STATE OF NEW JERSEY v. M.Z.Z., Defendant-Appellant. (2011)

Defendant M.Z.Z. appeals from his conviction by a jury and sentence on charges that he sexually assaulted and endangered the welfare of his daughter while she was less than thirteen years old.   We affirm the conviction but remand for resentencing.

Defendant stood trial on six counts of an indictment:  two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one and three);  two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two and four);  and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts five and six).   Counts one and two pertained to anal intercourse allegedly committed against the victim L.Z. on August 22, 2007, when she was eleven years old.   The other four counts alleged sexual penetration and contact on “divers[e] dates between September, 2004 and August 21, 2007.”   A seventh count of the indictment charged defendant's wife and the victim's mother, X.Z., with endangering the welfare of a child by failing to take steps to protect her from sexual abuse by defendant.

The evidence at trial showed the following.   On August 22, 2007, the Division of Youth and Family Services (DYFS) received an anonymous referral of suspected child sexual abuse occurring in defendant's home.   Two DYFS workers in the Special Response Unit, Quiana Cooper and Sean Ludwig, went to defendant's home that evening to investigate.   The victim's younger brother R.Z., answered the door.   Defendant was not home.   Cooper and Ludwig spoke to the children's mother.   Because she did not speak English well and a translator was not available, the children translated the conversation.   The mother did not want the DYFS workers to speak to her children.   DYFS requested the assistance of Child Abuse Investigator Amy Pisano of the Gloucester County Prosecutor's Office.

When Pisano arrived, she and Cooper spoke with the victim away from her mother.   Pisano explained the difference between “good touches” and “bad touches” and asked if anyone had touched the victim where her bathing suit covers.   She answered “yes.”   The DYFS workers decided that an emergency removal of the two children was necessary for their protection.

The children were taken to the Gloucester City Police Department to be interviewed.   In a videotaped interview, the victim stated that her father had engaged in sexual conduct with her since she was in the third grade.   R.Z. stated that his sister had told him about his father's sexual conduct with her.   The victim was then taken for medical evaluation at New Jersey Cares.

Dr. Monica Weiner examined the victim.   She did not find residual physical evidence of sexual abuse but explained at trial that the nature of the acts alleged and the passage of time would not necessarily leave such physical evidence.   Dr. Weiner collected a sexual assault kit from the victim, which included vaginal and anal smears and her underwear.

A forensic scientist testified that an anal swab of the victim revealed “a weak positive 55 second result” for acid phosphates, a substance found in high concentration in seminal fluid.   The witness also testified that “such things as vaginal secretions can cause a weak positive result.”   The underwear contained staining on the inside crotch panel.   Testing of the stain revealed a weak positive for acid phosphates and for blood.   No seminal fluid was found on the swabs or underwear.

The day after their initial contact with the children, investigators went back to the home and retrieved the victim's bed sheets, comforter, and pajama pants.   Of twelve stained areas found on the sheets, two tested positive for acid phosphates.   An expert testified that the two samples taken from the victim's sheets matched defendant's DNA.

The victim testified at trial.   She said that the night before DYFS came to her home, she woke up at 1:00 or 2:00 a.m. because she felt her father touching her.   Her pants and underwear were off, and she felt his penis against her.   She testified that he “had been putting his penis in [her] backhole,” but he stopped when she woke up.   She testified further that defendant “would stick his penis in [her] back part” during incidents that occurred when she was in the third, fourth, and fifth grades.   She explained that her “back part” meant her “butt hole.”   On earlier occasions, defendant had also touched her breasts, put his tongue in her mouth, and touched her “front private part” with his penis.

On August 22, 2007, the victim told her mother about defendant's conduct, as she had done previously.   In the past, her mother had told her to stay away from her father and not to tell anyone about the incidents because it would cause great embarrassment to the family and no man would want her as a wife in the future.   On August 22, the mother installed a new lock on the inside of her bedroom door.

Defendant testified in his own defense, denying that he ever touched his daughter in any kind of sexual manner.   He said he would sometimes go into her room to make sure that she was sleeping and that her blanket had not fallen off.   Sometimes he would “just touch her back a little bit.”   In addition, he would sometimes punish her by “hit[ting] her on the buttock ․ [and] on the hand,” and, when playing, he would “tickle her a little bit.”   He said he never touched his daughter with his penis.   When asked if he ever touched her breasts, he responded, “I cannot answer these questions precisely because sometimes when we play around, kidding around, my hand might touch there.”   Defendant testified that he had installed a lock on his daughter's door a few days before he was arrested but that his wife had changed the lock because the one he installed was big and ugly.   He also testified that the week of the incident, he had sexual relations with his wife in the victim's room.   At the time, his daughter was sleeping in the parents' room because that was the only place in the home with air conditioning.

