STATE OF NEW JERSEY VS. GERALD D. LAPHAN(14-09-0140, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-3437-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERALD D. LAPHAN,
Defendant-Appellant.
_______________________________
Argued October 16, 2017 - Decided November 29, 2017
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
14-09-0140.
Thomas J. Gosse argued the cause for
appellant.
Jana Robinson, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Robinson, on the brief).
PER CURIAM
Defendant Gerald D. Laphan was convicted by a jury of two
counts of second-degree endangering the welfare of a child by
the offering and distribution of child pornography, N.J.S.A.
2C:24-4b(5)(a); and fourth-degree endangering the welfare of a
child by possession of child pornography, N.J.S.A. 2C:24-
4b(5)(b); based largely on a voluntary statement he made to the
police following the seizure of two computers found in his
bedroom pursuant to a search warrant. Defendant received an
eight-year prison term and was required to register under
Megan's Law, N.J.S.A. 2C:7-1 to -23. Defendant appeals his
conviction, raising the following issues for our consideration:
POINT I
THE FAILURE TO CONDUCT A RULE 104(C) HEARING
ON THE ADMISSIBILITY OF THE DEFENDANT'S
TAPED STATEMENT (AUDIO ONLY) MANDATES THAT
HIS CONVICTIONS BE REVERSED. (Not raised
below.)
POINT II
THE DEFENDANT'S STATEMENT SHOULD NOT HAVE
BEEN ADMITTED INTO EVIDENCE BECAUSE HE DID
NOT KNOWINGLY, VOLUNTARILY, AND
INTELLIGENTLY WAIVE HIS CONSTITUTIONAL RIGHT
AGAINST SELF-INCRIMINATION. THEREFORE, HIS
CONVICTIONS MUST BE REVERSED. (Not raised
below.)
POINT III
IN THE EVENT THIS COURT DETERMINES THAT THE
DEFENDANT'S STATEMENT WAS VOLUNTARY, NOT
ALLOWING THE JURY TO HEAR THE FULL STATEMENT
OF THE DEFENDANT AND THE CONTEXT IN WHICH IT
WAS GIVEN MADE THE USE OF THE STATEMENT
AGAINST THE DEFENDANT PATENTLY UNFAIR. THE
ENTIRE STATEMENT (ABSENT THE INTERROGATOR
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DECLARING THAT DEFENDANT IS GUILTY) SHOULD
HAVE BEEN GIVEN TO THE JURY AND THE FAILURE
TO DO SO DENIED THE DEFENDANT A FAIR TRIAL.
(Not raised below.)
POINT IV
THE PROSECUTOR'S COMMENTS IN HER SUMMATION
THAT DEFENDANT'S FAILURE TO TELL POLICE
DURING HIS INTERROGATION THAT HE DID NOT
CREATE NOR VIEW THE CONTENTS IN THE FILE
SHARING FOLDER (EVEN THOUGH HE WAS NEVER
ASKED) AS EVIDENCE OF DEFENDANT'S GUILT IS
GROUNDS FOR REVERSAL.
POINT V
EXCLUSION OF THE TEXT MESSAGE WHICH WOULD
HAVE STRONGLY CORROBORATED THE DEFENSE'S
CONTENTION THAT THE DEFENDANT WAS NOT AT THE
CRIME SCENE WHEN THE CRIMES WERE COMMITTED
WAS AN ERROR WHICH DENIED THE DEFENDANT A
FAIR TRIAL; THEREFORE, HIS CONVICTIONS MUST
BE REVERSED.
POINT VI
THE PORTIONS OF THE DEFENDANT'S STATEMENT
THAT WERE ADMITTED CONTAINED DECLARATIONS BY
INVESTIGATORS THAT THE EVIDENCE THE STATE
HAD, MADE THE DEFENDANT'S GUILT AS TO ALL
CHARGES INDISPUTABLE. THESE DECLARATIONS
DENIED THE DEFENDANT A FAIR TRIAL. (Not
raised below.)
