State of New Jersey v. James A. Simmons

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NOT FOR PUBLICATION WITHOUT THE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-3539-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES A. SIMMONS,

Defendant-Appellant.

_________________________

Argued May 13, 2025 – Decided August 14, 2025

Before Judges Gooden Brown and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment No.

18-10-1340.

Kevin S. Finckenauer, Assistant Deputy Public

Defender, argued the cause for appellant (Jennifer N.

Sellitti, Public Defender, attorney; Kevin S.

Finckenauer, of counsel and on the briefs).

Lila B. Leonard, Deputy Attorney General, argued the

cause for respondent (Matthew J. Platkin, Attorney

General, attorney; Lila B. Leonard, of counsel and on

the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second- and third-

degree child endangerment by possessing, viewing, maintaining, and storing

child pornography using a file-sharing program. He was sentenced to an

aggregate term of eight years in prison and a special sentence of parole

supervision for life, N.J.S.A. 2C:43-6.4. He was also ordered to comply with

the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.

The convictions stemmed from an internet-crimes against children

investigation that uncovered child sexual exploitation and abuse material

(CSEAM) on defendant's electronic devices at his residence. At trial,

investigators described the processes and programs used to forensically analyze

defendant's devices to determine which ones contained CSEAM. The defense

theory was that the CSEAM belonged to defendant's son who had died by suicide

years earlier. Defendant testified that in search of the motivation for his son's

suicide, he had copied the files from his son's computers onto his own

electronics but never had time to look through them because he was caring for

his ailing wife.

On appeal, defendant raises the following points for our consideration:

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POINT I

THE FAILURE TO REQUIRE THE STATE TO

PROVE [DEFENDANT] KNEW OR REASONABLY

SHOULD HAVE KNOWN THAT THE VICTIMS

DEPICTED IN THE VIDEOS WERE UNDER THE

AGE OF [EIGHTEEN] VIOLATES FREE SPEECH

AND DUE PROCESS PROTECTIONS AND

REQUIRES THE REVERSAL OF HIS TWO

CONVICTIONS. (Not Raised Below).

POINT II

IT WAS REVERSIBLE ERROR TO PERMIT

EXTENSIVE LAY OPINION TESTIMONY ABOUT

A VARIETY OF ARCANE TECHNOLOGICAL

ISSUES FAR BEYOND THE KEN OF AN

ORDINARY JUROR. (Not Raised Below).

POINT III

THE TRIAL COURT IMPROPERLY USED

[DEFENDANT'S] CLAIMS OF INNOCENCE AS AN

AGGRAVATING FACTOR AT SENTENCING. (Not

Raised Below).

Based on our review of the record and the applicable legal principles, we reject

defendant's contentions and affirm.

I.

We glean these facts from the jury trial conducted on diverse dates in July

2022, during which Monmouth County Prosecutor's Office (MCPO) Detectives

Tiffany Lenart, John Sosdian, and Brian Migliorisi, as well as Federal Bureau

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3

of Investigation (FBI) Program Coordinator Nicholas Perone, Jr., of the

Computer Analysis Response Team (CART), testified for the State. Defendant

and his wife testified for the defense.

Lenart, Sosdian, and Migliorisi were all assigned to the computer crimes

unit. Lenart testified that this unit was responsible for conducting "reactive and

proactive internet crimes against children investigations," as well as performing

"digital forensic examinations" of electronic devices. On March 15, 2017, she

discovered that a CSEAM video had been downloaded to the eMule peer-to-peer

file sharing program from an IP address she later learned was assigned to

defendant's address in Freehold. Lenart also determined that the "nickname

associated with the account that was sharing out this download" was

"Onlytheshadow81," which defendant later admitted was his username. The

video was moved into evidence, without objection, and part of it was played for

the jury.

Lenart explained that a peer-to-peer file sharing program is a

downloadable software that allows a user "to download files such as books,

images, movies, [and] computer software from other users that are . . . also

connected to the internet and using that file sharing program or a compatible file

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4

sharing program and then are offering these files for other people to download."