The jury found defendant not guilty of aggravated sexual assault on count one, which required evidence of penetration on August 22, 2007.   It found defendant guilty of the lesser-included offense of second-degree sexual assault on that count, which required a finding of criminal sexual contact on that date.   The jury found defendant not guilty on counts three, five, and six.   Those counts charged aggravated sexual assault and sexual assault during the earlier time period, from September 2004 through August 21, 2007, by defendant engaging in anal intercourse and touching his daughter's vagina and buttocks.   The jury found defendant guilty of second-degree endangering the welfare of a child as charged in counts two and four for both the specific date of August 22, 2007, and the earlier time period.

The trial judge sentenced defendant to eight years' imprisonment on count one, eighty-five percent of the sentence to be served before parole eligibility, and parole supervision for three years after the term of imprisonment, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count two, defendant was sentenced to an eight-year term of imprisonment concurrent to the sentence imposed on count one.   On count four, the endangering count for the earlier time period, the court sentenced defendant to a seven-year term of imprisonment consecutive to the sentences imposed on counts one and two.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST THAT THE COURT DECLARE A MISTRIAL, INSTEAD REQUIRING THE JURY TO CONTINUE DELIBERATIONS DESPITE ITS INDICATION IT WAS DEADLOCKED.

POINT II

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT IV CHARGING ENDANGERING THE WELFARE OF A MINOR WAS ILLOGICAL, INCONSISTENT AND FATALLY FLAWED AS A RESULT OF ITS VERDICT FINDING THE DEFENDANT NOT GUILTY OF THE THREE SUBSTANTIVE OFFENSES EMBODIED IN COUNTS III, V AND VI WHICH FORMED THE FACTUAL BASIS UPON WHICH COUNT [IV] RESTED.  (PARTIALLY RAISED BELOW).

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

With the exception of the court's finding of an aggravating factor that we conclude was inapplicable to count one, we find no merit in defendant's arguments.

I.

Defendant argues that the trial court erred in failing to declare a mistrial after the jury indicated it was deadlocked on the second day of deliberations.   We find no error in the trial court's decision.

At least part of the first day of jury deliberations was devoted to the separate count of the indictment against the victim's mother.   The jury asked several questions that were pertinent only to that count.   At the end of the first day, the jury reported it had reached a verdict as to her.   The verdict of not guilty was received by the court, and the trial against the mother ended.

On the second day of deliberations, the jury first requested to rehear testimony, which occupied much of the morning.   After several hours of deliberation, at the end of the afternoon, the jury sent a note to the judge stating:  “it is the opinion of this jury that we are hopelessly deadlocked, therefore we are not sure that we would ever be able to reach a verdict.   It has been an honor to serve.”   In response, the court told counsel that the jury had only been deliberating for eight hours and that was insufficient time to reach a verdict in the case.

The judge then gave the following supplemental instruction to the jury on continuing deliberations:

Members of the jury, I'm going to recharge you at this time.   It's your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment.   Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.   You are not partisans, you're judges, judges of the facts.

The judge's instructions were in accordance with the holding of State v. Czachor, 82 N.J. 392, 405-07 (1980), pertaining to supplemental instructions to a deadlocked jury.   On appeal, defendant does not challenge the content of the instruction but the fact that the court declined to declare a mistrial.

The State argues that the plain error standard of review applies to defendant's argument on appeal because his trial attorney never made a motion for a mistrial.   The following exchange took place between defense counsel and the court:

DEFENSE COUNSEL:  Judge, just for the record, if- if they indicate that they're hopelessly deadlocked and additional deliberations ․

THE COURT:  Tomorrow, sometime if they tell me that, I'll consider it.

DEFENSE COUNSEL:  Well -

THE COURT:  Not tonight.

DEFENSE COUNSEL:-Judge, then it would be my -

THE COURT:  I understand your-your motion but I'm not satisfied that eight hours deliberation in this case is sufficient.

Considering the favorable verdict for the co-defendant by the same jury, defense counsel may have faced a difficult strategic dilemma in deciding whether to seek a mistrial or completion of the jury's deliberations.   For purposes of the appeal, however, we will view the record as sufficient to have indicated defendant's desire for a mistrial at the end of the second day of deliberations.

A trial judge has discretion to require further deliberations after a jury has announced an initial inability to reach a verdict.  State v. Figueroa, 190 N.J. 219, 235 (2007);  Czachor, supra, 82 N.J. at 407.   In exercising this discretion, the court should consider “such factors as the length and complexity of [the] trial and the quality and duration of the jury's deliberations.”  Czachor, supra, 82 N.J. at 407.

