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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3549-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY BOSTIC,
Defendant-Appellant. ________________________
Submitted October 24, 2023 – Decided March 14, 2024
Before Judges Sumners, Rose and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-09- 0834.
Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the briefs).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Cody A. Dooley, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM A jury found defendant Larry Bostic guilty of five counts of fourth-degree
invasion of privacy, N.J.S.A. 2C:14-9(b)(2), and five counts of second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), relating to five
victims, N.B., G.S., A.S., K.G., and J.P., whom he employed. 1 Defendant was
later sentenced to an aggregate prison term of nine years, with parole supervision
for life, N.J.S.A. 2C:43-6.4(a).
Before us, defendant contends:
POINT I
THE DEFENDANT DID NOT HAVE A LEGAL DUTY FOR THE CARE OF HIS JUVENILE EMPLOYEES AND HAD NOT ASSUMED RESPONSIBILITY FOR THEIR CARE NECESSARY FOR ENDANGERING THE WELFARE OF A CHILD PURSUANT [TO] N.J.S.A 2C:24-4(a)(l). THE COURT SHOULD HAVE SUA SPONTE DISMISSED THE SECOND-DEGREE CHARGES. (Partially Raised Below).
POINT II
THE STATE FAILED TO PRESENT SUFFICIENT FACTS TO ESTABLISH THAT THE DEFENDANT'S CONDUCT CONSTITUTED SEXUAL CONDUCT. THE TRIAL COURT SHOULD HAVE SUA SPONTE DISMISSED THE COUNTS CHARGING ENDANGERING THE WELFARE OF CHILDREN. (Partially Raised Below).
1 We use initials to protect the confidentiality and identity of the minor victims. R. 1:38-3(c)(9). A-3549-19 2 POINT III
THE COURT GAVE ERRONEOUS AND INCONSISTENT INSTRUCTIONS TO THE JURY CONCERNING THE STATE'S BURDEN OF PROOF CREATING CONFUSION AND PLAIN ERROR. THE DEFENDANT'S CONVICTIONS MUST BE REVERSED. (Not Raised Below).
POINT IV
THE COURT ERRED IN ALLOWING IN TESTIMONY UNDER N.J.R.E. 404(b) WHICH REFERENCED PHOTOGRAPHS CONTAINED ON THE CELLPHONE THAT PREDATED THE BURGLARY IN MARCH 2017. IN THE ALTERNATIVE, EVEN IF THE TESTIMONY WAS PROPERLY ADMITTED THE COURT'S LIMITING INSTRUCTION WAS FLAWED BECAUSE IT PERMITTED THE JURY TO CONSIDER THE EVIDENCE TO ESTABLISH SEXUAL CONDUCT WHICH WAS NOT THE BASIS FOR THE EVIDENCE. THE COURT'S CHARGE IMPROPERLY REFERENCED "OTHER CRIMES" WHEN NO SUCH OTHER CRIMES WERE ESTABLISHED BY THE STATE. THE CURATIVE INSTRUCTION HAD THE EFFECT OF DIRECTING A GUILTY VERDICT.
POINT V
THROUGHOUT THE TRIAL THE STATE DISPARAGED THE DEFENDANT DEPRIVING HIM OF A FAIR TRIAL. THE PROSECUTOR'S ACTIONS CONSTITUTED PROSECUTORIAL MISCONDUCT. (Partially Raised Below).
A-3549-19 3 POINT VI
THE COURT ERRED WHEN IT RULED ADMISSIBLE INCULPATORY COMMENTS MADE BY . . . DEFENDANT IN RESPONSE TO THE DETECTIVES IN VARIOUS CUSTODIAL SETTINGS ELICITING INCULPATORY INFORMATION.
A. The Defendant's Constitutional Rights Were Violated During The Custodial Interrogation At The Ice Cream Parlor Regarding The Ownership Of The Cell[p]hone Seized.
B. The Defendant's Constitutional Rights Were Violated When The Detectives Conducted A Custodial Interrogation At Police Headquarters.
POINT VII
THE COURT IMPOSED AN EXCESSIVE SENTENCE THAT DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.
In a self-represented brief, defendant also contends that the warrant issued to
search his premises was invalid because the police allegedly altered the warrant's
execution hours.
Having considered the parties' arguments, the record, and the applicable
law, we affirm defendant's convictions for fourth-degree invasion of privacy.
We, however, reverse the convictions for second-degree endangering the
welfare of a child, and remand to the trial court to mold the convictions to lesser-
A-3549-19 4 included offenses of third-degree endangering the welfare of a child because
there was no evidence the victims were under defendant's care to sustain a
second-degree offense. On remand, the court shall resentence defendant
accordingly.
I.
In the summer of 2017, defendant, then sixty-five years old, owned an ice
cream shop in Vineland, employing the victims, knowing they were between the
ages of fourteen and fifteen. The victims worked for defendant for only a few
days or a week at most. They were compensated by splitting the sales receipts
for the shifts they worked, and were allowed to consume ice cream, snacks, and
drinks without payment.
When defendant hired some of the victims, he required them to try on
several skirts, their required work uniform, in a changing room of the ice cream
shop. After putting on the skirts, defendant made them turn around, so he could
see them from the rear. N.B. stated the skirts were so short that when they bent
over, "[y]ou would see everything" underneath, meaning her underwear. The
victims were uncomfortable wearing the skirts, so some wore shorts underneath.
However, J.P., G.S., A.S., and K.G. testified that defendant told them they were
not allowed to wear their shorts. The victims were not provided a uniform shirt
A-3549-19 5 to wear with the skirt, even though they only served customers through the
shop's window, thereby obscuring view of the skirt.