According to Lenart,

there are several peer[-]to[-]peer programs that are law

enforcement[-]specific versions that force a

one[‑]to[‑]one stream download, which means the law

enforcement officer operating the software downloads

specific files that are flagged by hash values, which is

a mathematical algorithm that applies a specific

numerical and alphabetic value to a video or an image.

Those are compiled in a list by the National

Center for Missing and Exploited Children. The

peer[‑]to[-]peer software then runs this list on the

internet looking for any users who might be sharing

those files. Then our law enforcement software

specifically downloads those files from those users.

Lenart testified that as a result of the March 15 discovery, in the early

morning hours of July 26, 2017, about a dozen members of the MCPO's

computer crimes unit and internet crimes against children taskforce responded

to defendant's residence to conduct a search of the house. Defendant's wife

answered the door and allowed the officers to enter the residence. Once inside,

they learned that defendant was asleep. When he awoke, the officers told

defendant and his wife that "the reason for [the] search that morning . . . [was]

to look for electronics and potentially any evidence of child pornography."

During the search, law enforcement officers recovered over 100 pieces of

electronic equipment from the residence, including a USB drive that was

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5

connected through an adapter to the television in defendant's bedroom. Through

forensic analysis, officers ultimately found over 100 CSEAM videos on the USB

drive. Portions of those videos were played for the jury without audio. The file

names included the following:

• "PTHC[1] pedo, 5 y-o vaginal penetration"

• "Rita, Mexican girl and father two"

• "Laura[2] special, 10[-]13 y-o memorial"

• Lolly . . . 17 year old teaches 13 year old sex with

B-F, amazing"

• "PTHC, 9 y-o"

• "PTHC[-]Lolita . . . super big cock fucking little

girl"

• "K girl 8 y-o[-]sucking and trying fuck"

• "Valia . . . 7 y-o, sweet Russian angel with smile

and a ribbon in her hair at play fuck time with her

daddy, . . . good one, new age free family PTSC,

PTHC"

• "Pedo[.]PTHC[-]Jenny 9 y-o daughter[-]zoo, 5 y-

o girl, dog, and man 2007"

• "12 y-o, Laura mouth pump and swallows"

1

PTHC is an abbreviation for "preteen hardcore."

2

"Laura" is an identified victim of child sexual abuse who committed suicide.

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• "12 y-o, Laura[_]BJ[_]cum on face two"

• "12 y-o, Laura[-]anal no condom cum on pussy"

• "PTHC, 5 y-o, Kelly[-]new stuff"

• "PTHC webcam[-]3 y-o, family of four . . . mom

blows 7 y-o boy, 3 y-o girl"

• "PTHC, Nina[_]two . . . 7 y-o BJ"

• "Boy and girl 10 y fuck in car first time"

• "4 y-o, PTHC Ray Gold [3] real[!!]"

• "X-X-X,[-]PTHC[-]12 y-r, real kids fucking[-]no

blood . . . [,] interracial"

• "PTHC pedo rare deep throat 5 y-o, wow no

gagging"

• "PTHC hussy fan Ray Gold 6 y-o and 8 y-o"

• "[!] PTHC . . . father and his 10 y-o twin[]

daughters[-]13 m, 19 f"

"Onlytheshadow81" was the username associated with these downloaded

videos.

Additional files from the USB drive found in defendant's bedroom had

been deleted. Officers were able to recover the names of those deleted files but

3

Ray Gold is reportedly a known "producer of child pornography."

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7

not the files themselves. Ninety-seven of those file names had "child

pornography indicative terms in the names." In the home's spare room, officers

recovered a tower operating system hard drive that was connected to "the

[eMule] peer[-]to[-]peer file sharing program," and set to store downloads in a

folder labeled "Emule incoming." The folder contained duplicates of certain

videos found on the USB drive. The folder was created and accessed on

December 3, 2014, and modified on July 14, 2017. Lenart conducted a forensic

analysis of the hard drive and discovered "torrent files" with "names that were

indicative of child pornography."

Lenart explained that

[a] torrent file is like a file about files. So when you're

using a peer[-]to[-]peer file sharing program that is

torrent based, you get a file that gives you the

information about what is contained in the torrent and

the torrent is usually a package.