In State v. Harris, 156 N.J. 122, 184 (1998), the jurors in a murder case had deliberated for about six hours over three days when they sent a note to the judge stating that the “split [was] very deep,” and that “there doesn't seem at present a way to resolve it.”   In response, the court gave a supplemental instruction in accordance with the holding of Czachor.   The Supreme Court found no error in requiring the jury to continue deliberations.   The Court focused on the “limited period of deliberation” as well as “the language of the jury's note,” which “stated the deadlock conditionally.”   Ibid. Moreover, the Court reasoned that the trial judge did not coerce a verdict because he “clearly instructed the jurors not to change their opinions simply to agree with the other jurors or to ‘surrender a view honestly held.’ ”  Ibid.

Here, we see no abuse of discretion in the trial court's giving the jury a supplemental instruction to continue deliberations rather than granting defendant's implicit motion for a mistrial.   As in Harris, by indicating that they were not sure if they could ever reach a verdict, the jurors had reported the deadlock “conditionally.”

In addition, the trial contained testimony from twelve witnesses over the course of three days, and the jury was to determine six counts against defendant in addition to the separate count against defendant's wife.   When it sent the note indicating the deadlock, much of the eight hours of deliberation had been devoted to the count against the wife.   After the jury was given the supplemental instruction at the end of the second day, it resumed deliberations without any further complaints of inability to decide the case and reached a split verdict on the third day of deliberations.   The evidence on this record does not indicate that a minority of jurors were in disagreement and that the court's instruction may have coerced a verdict.   See State v. Nelson, 304 N.J.Super. 561, 563-66 (App.Div.1997).

The trial court did not err in denying defendant's motion for a mistrial and instructing the jury to continue deliberations.

II.

Count four charged that “on divers[e] dates between September, 2004 and August 21, 2007” defendant “did knowingly endanger the welfare of L.Z. by engaging in sexual conduct which would impair or debauch the morals of L.Z.” The trial court instructed the jury that the sexual conduct alleged was the aggravated sexual assaults and sexual assaults charged in counts three, five, and six during this same time period, namely, “engaging in anal intercourse” (count three), “touching her vagina” (count five), and “touching her buttocks” (count six).   Defendant asserts the jury's finding that he was not guilty of those counts is inconsistent with the guilty verdict on count four.

It is well-settled that the law does not require consistency in verdicts.   Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-91, 76 L. Ed. 356, 358-59 (1932);  State v. Banko, 182 N.J. 44, 53 (2004).   Any inquiry related to seemingly inconsistent verdicts “is limited to whether the counts on which defendant was convicted were supported by sufficient evidence to permit a rational fact finder to find guilt beyond a reasonable doubt.”  State v. Ortiz, 253 N.J.Super. 239, 245 (App.Div.), certif. denied, 130 N.J. 6 (1992).   In this context, our “review of the sufficiency of the evidence on the guilty verdict is independent of the jury's determination that evidence on another count was insufficient.”  State v. Petties, 139 N.J. 310, 319 (1995) (citing United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461, 470 (1984)).

Here, the victim testified defendant touched her breasts, put his tongue in her mouth, and touched her “front private part” when she was in the third, fourth, and fifth grades.   That conduct, if believed by the jury, was in the nature of lesser-included acts of the sexual assaults by penetration and sexual contact alleged in counts three, five, and six.   In considering count four, the jury had sufficient evidence to find that defendant endangered the welfare of his daughter by “engag[ing] in sexual conduct which would impair or debauch [her] morals,” see N.J.S.A. 2C:24-4a, even if the jury found reasonable doubt that defendant had committed the specific acts alleged in the other counts arising out of the same time period.

III.

Next, defendant contends that his sentence was excessive.   Specifically, he asserts that the court erred in its findings with respect to aggravating and mitigating factors and in imposing a consecutive rather than concurrent term on count four.

Our review of a sentencing decision can involve three types of issues:  (1) whether guidelines for sentencing established by the Legislature or by the courts were violated;  (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record;  and (3) whether the sentence was nevertheless “clearly unreasonable so as to shock the judicial conscience.”  State v. Roth, 95 N.J. 334, 364-66 (1984);  accord State v. Carey, 168 N.J. 413, 430 (2001).   We do not substitute our judgment regarding an appropriate sentence for that of the trial court.  Roth, supra, 95 N.J. at 365.

The sentence imposed on each count was within the statutory range of five to ten years for second-degree convictions.   See N.J.S.A. 2C:43-6.   In written reasons attached to the judgment of conviction, as well as orally at sentencing, the judge found aggravating and mitigating factors as applicable individually to each of the three counts of conviction.   On count one, he found aggravating factor two, N.J.S.A. 2C:44-1a(2), that the victim was particularly vulnerable;  aggravating factor three, N.J.S.A. 2C:44-1a(3), the risk defendant will commit another offense;  and aggravating factor nine, N.J.S.A. 2C:44-1a(9), the need to deter defendant and others from committing similar offenses.   On counts two and four, the judge found aggravating factors three and nine.   He also found mitigating factor seven, N.J.S.A. 2C:44-1b(7), that defendant had no prior criminal history, applicable to each of the three counts of conviction.

