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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-0245-14T4 A-4603-15T4 STATE OF NEW JERSEY,
Plaintiff-Respondent.
v.
SIDDHARTH GAUR,
Defendant-Appellant. ________________________
Argued October 19, 2017 – Remanded November 6, 2017 Reargued telephonically May 18, 2020 – Decided July 16, 2020
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-06- 0629.
Edward J. Dimon argued the cause for appellant (Carluccio Leone Dimon Doyle & Sacks, LLC, attorneys; Edward J. Dimon, of counsel; Marguerite Kneisser, on the briefs).
Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Kirah Michelle Addes, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
In these consolidated appeals, defendant Siddharth Gaur appeals from
his conviction, after trial by jury, for third-degree attempted endangering the
welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A 2C:24-4(a) (count two);
fourth-degree lewdness, N.J.S.A. 2C:14-4(b), as a lesser-included offense of
second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-
2(b) (count three); and second-degree attempted sexual assault, N.J.S.A. 1 2C:14-2(b) and N.J.S.A. 2C:5-1 (count four), stemming from his
communications in a chat room with a Passaic County Sheriff's Office (PCSO)
detective posing as a twelve-year-old girl under the screen name "lalilbrat12."
After defendant filed the notice of appeal from that conviction, the State
moved to strike three expert reports and concomitant portions of defendant's
appellate brief addressing alleged alteration of the State's audio recordings of
conversations between defendant and a second PCSO detective arranging the
meeting between defendant and lalilbrat12. We agreed with the State that the
reports were not part of the trial record, and entered an order granting
the State's motion to strike . . . the three expert reports [defendant] procured after the trial. However, our
1 Defendant was found not guilty of second-degree attempted luring or enticing a child, N.J.S.A. 2C:13-6 (count one). The trial judge merged counts two and three into count four at sentencing. A-0245-14T4 2 disposition [was] without prejudice to [defendant] filing a motion in the trial court to seek relief based upon those expert reports, including but not limited to granting [defendant's] counsel or his experts access to the original audiotape recordings in the State's possession. The trial [judge had] jurisdiction to consider such a motion despite the pendency of this appeal.
Defendant filed a motion for access to the original audio recordings. The
motion judge—who was not the trial judge—denied defendant's motion in a
June 22, 2016 order that provided:
The [motion judge] views this request as being beyond the legal competence of this [c]ourt to consider. . . . [D]efendant's argument in his appellate brief, that the State allegedly engaged in a Brady 2 violation by refusing requests for access to the original audio requests and his contention, based on the opinion of defense expert . . . that the State tampered with the tape recording of certain conversations, are issues for the Appellate Division's consideration on appeal as to the trial record. There has been no limited remand by the Appellate Division for the purpose of having the trial [judge] consider whether or not . . . defendant, post-jury verdict, should be allowed to have access to and to evaluate the recording in question to see whether or not they contain exculpatory evidence, as . . . defendant suggests. The legal basis for such was not articulated to this [c]ourt.
2 Brady v. Maryland, 373 U.S. 83 (1963). A-0245-14T4 3 Defendant filed a notice of appeal from that order; we consolidated that appeal
with defendant's first appeal.
On appeal, defendant argues in various briefs:
[POINT] I
THE FAILURE OF THE STATE TO DISCLOSE THE AUDIO RECORDING AT TRIAL AS WELL AS DEFENDANT'S ATTORNEY'S FAILURE TO OBTAIN AN ANALYSIS OF SAME PRIOR TO TRIAL WAS A CLEAR VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS.
a. The Audio Recording [O]f [Defendant's] Conversations [W]ith State Agents Contained Critical [A]nd Exculpatory Evidence [W]hich [W]as Required [T]o [B]e Disclosed [B]y [T]he State [A]t Trial. The Failure [O]f [T]he State [T]o [D]o [S]o [W]as [A] Clear Violation [O]f Defendant's Due Process Rights, Mandating Reversal.
b. The Failure [O]f Defendant's Trial Attorney [T]o Obtain [A]n Authentication [A]nd Transcription [O]f [T]he Audio Recording Amounted [T]o [P]er [S]e Ineffective Assistance [O]f Counsel.
[POINT] II
THE TRIAL [JUDGE] ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE THE REQUISITE ELEMENTS OF THE OFFENSES BEYOND A REASONABLE DOUBT.
A-0245-14T4 4 [POINT] III
THE PROSECUTOR'S COMMENTS AND CONDUCT DURING THE TRIAL, INCLUDING THE SUPPRESSION BY THE PROSECUTOR OF MATERIAL EVIDENCE FAVORABLE TO DEFENDANT, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.
[POINT] IV
DEFENDANT'S TRIAL ATTORNEY'S REPRESENTATION WAS CONSTITUTIONALLY DEFICIENT.