. . . [I]n this instance, the torrent files will come

in either an xml, which is like a spreadsheet[,] or a text

file. And it gives you the approximate file size, the

number of fields that are contained within the package

and the name.

During the search, defendant directed the officers to a "[storage] trailer

that was parked outside." Defendant told the officers that the trailer contained

his son's electronic devices. Defendant also said that "his son had told him about

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peer[-]to[-]peer file sharing." Upon reviewing the electronics seized from the

trailer, officers found "some images of age[-]difficult child pornography," which

Lenart defined as likely depicting children between the ages of twelve and

fourteen. Lenart explained that it was "[h]ard to pinpoint the exact age." She

added "there were user profiles for Keith[, defendant's son,] on some of those

items." Although most of the age-difficult CSEAM had been deleted, officers

used forensic software to recover the deleted files.

On October 19, 2018, defendant was charged in a two-count Monmouth

County indictment with third-degree endangering the welfare of a child by

knowingly possessing or viewing child pornography, N.J.S.A. 2C:24-

4(b)(5)(b)4; and second-degree endangering the welfare of a child by knowingly

storing or maintaining less than twenty-five items depicting child pornography

using a file-sharing program, N.J.S.A. 2C:24-4(b)(5)(a)(iii).

At trial, defendant denied having any knowledge of what was in the files

and denied viewing any child pornography on his computer. Defendant

recounted that he had been working with computers since 1979 and considered

himself a computer "expert." According to defendant, "this whole case start[ed]

4

The indictment did not specify a subsection of the statute and did not identify

a specific amount of CSEAM defendant allegedly possessed.

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9

out when [he] receive[d] a message from [his] daughter in North Carolina" about

five years earlier that his son had passed away. 5 Defendant later learned his son

died by suicide, and he "want[ed] to find out why." Defendant explained:

I decided that anything that had any information that he

had, any computers or storage devices or whatever that

he had, I was gonna take back with me to New Jersey

so that I could find out what was going on . . . in his

head. And as far as the monitors and things or anything

that didn't have any storage on it, I would just give it

away while I was down there, distribute it to whoever

needed it . . . .

Defendant "had intended to hook [Keith's] server up in [his] office" but

"never got around to that." He loaded Keith's files onto his own NAS 6 drive but

had no opportunity to look at them. He testified that serving as the primary

caretaker for his sick wife and maintaining their home took up much of his time.

Defendant's wife's testimony largely echoed defendant's testimony. She

explained that defendant took care of her due to her various medical issues. She

avowed that her husband never "b[rought] any pornography into the house or

anything like that," not even "a naked magazine . . . , [or] Playboy even."

5

Defendant's son passed away on July 2, 2016.

6

According to Perone, NAS stands for "network attached storage," which is

"essentially a computer . . . specifically designed just for storage" and "doesn't

have a keyboard" or "a monitor." Thus, "[t]he only way to access it is through

the network."

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On July 20, 2022, after less than an hour of deliberations, the jury found

defendant guilty on both counts. Defendant was sentenced on January 13, 2023,

and a memorializing judgment of conviction was entered the same day. This

appeal followed.

II.

In Point I, defendant argues that "our endangering statute's failure to have

a scienter requirement as to the age of the victim in possession and distribution

of child pornography prosecutions is violative of state and federal free-speech

protections and is thus unconstitutional." Citing United States v. X-Citement

Video, Inc., 513 U.S. 64, 71 n.2 (1994), he asserts that the statute "must be

deemed facially unconstitutional as it prohibits any reasonable mistake -of-age

defense" or, at the very least, "unconstitutional as applied to individuals who

had no in-person interaction with the victim depicted in the video." He concedes

that "child pornography is outside the scope of the First Amendment" but

nonetheless submits that "statutes prohibiting child pornography must take care

to comport with the First Amendment." He posits that "the remedy for failing

to instruct the jury that the State was required to prove [defendant] should have

known or reasonably known the victims depicted in the videos were under

[eighteen] must be the reversal of his convictions."