The victims were not permitted to take the skirts home. At the beginning
and end of their shifts, defendant told them to change into and out of their
clothes, insisting they use the shop's changing room instead of the bathroom.
He also insisted the victims use the changing room one at a time. The victims
noticed each time they used the changing room, defendant entered his office,
which he kept locked, and closed the door. They were not allowed to go into
his office.
The victims testified they felt uncomfortable around defendant. He stared
at them, particularly when they bent over in their skirts. Instead of calling them
by their names, defendant referred to them as "pretty" or "beautiful"; telling J.P.,
G.S., and K.G. they looked "exotic." N.B. claimed defendant touched her hand,
winked at her, and told her he "hope[d] nobody else would come into work" so
he could be with her by himself and asked her if she wanted to ride in his car.
According to G.S., defendant "always creeped us out."
One day, N.B. and J.P. suspected defendant was viewing them in the
changing room because they entered the room together while defendant "was in
his office already, and he started yelling at [them], telling [them] only one girl
A-3549-19 6 at a time" should be in the room. They "started thinking . . . how does he know
that it was two of us if he's in his room, [when he's] nowhere near us or the
fitting room?" After N.B. and her mother reported the incident to the Vineland
police, an investigation was initiated.
Two days later, the police executed a search warrant at the ice cream shop.
They confiscated defendant's cellphone from his person2 and a key to his office.
In the changing room, the police found uniform skirts and a fake thermostat on
the wall, containing a camera along with wiring that led to a VHS recording
device in defendant's office. VHS tapes revealed the camera recorded the girls
while they changed into and out of their uniform skirts. At trial, the video was
shown to the jury. The victims were unaware there was a camera in the changing
room recording them, and testified they would not have used the changing room
if they knew they were being recorded.
After defendant was arrested and Mirandized,3 he gave Vineland Police
Detective Louis Rodriguez a video-recorded statement, which was played to the
jury. Defendant admitted installing the camera in the changing room and
recording the victims while they changed. He claimed he installed the camera
2 The cellphone was a prepaid phone and not registered to defendant. 3 See Miranda v. Arizona, 384 U.S. 436(1966). A-3549-19 7 in March 2017, upon the advice of the police after the shop had been burglarized
and out of concern his employees were stealing. He also claimed he told the girls
to wear shorts underneath the skirts.
Upon examining defendant's cellphone, the police discovered still photos
of the victims, in various stages of undress, apparently reproduced from the
changing room camera footage. The photos were sometimes cropped to focus
on the girls' private parts, but the police were able to identify the victims based
upon their underwear. Similar photos––taken in the changing room before the
March 2017 burglary that defendant claimed prompted him to install the camera
and depicting different girls––were also retrieved from the cellphone, revealing
"images of intimate parts being exposed, clothed." However, the police were
not able to identify anyone from these earlier photos, and no charges were
brought based upon those earlier photos.
II.
Defendant did not move at the close of evidence to dismiss any of the
charges, R. 3:18-1, or after the verdict, R. 3:18-2, to vacate the convictions for
second-degree endangering the welfare of a child. However, he contends in
Point I, the trial court should have sua sponte dismissed the second-degree
charges or vacated the convictions on the basis that he did not have a legal duty
A-3549-19 8 for the care of the underaged victims as required by N.J.S.A. 2C:24-4(a)(1). We
agree that proof of the second-degree offenses was not sustained. But we
disagree the court was sua sponte required to vacate defendant's convictions.
Instead, the court should have molded the verdict and entered a judgment of
conviction (JOC) on the lesser-included offenses of third-degree endangering
the welfare of a child.
Endangering the welfare of a child occurs where:
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
[N.J.S.A. 2C:24-4(a)(1) (emphasis added).]
Thus, where the defendant does not " hav[e] a legal duty for the care of a child"
or has not "assumed responsibility for the care of a child," a third-degree
endangering the welfare of a child is committed if there is evidence of sexual
conduct. State v. Saad, 461 N.J. Super. 517, 523, 529-30 (App. Div. 2019)
(citation omitted).
The trial record does not indicate defendant's relationship with the victims
amounted to a legal duty of care or an assumption of responsibility for their care.
A-3549-19 9 Defendant "was [not] the parent, guardian or otherwise [stood] in loco parentis,"
State v. Hackett, 166 N.J. 66, 76-77 (2001) (italicization omitted), nor did he
"assume[] a general and ongoing responsibility for the care of the [victims],"
either through formal, legal arrangements, or through informal arrangements
like "cohabitation with the [victims'] parent," State v. Galloway, 133 N.J. 631,
661 (1993). Defendant simply had an employer-employee relationship with the
victims during the brief time they worked at his ice cream shop. The victims
never viewed him as a parent or someone who had responsibility over their care.
Defendant's relationship with the victims was unlike that of the defendant
high school baseball coach in State v. McInerney, 428 N.J. Super. 432, 443
(App. Div. 2012). In McInerney, we held the record showed the defendant's
relationship with his underaged players constituted responsibility for their care
because he "supervised . . . [them], who trusted and admired him, on a regular
and continuing basis, over extended periods of time and in matters generally
committed to a child's parents.'' Ibid. We concluded the defendant "assumed
the role of a regular and primary supervisor in matters particularly suitable for
parental oversight and wholly unrelated to performance and behavior on the
playing field." Id. at 444.
A-3549-19 10 Defendant's relationship is more like that of the defendant pediatric
surgeon in Saad, where we held the defendant had not assumed a legal duty of
care towards his underaged patients. 461 N.J. Super. at 527. We concluded the
defendant could not be charged with second-degree endangering the welfare of
a child because "[w]hile [the defendant] had a professional obligation to provide
appropriate medical treatment to his patients, an obligation he utterly violated if
the State's allegations [were] proven true [at trial], [the] defendant did not
assume a general and ongoing responsibility for their care within the meaning
of N.J.S.A. 2C:24-4(a)(1)." Ibid.