POINT VII
REPEATED MISREPRESENTATIONS BY THE STATE AND
ITS WITNESSES THAT THE DEFENDANT ADMITTED TO
DOWNLOADING CHILD PORNOGRAPHY AND ADMITTED
TO OFFERING/DISTRIBUTING CHILD PORNOGRAPHY
WHEN THEY KNEW THIS WAS NOT TRUE DENIED THE
DEFENDANT A FAIR TRIAL (ESPECIALLY SINCE THE
CONCEPT OF DOWNLOADING IS CONFUSING AND WAS
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CONTINUALLY MISCHARACTERIZED BY THE STATE).
(Not raised below.)
POINT VIII
THE COURT SHOULD HAVE DEFINED "DOWNLOADING"
FOR THE JURY SINCE IT IS AN ESSENTIAL
ELEMENT OF THE ALLEGED CRIMES OF OFFERING
AND DISTRIBUTING CHILD PORNOGRAPHY WITH A
COMPUTER AND PROVIDED THE JURY WITH THE
STATUTORY DEFINITION OF A "FILE-SHARING
PROGRAM." (Not raised below.)
Because defendant's statement to police, given after Miranda1
warnings, was redacted and admitted into evidence pursuant to an
agreement between his counsel and the prosecution, and his
remaining arguments are without merit, we affirm.
The State's case at trial consisted of the testimony of
members of New Jersey's Internet Crimes Against Children Task
Force, who explained how they monitor online networks for child
pornography and track individual users on those networks;
forensic examiners, who explained what they found on defendant's
computers; and two members of the State Police, who took
defendant's recorded statement.
The Task Force members described how peer-to-peer file
sharing over the internet works. They explained that peer-to-
peer file-sharing networks allow users with specific free
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4 A-3437-15T2
software programs available on the internet, such as FrostWire,
to transfer and download files from the computers of other users
on the network. They also explained how they infiltrate those
networks using specialized software to find files identified by
the National Center for Missing and Exploited Children as
containing child pornography.
A Task Force member testified he was monitoring that
software on January 27, 2012, when he discovered that a user in
South Jersey not only possessed files identified by the National
Center as child pornography but was sharing those files with
other users by keeping them on his computer in a publicly-shared
folder. After pinpointing the Internet Protocol (IP) address
associated with the files, the detective initiated a single-
source download from that user by connecting to that IP address
and downloading three video files.
After confirming the files contained child pornography, the
detective sent a subpoena to the internet service provider
owning the IP address for the identity of the subscriber. The
provider, Verizon, advised the IP address belonged to a customer
in Mount Ephraim. Following record checks and surveillance to
identify all persons residing at the Mt. Ephraim address, State
Police applied for a search warrant for the residence. A
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tactical team executed the warrant at 6:00 a.m. on a day in
early March.
After providing the assembled members of the household with
Miranda warnings, the sergeant in charge told the family he was
searching for evidence of child pornography. Defendant, a
nephew of the couple who owned the home, told the sergeant he
could help in the investigation. After defendant advised he had
viewed images of children on the computer in his bedroom,
defendant was arrested and taken in for questioning.
While defendant was being taken into custody, another
detective conducted what he described as a forensic "preview" or
"snapshot" of the two computers in defendant's bedroom. Using
specialized forensic software, the detective testified he was
able to identify one of the computers by its Global Unique
Identifier as the exact machine from which the police downloaded
the three video files on January 27th. The detective was also
able to confirm that two of those files were still on
defendant's computer, although apparently deleted by the user.
State Police examiners ultimately identified 265 files
containing child pornography on defendant's computers, 221
videos and 44 photographs.
At the station, defendant was again provided his Miranda
rights and gave a lengthy recorded statement to police. Before
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the statement was played for the jury, the judge confirmed on
the record that there was "no issue of voluntariness or anything
else that I otherwise would have to – to rule on." Both counsel
advised the court that the redacted statement was the product of
extensive negotiations conducted over several months, with
defense counsel confirming "[f]or the record" that they had
"com[e] to an agreement on it."