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11

Because defendant raises this issue for the first time on appeal, we review

for plain error and determine if the alleged error is "clearly capable of producing

an unjust result." State v. Montalvo, 229 N.J. 300, 320-21 (2017) (quoting R.

2:10-2). "The mere possibility of an unjust result is not enough." State v.

Funderburg, 225 N.J. 66, 79 (2016). Instead, plain error "is a 'high bar,'

requiring reversal only where the possibility of an injustice is 'real' and

'sufficient to raise a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached.'" State v. Trinidad, 241 N.J. 425,

445 (2020) (citation omitted) (first quoting State v. Santamaria, 236 N.J. 390,

404 (2019); and then quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Our Supreme Court has "cautioned that 'rerun[ning] a trial when the error

could easily have been cured on request[ ] would reward the litigant who suffers

an error for tactical advantage either in the trial or on appeal.'" State v. Singh,

245 N.J. 1, 13 (2021) (alterations in original) (quoting Santamaria, 236 N.J. at

404-05). Thus, "[t]o determine whether an alleged error rises to the level of

plain error, it 'must be evaluated "in light of the overall strength of the State's

case."'" Id. at 13-14 (quoting State v. Sanchez-Medina, 231 N.J. 452, 468

(2018)).

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12

"The First Amendment to the United States Constitution, made applicable

to the states by the Fourteenth Amendment, instructs that 'Congress shall make

no law . . . abridging the freedom of speech.'" State v. Higginbotham, 257 N.J.

260, 274 (2024) (quoting U.S. Const. amend. I). Nonetheless, "'[a] presumption

of validity attaches to every statute,' and 'defendant bears the burden of

establishing its unconstitutionality.'" State v. Hill, 256 N.J. 266, 280 (2024)

(quoting State v. Lenihan, 219 N.J. 251, 265-66 (2014)). "We apply 'every

possible presumption' in favor of the validity of a challenged statute, recognizing

that it 'represents the considered action of a body composed of popularly elected

representatives.'" Higginbotham, 257 N.J. at 280 (quoting State v. Trump Hotels

& Casino Resorts, Inc., 160 N.J. 505, 526 (1999)). "We will thus not strike a

statute as unconstitutional 'unless its repugnancy to the Constitution is clear

beyond a reasonable doubt.'" Ibid. (quoting State v. Smith, 251 N.J. 244, 263

(2022)).

"A party may challenge a statute as either facially vague or vague as

applied." State v. Balbosa, 481 N.J. Super. 497, 526 (App. Div. 2025). "Where

a statute 'is challenged as vague as applied[, it] must lack sufficient clarity

respecting the conduct against which it is sought to be enforced.'" Ibid.

(alteration in original) (quoting Lenihan, 219 N.J. at 267).

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A court may hold a law facially invalid for

overbreadth under the First Amendment only if "the

challenger demonstrates that the statute 'prohibits a

substantial amount of protected speech' relative to its

'plainly legitimate sweep.'" [United States v. Hansen,

599 U.S. 762, 770 (2023)] (quoting [United States v.

Williams, 553 U.S. 285, 292 (2008))]. In this regard,

"a law's unconstitutional applications must be realistic,

not fanciful, and their number must be substantially

disproportionate to the statute's lawful sweep." Ibid.

(emphasis added). "In the absence of a lopsided ratio"

of unconstitutional applications to constitutional ones,

"courts must handle unconstitutional applications as

they usually do—case-by-case." Ibid.

[Hill, 256 N.J. at 283 (citations reformatted).]

As such, defendants fail to carry their burden of establishing

unconstitutionality where they identify only "one unconstitutional application

of the statute: [their] own case." Id. at 289. This is so because the overbreadth

concept "rests on principles of substantive due process," and focuses on the

question of "whether the reach of the law extends too far," rather than "whether

the law's meaning is sufficiently clear." State v. Carter, 247 N.J. 488, 518 (2021)

(quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983)).

Indeed, "[t]he evil of an overbroad law is that in proscribing constitutionally

protected activity, it may reach farther than is permitted or necessary to fulfill

the state's interests." Ibid. (quoting Town Tobacconist, 94 N.J. at 125 n.21).