[POINT] V
THE JURY INSTRUCTIONS DID NOT PROPERLY INSTRUCT THE JURY ON ESSENTIAL ELEMENTS OF THE CHARGES AGAINST DEFENDANT.
[POINT] VI
THE CONDUCT OF STATE AGENTS CAUSED THE COMMISSION OF THE CRIME HERE SUCH THAT DEFENDANT WAS ENTRAPPED.
[POINT VII]
THE TRIAL [JUDGE] ERRED IN ITS FINDING THAT IT LACKED JURISDICTION TO HEAR DEFENDANT'S MOTION.
[POINT VIII]
A-0245-14T4 5 THE TRIAL [JUDGE] ERRED IN DENYING DEFENDANT'S MOTION AS DEFENDANT DEMONSTRATED A FACTUAL BASIS THAT THE AUDIO RECORDINGS WERE TAMPERED WITH AND FALSIFIED SUCH THAT FURTHER ANALYSIS OF THE ORIGINALS IS NECESSARY.
[POINT IX]
THE FAILURE OF DEFENDANT'S TRIAL ATTORNEY TO OBTAIN AN AUTHENTICATION OF THE AUDIO RECORDING AMOUNTED TO PER SE INEFFECTIVE ASSISTANCE OF COUNSEL.3
Unpersuaded by these arguments, we affirm.
I.
Turning first to the appeal of the June 2016 order, defendant sought
access to the original recordings of his conversations with the second PCSO
detective— a female who was utilized because the detective who conducted
the chat room conversations with defendant was a male—after submitting three
expert reports in support of his claim that the recordings were altered. The
State did not seek to introduce the recordings at trial, conceding they were
inaudible; the record does not contain the recordings. Defendant's trial counsel
told defendant's appellate counsel he was no longer in possession of the
3 For convenience and clarity, we have renumbered the point headings in defendant's A-4603-15 brief as Points VII, VIII and IX. A-0245-14T4 6 recordings the State supplied in discovery. The State would not turn over the
original recordings to defendant.
Defendant claims the State altered the recordings and did not produce
the original audible recordings, thus preventing defendant from demonstrating
to the jury his reasonable belief the person he chatted with online and who he
expected to meet was an adult woman because she had an adult voice. He also
avers he asked the female during the conversation if she was an adult. He
contends the female PCSO detective offered perjured trial testimony when she
denied defendant asked that question.
Defendant argues the motion judge erred by concluding he lacked
"competence" to hear defendant's motion. We previously recognized the
motion judge erred by ignoring our explicit remand for that purpose. On
November 6, 2017, we vacated the motion judge's order and, retaining
jurisdiction, "remand[ed] the matter back to the Law Division for
consideration of defendant's motion in accordance with our original order."
State v. Gaur, No. A-0245-14 (App Div. Nov. 6, 2017) (slip op. at 4).
On December 19, 2017, the motion judge ordered the Passaic County
Prosecutor's Office to provide defendant with "cloned duplicates of the
A-0245-14T4 7 original files of certain audio recordings[.]" Defendant has not appealed from
that order.
Furthermore, according to defendant's second supplemental brief on the
second appeal, "[a]fter much back and forth between counsel for [d]efendant
and the Prosecutor's [o]ffice" defendant received "two . . . additional CD[]s
purporting to be the original[.]" Defendant claims in the second supplemental
brief, "the copies provided were not . . . the originals which were ordered to be
disclosed." Both parties filed supplemental briefs and motions. The State
sought to strike material outside the trial record from defendant's brief an d
appendix. Defendant sought to stay the appeal to allow him to file a motion to
enforce litigant's rights extended by the motion judge's December 19, 2017
order and moved to supplement the appellate record.
On June 29, 2018, we entered orders granting defendant's request for a
stay and leave to file the motion to enforce litigant's rights with the motion
judge. We denied defendant's motion to supplement the record and the State's
motion to strike, both without prejudice to allow refiling after the rem and.
The motion judge considered defendant's motion to enforce litigant's
rights and entered an order on August 29, 2018, denying the motion, but
ordering defendant's appellate counsel and the State to "agree on a time and
A-0245-14T4 8 date for [defendant's] counsel to have access to the original CD [r]ecording in
question so that [his] expert may make any copies" and the State to provide
defendant's "counsel with a report from the [PCSO] regarding the make and
model of the device used to make the original CD recording, if that
information [was] available." Defendant did not appeal from that order.
In his supplemental brief, defendant states his appellate counsel
contacted his "expert who agreed to communicate with the [PCSO] regarding
the procedure they employed in creating the recording. Thereafter, [d]efendant
filed an updated expert report."
