RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4064-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.W.G.,1
Defendant-Appellant. _______________________
Submitted January 3, 2022 – Decided March 3, 2022
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-02- 0125.
Joseph E. Krakora, Public Defender, attorney for appellant (Zachary G. Markarian, Assistant Deputy Public Defender, of counsel and on the brief).
1 We use initials and pseudonyms to protect the privacy and preserve the confidentiality of the victims and this proceeding. N.J.S.A. 2A:82-46(a); R. 1:38-3(c)(9). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Andre R. Araujo, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
A jury found defendant guilty of all eight charges against him: two counts
of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b); two counts of third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1); and two counts of
lewdness, N.J.S.A. 2C:14-4(b)(1). Following merger, the sixty-eight-year-old
defendant was sentenced to consecutive forty-year prison terms with twenty-
five years of parole ineligibility on the aggravated sexual assault offenses,
concurrent to eight-year prison terms with four years of parole ineligibility on
the sexual assault offenses.
Before us, defendant argues:
POINT I
THE COURT FAILED TO ESTABLISH THAT THE CHILD WITNESSES UNDERSTOOD THEIR DUTY TO TELL THE TRUTH AND WERE COMPETENT TO TESTIFY UNDER N.J.R.E. 601. (NOT RAISED BELOW).
POINT II
THE TRIAL JUDGE DISPLAYED PARTIALITY IN THE PRESENCE OF THE JURY BY SUGGESTING
A-4064-18 2 [ERICK]'S TESTIMONY THAT [DEFENDANT] HAD NOT TOUCHED HIM WAS UNTRUE AND COMMENDING THE CHILD WITNESSES AT THE CONCLUSION OF THEIR TESTIMONY. (NOT RAISED BELOW).
POINT III
THE COURT ERRED IN RUNNING [DEFENDANT'S] SENTENCES FOR AGGRAVATED SEXUAL ASSAULT CONSECUTIVE TO ONE ANOTHER FOR AN AGGREGATE SENTENCE ON EIGHTY YEARS WITH FIFTY YEARS OF PAROLE INELIGIBILITY WITHOUT ANALYSIS OF THE FACTORS SUPPORTING CONCURRENT SENTENCES.
We are unpersuaded that defendant's convictions should be reversed, but we
reverse his sentence and remand for resentencing for the trial court to explain
its reasons for imposing consecutive sentences as required by State v. Yarbough,
100 N.J. 627 (1985), the overall fairness of the sentences, and the real-time
consequences of the sentences.
I
To give context to our ruling, we briefly summarize the trial testimony
related to the investigation that led to the charges against defendant. When we
later address the issues raised on appeal, it is only necessary to provide a limited
discussion of the victims' trial testimony.
A-4064-18 3 C.M. (Charles) and S.M. (Sara) are married and have three sons, C.M.
D.M. (Danny), and E.M. (Erick). In September 2016, the family moved into a
two-story home in Vineland with Sara's three uncles, one of whom was
defendant. One evening, shortly after the move, Charles went to the bathroom
to prepare Danny and Erick's bath and noticed defendant's bedroom door was
closed. "[A]larm[ed]" by the "[un]common occurrence" of defendant's door
being shut, Charles opened the door and saw defendant "on the floor alongside
the bed with his pants down to his knees[,] masturbating in front of " Danny and
Erick. Charles testified that a pornographic movie was also playing on the
television. He said Danny, seven years old, and Erick, five years old, were fully
clothed, but Erick's pants were unbuttoned.
After Charles told his sons to leave the room and verbally threatened
defendant, he called for Sara. When she asked what was going on, defendant
replied "you wouldn't understand this, you're a female. . . . [Erick and Danny
were] curious." After Charles told her what happened, she immediately began
packing and taking her sons out of the house "to get [them] away from
[defendant]" and "that filthy environment."
When Charles asked his sons what happened with defendant, they did not
say anything because, according to Charles, "they were upset with the situation."