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"The First Amendment's protections, while substantial, are not without

limitations . . . ." Balbosa, 481 N.J. Super. at 525. "Historically, certain 'types

of speech [were] so utterly lacking in social value that they [fell] outside the

protections of the First Amendment altogether.'" Higginbotham, 257 N.J. at 274

(alterations in original) (quoting Hill, 256 N.J. at 281). As defendant concedes,

child pornography is one such category that is unprotected by the First

Amendment. Ibid.; see New York v. Ferber, 458 U.S. 747, 764 (1982)

(recognizing a separate exception to the First Amendment for child

pornography).

As our Supreme Court explained,

[c]hild pornography need not meet the Miller[7]

obscenity standard to be proscribed; it is a separate type

of speech that is categorically unprotected by the First

Amendment. Ashcroft v. Free Speech Coal., 535 U.S.

234, 240 (2002). And unlike obscenity, states "may

constitutionally proscribe the possession and viewing

of child pornography" in the privacy of one's home.

Osborne v. Ohio, 495 U.S. 103, 111 (1990).

In Ferber, the Supreme Court discussed why

states "are entitled to greater leeway" in proscribing

child pornography than they are in regulating

obscenity. 458 U.S. at 756. Several of the Court's

reasons bear mention here.

7

Miller v. California, 413 U.S. 15 (1973).

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First, states have a compelling interest in

"safeguarding the physical and psychological well-

being" of children, and specifically in preventing their

"sexual exploitation and abuse." Id. at 756-57

(quotation omitted). Child pornography is "harmful to

the physiological, emotional, and mental health" of the

children used in its production, and its creation

constitutes child sexual abuse. Id. at 758; see also Free

Speech Coal., 535 U.S. at 249, 254 (under Ferber, child

pornography images are "themselves the product of

child sexual abuse" and "the creation of the speech is

itself the crime of child abuse"); Paroline v. United

States, 572 U.S. 434, 439-40 (2014) (production of

child pornography "involves child abuse").

Second, beyond its production, the distribution of

child pornography is "intrinsically related to the sexual

abuse of children" because it constitutes a "permanent

record" of that abuse. Ferber, 458 U.S. at 759. Later

cases have explained that the circulation of child

pornography can "cause[ ] the child victims continuing

harm by haunting the children in years to come,"

Osborne, 495 U.S. at 111, and causes a "new injury to

the child's reputation and emotional well-being" with

each re-publication, Free Speech Coal., 535 U.S. at

249.

And third, because it is "irrelevant to the child

[who has been abused]" by the pornography's creation

whether the final product has "literary, artistic, political

or social value," the Miller standard does not vindicate

the State's interest in preventing child sexual abuse and

therefore need not be satisfied. Ferber, 458 U.S. at 761

(alteration in original) (quotation omitted).

In keeping with the State's compelling interest "in

protecting the children exploited by the [child

pornography] production process," the Supreme Court

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16

subsequently clarified that child pornography can be

banned, consistent with the First Amendment, if it is

"produced" using "real children." Free Speech Coal.,

535 U.S. at 240, 245-46. Laws that ban images that "do

not involve, let alone harm, any children in the

production process," do not satisfy the government's

compelling interest in protecting children from sexual

abuse recognized in Ferber, and therefore violate the

First Amendment unless they conform to the Miller

obscenity standard. Id. at 240-41.

[Higginbotham, 257 N.J. at 275-77 (citations omitted

and reformatted).]

"[T]he Constitution places a lesser burden on the states to justify strict

liability for serious criminal offenses than for regulatory offenses." State v.

Maldonado, 137 N.J. 536, 550 (1994). The rationale is that "the added

deterrence of strict liability is all the justification that is needed in view of the

serious threat to public safety posed by the conduct prohibited by those laws."

Id. at 551.