In the statement, defendant acknowledged he was under
arrest for possession of child pornography "[b]ecause there's
illegal things on my laptop." He claimed a friend downloaded
the images onto his computer and that "[i]nstead of reporting
it[,] I thought I could delete it." Defendant explained he
"downloaded FrostWire" because he was "cheap, and [he did not]
wanna pay for an Apple card to download . . . music." When
asked how many times he knowingly looked at child pornography,
defendant replied, "[m]aybe um, a few times I, I did know some,
somethin' was ah, not right. I'll man up, and I'll say that I
knew a few times. But the other things, no."
Defendant explained that he used to download music "on
LimeWire" and that "[u]nfortunately, well you can download
videos too." He told investigators he "did download music
videos" and "did download Torrents, which is ah, movies." After
"LimeWire got shut down. . . . a friend recommend[ed]
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FrostWire." Defendant described FrostWire as "basically the
ugly cousin of LimeWire." He claimed when he "typed up random
sexual word[s] in the [program's] search bar" that:
everything came up, it came up um, college
girls, girls gone wild. Um, basically, in
the his . . . if you could think of, came up
in that title, whatever you know. I clicked
everything. Everything, everything,
everything. Clicked it all. Didn't need
read the titles. Clicked it. However, you
know, something came up. This P[re]T[een]
crap. Gained your curiosity. You know when
you clicked it, it said ah, eighteen year
old fondle something, whatever. But when
you clicked it, the girl wasn't eighteen.
You could just tell off the bat. And it
gains your curiosity. Like it, it's not
like it's [a] sick twisted thing you have
going, it just gains your curiosity, like
what the hell is this? It's something that
you don't see everyday. It's something, you
know, it just went from there. I, no one
really taught, I could give you the titles
that came up, when you type in that one
word. It came up um, the nymph, [inaudible]
nymphent comes up, nymphets, which is a
female, young, you know, it's I looked it
up.
Although defendant claimed he got started with his friend
downloading things onto his computer, he admitted "that was a
year or some ago" and was not related to matters he was being
asked about. When presented with a screenshot of what
detectives found in his shared folder, defendant said, "this was
my shared, this, is yeah, this is mine."
8 A-3437-15T2
A forensic examiner with the FBI assigned to the New Jersey
Regional Forensics Laboratory described how he imaged the hard
drives of defendant's computers, located possible images and
videos of child pornography and evidence of the file-sharing
programs LimeWire and FrostWire. The examiner explained how he
used a virtual machine, a piece of software that allows the user
to see the computer exactly "how the user would see it, the
shortcuts that they created, the icons and files that they
created. . . . just like if I were to turn on the laptop and
start it up." The examiner identified screenshots of
defendant's FrostWire program as it would have appeared to
defendant on the date his computer was seized, which reflected
in yellow highlighting that he was "sharing 12 files."
Using other forensic tools, the examiner was able to
testify that on January 26, 2012, beginning at 11:00 p.m., the
day before a member of the Internet Crimes Against Children Task
Force first detected child pornography on defendant's computer,
the user of the computer downloaded the FrostWire program and
the three child pornography files detected and accessed the
following day. Following those downloads, the user accessed
defendant's Facebook account and visited adult pornography and
dating websites into the early morning hours.
9 A-3437-15T2
The examiner conceded on cross-examination that defendant's
computers were not password protected and that anyone in his
household could have accessed his computers and logged in under
his user name. The examiner also confirmed that two of the
three files investigators accessed on January 27th had been
deleted from defendant's computer by the time State Police
executed its search warrant several weeks later.
The defense theory was that someone else downloaded the
illegal images to defendant's computer. The defense presented
defendant's girlfriend and his grandmother, who testified that
defendant was not at his aunt and uncle's house in Mt. Ephraim
on the dates the State claimed child pornography files were
downloaded to defendant's computer in 2012. During January and
February 2011, when defendant claimed the friend who downloaded
the images to his computer was staying at his aunt and uncle's
house, another relative of defendant's testified defendant spent
weekends at her house in Pennsylvania assisting in her
landscaping and excavating business. The witness explained that
most of her employment records were lost in a flood in 2012, but
that she saw a document relating to monies she owed defendant
for work during 2011 that enabled her to testify with certainty
that he was at her house on those dates.