On February 14, 2019, we denied defendant's motion to supplement the
record with the expert report and granted
the State's motion to strike the portions of [defendant's] brief concerning, and his appendix containing the expert reports struck from the record pursuant to this court's February 2, 2016 order, additional expert reports, dated March 5, 2018, and emails that are not part of the trial record. However, our disposition [was] without prejudice to [defendant] filing a motion in the trial court to seek relief based upon his claim the subject tapes were doctored. Depending on how the trial [judge] rule[d on the motion if it was] filed, either party [could have sought] appellate review of the [judge's] ruling in a new notice of appeal, which [would have been] consolidated with the present appeal.
A-0245-14T4 9 [Defendant was ordered to] file redacted versions of his brief and appendix omitting the challenged material within [thirty] days of the date of [the] order.
There is no evidence of a subsequent motion by defendant to the motion judge.
The record manifests defendant's claim of error by the motion judge was
remedied by the motion judge's last order that resulted in access to the original
recording and the method of recording, if not the motion judge's prior order
requiring the State to provide cloned duplicates of the original recordings. In
that defendant did not appeal from those orders, his initial appeal, based on the
motion judge's failure to address his motion for access to the original recoding,
is moot. See Redd v. Bowman, 223 N.J. 87, 104 (2015) ("An issue is 'moot
when our decision sought in a matter, when rendered, can have no practical
effect on the existing controversy.'" (quoting Deutsche Bank Nat'l Tr. Co. v.
Mitchell, 422 N.J Super. 214, 221-22 (App. Div. 2011))).
II.
We also reject defendant's argument that the State committed a Brady
violation by failing to turn over the original recordings which he contends are
exculpatory evidence. "In order to establish a Brady violation the defense
must demonstrate that (1) the prosecution failed to disclose the evidence; (2)
A-0245-14T4 10 the evidence was of a favorable character for the defense; and (3) the evidence
was material." State v. Carter, 85 N.J. 300, 311 (1981).
Because the State provided the recording to defendant's trial counsel,
and it was later made available to defendant and his expert, defendant has
failed to meet the first prong of the test. So too, defendant has failed to meet
the second prong. All of the alleged proofs of alteration lie outside the trial
record, and all of those proofs have been stricken from the appellate record.
As such, nothing in the record demonstrates the State altered the recordings.
Nor did defendant establish the State suppressed evidence of which it knew,
but was unknown to the defense. See id. at 313. And, inasmuch as the
recording of record is inaudible, defendant did not establish, save for his
unsupported arguments, that the original recording contained material,
exculpatory evidence.
In State v. Morton, 155 N.J. 383 (1998), our Supreme Court observed
"Brady's focus . . . is on the nondisclosure of exculpatory evidence, not on
challenges to the evidence's authenticity." Id. at 413. The Court continued:
Defendant's argument, that the original tapes, if altered, would constitute exculpatory evidence under Brady, is too attenuated. His challenge is directed at the authenticity, not the disclosure, of evidence. As such, defendant must provide more than mere unfounded allegations of tampering to compel
A-0245-14T4 11 the prosecutor to turn over the original tapes for testing.
[Id. at 413-14.]
On the record before us, defendant, like the defendant in Morton, failed to
establish a Brady violation.
III.
Defendant argues his trial counsel rendered ineffective assistance by
failing "to seek and obtain an analysis of the recording as well as an opinion
regarding its authenticity." He claims he told his trial counsel that the female
PCSO detective "sounded like a much older person." He also urges us to
conclude trial counsel was ineffective for failing to present "the contents of the
audio" to impeach the female PCSO detective's testimony that she was acting
like a twelve year-old during the recorded conversation.
Again, there is nothing in the record to support defendant's contention
that the recording was altered to render it inaudible. It is undisputed the copy
of the recording provided to trial counsel was inaudible. Furthermore, trial
counsel's reason for accepting that the recording was inaudible and that the
State would not seek to admit it at trial, is absent from the record.
A-0245-14T4 12 "Our courts have expressed a general policy against entertaining
ineffective-assistance of counsel [(IAC)] claims on direct appeal because such
claims involve allegations and evidence that lie outside the trial record." State
v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451,
460 (1992)). Typically, a "defendant must develop a record at a hearing at
which counsel can explain the reasons for his conduct and inaction and at
which the trial judge can rule upon the claims including the issue of
prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991); see
also State v. McDonald, 211 N.J. 4, 30 (2012) (determining that a post-
conviction relief [(PCR)] "proceeding would be the appropriate forum to
evaluate the strategy of defendant's trial counsel . . . and other issues requiring
information that is not in the record before the Court").