The State's position that defendant had a legal duty of care towards the
victims to qualify his conduct as second-degree endangering the welfare of a
child does not hold water. The State argues defendant had a "legal duty" or
"assumed responsibility" with respect to the victims under N.J.S.A. 2C:24-
4(a)(1) because: defendant had supervisory authority over them as their
employer; the victims trusted defendant enough to follow his directions as to
"how, when, and where to change" and to consume the shop's food and drink;
the victims depended on defendant for their wages; and defendant obtained
permission from the victims' parents for them to work at his shop. Defendant's
position, as the victims' employer, was far from the relationship needed to
A-3549-19 11 establish second-degree endangering the welfare of a child. There is no
evidence he was more than the person who hired and supervised the victims
during the hours they worked. There is no evidence the victims looked to
defendant to care for their welfare beyond their duties at the ice cream shop. To
hold otherwise would undermine the legislative goal of imposing harsher
penalties for individuals who have assumed responsibility for the care of a child
due to "the profound effect on the child when the harm is inflicted by a parental
figure in whom the child trusts." Galloway, 133 N.J. at 661. Because there was
no trusting relationship between the victims and defendant, the convictions for
second-degree endangering the welfare of a child should be vacated.
Defendant's conduct, however, constituted the lesser-included offense of
third-degree endangering the welfare of a child because he "engage[d] in sexual
conduct which would impair or debauch the morals of the child." N.J.S.A.
2C:24-4(a)(1). Defendant's JOC should be amended to reflect convictions for
five counts of third-degree endangering the welfare of a child because: (1)
defendant was afforded his right to trial; (2) other than the duty element of
second-degree child endangerment, all other elements of the third-degree and
second-degree offenses are the same; (3) defendant's guilt of the lesser-included
A-3549-19 12 offense is implicit in, and part of, the jury verdict; 4 and (4) we discern no undue
prejudice to defendant. State v. R.P., 223 N.J. 521, 528 (2015); see also N.J.S.A.
2C:1-8(d)(1). We therefore remand for the trial court to amend the JOC, mold
the verdict to reflect convictions for five counts of third-degree endangering the
welfare of a child, and resentence defendant accordingly.
III.
In Point II, defendant argues the State failed to prove his conduct
constituted "sexual conduct which would impair or debauch the morals of the
child" to sustain a conviction of either second- or third-degree endangering the
welfare of a child. N.J.S.A. 2C:24-4(a)(1). He maintains his behavior was not
"sexual conduct" as there was no evidence he intended to act on the photographs
or share them with the victims or anyone else. In addition, defendant asserts
that referring to the victims as "pretty" or "exotic" and touching N.B.'s hand and
offering to take her on a ride in his car was not sexual conduct. We disagree.
Sexual conduct is not defined in N.J.S.A. 2C:24-4(a)(1). State in re D.M.,
238 N.J. 2, 18 (2019). Still, our case law has identified situations which
constitute sexual conduct. The phrase "clearly include[s] sexual assaults and
4 The jury was charged on both the second-degree offense and the lesser- included third-degree offense. A-3549-19 13 sexual contact[.]" State v. Perez, 177 N.J. 540, 553 (2003) (second alteration in
original) (quoting State v. Perez, 349 N.J. Super. 145, 153 (App. Div. 2002)).
In addition, sexual conduct has been interpreted to criminalize a behavior that is
neither a sexual assault nor sexual contact, such as a defendant: masturbating
in public, State v. Zeidell, 154 N.J. 417, 434-35 (1998); being nude in a window
where the defendant could be seen by children, State v. Hackett, 323 N.J. Super.
460, 472 (App. Div. 1999), aff'd as modified, 166 N.J. 66 (2001); offering to
pay children to report their sexual activities, McInerney, 428 N.J. Super. at 451;
engaging in a telephone conversation with children about their private parts, oral
sex, and other similar topics, State v. Maxwell, 361 N.J. Super. 502, 517-18
(Law Div. 2001), aff'd o.b., 361 N.J. Super. 401 (App. Div. 2003); asking a child
to send a photo of her breasts, State v. Johnson, 460 N.J. Super. 481, 499 (Law
Div. 2019); flashing private parts to children, State v. South, 136 N.J. Super.
402, 405, 410 (App. Div. 1975) (affirming the defendant's conviction for the
now-repealed offense of "impairing the morals of a minor"); showing nude
photos to a child, State v. White, 105 N.J. Super. 234, 237 (App. Div. 1969)
(same). These cases involve situations in which the defendants solicited
children to view or engage in some sexual conduct or put themselves in a
position knowing children could view their sexual conduct.
A-3549-19 14 Moreover, sexual conduct has been found based on the defendant's intent
to lure a child to ride in his car. See Perez, 177 N.J. at 553-56. In Perez, the
Court held there was sufficient evidence to prove attempted endangering the
welfare of a child where the defendant had tried to lure the child victim into his
vehicle by twice asking her if she wanted a ride, and later admitted to the police
his reason for doing so was his physical attraction to the child. Id.
While none of these non-sexual assault or non-sexual contact situations
occurred here, the facts were sufficient to permit a reasonable jury to conclude
defendant's actions towards the victims constituted "sexual conduct which
would impair or debauch the morals" under N.J.S.A. 2C:24-4(a)(1). Defendant
required the victims to model skirts for him as part of his job interviewing
process and to wear the skirts as work uniforms without wearing shorts
underneath even though the skirts were so short that their underwear and
buttocks showed whenever they leaned over. Defendant directed the victims to
change into and out of the skirts, only one-at-a-time, and exclusively in the
changing room of the ice cream shop. While changing, he would watch the
victims via a video camera hidden in a fake thermostat in the changing room.