10 A-3437-15T2
The document used to refresh the witness's recollection was
a photograph of a text message from defendant to his grandfather
asking him to write down the weekends defendant was working in
January and February 2011 so he would be sure to get paid for
his time. Although the court permitted defendant to use the
text message to refresh the witness's recollection, the document
was not admitted because it was hearsay not subject to any
exception.
In closing, defendant's counsel argued that defendant
discovered some illegal images on his computer and deleted what
he saw, consistent with his statement to the police. Counsel
used the statement to argue defendant had been forthright about
seeing some of the images placed on his computer by a friend,
and that defendant's interrogators lied to him about what they
found on his computer in urging him to admit that he downloaded
the images. Counsel contended defendant never admitted to
downloading any illegal images and criticized the police for not
investigating the friend responsible for all the illegal
material found on defendant's computers. He argued defendant
was not tech savvy, did not understand the concept of shared
files and had no intent to offer or distribute child
pornography.
11 A-3437-15T2
The prosecution made extensive use of defendant's statement
in its summation, re-playing several excerpts. The prosecutor
argued the forensic experts identified 265 files containing
child pornography on defendant's two computers, refuting any
claim that defendant accidentally accessed the material his
friend had downloaded the year before and quickly deleted it.
The State conceded some files had been deleted, but asserted
defendant continued to download child pornography until January
26, 2012, long after his friend moved out.
As previously noted, the jury convicted defendant on all
counts charged.
The issues defendant raises in Points I, II, III, and VI
relating to the admission at trial of his redacted statement to
police are without sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2).
Defendant did not raise a challenge to the voluntariness of
his statement to the police in the trial court. He instead
advised the court he agreed with the prosecution that the
statement should be admitted at trial with the redactions his
counsel negotiated. Accordingly, the issues he now raises as to
the failure of the court to conduct a N.J.R.E. 104 hearing on
the statement's admissibility, the voluntariness of the
statement, the failure to play the entire statement for the jury
12 A-3437-15T2
and the failure to redact certain statements made by his
interrogators are all barred by the doctrine of invited error.
See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.
328, 340 (2010) (explaining that "'[t]he doctrine of invited
error operates to bar a disappointed litigant from arguing on
appeal that an adverse decision below was the product of error,
when that party urged the lower court to adopt the proposition
now alleged to be error'") (quoting Brett v. Great Am.
Recreation, 144 N.J. 479, 503 (1996)).
As the Supreme Court explained in State v. Jenkins, "a
defendant cannot beseech and request the trial court to take a
certain course of action, and upon adoption by the court, take
his chance on the outcome of the trial, and if unfavorable, then
condemn the very procedure he sought . . . claiming it to be
error and prejudicial." 178 N.J. 347, 358 (2004) (citation and
internal quotation marks omitted). That is precisely what
defendant attempts here.
It is clear from reading the record that defendant used the
statement in crafting his defense to the charges. His counsel
urged the statement showed defendant was honest in admitting to
police he stumbled onto illegal images downloaded to his
computer by a friend, and that he tried to delete those images
from his computer, not offer or distribute them to others.
13 A-3437-15T2
Counsel argued the statement also showed police never bothered
to investigate defendant's claim about the friend once defendant
admitted to viewing the images, concluding "[t]hey had their
man." Instead, interrogators minimized the trouble defendant
was in, told him they knew he was guilty and tried to browbeat
him into admitting he downloaded the images, which, counsel
argued, the statement proved he never did. Having made the
statement a critical element of his defense, defendant is
precluded from arguing its admission requires reversal of his
conviction. See State v. A.R., 213 N.J. 542, 561-63 (2013).
We further reject the claim defendant raises in Point IV
that the prosecutor's comments in summation regarding
defendant's failure to disavow the contents of the files on his
shared folder in the course of his interrogation violated his
right to silence. As the Court recently explained in State v.
Kucinski, once a defendant has waived his right to remain
silent, "cross-examination regarding facts to which he testified
at trial, but omitted in his statement to police, was proper."