As such, under both federal and state case law, "the State has the power

to define a crime without proof of mens rea so long as the definition does not

offend fundamental notions of justice." Id. at 555 (italicization omitted); see,

e.g., United States v. Balint, 258 U.S. 250, 253-54 (1922) (upholding

constitutionality of statute prohibiting sale of illegal drugs that lacked mens rea

element); United States v. Holland, 810 F.2d 1215, 1223-24 (D.C. Cir. 1987)

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(upholding constitutionality of statutes prohibiting sale of drugs near school

zone regardless of defendant's knowledge of school's location); State v. Ivory,

124 N.J. 582, 592-95 (1991) (upholding statute enhancing punishment for drug

distribution within one thousand feet of school property regardless of

defendant's knowledge because it "presents a rational and reasonable approach

by the Legislature to reduce drugs around schools"); State v. Hatch, 64 N.J. 179,

182, 188-89 (1973) (holding that a Massachusetts resident driving through New

Jersey could be convicted of violating New Jersey's gun control laws

notwithstanding that the driver had complied with gun control requirements in

his home state and was unaware that he was subject to additional legal

requirements while passing through New Jersey).

Thus, "a state can justify imposition of strict liability for a serious criminal

offense merely by suggesting a rational basis to support the legislative

determination that the added deterrence of strict liability punishment represents

a reasonable approach." Maldonado, 137 N.J. at 553. Statutes proscribing

possession and distribution of child pornography undoubtedly meet that criteria.

"[S]tatutory construction begins with an examination of the plain language

of the statute, 'ascrib[ing] to the . . . words their ordinary meaning and

significance.'" Higginbotham, 257 N.J. at 280 (omission and second alteration

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18

in original) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "We 'may

neither rewrite a plainly-written enactment of the Legislature nor presume that

the Legislature intended something other than that expressed by way of the plain

language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

Applying these principles, we reject defendant's constitutional challenge

to subsection (b) of the child endangerment statute criminalizing possession and

distribution of child pornography, see N.J.S.A. 2C:24-4(b). We are convinced

that the statute is neither unconstitutional on its face nor as applied in violation

of the First Amendment.

We first look at the statutory language. Defendant was convicted under

N.J.S.A. 2C:24-4(b)(5)(a)(iii), which provides:

A person commits a crime if, by any means, including,

but not limited to, the [i]nternet, the person:

....

(iii) knowingly stores or maintains an item

depicting the sexual exploitation or abuse

of a child using a file-sharing program

which is designated as available for

searching by or copying to one or more

other computers.

The definition of an "[i]tem depicting the sexual exploitation or abuse of a child"

is an image that "depicts a child engaging in a prohibited sexual act or in the

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simulation of such an act." N.J.S.A. 2C:24-4(b)(1). The statute defines

"[p]rohibited sexual act" as "[a]ny act of sexual penetration or sexual contact ,"

among other things, N.J.S.A. 2C:24-4(b)(1) (citing N.J.S.A. 2C:14-1).

N.J.S.A. 2C:24-4(b)(5)(a) also expressly states that for a violation of

subparagraph (iii),

the State shall not be required to offer proof that an item

depicting the sexual exploitation or abuse of a child had

actually been searched, copied, transmitted, or viewed

by another user of the file-sharing program, or by any

other person, and it shall be no defense that the

defendant did not intend to distribute the item to

another user of the file-sharing program or to any other

person. Nor shall the State be required to prove that the

defendant was aware that the item depicting the sexual

exploitation or abuse of a child was available for

searching or copying to one or more other computers,

and the defendant shall be strictly liable for failing to

designate the item as not available for searching or

copying by one or more other computers.

Defendant was also convicted of violating N.J.S.A. 2C:24-4(b)(5)(b)(iii),

which makes it a third-degree crime when a person "knowingly possesses,

knowingly views, or knowingly has under the person's control, through any

means, including the [i]nternet, . . . items depicting the sexual exploitation or

abuse of a child." Under the statute, "the term 'possess' includes receiving,

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20

viewing, or having under one's control, through any means, including the

[i]nternet." N.J.S.A. 2C:24-4(b)(5)(a).8

Critically, subsection (b), with which defendant was charged and

convicted, "criminalize[s] the possession and distribution of child pornography,

an unprotected category of speech under the First Amendment." Balbosa, 481

N.J. Super. at 532. Any claim that the images were not child pornography is

debunked by the content of the videos and the titles of the files. Additionally,

subsection (b) is not "overbroad" as it does "not 'criminalize[ ] a substantial

amount of material that is neither obscene nor child pornography. '" Ibid.