Defendant contends that the court erred in finding aggravating factor three, that he was likely to commit another offense.   He argues that the evidence supported mitigating factor eight, N.J.S.A. 2C:44-1b(8), that his conduct was the result of circumstances unlikely to recur, and mitigating factor nine, N.J.S.A. 2C:44-1b(9), that his character and attitude indicated he was unlikely to commit another offense.

Our review of the trial judge's findings with respect to aggravating and mitigating factors is limited to whether they “were based upon competent credible evidence in the record.”  State v. Bieniek, 200 N.J. 601, 608 (2010) (citing Roth, supra, 95 N.J. at 364-65).   In rejecting defendant's argument on mitigating factors eight and nine, the judge noted that defendant's criminal conduct had “reoccurred for three years.”   He reasoned that the repetitive nature of the sexual abuse indicated a risk that defendant would re-offend rather than little risk of further misconduct.   The judge's determination on that issue was supported by sufficient credible evidence, in particular, that defendant's conduct was not an isolated incident but involved a pattern of abusive behavior.

Defendant also contends that, by applying aggravating factor two to count one, the court impermissibly “double-counted” the victim's young age and vulnerability.   Defendant argues that those circumstances are the direct result of an element of the sexual assault statute under which defendant was convicted.  N.J.S.A. 2C:14-2b provides that:  “An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.”

“[F]acts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence.”  State v. Kromphold, 162 N.J. 345, 353 (2000).   We agree with defendant's argument as to aggravating factor two as applied to count one.

In the context of a sexual assault case under N.J.S.A. 2C:14-2b, we have held that “the extreme youth of the victim was a proper aggravating factor to have been considered by the court.”  State v. Taylor, 226 N.J.Super. 441, 453 (App.Div.1988) (four-year-old victim).   Here, the trial judge recognized that age was an element of the offense of sexual assault under N.J.S.A. 2C:14-2b, but he reasoned that the difference between the statute's designation of thirteen years old as the threshold and the victim's age of eight at the time of some of the crimes could be considered an aggravating factor.   The judge stated:

I find that this victim was particularly vulnerable.   She was eight years old at the time, incapable of resistance and that is not an element of Count One. The fact that she was under-- all that's necessary under Count One is that she be less than 13 years of age.

In any event, I am not going to weigh this heavily on a qualitative basis.   I-- I do find that it is a systematic abuse of this child over a period of time.   However for purposes of sentencing, I'm not going to weigh it very heavily.”

The court's reasoning might have been applicable to count four charging endangering the welfare of the victim beginning in September 2004 when she was eight years old.   But it was erroneously applied to count one, which charged a specific incident of sexual assault on August 22, 2007, when the victim was approaching her twelfth birthday.   The holding of Taylor, supra, 226 N.J.Super. at 453, does not apply to count one because the victim was not extremely young in comparison to the required elements of the offense.

Although the judge stated he was not weighing aggravating factor two heavily in determining the appropriate sentence, the provisions of NERA requiring that defendant serve eighty-five percent of that sentence apply to count one, and any additional term of imprisonment imposed on that count has a substantial effect on defendant's overall sentence.   Accordingly, we vacate defendant's sentence on count one and remand for resentencing on that count without consideration of aggravating factor two.

In addition, we must vacate and remand for resentencing on count two because the concurrent eight-year sentence on that count arose from the same incident, and the judge may have intended to impose the same term of imprisonment on both counts one and two.

Finally, defendant contends that the court erred in imposing a consecutive rather than concurrent sentence on count four.   We disagree with that contention.   In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986)), the Supreme Court set forth factors to be considered in determining whether to impose concurrent or consecutive sentences, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous.

[100 N.J. at 644.]

We see no abuse of discretion in the judge's decision to impose a consecutive sentence on count four.   The judge correctly applied the Yarbough factors, finding that a consecutive sentence was appropriate because:

this is a separate crime covering a separate period of time․  While it is the same victim, his daughter, it did occur on separate dates over a three-year period of abuse.   The Defendant has been convicted of numerous crimes under this indictment.   For that reason I believe a consecutive sentence would be in order.

In sum, except as noted on counts one and two, the sentence imposed was within the judge's discretionary authority.

Defendant's conviction by the jury on all three counts and his sentence on count four are affirmed.   We remand for reconsideration of the sentences on counts one and two in accordance with this opinion.   We do not retain jurisdiction.

PER CURIAM