STATE OF NEW JERSEY VS. J.H. (15-07-0353, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 15, 2019
• Docket: A-5275-16T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5275-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.H.,

Defendant-Appellant. _____________________________

Submitted February 25, 2019 – Decided July 15, 2019

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 15-07-0353.

Joseph E. Krakora, Public Defender, attorney for appellant (Lauren Stephanie Michaels, Assistant Deputy Public Defender, of counsel and on the briefs).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly A. Shelton, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM Tried before a jury, defendant J.H.1 was convicted of third-degree

endangering the welfare of a child – sexual conduct by a non-caregiver, N.J.S.A.

2C:24-4(a)(1), for masturbating on his front porch in view of a fourteen-year-

old boy walking home from school. Defendant contends for the first time on

appeal that he was deprived of due process and a fair trial because the State

relied upon the inadmissible lay opinion testimony of a police detective who

identified defendant in a video recorded by defendant's home surveillance

camera system as the man depicted masturbating on the same porch minutes

after the victim's observation. Defendant also contends the trial judge erred in

sentencing him to a five-year term at the Adult and Diagnostic Treatment Center

by misapplying the aggravating and mitigating factors. In a pro se supplemental

brief, defendant contends the victim lied, his surveillance system should not

have been seized, and his attorney was ineffective. Because we conclude that

admission of the detective's testimony was not plain error, defendant's sentence

was consistent with our sentencing guidelines, and the pro se arguments are

without merit, we affirm.

1 We use initials to identify defendant and others to protect the identities of the victims. See R. 1:38-3(c)(9), (12). A-5275-16T3 2 I

We briefly summarize the trial testimony that is relevant to the issues

before us. M.F. testified that at approximately 3:20 p.m. on February 26, 2015,

he was walking home from school when he saw a naked man masturbating while

standing on the front porch of a house located across the alleyway from M.F.'s

home. M.F., a fourteen-year old middle school student at the time and sixteen

at the time of trial, was one hundred percent certain the man was masturbating.

M.F. went into his home when the man gestured to him to come over to the man's

porch.

When M.F. got in the house, he told his mother, stepfather, siblings, and

J.P., a family friend who lived with M.F.'s family, about the man's behavior. J.P

testified M.F. appeared to be "a little bit shocked, not overly disheveled but

surprised." Estimating it was around 3:30 p.m., J.P. went outside and saw "a

man's head kind of bob in and out of the [front] doorway" and he "occasionally

heard, 'suck it.'" J.P. also claimed the man was masturbating while standing in

the doorframe, and then retreated inside the house after stepping onto the porch

to urinate by his door. M.F. never went back out, so he did not observe anything

that J.P. allegedly saw. Neither M.F. nor J.P. identified the man in- or out-of-

court.

A-5275-16T3 3 Assisting another officer, Phillipsburg Police Lieutenant John Maczko,

went to defendant's house due to a call to the police. When he went inside the

house, he noticed a surveillance camera mounted on the wall of defendant's

living room pointing towards the door. He advised the Warren County

Prosecutor's Office of the surveillance camera.

Warren County Prosecutor's Office Detective Melissa Fehr was

subsequently assigned to investigate the matter and obtained a search warrant to

confiscate the surveillance camera system reportedly seen in defendants' home

by Lt. Maczko. Accompanied by Phillipsburg police officers, she then went to

defendant's home eight days after the reported offense to confiscate the

surveillance camera system. Observing that the system was operational and its

date and time settings were accurate, the detective seized it along with a DVR

system that was connected to it. She later analyzed the recordings on the system

and burned a portion of them on a DVD.

The jury was shown the DVD, which covered the time, 3:31p.m. to 3:54

p.m., that related to the reports and J.P.2 Defense counsel stated he had no

2 There is no indication in the record as to why the jury was not shown a recording from defendant's surveillance system during the time – around 3:20 p.m. – when M.P. observed a man masturbating

A-5275-16T3 4 objection to the DVD being admitted into evidence and being played to the jury

with Detective Fehr's narration. 3 The video did not have any audio. At 3:31

p.m. on the recording, a naked man viewed solely with his back to the camera

without his face visible – due to the camera's positioning – cracked open a door.

The man, leaning down to look outside while standing in the doorway,

apparently touched his genitals and then closed the door again; this took place

several times. He also sat down and looked out a window. M.F.'s house was to

the right of defendant's front door. Without objection from the defense,

Detective Fehr narrated the man's actions depicted in the video and identified

him as defendant. Prior to her testimony and in-court identification of

defendant, the detective had met defendant once: when she went to execute the

search warrant for the surveillance system.