He would also take cellphone pictures of the recordings. Further, the victims
felt defendant was "creepy" because he persistently refrained from using their
A-3549-19 15 names and instead referred to them as "beautiful" or "exotic." He also touched
N.B.'s hand and asked N.B. to take a ride with him in his car. Lastly, defendant's
statement to the police that he installed the hidden camera in the changing room
after the March 2017 burglary was proven false by the existence of similar
photos taken prior to March 2017.
The jury was properly instructed to determine whether the sexual conduct
element of endangering the welfare of a child prescribed by N.J.S.A. 2C:24-
4(a)(1) was proven by the State beyond a reasonable doubt. And they could
reasonably glean from the facts that defendant's purpose was to view, record,
and maintain the recordings for his sexual gratification. Given the court's
instructions and the victims' testimony, the jury could reasonably find
defendant's conduct was sexual and would impair or debauch the morals of the
victims. Hence, there is no merit in defendant's assertion that his actions
towards the victims did not constitute endangering the welfare of a child.
IV.
In Point III, defendant contends for the first time on appeal that his
convictions should be vacated because the jury instructions caused confusion
regarding the State's burden of proof. He points only to the trial court's
instruction on invasion of privacy that: "If you find that the State has failed to
A-3549-19 16 prove each element beyond a reasonable doubt, then you must find . . . defendant
not guilty." Defendant claims the language is erroneous because the court
instructed the jury that it must find reasonable doubt as to all elements of
invasion of privacy to find him not guilty.
Considering the instructions "as a whole," State v. A.L.A., 251 N.J. 580,
591 (2022), we conclude the court properly instructed the jury that the State bore
the burden of proof beyond a reasonable doubt as to each element of each crime
charged. We therefore discern no error, let alone plain error. R. 2:10-2 Thus,
defendant's challenge to the jury instructions is without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
In Point IV, defendant contends "the court erred in allowing in testimony
under N.J.R.E. 404(b), which referenced photographs contained on the
cellphone that predated the burglary in March 2017." Alternatively, he contends
the court erred in its limiting instruction concerning the evidence. He claims
the instruction "[effectively] direct[ed] a guilty verdict" because: (1) it
"permitted the jury to consider the evidence to establish sexual conduct when
the original purpose for the evidence was to refute . . . defendant's claim that he
placed the hidden camera in the changing area at the instruction of the police[,]
A-3549-19 17 . . . demonstrat[ing] knowledge, preparation and motive"; and (2) "the court's
charge improperly referenced 'other crimes' when no such crimes were
established" by the State. We are unpersuaded.
An appellate court gives "great deference" to "a trial judge's determination
on the admissibility of 'other bad conduct' evidence." State v. Goodman, 415
N.J. Super. 210, 228 (App. Div. 2010) (citing State v. Foglia, 415 N.J. Super.
106, 122 (App. Div. 2010)). In evaluating a trial court's evidentiary decision,
we apply an abuse of discretion standard; there must be a "clear error of
judgment" to overturn the trial court's determination. State v. Castagna, 400
N.J. Super. 164, 182-83 (App. Div. 2008) (quoting State v. DiFrisco, 137 N.J.
434, 496 (1994)).
N.J.R.E. 404(b)(2) provides that evidence of other crimes or bad acts is
generally not admissible unless used for "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." The concern in
admitting evidence of other crimes is that "the jury may convict the defendant
because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336
(1992) (internal quotation marks omitted). "[O]ther crimes evidence may be
admissible if offered for any non-propensity purpose, [including] the need to
A-3549-19 18 provide necessary background information about the relationships among the
players" involved. State v. Rose, 206 N.J. 141, 180-81 (2011) (alteration in
original) (emphasis, internal quotation marks, and citations omitted). The
evidence is not required to prove or disprove a fact at issue but need only support
a desired inference. State v. Swint, 328 N.J. Super. 236, 252-53 (App. Div.
2000).
In Cofield, our Supreme Court set forth a four-pronged test to govern the
admission of such evidence:
1. The evidence of the other crime must be admissible as relevant 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.
[127 N.J. at 338 (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)).]
See also State v. Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the Cofield
test). Our Supreme Court has also explained that the second Cofield prong "need
A-3549-19 19 not receive universal application in [N.J.R.E.] 404(b) disputes." State v.
Williams, 190 N.J. 114, 131 (2007).
Once N.J.R.E. 404(b) evidence is found admissible, "the court must
instruct the jury on the limited use of the evidence." Cofield, 127 N.J. at 340-
41. "[T]he court's instruction 'should be formulated carefully to explain
precisely the permitted and prohibited purposes of the evidence, with sufficient
reference to the factual context of the case to enable the jury to comprehend and
appreciate the fine distinction to which it is required to adhere.'" Id. at 341
(quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
Here, after conducting an N.J.R.E. 104 hearing, the court reserved
decision and thereafter issued an oral decision barring admission of the photos.
However, in applying the Cofield factors and given the limiting instruction to
the jury, the court ruled the investigating police officer could testify that there
were photos found on defendant's cellphone depicting young girls in the ice
cream shop's changing room before March 2017—similar to the photos of the
victims. The court ruled that N.J.R.E. 404(b) testimony was admitted to show
defendant's "plan," "preparation," "intent," "motive," "absence of mistake," and
"the fact that he indicated that he only put the camera in there following the
burglary."
