State v. Miller

• Decision Date: 21 July 1987
• Citation: 527 A.2d 1362,108 N.J. 112
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John MILLER, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 112

108 N.J. 112

527 A.2d 1362

STATE of New Jersey, Plaintiff-Appellant, v. John MILLER, Defendant-Respondent.

Supreme Court of New Jersey.

Argued March 17, 1987.

Decided July 21, 1987.

Richard W. Berg, Deputy Atty. Gen., for plaintiff-appellant (W. Cary Edwards, Atty. Gen., attorney).

Carolyn Anita Parks, Asst. Deputy Public Defender, for defendant-respondent (Alfred A. Slocum, Public Defender, attorney).

The opinion of the Court was delivered by

STEIN, J.

This case requires the Court to focus on the standards for determining whether separate offenses must merge upon conviction and those determining whether consecutive sentences may be imposed on unmerged offenses. Specifically, we must resolve whether defendant's convictions for aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and child endangerment, N.J.S.A. 2C:24-4a, should merge, and if merger is not required, whether consecutive sentences for these offenses may be imposed. The trial court found that merger of these convictions was inappropriate, and ordered consecutive sentences for the two offenses. Deciding that merger was required, the Appellate Division reversed and vacated the consecutive sentence for endangering the welfare of a child. Because we disagree with the Appellate Division's decision to merge the offenses, we reverse. However, due to the absence of an adequate statement of reasons for the trial court's decision to sentence consecutively, we cannot reinstate the sentence vacated by the Appellate Division decision. We therefore remand for resentencing.

I

The incidents leading to the convictions in this case occurred in April 1984. During a weekend of visitation, the defendant sexually assaulted his five-year-old daughter. The offensive conduct first occurred in the course of a card game during which both the victim and her father shed their clothing. The defendant then proceeded to assault his daughter, performing several sexual acts upon her. The defendant also induced his daughter to play another sexual "game" later in the weekend.

On the basis of in-court testimony by the victim, a jury convicted the defendant of two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1); one count of sexual assault, in violation of N.J.S.A. 2C:14-2b; one count of endangering the welfare of a child, in violation of N.J.S.A 2C:24-4a; and one count of child abuse, in violation of N.J.S.A. 9:6-3.

At sentencing, the trial court merged the sexual assault count into the aggravated sexual assault convictions, and merged the child abuse conviction into the conviction for endangering the welfare of a child. ¹ The court sentenced the defendant to concurrent sentences of twenty years with ten years of parole ineligibility on the aggravated sexual assault counts. The sentence was to be served at the Adult Diagnostic and Treatment Center at Avenel. A $1000 penalty was also imposed. For endangering the welfare of his child, the defendant was sentenced to a consecutive term of five years at Avenel with a two-and-one-half year parole disqualifier. He was also assessed a $500 penalty.

In support of this sentence, the court found that the aggravating factors substantially outweighed the mitigating factors. The court found no mitigating factors whatsoever. The following aggravating factors were noted: the defendant had a substantial prior record, including a previous sex offense with a child; the nature and circumstances of the case were "terrible;" the seriousness of the harm inflicted on the victim was "extraordinary;" there was a high risk that the defendant would commit another offense creating a particular need for deterrence; and a lesser sentence would depreciate the seriousness of the offense. However, no specific reasons were given, as required by State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), for imposing consecutive rather than concurrent sentences.

In an unreported opinion, the Appellate Division reversed. After raising the issue sua sponte, and requesting supplemental briefs, the court found that the convictions for aggravated sexual assault and endangering the welfare of a child should have merged. Accordingly, the five-year sentence for endangering the welfare of a child was vacated.

II

Merger is based on the principle that "an accused [who] has committed only one offense * * * cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77, 342 A.2d 841 (1975). Merger implicates a defendant's substantive constitutional rights. State v. Truglia, 97 N.J. 513, 522, 480 A.2d 912 (1984); State v. Rodriguez, 97 N.J. 263, 271, 478 A.2d 408 (1984); State v. Davis, supra, 68 N.J. at 77, 342 A.2d 841. The analysis is similar to a double jeopardy analysis. State v. Mirault, 92 N.J. 492, 501, 457 A.2d 455 (1983). Slightly different interests are involved, however. In double jeopardy cases the defendant seeks to avoid both multiple prosecution and multiple punishment; in merger cases, only multiple punishments are at issue.