We follow the general policy against entertaining IAC claims here. The
under-developed record on appeal does not allow us to properly evaluate
defendant's claims related to the recording. Those claims are better suited for
a PCR proceeding, especially if defendant eventually establishes that the
recording was altered to conceal material, exculpatory evidence. So too,
defendant's bald claim that trial counsel failed "to discuss the initial plea offer
with [him] as well as the full consequences of a guilty verdict, including
A-0245-14T4 13 deportation," is based on matters outside the trial record; that too, is an
argument better left to a PCR proceeding.
Defendant also claims his trial counsel was constitutionally deficient
because of "his deferral to the State's misrepresentations regarding the
accessibility of the avatar." The male PCSO detective utilized a cartoon avatar
in portraying "lalilbrat12" during his online chats with defendant. During
deliberations, the jury requested to see the video recording depicting the
avatar. The trial judge, relying on the State's representation that it "might not
be possible" for the jury to see the avatar on the recording, told the jury "there
[was] no photo of an [a]vatar on the video." Apparently, that information was
mistaken. Defendant claims trial counsel's failure to correct the mistake
deprived him of the jury's consideration of evidence that was material to his
contention that he believed lalilbrat12 was an adult because the avatar depicted
an adult female.
The record is bereft of trial counsel's reason for acquiescing to the
State's mistaken advice to the trial judge regarding the avatar. We cannot
ascertain if counsel deduced the cartoon avatar would, contrary to defendant's
present contention, be more associated with a twelve year-old than an adult.
A-0245-14T4 14 Additionally, to establish that his counsel was ineffective, defendant
must satisfy the test formulated in Strickland v. Washington, 466 U.S. 668,
687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,
58 (1987). He must first show "that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). He
must also prove that he suffered prejudice due to counsel's deficient
performance. Strickland, 466 U.S. at 691-92. Defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome" of the matter. Strickland, 466 U.S. at
694.
As we will hereafter discuss in our analysis of the motion for judgment
of acquittal in Section IV, there was an abundance of evidence presented by
the State to establish defendant reasonably believed he was interacting with a
twelve year-old. There is no evidence the avatar—a cartoon depiction—would
have countermanded the explicit representations to defendant that lalilbrat12
was age twelve, or that the detectives led defendant to believe the avatar
represented what lalilbrat12 looked like. Indeed, lalilbrat12 described her
A-0245-14T4 15 physical appearance to defendant as four feet, nine inches tall and "like
[eighty-five] pounds," to which defendant replied, "[w]ell you will grow it's
still your age[.]" Thus, accepting that counsel committed an egregious error
by failing to correct the trial judge's advice to the jury regarding the avatar,
thus satisfying the first Strickland-Fritz prong, we do not discern there was a
reasonable probability that failure affected the jury's verdict.
IV.
For the same reasons we reject defendant's claim, embedded in his
argument that the trial judge erroneously denied his motion for judgment of
acquittal, that the trial judge erred by informing the jury the avatar was not
available to it. While we do not countenance the State's misrepresentation to
the trial judge, or the judge's acceptance of that misrepresentation after
ostensibly seeing the avatar depicted during the trial, the error was not "clearly
capable of producing an unjust result[.]" R. 2:10-2. That is, it was not
"sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached." See State v. Macon, 57 N.J. 325,
336 (1971)).
A-0245-14T4 16 Defendant asserts his motion for judgment of acquittal under Rule 3:18-
1 should have been granted because without evidence of masturbation or
sexual content during the online chat, "[t]here is simply insufficient evidence,
beyond a reasonable doubt, to prove [defendant] was touching [himself] for the
purpose of sexual arousal or gratification." He further contends much of the
evidence contradicted the State's proofs that lalilbrat12 was under thirteen
years-old.
The trial judge did not comply with Rule 1:7-4(a) by stating the findings
of fact and conclusions of law that buttressed her denial of defendant's motion
because she wanted "to bring the jury out." No matter, we review the denial of
a Rule 3:18-1 motion de novo, and conduct an independent assessment of the
evidence, applying the same standard as the trial judge, see State v. Williams,
218 N.J. 576, 593-94 (2014).
Defendant's argument ignores that standard:
[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn
A-0245-14T4 17 therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967) (citation omitted).]
We are "not concerned with the worth, nature or extent (beyond a scintilla) of
the evidence, but only with its existence, viewed most favorably to the State."
State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130
N.J. Super. 336, 342 (App. Div. 1974)). "If the evidence satisfies that
standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236
(2004). Notwithstanding defendant's countering proofs, the State's proofs, and
the inferences drawn therefrom, met the Reyes standard. See Reyes, 50 N.J. at
458-59.
Both of defendant's arguments center on some of the elements of second- 4 degree attempted sexual assault, N.J.S.A. 2C:14-2(b), which proscribes
committing "an act of sexual contact with a victim who is less than [thirteen]
years old [when] the actor is at least four years older than the victim."