A-3549-19 20 Based on the State's evidence, the court, mirroring the model jury
charges,5 instructed the jury:
[T]he [S]tate[] introduced evidence that law enforcement discovered other photos on . . . defendant's cell[ ]phone which were similar to those which have been introduced into evidence before today, which predate the date alleged in the [i]ndictment and, also, predated [the] March 24, 2017 burglary, as indicated by . . . defendant during his statement.
Now, normally, such evidence is not permitted under our Rules of Evidence. Our Rules, specifically, exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or a tendency to do wrong and, therefore, must be guilty of the charged offenses.
Before you can give any weight to this evidence, you must be satisfied that . . . defendant committed the other wrongs, crimes[,] or acts. If you're not so satisfied you may not consider it for any purpose.
However, our Rules do permit evidence of other crimes, wrongs, or acts when the evidence is used for certain specific narrow purposes, such as, to establish or demonstrate motive, opportunity, intent, preparation, planned knowledge, absence of mistake or accident. In this case, the State is going to be required to establish that . . . defendant was not licensed or privileged to photograph or videotape the undergarment clad intimate parts of the [victims] with regard to the charges involving invasion of privacy in the Indictment.
5 Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts (N.J.R.E. 404(b))" (rev. Sept. 12, 2016). A-3549-19 21 In addition, the State is going to be required to establish that defendant engaged in sexual conduct which would impair or debauch the morals of a child.
You may consider the testimony of the [d]etective for the limited purposes of the State's requirement to establish that he was not licensed or privileged to photograph or videotape the children.
Furthermore, you may consider the testimony in support of the State's requirement to establish that the purpose of . . . defendant's conduct was to engage in sexual conduct.
Whether this evidence does, in fact, demonstrate the limited purposes for which the evidence is offered is for you to decide. You may decide that the evidence does not demonstrate those purposes and is not helpful to you, at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate those purposes and use it for that specific purpose.
However, you may not use this evidence to decide that . . . defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because . . . defendant has committed other crimes, wrongs[,] or acts that he must be guilty of the present crimes.
I've admitted the evidence only to help you decide the specific question of whether . . . defendant was licensed or privileged to photograph or videotape the [victims] and whether this purpose constitutes sexual conduct which would impair or debauch the morals of the [victims]. You may not consider it for any other purpose and may not find . . . defendant guilty
A-3549-19 22 now, simply, because the State has offered evidence that he committed the other crimes, wrongs[,] or acts.
In its final instructions, the court repeated virtually word-for-word, the 404(b)
limiting instruction issued after the officer's testimony.
Contrary to defendant's contention, the court fully complied with its
obligations. The court correctly found the evidence satisfied the Cofield test.
The evidence was: relevant to prove the criminal charges and to rebut the
defense; similar in kind and reasonably close in time to the offenses charged;
clear and convincing; considered for its probative value versus its apparent
prejudice; and sanitized by allowing only testimony about the photos, without
admitting the photos in evidence. Finally, the court issued limiting instructions
at the time the evidence was admitted and in the final charge, directing the jury
how it must consider the evidence.
In conclusion, admission of the testimony of the pre-March 2017 photos
served two purposes consistent with N.J.R.E. 404(b). It impeached defendant's
statement to the police justifying the hidden camera installation for an innocuous
reason. It tended to establish the sexual nature of defendant's conduct, that is,
the sexual nature of his plan, motive, or intent in filming and photographing the
victims as they changed into and out of their uniforms. Moreover, the probative
value of the cellphone photos outweighed their potential prejudice.
A-3549-19 23 VI.
In Point V, defendant contends he was deprived of a fair trial due to the
prosecutor's misconduct: (1) referring to him as "a wolf in sheep's clothing" and
"predator" in the opening and closing statements; (2) eliciting testimony from
investigating Vineland Police Detective Charles Mackafee that defendant
exhibited "offender type control [and] wants to control everything"; and (3)
eliciting testimony from Rodriguez that defendant had not provided "truthful"
information about when he installed the hidden camera. Defendant claims these
errors warrant a new trial.
A.
To warrant a new trial for prosecutorial misconduct, the conduct must
have been "'clearly and unmistakably improper,' and substantially prejudiced
defendant's fundamental right to have a jury fairly evaluate the merits of his
defense." State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v.
Timmendequas, 161 N.J. 515, 575 (1999)). We must assess "the severity of the
misconduct and its prejudicial effect on the defendant's right to a fair trial."
Timmendequas, 161 N.J. at 575. In doing so, "we consider the tenor of the trial
and the responsiveness of counsel and the court to the improprieties when they
A-3549-19 24 occurred." Ibid. (citing State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.
1997)).
"Prosecutors 'are afforded considerable leeway in making opening
statements and summations,'" State v. Echols, 199 N.J. 344, 359-60 (2009)
(quoting State v. Williams, 113 N.J. 393, 447 (1988)), and "are expected to make
vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76,
82 (1999). Nonetheless, a prosecutor's "summation is limited to commenting
upon the evidence and the reasonable inferences to be drawn therefrom." Swint,
328 N.J. Super. at 261 (citing State v. Feaster, 156 N.J. 1, 58-59 (1998)).
In evaluating claims of prosecutorial misconduct, we examine: "(1)
whether defense counsel made timely and proper objections to the improper
remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the
court ordered the remarks stricken from the record and instructed the jur y to
disregard them." Frost, 158 N.J. at 83 (collecting cases). If no objections to the
remarks were made at trial, they generally will not be deemed prejudicial. Ibid.
The failure to object to such remarks "also deprives the court of an opportunity
to take curative action." Id. at 84.
