State v. J.A.G.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.A.G., ^[1] Defendant-Appellant.

No. A-4065-18

Superior Court of New Jersey, Appellate Division

April 11, 2022

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2022

On appeal from the Superior Court of New Jersey, Law Division Passaic County, Indictment No. 16-12-1000.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Ali Y. Ozbek, Assistant Prosecutor, of counsel and on the brief).

Before Judges Haas and Mitterhoff.

PER CURIAM

Tried before a jury on a twelve-count indictment, defendant was convicted of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one, four, and seven); three counts of second-degree sexual assault N.J.S.A. 2C:14-2(b) (counts two, five, and eight); five counts of second-degree endangering the welfare of a child N.J.S.A. 2C:24-4(a)(1) (counts three, six, nine, ten, and eleven); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count twelve). After merging count two into count one, the trial judge sentenced defendant to ten years in prison on count one, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge merged count five into count four, and sentenced defendant to a consecutive ten-year term on count four, subject to NERA. The judge merged count eight into count seven, and sentenced defendant to a consecutive forty-year prison term on that count pursuant to the Jessica Lunsford Act, N.J.S.A. 2C:14-2. The judge imposed concurrent prison terms on the remaining counts, ordered defendant to comply with the Megan's Law registration requirements, and placed him on parole supervision for life.

On appeal, defendant raises the following contentions:

POINT I

THE JURY INSTRUCTIONS WERE INHERENTLY FLAWED, THUS DEPRIVING [DEFENDANT] OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).

A. Despite the Multiple Theories of Guilt Presented at Trial, the Court Failed to Provide a Specific Unanimity Instruction.

B. The Court Neglected to Issue a Fresh Complaint Instruction.

POINT II

THE PERVASIVE PROSECUTORIAL MISCONDUCT IN THIS CASE NECESSITATES REVERSAL. (Not Raised Below).

A. The Prosecutor Improperly Appealed to the Jury's Passions and Prejudices by Characterizing J.G. as [Defendant's] "Sexual [Plaything]," "Sexual Object," and "Sexual Prey" that he "Hunted," and By Juxtaposing What a Child of that Age Usually Experiences to That Which Was Alleged in this Case.

B. The Prosecutor Impermissibly Vouched for J.G.'s Credibility When Arguing She Would Not Fabricate the Allegations Because She Had Risked Too Much.

C. The Cumulative Effect of the Prosecutorial Misconduct Warrants Reversal of [Defendant's] Convictions.

POINT III

THE COURT'S JUSTIFICATIONS FOR IMPOSING THE PRESENT SENTENCE WERE INHERENTLY FLAWED AND RESULTED IN A [MANIFESTLY] EXCESSIVE AND UNDULY PUNITIVE SENTENCE.

A. The Court Impermissibly Found Aggravating Factor Two, in Part Due to the Defendant's Decision to Exercise his Constitutional Right to Stand Trial.

B. The Court Double-Counted Aggravating Factor One, as Applied to Counts One, Two, Four, Five, Seven, and Eight.

C. The Court Abused Its Discretion in Finding and Ascribing Substantial Weight to Aggravating Factor Three.

(i)[.] The Court's Finding of Aggravating Factor Three Was Premised on Statements [Defendant] Purportedly Made for Diagnostic Purposes During an Avenel Evaluation. If Courts Are Permitted to Use These Types of Statements to Penalize Defendants, It Will Create a Chilling Effect on Future Avenel Evaluations.

(ii)[.] Given that [Defendant] Will Be Subject to Rehabilitative Treatment and Stringent Reporting Requirements as a Result of Megan's Law and Parole Supervision for Life, the Court Erred in Finding and Ascribing Substantial Weight to Aggravating Factor Three.

D. The Court Improperly Found and Ascribed Undue Weight to the Need for Deterrence, Based Upon the Degree of Charges for Which [Defendant] was Convicted.

E. The Court Impermissibly Accorded Less Weight to Mitigating Factor Seven Based Upon Incidents that Did Not Result in Conviction.