N.J.S.A. 2C:14-1(d) defines sexual contact as:
4 Defendant's merits-brief arguments do not address the elements of the other crimes of which he was convicted: third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A 2C:24-4(a) (count two) and the lesser-included fourth-degree crime of lewdness, N.J.S.A. 2C:14-4(b) (count three), both of which were merged into the second-degree attempted sexual assault at sentencing. A-0245-14T4 18 [A]n intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present.
The State need not prove defendant masturbated in lalilbrat12's view in order
to establish the requisite criminal elements. "Sufficient victimization occurs
when, in view of an underage child . . . an actor commits an act of sexual
contact by touching himself or herself[.]" State v. Zeidell, 154 N.J. 417, 435
(1998).
During the male PCSO detective's testimony, he showed video recorded
from defendant's webcam, after he, posing as lalilbrat12, accepted defendant's
invitation to view same on December 9, 2009, the date of the sexual assault
charged in count four of the indictment. On direct examination, the detective
described to the jury what was shown on the screen, the same images that he
saw broadcast from defendant's webcam:
[ASSISTANT PROSECUTOR:] Okay. Now, [d]etective, I just paused the video where it says last image received at [December 9, 2009] at 10:55:16 a.m. What was just displayed on the screen?
[THE DETECTIVE:] It was [defendant] wearing the same thing, a white [t]-shirt with the checkered shorts
A-0245-14T4 19 pacing back and forth. And in addition to that you could tell that he ha[d] an erection.
[ASSISTANT PROSECUTOR:] Did you notice if . . . defendant was touching it at any point?
[THE DETECTIVE:] Yes, he was touching it.
The detective also read the online conversation shown to the jury—as
depicted on the video—between defendant and lalilbrat12 about the
defendant's images, which we quote in part:
[ASSISTANT PROSECUTOR:] Okay. Now, picking up where [l]alilbrat12 says at 10:55:19 a.m., "[w]hat are you touching?," question mark. . . . [D]efendant says in response?
[THE DETECTIVE:] "I'm back, N-W" Emotion icon with the tongue sticking out.
[ASSISTANT PROSECUTOR:] What else does he say?
[THE DETECTIVE:] "You saw it"
[ASSISTANT PROSECUTOR:] And, then [l]alilbrat12 says, "[y]eah I saw you touching your thingy"
[THE DETECTIVE:] "Heyhey"
[ASSISTANT PROSECUTOR:] And she sends back a smiley face.
A-0245-14T4 20 [THE DETECTIVE:] "It's itching" [t]hen he sends another emotion icon that's, ". ."&," two dots with the quotes and the ampersand sign.
[ASSISTANT PROSECUTOR:] And [l]alilbrat12 says, "ew wash it"
[THE DETECTIVE:] "I mean M-M-T wearing undies so it's kind of up t[h]at's why"
[ASSISTANT PROSECUTOR:] "Yeah it looked up"
[THE DETECTIVE:] "Oh"
[ASSISTANT PROSECUTOR:] Smiley face.
[THE DETECTIVE:] "You gonna become bad in my company"
[ASSISTANT PROSECUTOR:] "You are lol"
[THE DETECTIVE:] "Yes"
[THE DETECTIVE:] "I hope you forgotten first time incident"
[ASSISTANT PROSECUTOR:] "Why you hope?," question mark.
[THE DETECTIVE:] "[L]ol"
[ASSISTANT PROSECUTOR:] "[L]ol"
[THE DETECTIVE:] "Cause it's better"
[ASSISTANT PROSECUTOR:] "I guess"
A-0245-14T4 21 [THE DETECTIVE:] "You're getting naughty"
Still on direct examination, the detective also described images
broadcast from the webcam recorded later during their online conversation:
[ASSISTANT PROSECUTOR:] Now, [d]etective, I'm going to pause the video where it's a black image received at [December 9, 2009], 12:10:32 p.m. Can you please describe for the jury and for the record what was just displayed on the screen?
[THE DETECTIVE:] It's [defendant] exposing his penis on web cam.
[ASSISTANT PROSECUTOR:] Thank you. Was [defendant] doing anything with his penis at any point in time?
[THE DETECTIVE:] Yeah, he has his hands over it.
[ASSISTANT PROSECUTOR:] So he was touching his penis?
[THE DETECTIVE:] That's correct.
[ASSISTANT PROSECUTOR:] Okay. Now [d]etective . . . what was just displayed on the screen is what you saw -- is that what you saw that day posing as [l]alilbrat12?
A-0245-14T4 22 During the concomitant online conversation, also depicted on the screen
shown to the jury, defendant clearly indicated he knew he was showing his
penis to lalilbrat12. Moreover, defendant acknowledged on cross-examination
that the video shows him touching his penis "[o]nce or twice[.]"