Without an objection, the defendant must establish the prosecutor's
conduct constitutes plain error, State v. Feal, 194 N.J. 293, 312 (2008), meaning
A-3549-19 25 we must determine if there was an error that was "clearly capable of producing
an unjust result," R. 2:10-2. Reversal is required if the error is "sufficient to
raise a reasonable doubt as to whether [it] led the jury to a result it other wise
might not have reached." State v. Green, 447 N.J. Super. 317, 325 (App. Div.
2016) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
B.
In her opening, the prosecutor briefly remarked that defendant was "a wolf
in sheep's clothing," meaning "a dangerous person who is pretending to be
harmless." In closing, the prosecutor commented that defendant was "a wolf in
sheep's clothing, a predator," explaining he "preyed upon five unsuspecting
teenage girls who were excited and happy for the opportunity to have their first
jobs and make money for themselves," and "[w]hat they got instead was . . .
defendant, an employer who was driven by his own sexual gratification."
Because defendant did not object to these opening and closing remarks, we
review for plain error. We find none.
The opening comments were more appropriate for closing because "[t]he
fundamental purpose of opening statements is 'to do no more than in form the
jury in a general way of the nature of the action and the basic factual hypothesis
projected, so that they may be better prepared to understand the evidence."
A-3549-19 26 Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 177-78 (App. Div. 2010)
(emphasis added) (quoting Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div.
1985)) (internal quotation marks omitted); see also Echols, 199 N.J. at 360
("prosecutors should limit comments in the opening to the 'facts [they] intend[ ]
in good faith to prove by competent evidence,'"(alterations in original) (quoting
State v. Hipplewith, 33 N.J. 300, 309 (1960))).
Here, the prosecutor's comments were essentially an editorial view of the
facts sought to be proven. Nonetheless, the fleeting reference did not infect the
trial by prejudicing defendant before the jury. Moreover, then and at closing,
the prosecutor explained the characterization was grounded in evidence to
discredit defendant's explanations for his behavior.
While the prosecutor's wolf imagery and predator accusations were
evocative, they did not constitute an ad hominem attack on the defense and were
not unfairly prejudicial. Other jurisdictions have rejected similar contentions of
prosecutorial misconduct. State v. Goudeau, 372 P.3d 945, 989-90 (Ariz. 2016)
(finding harmless error in "wolf in sheep's clothing" remark made in opening
statement and in summation); State v. Beasley, 108 N.E.3d 1028, 1053-54 (Ohio
2018) (finding no error in "wolf in sheep's clothing" opening statement "to make
the point that [the defendant] lured his victims by pretending to offer them jobs,
A-3549-19 27 which constitutes 'fair comment' on the evidence"); People v. Ivory, 776 N.E.2d
763, 772-73 (Ill. App. Ct. 2002) (finding "wolf in sheep's clothing" remark,
made in summation, to be improper but not warranting reversal).
Defendant's method of employing the young teen victims, requiring them
to wear skimpy skirt uniforms, and change into the skirts in a room under the
view of a secreted camera supports the prosecutor's characterization of
defendant's conduct. The comments fell within the wide latitude accorded the
prosecutor in summation and did not substantially prejudice defendant's
fundamental right to have a jury fairly assess his case. They do not warrant a
new trial.
C.
While testifying about defendant's post-arrest statement, the prosecutor
asked Mackafee about his post-arrest interview interactions with defendant. In
responding to why he allowed defendant, without interruption, to do most of the
talking, Mackafee responded: "Because that's the psychological profile of
[defendant]." When the prosecutor asked, "what do you mean by that?"
Mackafee responded: "His offender type control – wants to control everything."
The court did not respond to defendant's objection.
A-3549-19 28 Mackafee's reference to defendant's "offender type" was problematic to
the extent that it implied defendant's guilt. See State v. Trinidad, 241 N.J. 425,
444-47 (2020); State v. Frisby, 174 N.J. 583, 593-94 (2002). However, the
incident was so insignificant in light of the entire trial record that defendant was
not deprived of a fair trial based upon this one piece of testimony.
D.
Rodriguez testified that defendant claimed he installed the hidden camera
after a March 2017 burglary, but the detectives found photos on defendant's
cellphone predating the burglary. In response to the prosecutor's questions
regarding the truthfulness of defendant's statement about when he installed the
camera, Rodriguez indicated the statement was not true, with no objection from
defendant. The prosecutor then asked Rodriguez to explain "why," to which
Rodriguez pointed to the cellphone images taken before March 2017.
Ordinarily, police officers testifying as fact witnesses in criminal cases
are not permitted to offer their opinions with respect to defendants' guilt or
innocence. See State v. Frisby, 174 N.J. 583, 593-94 (2002). More generally,
our Supreme Court has noted a witness is not permitted to express an opinion
about another witness's credibility. Id. at 595-96; cf. State v. Kemp, 195 N.J.
136, 156-57 (2008) (finding the police officer's opinion about the defendant's
A-3549-19 29 truthfulness during his confession did not rise to the level of plain error on the
grounds that the defendant elicited the opinion during cross-examination,
defendant's concern was not the officer's opinion of his truthfulness but rather
the basis for the officer's belief, and because the officer did not express an
opinion as to the defendant's guilt).
Like Kemp, the officer here did not express an opinion about defendant's
ultimate guilt. Rather, Rodriguez's testimony regarding the truthfulness of
defendant's statement about when he installed the hidden camera was consistent
with the court's N.J.R.E. 404(b) ruling. The prosecutor's examination restricted
the detective's testimony to establish the limited basis for the jury's
consideration of the pre-March 2017 photos found on defendant's cellphone.