F. The Court Imposed Consecutive Sentences Without Considering the Overall Fairness of the Aggregate Sentence, Pursuant to State v. Torres.^[2]

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

The charges against defendant arose from his daughter J.G.'s allegations that he sexually assaulted her on a number of occasions beginning when she was five years old. The State's primary witness was J.G., ^[3] who testified she could not remember how many times defendant sexually abused her "[b]ecause it happened a lot." However, J.G. recounted five of the assaults in detail.

J.G. testified that when she was five years old, defendant confronted her in the bathroom and made her perform oral sex on him. Defendant forced J.G.'s head up and down on his penis and then ejaculated into the child's mouth.

When J.G. was six, defendant sodomized her. J.G. screamed for her brother to help, but defendant put his hand over her mouth and told her to be quiet. After he ejaculated, defendant told the child to clean herself up. J.G. realized she was bleeding and defendant returned and took away her underwear.

J.G. stated the third incident occurred when she was seven years old. The child was working on homework in her room. Defendant entered the room and put a laptop on a tray in front of J.G. and made her watch a pornographic animated video. Defendant fondled J.G. while the video played.

About a year later, defendant bound J.G. with a blue and white rope, put her in his bedroom closet, and told her to be quiet. Defendant then had sex with J.G.'s mother in the bedroom. Defendant did not believe her mother knew she was in the closet.

When J.G. was nine, she was using the bathroom in the middle of the night when defendant entered and penetrated her with a dildo. Defendant masturbated and ejaculated on the child.

J.G. also testified that defendant made her smoke marijuana when she was seven or eight years old. She stated defendant kept the marijuana in a jar in the bathroom.

In May 2015, when J.G. was nine years old, she disclosed defendant's abuse to her mother. The next day, J.G. and her mother told J.G.'s school principal, who reported the incidents to the police.

A forensic nurse examined J.G. at the hospital and collected two pairs of underwear from her. A doctor subsequently examined J.G., but the examination "revealed no abnormalities and neither confirmed nor den[ied] the possibility of sexual abuse." The crotch area of one set of underwear tested positive for amylase, an enzyme found in saliva. The DNA profile contained within the saliva did not match defendant. However, a second form of testing, called "Y-STR," showed that the saliva potentially matched defendant, his father, and any of defendant's five sons, or anyone else in his male lineage.

A child interview specialist spoke with J.G. and her account of the abuse was consistent with her trial testimony. The police searched the family's home and found the marijuana and rope that J.G. had described.

J.G. testified that after she disclosed defendant's actions, her mother "stopped believing [her, ] and then she started hitting" the child. J.G.'s mother eventually "sent" the child to a "treatment home." Defendant did not testify, and he presented no witnesses.

II.

In Point I, defendant argues for the first time on appeal that the trial judge failed to properly instruct the jury. Defendant asserts the judge should have given the jury a specific unanimity charge as well as a fresh complaint instruction. We disagree.

It is well settled that "[a]ppropriate and proper charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

"[I]n reviewing any claim of error relating to a jury charge, the 'charge must be read as a whole in determining whether there was any error . . . .'" State v. Gonzalez, 444 N.J.Super. 62, 70-71 (App. Div. 2016) (quoting State v. Torres, 183 N.J. 554, 564 (2005)). If, like here, defense counsel did not object to the jury charge at trial, the plain error standard applies. State v. Singleton, 211 N.J. 157, 182-83 (2012). We reverse only if the error was "clearly capable of producing an unjust result," id. at 182 (quoting R. 2:10-2), and consider the totality of the circumstances when making this determination. State v. Marshall, 123 N.J. 1, 145 (1991). Against these standards, we conclude there was no error, let alone plain error.

Defendant argues that because J.G. testified about five sexual assault incidents that occurred between the time she was five and nine years old, the trial judge should have instructed the jury that there had to be unanimity regarding the underlying events. Defendant participated in a charge conference and did not object to the judge's instructions at trial.

"[I]n cases where there is a danger of a fragmented verdict the trial judge must upon request offer a specific unanimity instruction." State v. Frisby, 174 N.J. 583, 597-98 (2002) (emphasis added) (quoting State v. Parker, 124 N.J. 628, 637 (1991))....