227 N.J. 603, 623 (2017) (citing United States v. Fambro, 526
F.3d 836, 842 (5th Cir.) ("A defendant cannot have it both ways.
If he talks, what he says or omits is to be judged on its merits
or[ ] demerits, and not on some artificial standard that only
the part that helps him can be later referred to." (quoting
14 A-3437-15T2
United States v. Goldman, 563 F.2d 501, 503 (1st Cir. 1977),
cert. denied, 434 U.S. 1067, 98 S. Ct. 1245, 55 L. Ed. 2d 768(1978))), cert. denied, 555 U.S. 1050, 129 S. Ct. 625, 172 L.
Ed. 2d 617 (2008)). Similarly here, there was nothing improper
in the prosecutor's use of defendant's statement, both what he
said and what he did not say, in her closing remarks.
We likewise are not persuaded that statements "by the
[S]tate and its witnesses that the defendant admitted to
downloading child pornography and admitted to
offering/distributing child pornography" were misrepresentations
that denied defendant a fair trial, as he argues in Point VII of
his brief. Although defense counsel argued defendant never
admitted to downloading or distributing child pornography in his
statement, parts of that statement could fairly be construed as
admissions that he downloaded illegal images of children to his
computers and left those images in a shared file that could be
accessed by others.2 Accordingly, we view the statements as only
2
For example, defendant talked about a video involving "[t]his
little girl" who "looked just like my daughter," who was four
years old. Defendant claimed the video disgusted him, stating,
"[w]hat that sick son of a bitch did to her." When defendant
claimed he "click[ed] out of it immediately," the interrogator
confronted him saying, "you watched it long enough to see what
he did and you watched it long enough to hear what he said."
Defendant replied, "[n]o, no, no, no. I didn't fully download
it." Defendant also told interrogators that he installed
15 A-3437-15T2
fair comment on the evidence and not mischaracterizations of the
record. See State v. Cole, 229 N.J. 430, 457 (2017).
We find no error in the trial court's refusal to admit the
text message used to refresh defendant's relative's recollection
as to when defendant stayed at her house in 2011, which
defendant raises in Point V. N.J.R.E. 612 permits an adverse
party to introduce those portions of the writing which relate to
the testimony of the witness for the purpose of impeaching the
witness, but provides no right in the party calling the witness
to introduce the writing as substantive evidence on any issue.
See Showalter v. Barilari, Inc., 312 N.J. Super. 494, 514 (App.
LimeWire, "cause I downloaded music." Describing to the
interrogators how he went from downloading music to having
illegal images of children on his computer, defendant explained
that in FrostWire, "you can click images um all types, just
Torrents and crap like that, download whatever. . . . Well you
go to all types and you type in a song name that represents a
sexual position or sexual body part, videos come up. . . . You
put that up there, wow all these girls ah, these videos come up,
click the video, then you just go back and click images, type in
a image with ah title, somethin' come up. And that's how you
get introduced to it."
As to his shared folder, when the interrogator explained
that "the files we're interested in when . . . we're looking to
see what's in your folder when we start seeing
P[re]T[een]H[ard]C[ore], PTHC, PTHC, PTHC," defendant
acknowledged what he was being shown was "a snapshot of [his]
shared folder." When the interrogator confirmed "that's, that's
your folder there," defendant responded, "Yeah, I know. I, like
I said I tried deleting the crap and doing the forgive and
forget part but . . . ."
16 A-3437-15T2
Div. 1998). The document, a purported photograph of a text
message sent from defendant to his grandfather, was obviously
hearsay offered to prove the truth of the matter asserted, that
defendant was not at home when illegal images were downloaded to
his computer. Although defendant argues it could have been
admitted as a business record, N.J.R.E. 803(c)(6), even were
that so, a point we do not concede, it was not offered as such,
and no apparent effort was made to subpoena the text from
defendant's cell phone carrier, the only entity that might keep
such a record in the ordinary course of its business.
