State v. Miller
| Decision Date | 20 February 2019 |
| Docket Number | 079342,A-70 September Term 2017 |
| Citation | 203 A.3d 102,237 N.J. 15 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Michael D. MILLER, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Lisa Sarnoff Gochman, Freehold, Legal Assistant, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Lisa Sarnoff Gochman, of counsel and on the briefs).
Michael T. Denny, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Michael T. Denny, of counsel and on the briefs, and William Welaj, Designated Counsel, on the briefs).
Regina M. Oberholzer, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the brief).
In this appeal, we first consider whether it is an abuse of discretion for a trial court to apply aggravating factor one when sentencing a defendant convicted of possessing and distributing child pornography. Second, we consider whether defendant Michael Miller was appropriately sentenced to consecutive terms of imprisonment for his possession and distribution of child pornography.
Miller was convicted of possessing and distributing over 900 images and videos of child pornography through the use of online peer-to-peer file-sharing programs. He was also in possession of thirty-three CDs and DVDs, eleven of which contained photographs and recordings of child pornography separate from those found on his computer. At Miller's sentencing hearing, the trial judge applied aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), because the pornography possessed and distributed by Miller depicted the rape, penetration, and sexual assault of extremely young children, at least one of whom was an infant. After considering the relevant aggravating and mitigating factors, the trial judge sentenced Miller to seven years' imprisonment for the distribution charge, and one year of imprisonment for the possession charge, to be served consecutively. Miller subsequently appealed.
The Appellate Division reversed and remanded Miller's sentence. In a published opinion, which instructed the trial court to re-sentence Miller without consideration of aggravating factor one and to merge Miller's possession and distribution convictions. The appellate panel determined that the trial court engaged in impermissible double-counting when it applied aggravating factor one because child pornography is inherently heinous, cruel, and depraved, and Miller's possession and distribution of such pornography in this case was no different. The panel further held that the trial court should have merged Miller's possession and distribution convictions because the crimes were reasonably proximate in time and place, and Miller's use of the file-sharing programs was a necessary ingredient and an integral part of both his possession and his distribution of the child pornography.
We conclude that the panel's opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. We further conclude that Miller's possession charge involved child pornographic material beyond that involved in his distribution charge -- there was pornographic material in Miller's possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes. Accordingly, we reverse the judgment of the Appellate Division and reinstate Miller's sentence.
From 2010 to 2012, Freehold Township Police Officer Richard Hudak was assigned to the Computer Crimes Unit of the Monmouth County Prosecutor's Office (MCPO) as part of the Internet Crimes Against Children (ICAC) task force. By using "undercover computers," Hudak was able to locate computers within Monmouth County that were making suspected images and videos of children performing prohibited sexual acts available for download. As was the case with defendant Michael Miller, these pictures and videos were oftentimes shared via peer-to-peer file-sharing. Peer-to-peer networks allow computer users to exchange audio, video, and image files with each other over the internet, with the computers being referred to as "peers." When users download a particular peer-to-peer software program, they offer their computers and files to other users for sharing, and can download files from others using the same software.
Through his investigation, Officer Hudak was able to determine that Miller's computer was sending and receiving files containing child pornography via peer-to-peer networks. On February 1, 2012, Hudak and other members of the MCPO ICAC task force executed a search warrant at Miller's Keansburg residence. The officers seized thirty-three CDs and DVDs, and several computers -- including an Acer Aspire 4315 laptop. Eleven of those CDs and DVDs were found to contain images or videos of child pornography. Miller was brought to the Keansburg Police Station, where he was read and waived his Miranda 1 rights. While being questioned by police, Miller acknowledged that he had been living alone at his residence for two years and that he previously used the peer-to-peer file-sharing program LimeWire until it was shut down in 2010, at which time he began using FrostWire. When asked if he was admitting to downloading child pornography, Miller replied "Yes."
Miller was then asked about his understanding of peer-to-peer networks and responded, "[I]f you have a song on your computer, I can download it and share [it]." Miller explained, but he later acknowledged, Miller further stated, "Obviously, if it's in the FrostWire file ... it's available to anyone else, so it's not necessarily personal." When Miller was asked whether he disputed that he made the child pornography videos shareable to other people through FrostWire, he responded, "No." Miller then acknowledged that he knew "that the library where the images or the videos were was shareable."
During this interview, Miller was shown sanitized photographs taken from the pornographic videos obtained from his computer and was asked to sign his initials on the pictures he recognized. The photographs that Miller initialed and that were presented to the judge at trial included: (1) an image of an adult male and a juvenile female with a pacifier in her mouth and her legs drawn up with her vaginal area exposed; (2) a photo where both an adult female and a juvenile male are nude, and the male is straddling the adult female's legs; (3) a photo of a juvenile female performing fellatio on an adult male; (4) a photo of a juvenile female and juvenile male with their genitals exposed alongside an adult female with her breasts exposed; (5) an image of a juvenile female as she straddles and masturbates an adult male; and (6) an image of a naked juvenile male and a naked adult female with another juvenile female wearing a type of nightgown.
Detective Richard Bruccoliere conducted a forensic analysis of all the media that was seized in this case. Bruccoliere investigated Miller's Acer Aspire 4315 laptop, in which he found 631 images and 353 videos of child pornography. Miller's laptop also contained three peer-to-peer file-sharing programs: FrostWire, uTorrent, and MediaGet.
On May 20, 2013, a Monmouth County grand jury returned an Indictment charging Miller with fourth-degree endangering the welfare of a child by knowingly possessing child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(b)2 (count one), and second-degree endangering the welfare of a child by knowingly distributing child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(a) (count two). Miller waived his right to a jury trial and, after a two-week bench trial, was found guilty of both charges.
At the sentencing hearing, the court applied aggravating factor one, "[t]he nature and circumstances of the offense." See N.J.S.A. 2C:44-1(a)(1). In applying aggravating factor one, the court noted that The court further noted that the content of Miller's pornography was "heinous, and cruel, and depraved," and that the "little girls and boys" depicted in Miller's pornography were "treat[ed] as if they were not people, as if they were mere objects."
The court also applied aggravating factor two, the gravity of harm to the victim ( N.J.S.A. 2C:44-1(a)(2) ); aggravating factor three, the risk "defendant will commit another offense" (id. § 44-1(a)(3) ); and aggravating factor nine, the need for deterrence (id. § 44-1(a)(9) ). The court applied mitigating factor seven, no prior criminal history (id. § 44-1(b)(7) ), as the sole mitigating factor. The court then concluded that it would not merge counts one and two together, explaining that
The court ultimately sentenced Miller to seven years' imprisonment for the distribution charge and one year of imprisonment for the possession charge. The court determined that...
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