The video evidence, the detective's testimony and defendant's own
words, both during the chatroom discussions with lalilbrat12 and on cross-
examination, prove the sexual contact element of sexual assault. Evidence that
his penis was erect leads to the inference that he did so to sexually arouse or
gratify himself.
There is also ample evidence to establish that the "victim" was less than
thirteen years-old. Not only did lalilbrat12 explicitly tell defendant she was
twelve on a number of occasions, a fact acknowledged by defendant during his
cross-examination, a review of the content and context of the chatroom
discussions—including lalilbrat12's school, activities and homelife—leads to
the inference she was twelve. Particularly telling are the conversations elicited
during defendant's cross-examination when he confirmed that he believed he
was speaking with a twelve-year-old girl when he posed a math problem that
incorporated her age.
A-0245-14T4 23 Viewing this evidence under the Reyes lens, we determine the trial judge
properly denied the Rule 3:18-1 motion.
Defendant also interjected another argument in the merits brief section
addressing the motion for judgment of acquittal: reversal is required because
the judge allowed the assistant prosecutor and detective to "role play" when
presenting the chatroom conversation between defendant and lalilbrat12, with
the assistant prosecutor reading defendant's words and the detective reading
lalilbrat12's words "in a little girl's voice," which "was extremely prejudicial
and plainly erroneous[.]" We determine the argument is without sufficient
merit to warrant discussion. R. 2:11-3(e)(2). We note trial counsel did not so
characterize the detective's reading when he objected only to the conversations
being presented by two people instead of one. Moreover, in allowing the
presentation to be made by two people, the trial judge observed: "I haven't
denoted any added inflections by [the assistant prosecutor] in any way with
respect to her reading of the one side of the IM message. And the same with
the [d]etective. I think it's been rather flat."
A-0245-14T4 24 Defendant alleges three spheres of prosecutorial misconduct: comments
by the assistant prosecutor during the State's opening, trial and the State's
summation.
Defendant asserts that during her opening statement the assistant
"[p]rosecutor placed undue and improper emphasis on the [g]rand [j]ury
[i]ndictment," by telling the jury: "As a result of what had transpired between
[l]alilbrat12 and . . . defendant the grand jurors in the State of New Jersey for
the County of Passaic returned a four count indictment against . . . defendant."
Defendant contends in his merits brief that that statement, advising the petit
jury "they should draw a natural inference that [d]efendant was guilty because
'based on this specific evidence' another jury chose to indict," was improper.
Defendant, however, did not object to the assistant prosecutor's remark.
As such, the remarks generally "will not be deemed prejudicial." State v.
Timmendequas, 161 N.J. 515, 576 (1999). "The failure to make a timely
objection not only indicates the defense did not believe the remarks wer e
prejudicial at the time they were made, but also deprives the judge of the
opportunity to take the appropriate curative action." State v. Murray, 338 N.J.
Super. 80, 87-88 (App. Div. 2001).
A-0245-14T4 25 Our review of the record reveals that the assistant prosecutor did not ask
the jury to infer anything from the fact that defendant was indicted by a grand
jury. We also note the trial judge twice instructed the jury that counsel's
comments were not controlling. At the outset of the trial, the judge instructed
the jury: "What is said in the opening statement is not evidence. The evidence
will come from the witnesses who will testify and from whatever documents or
tangible items that are received in evidence." In her closing instructions, the
judge further explained: "Arguments, statements, remarks, openings and
summations of counsel are not evidence and must not be treated as evidence."
Moreover, after advising the jury that "defendant [stood] before [it] on an
indictment returned by the grand jury charging him" with the delineated
charges, the judge admonished the jury:
The indictment is not evidence of . . . defendant's guilt on the charges. An indictment is a step in the procedure to bring the matter before the [c]ourt and jury for the jury's ultimate determination as to whether . . . defendant is guilty or not guilty of the charges stated in it.
The jury is presumed to have followed those instructions. See State v. Loftin,
146 N.J. 295, 390 (1996) ("That the jury will follow the instructions given is
presumed.").
A-0245-14T4 26 Under those circumstances, we do not perceive the assistant prosecutor's
fleeting opening comment was "clearly and unmistakably improper" and was
"so egregious that it deprived the defendant of a fair trial." State v. Wakefield,
190 N.J. 397, 438 (2007) (first quoting State v. Papasavvas, 163 N.J. 565, 625
(2000); then quoting State v. Smith, 167 N.J. 158, 181 (2001)).
Defendant also takes issue with the assistant prosecutor's frequent
comments during the trial about "[w]hat a normal [twelve-]year[-]old girl
would talk about . . . [and] act . . . without providing any evidence to support
her contentions." And, he highlights those portions of the assistant
prosecutor's summation in which she told the jury
we know . . . [the 'victim'] ha[d] a screen name[,] . . . lalilbrat12, signifying that she[ was] a little girl and she[ was] [twelve].