A-4064-18 4 Sara, however, testified that she did not ask her sons about what happened but
Danny, "upset" and "look[ing] like he was on the verge of tears," said defendant
and he performed oral sex on each other. Danny also told her that he and Erick
"were watching a movie and that there was . . . a pretty girl in [it]" with "a toy."2
He also said, "there w[ere] naked people in the movie and that they were doing
stuff to each other." Erick was "completely . . . quiet sitting there, not moving,
just looking straight ahead." When she asked Erick if defendant did anything to
him, he "just sat there" and "said [']same as [Danny']."
Once his family left the house, Charles called the Vineland Police. That
same evening, Charles and Sara went to the police station to give statements.
The police subsequently took defendant to police headquarters.
After being Mirandized, defendant waived his right to counsel and gave a
video-recorded statement that was played before the jury. He said that after he
ate dinner, he assisted Danny with his math homework in defendant's room when
Erick "wanted to come . . . and play." Defendant then began to describe a
previous incident when the boys walked in on him using the bathroom and saw
his penis. According to defendant, "they were curious" and "want[ed] to find
2 Sara later clarified that it was Erick who told her that "there was a toy in the movie." A-4064-18 5 out why [his penis] was bigger than the[irs]. . . . And of course [he] said . . . as
[they] get older [they,] to[o,] will have this opportunity." The boys then grabbed
a tape measurer from the bureau in his room, insisting to "see how big [he was]."
Defendant measured Danny and Erick's penises separately while they all sat on
the edge of his bed. Charles then entered the room and demanded to know what
was going on, while Danny and Erick's pants were open and defendant was
pulling up his pants. At the conclusion of his statement, defendant was arrested.
Two days later, Danny and Erick were interviewed by Vineland Detective
Cara Kahn, which was video-recorded and played before the jury. Using
interview techniques that prioritized the children's comfort and allowed the use
of both open-ended and leading questions, Kahn first spoke with Danny. After
overcoming his reluctance to speak, Danny eventually disclosed there was "oral
sex between [he] and [defendant], as well as . . . between [Erick] and
[defendant]." Using anatomical dolls, Danny showed her the sex acts that were
performed. He said, "[s]omething did happen bad" and defendant was in jail
"for what he did[] bad," but that she "should ask [his] mom" about what it was
because she "can say it right." Danny then related that while defendant was
helping him with his math homework, Erick was "punching [defendant] in his
wiener." Defendant told Erick "not too hard."
A-4064-18 6 Danny did not want to verbalize where he was touched, so he was asked
to indicate on a picture where he was touched; he pointed to the penis. He also
stated that defendant had him and his brother watch "[s]omething really bad" on
television that they "didn't want to watch" with naked "girl body parts [and] boy
body parts." Danny stated this was the first time defendant had done something
like this.
Kahn then spoke to Erick, finding his demeanor to be "a little more
outgoing and forthcoming than [Danny]," despite having "a difficult time
demonstrating with the [anatomical] dolls." Erick stated defendant was in jail
because "he did a bad something like sex" and that he showed them movies
displaying sex. He later asked Kahn, "[y]ou're not allowed to put your mouth
on a penis, right?" Erick said that he and Danny performed oral sex on defendant
and defendant performed oral sex on them. He also claimed defendant measured
their "whole bod[ies]" with measuring tape.
II
In Point I, defendant argues the trial court's competency examinations of
Erick and Danny, seven and nine years old respectively at the time of trial, was
deficient and warranted reversal of his convictions. He contends the court's
examinations "were far less searching" than that upheld in State v. Bueso, 225
A-4064-18 7 N.J. 193 (2016). He asserts that in Bueso, our Supreme Court held that a trial
court's examination of the child witness using hypotheticals could be "minimally
sufficient" but needed to be "thorough and detailed." 225 N.J. at 214.
Defendant maintains Danny's examination "was not adequate to establish
his competency, particularly after [he] initially indicated he did not . . .
understand the difference between the truth and a lie." Acknowledging Erick's
examination "was somewhat more detailed," defendant contends it was still
inadequate because it "depended almost entirely on leading questions and the
court never allowed [Erick] to demonstrate his understanding of the difference
between the truth and a lie in the context of a hypothetical," nor did the court
"provide[] [him] a hypothetical scenario in which he could show he knew the
difference between the truth and a lie in context."