The first step is to compare the statutes defining the offenses at issue. As this Court stated in Davis,

[w]e start with the proposition that what is disallowed is double punishment for the same offense. Since it is the legislative branch that defines the unit of prosecution or "offense" and ordains its punishment, we must first determine whether the legislature has in fact undertaken to create separate offenses * * *. [68 N.J. at 77-78, 342 A.2d 841 (citations omitted).]

Thus the focus is on the elements of the crimes and the Legislature's intent in creating them.

However, this Court has rejected a mechanical application of the definitional analysis, requiring an additional, more flexible inquiry "focus[ing] on the episodic fragments of the events." Truglia, supra, 97 N.J. at 521, 480 A.2d 912; accord Mirault, supra, 92 N.J. at 501, 457 A.2d 455; Davis, supra, 68 N.J. at 81, 342 A.2d 841. This portion of the analysis is "attended by considerations of 'fairness and fulfillment of reasonable expectations in light of constitutional and common law goals.' " Davis, supra, 68 N.J. at 81, 342 A.2d 841 (quoting State v. Currie, 41 N.J. 531, 539, 197 A.2d 678 (1964)). Specifically [it] entail[s] analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. Certainly there are other factors to be considered and, along with the above, accorded greater or lesser weight depending on the circumstances of the particular case. [68 N.J. at 81, 342 A.2d 841.]

In Davis, the Court held that a conviction for unlawful possession of a controlled dangerous substance did not merge with a conviction for distribution. Although the Court acknowledged that the same conduct could sustain both convictions since "one must indeed possess the drug in order to sell it," id. at 82, 342 A.2d 841, it found no evidence that the possession in that case was a "mere fleeting and shadowy incident of the sale." Id. at 83, 342 A.2d 841; see also State v. Valentine, 69 N.J. 205, 211, 351 A.2d 751 (1976) (possession with intent to distribute and distribution of heroin convictions do not merge where defendant carried a stock of heroin around for a time before selling some of it to an undercover agent). Accord State v. Jester, 68 N.J. 87, 342 A.2d 850 (1975); State v. Ruiz, 68 N.J. 54, 342 A.2d 833 (1975).

Since Davis, we have dealt with merger issues by focusing on the specific facts of each case. ² In State v. Truglia, supra, the Court concluded that convictions for aggravated assault and possession of a handgun with the purpose of using it unlawfully did not merge. 97 N.J. at 520, 480 A.2d 912. In that case, the defendant first chased the victim with a gun in his hand and later pointed it in the direction of the victim and fired. Although both criminal offenses arose out of the same course of conduct, the Court found that the convictions were supported by different segments of the sequence of events. Id. at 521, 480 A.2d 912. On the other hand, in State v. Best, 70 N.J. 56, 356 A.2d 385 (1976), the Court concluded that the conviction for "possession of a dangerous knife" did merge with armed robbery, since possession of a weapon was a necessary element of that offense, and "[t]here [was] no evidence * * * that defendant carried th[e] knife at a time before or after the robbery, or possessed it for any purpose other than perpetrating the robbery." Id. at 65-67, 356 A.2d 385; see also State v. Allison, 208 N.J.Super. 9, 24-25, 504 A.2d 1184 (App.Div.1985) (aggravated arson and first degree arson convictions do not merge; although the same conduct constitutes the gravamen of both offenses, first degree arson involves the added element of offering or accepting payment to start a fire).

We discern from these cases that merger may be improper even where a single course of conduct constitutes a violation of two different criminal statutes. The factor critical to the merger decision in this case stems from the different interests protected by the statutes violated. Aggravated sexual assault, as defined in N.J.S.A. 2C:14-2a(1), is "an act of sexual penetration with another person" where "the victim is less than 13 years old." Endangering the welfare of a child is defined in N.J.S.A. 2C:24-4a. That statute provides:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child * * * is guilty of a crime of the third degree. Any...