Pointing out that defendant was untruthful was relevant to establishing
defendant's guilt of the crimes charged and to impeaching his statement
regarding why and when he installed the hidden camera.
Consistent with the model jury charge, during its final instructions, the
court informed the jurors: "[A]s judges of the facts you are to determine the
credibility of the various witnesses, as well as the weight to be attached to their
testimony. You, and you alone, are the sole and exclusive judges of the
evidence, of the credibility of the witnesses, and the weight to be attached to
A-3549-19 30 the testimony of each witness." See Model Jury Charges (Criminal), "Criminal
Final Charge" (rev. Sept. 1, 2022).
In sum, the photos taken prior to the March 2017 burglary clearly
contradicted defendant's statement, and as with all testimony adduced at trial,
the jury was free to accept or reject Rodriguez's brief exchange with the
prosecutor concerning defendant's truthfulness, which did not draw an objection.
No unjust result occurred, causing the jury to reach a guilty verdict that it
otherwise might not have rendered.
VII.
In Point VI, defendant contends his inculpatory comments to the
detectives during the custodial setting should not have been admitted.
Specifically, he argues the court erred because his statements: (1) to Mackafee
during the search warrant execution that the cellphone seized from his person
belonged to him were inadmissible given the failure to issue Miranda6 warning
as he was "functionally under arrest"; and (2) to detectives at headquarters
because police left him alone for thirty-eight minutes before questioning him
after issuing his Miranda rights.
6 Miranda v. Arizona, 384 U.S. 436 (1966).
A-3549-19 31 A.
"The right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, [Rule] 503." State
v. S.S., 229 N.J. 360, 381-82 (2017) (quoting State v. Nyhammer, 197 N.J. 383,
399 (2009)). "The administration of Miranda warnings ensures that a
defendant's right against self-incrimination is protected in the inherently
coercive atmosphere of custodial interrogation." State v. A.M., 237 N.J. 384,
397 (2019). To that end, a person subject to custodial interrogation "must be
adequately and effectively apprised of [their] rights." Nyhammer, 197 N.J. at
400 (quoting Miranda, 384 U.S. at 467).
Before any evidence acquired through a custodial interrogation can be
used against a defendant, "[t]he burden is on the prosecution to demonstrate not
only that the individual was informed of [their] rights, but also that [they] . . .
knowingly, voluntarily, and intelligently waived those rights." Id. at 400-01.
Thus, "the State shoulders the burden of proving . . . that a defendant's
confession was actually volunteered and that the police did not overbear the will
of the defendant." State v. Hreha, 217 N.J. 368, 383 (2014). In turn, the trial
court must determine whether the State has satisfied its heavy burden by proof
A-3549-19 32 "beyond a reasonable doubt," State v. Yohnnson, 204 N.J. 43, 59 (2010)
(alteration in original) (quoting State v. Presha, 163 N.J. 304, 313 (2000)), based
upon the "totality of the circumstances," Nyhammer, 197 N.J. at 405.
A "totality-of-the-circumstances analysis" requires the court to "consider
such factors as the defendant's 'age, education and intelligence, advice as to
constitutional rights, length of detention, whether the questioning was rep eated
and prolonged in nature and whether physical punishment or mental exhaustion
was involved.'" Id. at 402 (quoting Presha, 163 N.J. at 313). While an
investigator's "manipulative or coercive" statements may deprive a defendant
"of his ability to make an unconstrained, autonomous decision to confess[,]"
State v. Di Frisco, 118 N.J. 253, 257 (1990), "[e]fforts by a law enforcement
officer to persuade a suspect to talk 'are proper as long as the will of the suspect
is not overborne,'" State v. Maltese, 222 N.J. 525, 544 (2015) (citation omitted).
"Generally, on appellate review, a trial court's factual findings in support
of granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" S.S., 229 N.J. at
374 (quoting State v. Gamble, 218 N.J. 412, 424 (2014)); see, e.g., State v.
Dorff, 468 N.J. Super. 633, 643-44 (App. Div. 2021). This court must "accept
the trial court's factual findings unless they are not supported by sufficient
A-3549-19 33 credible evidence in the record." Dorff, 468 N.J. Super. at 644. "In contrast,
we review the trial court's legal conclusions de novo." Ibid. "Accordingly, [this
court] [is] not bound by a trial court's interpretations of the legal consequences
that flow from established facts." Ibid.
Moreover, "a trial court's factual findings should not be overturned merely
because an appellate court disagrees with the inferences drawn and the evidence
accepted by the trial court or because it would have reached a different
conclusion." S.S., 229 N.J. at 374. Indeed, "[a]n appellate court should not
disturb a trial court's factual findings unless those findings are 'so clearly
mistaken that the interests of justice demand intervention and correction.'" Ibid.
(quoting Gamble, 218 N.J. at 425). This deferential standard of appellate review
also applies to the trial court's "factual findings based on a video recording or
documentary evidence." Id. at 381.
At a Miranda hearing, the trial court reviewed defendant's video-recorded
statement and heard testimony from Mackafee. The court was made aware that
prior to giving his statement, defendant was left alone in an interrogation room
for thirty-eight minutes. After Mackafee entered the room and inquired about
defendant's health, defendant interrupted, asking "Can I say something?"
A-3549-19 34 Defendant began telling Mackafee that he had installed cameras after a burglary
at his shop four or five months earlier. Mackafee interrupted defendant and
advised him of his Miranda rights. Before defendant initialed the Miranda
acknowledgment and waiver form, he continued speaking about the cameras he
installed. As soon as he finished initialing the form, defendant asked, "Can I
continue?" to which Mackafee responded, "Yes, sir." Defendant then admitted
installing the camera in the changing room, observing the victims change into
and out of their uniform skirts, and recording it. He insisted the camera was
installed only after the March 2017 burglary to catch anyone stealing from him.