Because defendant did not object to the court's examinations and finding
that the victims were competent, he must show the admission of their testimony
was "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));
R. 2:10-2; see also Bueso, 225 N.J. at 203 (determining "we review the trial
court's competency determination for plain error" where there is no objection to
A-4064-18 8 a competency ruling). We are not convinced the court's competency rulings
were plain error.
N.J.R.E. 601 addresses the competency of witnesses and states:
Every person is competent to be a witness unless (a) the court finds that the proposed witness is incapable of expression so as to be understood by the court and any jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) as otherwise provided by these rules or by law.
It is fundamental that "[b]efore testifying a witness shall be required to
take an oath or make an affirmation or declaration to tell the truth under the
penalty provided by law." N.J.R.E. 603. In the case of a child, "a preliminary
inquiry is undertaken to determine whether a child is competent to testify at a
criminal trial." Bueso, 225 N.J. at 196. The court is obliged to assure the child
understands the duty to testify truthfully. See id. 204-05; State v. G.C., 188 N.J.
118, 131-34 (2006). A court has the discretion to pose leading questions that
may be used in the examination of a child witness in situations where the child
is "hesitant, evasive or reluctant." Bueso, 225 N.J. at 207 (quoting State v.
Smith, 158 N.J. 376, 390 (1999)). Claims to disqualify a witness "must be
strictly construed against exclusion and in favor of admitting any relevant
testimony the witness may offer." Id. at 204 (citing G.C., 188 N.J. at 132).
A-4064-18 9 Similar to the competency examination in Bueso, the trial court's
assessments of Danny and Erick's competency to testify were "minimally
sufficient." Bueso, 225 N.J. at 212. Indeed, Danny told the court that he did
not know the difference between "telling the truth and telling a lie." His
response, however, was suitably addressed by the court when it presented a
hypothetical asking him what the consequences were of lying to his mother
about not cleaning up a mess he made despite telling her that he did. He
answered that lying to his mother would result in him "get[ting] hit." The court
then asked him if he, at that moment, understood the distinction between "telling
the truth and not telling the truth," to which he responded that he did.
Seeking additional confirmation from Danny, the court asked him if knew
"[w]hat [would] happen if [he] d[id]n't tell the truth," and he replied that he did
not know. Yet, without further questioning from the court, Danny, drawing
upon his reply to the initial hypothetical, expressed a consequence that made
sense to him, which he provided earlier, stating, "[m]ostly I get hit." Inferring
what he meant by getting hit, the court asked him if he understood "that if [he]
d[id]n't tell the truth[,] [he] c[ould] get in trouble" and that he must answer
questions truthfully "in everything [he said]," to which he answered "Yeah."
A-4064-18 10 Based on the court's colloquy with Danny, we are satisfied with its
determination that he was competent to testify, and thus it should not be
disturbed. Without additional prompting or inquiry from the court, Danny
acknowledged that not telling the truth would result in unpleasant consequences,
which he equated with being physically disciplined. This is akin to Bueso,
where the Court upheld the trial court's competency ruling because the child
witness, five years old when the alleged sexual assault occurred and seven years
old at the time of trial, "understood that 'bad things' would follow if a lie were
told in court." Bueso, 225 N.J. at 212-213. Thus, the court here was similarly
correct that Danny was competent to testify.
As for Erick, the following colloquy occurred:
THE COURT: And do you know the difference between the truth and a lie?
[ERICK]: (No audible response)
THE COURT: You have to tell me. Do you know the difference [between] the truth and a lie?
[ERICK]: Yes.
THE COURT: What happens when you don't tell the truth?
[ERICK]: You lie.
THE COURT: And what happens when you lie?
A-4064-18 11 [ERICK]: You stay in jail.
THE COURT: You stay in jail. . . . [I]s it good to lie?
[ERICK]: No.
THE COURT: Okay. So you understand it is not good to lie, correct?
THE COURT: [I]s that a yes?
THE COURT: Okay. So you understand whatever you're telling us here today is going to be the truth, correct?
THE COURT: Is that yes?
THE COURT: You have to tell me. Can you tell me yes?