At the end of the State's case, defendant moved for an acquittal, arguing

there was no proof that the man masturbating was him because neither M.F. nor

J.P. identified him as the man they saw masturbating. The trial judge rejected

the argument. He determined that giving the State the benefit of all its favorable

evidence – direct and circumstantial – a jury could reasonably infer from

3 Defendant objected to Detective Fehr's testimony regarding the time sequence on the video; however, it was overruled. A-5275-16T3 5 Detective Fehr's testimony that defendant was the man in the video, which

provided a "temporal and physical connection to the time and place of the

alleged conduct [(masturbating in the presence of M.F.)] charged in the

indictment."

Defendant exercised his right not to testify, and did not present any

witnesses. Following deliberations, the jury found him guilty of the sole charge

of third-degree endangering the welfare of a child – sexual conduct by a non-

caregiver.

At sentencing, the judge agreed with the State to apply aggravating factors

three (the risk of re-offense), six (the extent of defendant's prior criminal record

and the seriousness of the current offense), and nine (the need to deter) N.J.S.A.

2C:44-1(a)(3), -1(a)(6), and -1(a)(9). In reaching his findings, the judge noted

defendant's two-decade long history of sexual offenses, which included offenses

against children and his resulting Megan's Law status. Based upon defendant's

repetitive and compulsive behavior, the judge rejected his request to apply

mitigating factors one (defendant's conduct neither caused or threatened serious

harm), two (defendant did not intend or cause serious harm), and four

(substantial grounds tending to excuse or justify defendant's conduct). N.J.S.A.

2C:44-1(b)(1), -1(b)(2), and -1(b)(4). As mentioned, defendant was sentenced

A-5275-16T3 6 to a five-year prison term, to be served at the Adult and Diagnostic Treatment

Center.

II

On appeal, defendant through counsel presents the following points for

our consideration:

POINT I

INADMISSIBLE OPINION TESTIMONY FROM THE INVESTIGATING DETECTIVE - - IDENTIFYING DEFENDANT AS THE PERSON ON THE SURVEILLANCE FOOTAGE AND NARRATING WHAT SHE BELIEVED HE WAS DOING - - DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Partially raised below).

POINT II

A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE JUDGE ERRED IN FINDING AND WEIGHING AGGRAVATING AND MITIGATING FACTORS.

We first address defendant's first brief point that he was deprived of due

process and a fair trial because Detective Fehr's testimony that he was the man

depicted masturbating in the DVD was inadmissible opinion testimony as

proscribed by State v. Lazo, 209 N.J. 9, 23-24 (2012), and State v. McLean, 205

N.J. 438, 460 (2010).

A-5275-16T3 7 In considering defendant's argument, we view it under the plain error

standard because he did not object to Detective Fehr's testimony during the trial.

We agree with the State that defendant's claim that he "partially raised" the

argument is not supported by the record. While defendant unsuccessfully argued

for acquittal based upon the absence of testimony by M.F. and J.P that he was

the man masturbating on his porch, he never sought to exclude Detective Fehr's

testimony that he was the man in the video and what he was doing. When there

is a failure to object, the defendant must establish the conduct constitutes plain

error under Rule 2:10-2. State v. Feal, 194 N.J. 293, 312 (2008). Plain error to

reverse a conviction is warranted when the error is "of such a nature as to have

been clearly capable of producing an unjust result[.]" R. 2:10-2.

Turning to the specifics of defendant's attack on Detective Fehr's

testimony, a lay witness may testify "in the form of opinions or inferences" if

"rationally based on the perception of the witness" and if the testimony "will

assist in understanding the witness' testimony or in determining a fact in issue."

N.J.R.E. 701. "[T]estimony in the form of an opinion, whether offered by a lay

or an expert witness, is only permitted if it will assist the jury in performing its

function." McLean, 205 N.J. at 462. "The Rule does not permit a witness to

offer a lay opinion on a matter . . . as to which the jury is as competent as he to

A-5275-16T3 8 form a conclusion[.]" Id. at 459 (internal quotation marks and citation omitted).

Furthermore, a police witness is not permitted to offer an opinion regarding a

defendant's guilt. State v. Frisby, 174 N.J. 583, 593-94 (2002) (disapproving

police testimony that opined regarding innocence of one person and inferentially

the guilt of the defendant); State v. Landeros, 20 N.J. 69, 74-75 (1955) (holding

that police captain's testimony that defendant was "as guilty as Mrs. Murphy's

pet pig" caused "enormous" prejudice warranting reversal).

These principles apply to opinions regarding an offender's identity. "In

an identification case, it is for the jury to decide whether an eyewitness credibly

identified the defendant." Lazo, 209 N.J. at 24. A police officer may not

"improperly bolster or vouch for an eyewitness' credibility and thus invade the

jury's province." Ibid.