Finally, we reject defendant's argument, raised in Point
VIII, that the court should have defined "downloading" and
"file-sharing" for the jury. Defendant argues the failure to
define those terms "in this case, where proofs were laden with
technical terms and concepts, likely left the jury confused and
left [it] believing that the State had no standard to reach or
burden to prove anything in this area." Because defendant
failed to object to the court's charge, we review his argument
on this point under the plain error standard, meaning we
disregard such errors unless "clearly capable of producing an
unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95
(2004).
17 A-3437-15T2
Defendant was charged with violating N.J.S.A. 2C:24-
4b(5)(a) and 2C:24-4b(5)(b), which at the time of his crimes
provided3 as follows:
(a) Any person who knowingly receives for
the purpose of selling or who knowingly
sells, procures, manufactures, gives,
provides, lends, trades, mails, delivers,
transfers, publishes, distributes,
circulates, disseminates, presents,
exhibits, advertises, offers or agrees to
offer, through any means, including the
Internet, any photograph, film, videotape,
computer program or file, video game or any
other reproduction or reconstruction which
depicts a child engaging in a prohibited
sexual act or in the simulation of such an
act, is guilty of a crime of the second
degree.
(b) Any person who knowingly possesses or
knowingly views any photograph, film,
videotape, computer program or file, video
game or any other reproduction or
reconstruction which depicts a child
engaging in a prohibited sexual act or in
the simulation of such an act, including on
the Internet, is guilty of a crime of the
fourth degree.
3
The statute was restructured in 2013 to provide, among other
things, that a person commits a crime if, by any means,
including the Internet, he knowingly distributes or possesses an
item depicting the sexual exploitation or abuse of a child or
stores and maintains such an item using a file-sharing program.
See L. 2013, c. 136, § 1. The amended statute includes
definitions of "distribute," "file-sharing program," "item
depicting the sexual exploitation or abuse of a child" and
"peer-to-peer network." Ibid.
18 A-3437-15T2
Contrary to the arguments made throughout defendant's brief,
neither "downloading" nor "file-sharing" is an element of those
crimes, and thus were not required to be separately charged.
See R. 1:8-7(b); State v. Green, 318 N.J. Super. 361, 375 (App.
Div. 1999), aff'd, 163 N.J. 140 (2000).
As Judge Lisa explained in State v. Lyons, the acts
prohibited by the operative words in the former N.J.S.A. 2C:24-
4b(5)(a), although not defined in the Code, carried with them a
commonly understood plain meaning. 417 N.J. Super. 251, 260
(App. Div. 2010). Analyzing the various amendments to the
statute as "evinc[ing] a clear legislative intent to prohibit
'any means' of dissemination of child pornography, specifically
including over the Internet and specifically including computer
'files' containing such materials," we held in Lyons that
"[c]onsideration of the terms in the statute in light of these
legislative initiatives impels us to conclude that the terms
should be construed very broadly." Id. at 262. Accordingly, we
disagree with defendant's premise that he could not have been
convicted of either offering or distributing child pornography
without having "downloaded" illegal images to his computer.
As in Lyons, "[t]he evidence of what defendant did, while
knowing what he knew, is the kind of conduct targeted by these
enactments. Defendant used the modern technology of computers
19 A-3437-15T2
and the Internet, with a file sharing network, to provide and
offer child pornography he possessed in his shared folder."
Ibid. Although those aspects of the State's case describing the
efforts of law enforcement to detect child pornography on the
internet and track its purveyors were highly technical, the
testimony about the various ways an individual with a computer
views, downloads and shares music, photos and videos over the
internet would be readily understood by most jurors. See State
v. Miller, 449 N.J. Super. 460, 468 (App. Div. 2017).
We could in no event conclude the judge's decision to
instruct the jury in accordance with the model charges for
possessing, offering and distributing child pornography was
clearly capable of producing an unjust result here. R. 2:10-2.
Rather, defendant's failure to interpose a timely objection to
the court's charge "constitutes strong evidence that the error
belatedly raised here was actually of no moment." State v.
Tierney, 356 N.J. Super. 468, 481 (App. Div.) (quotation
omitted), certif. denied, 176 N.J. 72 (2003).
Affirmed.
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