....
She talk[ed] like, I submit, . . . any [twelve] year[]old. In emoticons, short language. Yeah, he-he, LOL. Very laughy, very jovial, very juvenile.
Defendant avers the assistant "[p]rosecutor made unsupported credibility
determinations and interfered with the jury's role in rendering a verdict." He
argues there was no evidence that lalilbrat12 was twelve years-old, or as to
how girls of that age "would think, feel, or act." The assistant prosecutor's
A-0245-14T4 27 comments, he contends were conclusory statements on matters not in evidence,
requiring reversal.
Again, defendant did not object to the State's summation. As we
recognized in Murray, 338 N.J. Super. at 87-88:
"To justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." [Timmendequas, 161 N.J. at 575]. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 576. The failure to make a timely objection not only indicates the defense did not believe the remarks were prejudicial at the time they were made, but also deprives the judge of the opportunity to take the appropriate curative action. Ibid. In addition, in reviewing a prosecutor's summation, we must consider the context in which the challenged portions were made, including determining whether the remarks were a measured response to defendant's summation made in an attempt to "right the scale." State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991).
"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
A-0245-14T4 28 commenting upon the evidence and the reasonable inferences to be drawn
therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).
"A prosecutor may not express a personal belief or opinion as to the
truthfulness of his or her witness's testimony." State v. Staples, 263 N.J.
Super. 602, 605 (App. Div. 1993). It is permissible, however, to "argue that a
witness is credible, so long as the prosecutor does not personally vouch for the
witness or refer to matters outside the record as support for the witness's
credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004).
We have already noted the evidence about lalilbrat12's age. Defendant's
knowledge of same was one of the highly contested issues during the trial.
Indeed, the State's summation responded to the defense summation in which it
was claimed defendant
believed almost from the very beginning that the language of the person who referred to themselves lalilbrat12 was the language of an adult and not a child.
[T]here was nothing that he ever heard or saw that would tell him whether he was dealing with a male, a female, or what the age of that person might be.
The assistant prosecutor addressed that contention and properly confined
her closing remarks to the evidence and the reasonable inferences that could be
A-0245-14T4 29 drawn therefrom, see State v. Johnson, 287 N.J. Super. 247, 265 (App. Div.
1996), in proving a required element of all the indicted charges: lalilbrat12's
age. We discern no error, much less a plain one "clearly capable of producing
an unjust result[.]" R. 2:10-2. Under the harmless error standard, there must
be "some degree of possibility that [the error] led to an unjust verdict. 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."
State v. Bankston, 63 N.J. 263, 273 (1973). The State's summation, to which
no objection was lodged, does not present any such possibility.
The same holds true for the assistant prosecutor's closing remark that
"what we saw on video was [defendant] touching himself for sexual
gratification or arousal," which defendant argues was not supported by the
evidence. Defendant concedes the State was required to prove as an element
of sexual assault that defendant touched himself for the purpose of sexual
arousal or sexual gratification. Obviously, the video provided evidence of the
touching. And, as we recognized, defendant's erection was evidence from
which the jury could find the required element. The assistant prosecutor's
comment was proper.
A-0245-14T4 30 The assistant prosecutor's description of the condom found on defendant
when he was arrested, however, was improper. She properly responded to trial
counsel's closing remark:
What does the [S]tate point to in an attempt to convince you that [defendant] was going to commit a sexual offense? Well, one of the things they pointed to was a condom that he had in his wallet. I ask you if you think it's unusual for a [twenty-nine]-year-old single male to walk around with a condom in his wallet. I submit to you that nowadays it's not unusual for a [twenty-nine]-year-old single woman to be walking around with a condom in her wallet or pocketbook. It's just something that's more common since the advent of AIDS and everything else, and there's more sexual freedom than we've had in the past. This is not an unusual thing. The fact that you happen to be carrying one around with you proves nothing.
In doing so, however, she told the jury:
[The detectives] found a condom on him. Sure, that's not uncommon. You know, given this day and age, some people carry condoms, a condom in their wallet. You know, females even carry condoms. But I submit to you, ladies and gentlemen, how common is it to carry a strawberry[-]flavored condom with you? A strawberry[-]flavored condom. You know, it's a flavor, it's sweet, it's candy-like. Perhaps because kids like candy. [Twelve]-year-old girls like candy. Who knows?
There is no evidence in the record that the condom was strawberry-flavored.
A-0245-14T4 31 No objection was interposed by defendant. Under the now-familiar lens
under which we view such remarks, we can infer that the description was of no
moment in the context of the trial. State v. Ingram, 196 N.J. 23, 42-43 (2008).