Based on Erick's unequivocal responses, he knew the difference between
telling the truth and lying. His answers were clearly articulated and
demonstrated his understanding of telling the truth without the need for leading
questions or a hypothetical to assess. See id. 225 N.J. at 212 ("Subject to the
A-4064-18 12 discretion of the trial judge, who must carefully monitor the examination to
ensure that the child's answers are his or her own, leading questions may be used
in a competency inquiry.").
In sum, under the standard of N.J.R.E. 601, there was no plain error in the
court's determination that Danny and Erick were competent witnesses. The
court properly exercised its discretion by permitting them to testify at
defendant's trial.
III
In Point II, defendant, relying on State v. R.W., 200 N.J. Super. 560 (App.
Div. 1985) and State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), argues
the trial court "repeatedly displayed partiality in the presence of the jury by
intervening in the prosecution's questioning of [Erick] and praising both
[Danny] and [Erick] at the conclusion of their testimony." The court told Erick
that "[n]o one is going to be upset with you or be mad about anything if you just
tell us what happened." Defendant asserts this suggested to the jury that Erick
would not lie. After Danny and Erick concluded their testimony, the court told
them both that they "did a great job." Defendant argues the court's praise before
the jury intimated they were truthful and, thereby, deprived him of a fair trial
warranting vacation of his convictions. Because defendant did not object to any
A-4064-18 13 of the court's comments, we must consider whether they constituted plain error.
Bunch, 180 N.J. at 541; R. 2:10-2.
Defendant's reliance on R.W. and Michaels is misplaced. In R.W., this
court reversed the defendant's convictions for aggravated sexual assault, sexual
assault, and endangering the welfare of a three-year-old child. The defendant
was granted a new trial because the trial judge "bolster[ed] and endors[ed]" the
testimony of a child regarding the defendant's misconduct when, in the presence
of the jury, he gave her ice cream for continuing her testimony, and a lollipop
and two cookies when she concluded her testimony.3 200 N.J. Super. at 565-66,
569. We reasoned that since "[t]he infant was the only eyewitness and the judge
rewarded her in the presence of the jury for narrating circumstances that were
real not pretend[,]" there was no "doubt[] that she was viewed by the jury with
great sympathy." Id. at 570. We found reversible error even though the judge
"told the jury he gave the infant the ice cream so she would continue her
testimony and he gave her the lollipop and cookies so she would leave the court
with a positive memory of her experience there." Ibid. We held the judge's
3 This argument was one of three errors raised by the defendant "of such magnitude that they go to the heart of the fact finding process making the verdict unreliable and requiring defendant to be granted a new trial." R.W., 200 N.J. Super. at 568. We determined each by "itself would require a new trial." Ibid.
A-4064-18 14 error by giving treats to the witness was not curable by instructing "the jury that
his actions should not be considered as an indication of how [he] viewed her
credibility or reliability and he was not vouching for her as a witness," stressing
"the issue of the infant's credibility was solely for determination by the jury."
Ibid.
In Michaels, the defendant was convicted on 115 counts of sexual offenses
involving twenty children who were in a daycare where she worked. 264 N.J.
Super. at 585. We concluded that "impartiality was lost" in the trial when the
judge, "in his zeal to make the children feel at ease so that their testimony might
be obtained," "played ball with the children, held them on his lap and knee at
times, whispered in their ears and had them do the same, and encouraged and
complimented them," all in view of the jury. 264 N.J. Super. at 615. We
emphasized the "the judge [needed] to be impartial in an adversary proceeding."
The situation here is a far cry from what occurred in both R.W. and
Michaels. At the conclusion of Danny's testimony, the court told him "great job
. . . buddy" and released him to go "back outside with mommy and daddy [so
he] c[ould] go home." The court also told him to "be good," "do well in school,"
and asked if he "get[s] good grades in school." Danny replied that he "already
A-4064-18 15 [had] four," to which the judge responded, "God bless you, good job, buddy."
We do not conclude the court's comments "unnecessarily endorsed in the
presence of the jury the most critical evidence in the case," the testimony of the
child witness, R.W., 200 N.J. Super. at 570, nor did its remarks "fail[] to
recognize that he could be perceived as crossing the line between an impartial
judge and the prosecution," Michaels, 264 N.J. Super. at 615. The comments
offered assurance and calm, without crossing the line to show impartially
regarding Danny's testimony. Thus, no plain error occurred.