The Lazo Court reviewed federal authority on whether a lay police witness

may opine that a defendant is depicted in a crime scene photograph. The Court

noted that one federal court held that a lay opinion "is permissible where the

witness has had sufficient contact with the defendant to achieve a level of

familiarity that renders the lay opinion helpful." Id. at 22 (internal quotation

marks and citation omitted). Whether the opinion is helpful in turn depends on

the witness's knowledge of the defendant's appearance at the time of the crime,

A-5275-16T3 9 the defendant's dress, and "whether the defendant disguised his appearance

during the offense or altered her looks before trial, and whether the witness knew

the defendant over time and in a variety of circumstances." Ibid. (internal

quotation marks and citation omitted). "[C]ourts recognize that when there is

no change in defendant's appearance, juries can decide for themselves —

without identification testimony from law enforcement — whether the person in

a photograph is the defendant sitting before them." Id. at 23.

The Court cited a decision finding it error to admit an officer's opinion

that a defendant was depicted in a bank surveillance photo where the officer's

opinion "was based entirely on his review of photographs . . . and witnesses'

descriptions . . . ." Ibid. (internal quotation marks and citation omitted).

Another factor in determining whether to permit a lay opinion on identification

is "whether there are additional witnesses available to identify the defendant at

trial." Ibid.

Considering this authority, the Lazo Court held it was error to permit a

detective to testify he believed the defendant's arrest photo closely resembled a

composite sketch that was based on the victim's description of her assailant. Id.

at 24. The detective did not witness the crime; did not know the defendant; and

relied solely on the victim's description. Ibid. "Nor was there a change in

A-5275-16T3 10 appearance that the officer could help clarify for the jurors; they could have

compared the photo and the sketch on their own. Finally, the sole eyewitness

told the jury what he observed firsthand." Ibid.

Applying these principles, we conclude there was no unjust result in

Detective Fehr's testimony that defendant was the man depicted in the video and

that he appeared to be masturbating. Detective Fehr made a comparison of the

man she had contact with when she executed the search warrant, albeit minimal,

prior to viewing the video with the man herself. Having viewed the video as

part of the record, we cannot conclude the detective's testimony deprived

defendant of a fair trial. While we concede that she may have been no more

competent than the jury to scrutinize the video and defendant's appearance at

trial to determine whether defendant was the man in the video, we cannot

conclude her testimony created an unjust result that contributed to his

conviction.

Most importantly, she did not opine on defendant's guilt by stating

defendant was the perpetrator of the crime – the man who masturbated in front

of M.F. Defendant's guilt was based upon the circumstantial evidence that he

was in the house when Lt. Maczko investigated the incident in which a man was

seen masturbating on the porch. Apparently, there was no evidence that there

A-5275-16T3 11 was any other man in the house. The jury moreover was able to make its own

independent assessment of the video and defendant's appearance in court to

determine whether defendant was the man who endangered the welfare of M.F.

In addition, even if we were to agree with defendant that Detective Fehr

should not have been allowed to give the testimony in question, we conclude it

was harmless error. "An evidentiary error will not be found 'harmless' if there

is a reasonable doubt as to whether the error contributed to the verdict." State

v. J.R., 227 N.J. 393, 417 (2017). Said another way, "[t]he harmless error

standard requires that there be some degree of possibility that [the error] led to

an unjust result. The possibility must be real, one sufficient to raise a reasonable

doubt as to whether [it] led the jury to a verdict it otherwise might not have

reached." Lazo, 209 N.J. at 26 (internal quotation marks and citation omitted).

The jury had sufficient evidence independent of Detective Fehr's testimony to

find defendant guilty.

III

Defendant's argument in Point II is that the judge erred in considering

aggravating factors three, six and nine, and should have considered mitigating

factors one, two and four. Had the judge done so, defendant claims he would

A-5275-16T3 12 have received a sentence in the mid-range of a third degree offense, a period of

one to five years. We disagree.

Our review of a criminal sentence is limited; a reviewing court must

decide, "whether there is a 'clear showing of abuse of discretion.'" State v.

Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512

(1979)). Under this standard, a criminal sentence must be affirmed unless "(1)

the sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95

N.J. 334, 364-65 (1984)). If a sentencing court properly identifies and balances

the factors and their existence is supported by sufficient credible evidence in the

record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413,

426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

Defendant's contentions are without sufficient merit to warrant discussion,

Rule 2:11-3(e)(2), and we affirm substantially for the thoughtful reasons

expressed by the judge at sentencing; the sentence does not shock our judicial

conscience.

A-5275-16T3 13 IV

Finally, in considering defendant's pro se supplemental brief, we conclude

it is procedurally deficient under Rule 2:6-2(a)(6) because it fails to cite any law

with appropriate reference to the record to support his arguments. See State v.

Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). In addition, from what we can

glean from his arguments, they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2). Furthermore, defendant's claims of

ineffective assistance of his trial counsel should not be presented on direct

appeal, but may be raised in a future petition for post-conviction relief. State v.

Preciose, 129 N.J. 451, 460 (1992). We do not pass judgment on the viability

of such claims now.

Affirmed.

A-5275-16T3 14