that's exactly how peer-to-peer works." Miller further stated, "Obviously, if it's in the FrostWire file . . . it's available to anyone else, so it's not necessarily personal." When Miller was asked whether he disputed that he made the child pornography videos shareable to other people through FrostWire, he responded, "No." Miller then acknowledged that he knew "that the library where the images or the videos were was shareable."

         During this interview, Miller was shown sanitized photographs taken from the pornographic videos obtained from his computer and was asked to sign his initials on the pictures he recognized. The photographs that Miller initialed and that were presented to the judge at trial included: (1) an image of an adult male and a juvenile female with a pacifier in her mouth and her legs drawn up with her vaginal area exposed; (2) a photo where both an adult female and a juvenile male are nude, and the male is straddling the adult female's legs; (3) a photo of a juvenile female performing fellatio on an adult male; (4) a photo of a juvenile female and juvenile male with their genitals exposed alongside an adult female with her breasts exposed; (5) an image of a juvenile female as she straddles and masturbates an adult male; and (6) an image of a naked juvenile male and a naked adult female with another juvenile female wearing a type of nightgown.

         Detective Richard Bruccoliere conducted a forensic analysis of all the media that was seized in this case. Bruccoliere investigated Miller's Acer Aspire 4315 laptop, in which he found 631 images and 353 videos of child pornography. Miller's laptop also ...


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