"Any error or omission shall be disregarded by the appellate court unless it is
of such a nature as to have been clearly capable of producing an unjust
result[.]" R. 2:10-2. Under the harmless error standard, there must be "some
degree of possibility that [the error] led to an unjust verdict. 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." Bankston, 63 N.J. at
273. The brief description, especially in light of the evidence of defendant's
actions and intent, was harmless error.
Defendant also avers in his merits brief that the assistant prosecutor
improperly attempted to interject "how she acted as a teenager" when cross-
examining defendant. When the assistant prosecutor responded to defendant's
testimony about the likelihood of online interaction between a twenty-nine
year-old adult and a pre-teen or teenager, the assistant prosecutor replied,
"[w]ell, what if I told you that when I was [seventeen.]" Her statement was
interrupted by trial counsel's objection. The trial judge agreed and, as
defendant concedes in his merits brief, the assistant prosecutor "was not
A-0245-14T4 32 permitted to continue[.]" The assistant prosecutor's incomplete thought had no
impact on the trial.
VI.
Defendant argues that his "conviction must also be reversed because the
jury was not instructed properly," claiming "the jury instructions provided no
guidance to the jury on an essential element of the offense, namely, the
definition of sexual arousal or gratification," without which, the jury "was
merely left to imply a definition in this regard." We disagree.
Defendant did not object to the judge's instruction which largely
mirrored the Model Jury Charges (Criminal), "Sexual Assault - Victim Less
Than [Thirteen] Actor At Least [Four] Years Older Than Victim (N.J.S.A.
2C:14-2(b))" (rev. Mar. 10, 2008):
The statute . . . in pertinent part states: [A]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than [thirteen] years old and the actor is at least four years older than the victim.
In order to convict defendant of this charge, the [S]tate must prove the following elements beyond a reasonable doubt:
One. . . . [D]efendant purposely committed an act of sexual contact by touching himself and the touching was in view of lalilbrat12, who . . . defendant knew was present.
A-0245-14T4 33 Two. . . . [D]efendant reasonably believed that lalilbrat12 was less than [thirteen] years old at the time of the sexual contact.
And three. At the time of the sexual contact, defendant was at least four years older than lalilbrat12.
Following the model charge, the judge instructed the jury: "Sexual contact
means an intentional touching by . . . defendant, either directly or through
clothing, of . . . defendant's intimate parts for the purpose of degrading or
humiliating lalilbrat12 or sexually arousing or gratifying defendant."
There is a presumption that the failure to object reflected the defendant's
evaluation that the charge was not erroneous and was unlikely to prejudice his
case. Macon, 57 N.J. at 333-34. Accordingly, in the absence of a
contemporaneous objection, any claim of error concerning a jury charge is
reviewed under the plain error standard and will be disregarded "unless it is of
such a nature as to have been clearly capable of producing an unjust result[.]"
R. 2:10-2. In the context of jury instructions, plain error is a "legal
impropriety . . . prejudicially affecting the substantial rights of the defendant
and sufficiently grievous to . . . convince the court that of itself the error
possessed a clear capacity to bring about an unjust result." State v. Hock, 54
A-0245-14T4 34 N.J. 526, 538 (1969). Not any possibility of an unjust result will suffice as
plain error, only "one sufficient to raise a reasonable doubt as to whether the
error led the jury to a result it otherwise might not have reached." Macon, 57
N.J. at 336.
We discern no error, much less plain error, in the judge's charge which
gave "a clear explanation of the applicable law to provide the jury with an
adequate understanding of the relevant legal principles." State v. Hackett, 166
N.J. 66, 85 (2001). Model jury charges are frequently beneficial to trial courts in
performing the imperative function of charging a jury. State v. Concepcion, 111
N.J. 373, 379 (1988). The model charge does not define "sexual arousal" or
"sexual gratification." Those terms are left to their plain meaning.
There is no evidence the jury had difficulty understanding those
meanings. The judge twice told the jurors that if, during deliberations, any
juror had a question or felt the need for "further assistance or instructions," she
or he should write the question or request for submission to the judge. The
judge also gave the jury two copies of the instructions and told the jurors she
was "available to assist [them] in understanding the instructions if [they]
need[ed] further assistance." No juror request involved the definitions of the
disputed terms. When the charges are "clear and accurate, . . . we generally
A-0245-14T4 35 must assume that the jury followed such a charge." State v. Davis, 390 N.J.
Super. 573, 598 (App. Div. 2007).
VII.
Contrary to defendant's argument that, because there was "clear evidence
that [defendant] was entrapped by the State," the trial judge committed plain
error by failing to sua sponte instruct the jury on the defense of entrapment,
the judge did instruct the jury consistent with the Model Jury Charges
(Criminal), "Entrapment (N.J.S.A. 2C:2-12)" (approved Jan. 12, 1982).
Affirmed.
A-0245-14T4 36