As for Erick, we have concern about the court's comments to him. Erick
testified that there was sexual contact between defendant and his brother, but
when asked by the prosecutor "what happened with [defendant] [and] with
[him]," he could not remember. The court interjected, telling him "it's okay to
tell us. No one is going to be upset with you or be mad about anything if you
just tell us what happened." Erick repeatedly denied there was any sexual
contact with defendant, contradicting his statement to the police. While it is
understandable that a seven-year-old Erick was reticent about discussing his
sexual contact with defendant, the court's attempt to alleviate his nervousness
improperly conveyed to the jury that he was not being truthful when he testified
that nothing happened to him. Nevertheless, we find no manifest injustice in
A-4064-18 16 the court's comments. Erick was not the only witness against defendant as there
was admissible evidence in the form of the video-recorded police statements and
his mother and brother's testimony that there was sexual contact between him
and defendant. In short, the error was harmless.
IV
As noted, defendant was sentenced to two consecutive forty-years prison
terms with twenty-five years of parole ineligibility for two counts of first-degree
aggravated sexual assault. In Point III, he argues a remand for resentencing is
required because the court imposed consecutive sentences without conducting
the well-settled analysis mandated by Yarbough. He argues "several Yarbough
factors . . . would have weighed heavily in favor of running J.G.'s sentences
concurrently." His arguments have merit.
"[Our] review of sentencing decisions is relatively narrow and is governed
by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297
(2010). We consider whether the trial court has made findings of fact grounded
in "reasonably credible evidence[,]" whether the factfinder applied "correct legal
principles in exercising . . . discretion," and whether "application of the facts to
the law [has resulted in] such a clear error of judgment that it shocks the judicial
conscience." State v. Roth, 95 N.J. 334, 363-64 (1984) (citations omitted). We
A-4064-18 17 review a trial judge's findings as to aggravating and mitigating factors to
determine whether the factors are based on competent, credible evidence in the
record. Id. at 364. "To facilitate meaningful appellate review, trial judges must
explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49,
65 (2014) (citing State v. Fuentes, 217 N.J. 57, 74 (2014); R. 3:21-4(g)
[subsequently amended and now R. 3:21-4(h)] (requiring the judge to state
reasons for imposing the sentence, including the factual basis for finding
aggravating or mitigating factors affecting the sentence)).
Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple
sentences of imprisonment "for more than one offense, . . . such multiple
sentences shall run concurrently or consecutively as the court determines at the
time of sentence." A trial court must apply the following guidelines when
determining whether to impose concurrent or consecutive 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-4064-18 18 (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[.] [4]
[Yarbough, 100 N.J. at 643-44 (footnote omitted).]
The Yarbough guidelines leave "a fair degree of discretion in the
sentencing courts." State v. Carey, 168 N.J. 413, 427 (2001). "[A] sentencing
court may impose consecutive sentences even though a majority of the Yarbough
factors support concurrent sentences," id. at 427-28, but "the reasons for
4 Guideline six was superseded by a 1993 amendment to N.J.S.A. 2C:44-5(a), which provides "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." L. 1993, c. 223, § 1. A-4064-18 19 imposing either a consecutive or concurrent sentence should be separately stated
in the sentencing decision," State v. Miller, 205 N.J. 109, 129 (2011). When a
trial court imposes a consecutive sentence, "[t]he focus should be on the fairness
of the overall sentence." State v. Abdullah, 184 N.J. 497, 515 (2005) (alteration
in original) (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
At sentencing, the court did not sufficiently discuss or weigh the
Yarbough factors. In its reasoning, the court imposed consecutive sentences
because "the[re] were . . . multiple victims who [were] independently victimized
by . . . defendant. The [c]ourt also takes into consideration that the [convictions]
for which this sentence [is] being imposed are numerous as there [were] eight in
total." This does not sufficiently explain the imposition of consecutive
sentences, the overall fairness of the sentences, and the real-time consequences
of the sentences. We do not consider defendant's arguments supporting
concurrent sentences; that is the trial court's role on remand.
Affirmed in part and remanded in part for resentencing. We do not retain
jurisdiction.
A-4064-18 20