As for the execution of a search warrant at defendant's premises, Mackafee
responded to the prosecutor's direct examination as follows:
Q. Detective, you executed the search warrant at the Cool Breeze Ice Cream Parlor, correct?
A. Yes, sir. Q. And as a result of that – well, first of all, when you and your fellow officers arrived to execute the warrant, [defendant] wasn't free to leave, is that correct.
A. That's correct. Q. And at some point, you arrested [defendant] and took him back to the police headquarters for questioning and processing, is that correct?
A. Yes.
A-3549-19 35 Q. And according to your report, when you arrested [defendant], you found a cellphone on him, is that correct?
A. Yes, sir.
Q. And you asked him if it was his, is that correct?
Q. And then you seized that phone, is that correct.
Thereafter, Mackafee stated defendant was not arrested "on the scene,"
but was charged and arrested after he gave his recorded statement at the police
station. The most reasonable understanding of Mackafee's somewhat
contradictory testimony is that the police arrested defendant at the scene after
executing the search warrant and discovering the hidden camera and recording
equipment. However, defendant was not formally charged with any crime until
after the police took his recorded statement at the police station.
Nevertheless, after hearing the parties' arguments, the court issued a bench
decision denying defendant's motion to suppress his statement, admitting the
statement subject to certain redactions. The court found the State had proven
beyond a reasonable doubt that defendant was advised of his rights, and that he
knowingly, intelligently, and voluntarily waived them without any indication his
A-3549-19 36 statement was made due to coercion, official misconduct, or mental or physical
impairment.
The court further held that defendant's post-arrest statement to the police
at the ice cream parlor, identifying the seized cellphone as his, was admissible
because the police seized the cellphone pursuant to a search warrant; Mackafee's
question to defendant if the cellphone found on him, "was not meant to elicit an
incriminating response"; and defendant's admission that the cellphone was his
was not criminal in nature.
We see no reason to disturb the court's admission of defendant's recorded
statement based on his assertion it was involuntarily given because the
detectives had him wait alone in the interrogation room for thirty-eight minutes
before being questioned. There is no indication defendant was physically or
mentally uncomfortable or exhausted. Defendant also cites no case law to
support this argument.
Defendant's statement at the time of arrest, however, is disconcerting.
The search warrant permitted a search of defendant's premises and to seize and
search his cellphone but not his person. Thus, absent some exception, the
warrant requirement applies. See State v. Bivins, 226 N.J. 1, 16 (2016).
Defendant was not free to leave while the search warrant was executed. See
A-3549-19 37 Bailey v. United States, 568 U.S. 186, 199 (2013); Michigan v. Summers, 452
U.S. 692, 705 (1981). Mackafee testified that although he placed defendant
under arrest after the execution of the search warrant, there were no formal
charges brought against defendant until after he gave his recorded statement at
the police station.
In a lawful search incident to defendant's arrest, Mackafee discovered a
cellphone on defendant's body. See State v. Minitee, 210 N.J. 307, 318 (2012)
("When the police place an individual under arrest, they may search his person
and the area within his immediate grasp."). Mackafee seized the cellphone and
asked defendant if the cellphone belonged to him, and defendant responded that
it did.
Once defendant was arrested, Mackafee was required to issue Miranda
warnings before any interrogation commenced. State v. O.D.A.-C., 250 N.J.
408, 412, 420 (2022). But the record indicates defendant was not read his
Miranda rights until he was later questioned at the police station. Hence,
Mackafee's asking defendant if the seized cellphone was defendant's and
defendant's admission that it was violated defendant's Miranda rights because
the cellphone was believed to contain incriminating information. See Rhode
Island v. Innis, 446 U.S. 291, 301 (1980) (questioning by police that is
A-3549-19 38 "reasonably likely to elicit an incriminating response from the suspect"
constitutes an interrogation under Miranda). Indeed, defendant's admission was
used at trial to establish the cellphone was his.
We thus conclude the court mistakenly applied its discretion in admitting
defendant's statement concerning the cellphone. However, this error was
harmless because even without his statement, the overwhelming evidence
established the cellphone belonged to defendant. Not only was defendant's
cellphone seized from his person, but it also contained text messages to and from
him, including with the victims, identifying him by name, and photos taken from
the video recordings found in his office, which he kept locked with a key seized
from him. Indeed, there was overwhelming evidence of defendant's guilt
independent of any evidence found on the phone: the seizure of the hidden
camera, the camera's recordings, and the victims' testimony. See State v. Tillery,
238 N.J. 293, 302 (2019).
VIII.
We do not address defendant's excessive sentence argument because, as
noted, we vacate the convictions for five counts of second-degree endangering
the welfare of a child and remand to the trial court to mold the jury's verdict to
A-3549-19 39 convict defendant of five counts of third-degree endangering the welfare of a
child. Defendant may raise this argument if after remand he appeals.
IX.
In his self-represented brief, defendant argues that the warrant to search
his premises was invalid because the Vineland police allegedly altered the hours
when the warrant could be executed. We denied defendant's ensuing motion for
a limited remand to develop the record.
Before the trial court, defendant, through counsel, moved to suppress
evidence obtained pursuant to the search warrant. R. 3:5-7. However, the record
does not indicate defendant's current argument was raised before the trial court.
Accordingly, defendant waived any right to assert this argument on direct
appeal. R. 3:5-7(f); State v. Robinson, 200 N.J. 1, 18-22 (2009).
To the extent we have not specifically addressed any of defendant's
arguments, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
A-3549-19 40