(alteration in original) (quoting Higginbotham, 257 N.J. at 281). Neither does

it "lack sufficient clarity respecting the conduct against which it is sought to be

enforced." Lenihan, 219 N.J. at 267 (quoting Visiting Homemaker Serv. v. Bd.

of Chosen Freeholders, 380 N.J. Super. 596, 612 (App. Div. 2005)).

We are unpersuaded by defendant's reliance on the United States Supreme

Court's holding in X-Citement Video to support his constitutional challenge.

There, the defendants were charged with violating 18 U.S.C. §§ 2252(a)(1) and

(2). 513 U.S. at 66. The question was whether "knowingly" as used in the

8

The indictment did not charge defendant with possessing a certain amount of

CSEAM, nor was the jury instructed to find as such. During the charge

conference, the parties agreed to the omission.

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21

statute modified "only the surrounding verbs: transports, ships, receives,

distributes, or reproduces," or if it "modif[ed] the elements of the minority of

the performers [in the pornographic videos], or the sexually explicit nature of

the material." Id. at 68. The Court held that, logically and grammatically, it

made the most sense that the mens rea "knowingly" applied to all aspects of the

statute, including the age of the person depicted in a sexually explicit video, and

therefore read the word "knowingly" to modify each part of the statute. Id. at

68-70, 78.

The Court explained that to not read the statute in that way would possibly

lead to "absurd" results:

If the term "knowingly" applies only to the

relevant verbs in § 2252—transporting, shipping,

receiving, distributing, and reproducing—we would

have to conclude that Congress wished to distinguish

between someone who knowingly transported a

particular package of film whose contents were

unknown to him[ or her], and someone who

unknowingly transported that package. It would seem

odd, to say the least, that Congress distinguished

between someone who inadvertently dropped an item

into the mail without realizing it, and someone who

consciously placed the same item in the mail, but was

nonetheless unconcerned about whether the person had

any knowledge of the prohibited contents of the

package.

Some applications of respondents' position would

produce results that were not merely odd, but positively

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absurd. If we were to conclude that "knowingly" only

modifies the relevant verbs in § 2252, we would sweep

within the ambit of the statute actors who had no idea

that they were even dealing with sexually explicit

material. For instance, a retail druggist who returns an

uninspected roll of developed film to a customer

"knowingly distributes" a visual depiction and would

be criminally liable if it were later discovered that the

visual depiction contained images of children engaged

in sexually explicit conduct. Or, a new resident of an

apartment might receive mail for the prior resident and

store the mail unopened. If the prior tenant had

requested delivery of materials covered by § 2252, his

[or her] residential successor could be prosecuted for

"knowing receipt" of such materials. Similarly, a

Federal Express courier who delivers a box in which the

shipper has declared the contents to be "film"

"knowingly transports" such film. We do not assume

that Congress, in passing laws, intended such results.

[Id. at 69.]

Nonetheless, the Court did not appear to entirely foreclose the possibility

of child pornography statutes without a scienter requirement as to the age of the

victim on the part of the defendant. Critically, in its application of the relevant

principles, the Court first found the statute "akin to the common-law offenses

against the state, the person, property, or public morals[] that presume a scienter

requirement in the absence of express contrary intent." Id. at 71-72 (emphasis

added) (citation omitted) (internal quotation marks omitted).

Finally, the Court expounded:

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A final canon of statutory construction supports

the reading that the term "knowingly" applies [to each

part of the statute]. Cases such as Ferber, 458 U.S. at

765 ("As with obscenity laws, criminal responsibility

may not be imposed without some element of scienter

on the part of the defendant"); Smith v. California, 361

U.S. 147, 154-55 (1959); Hamling v. United States, 418

U.S. 87, 123-24 (1974); and Osborne, 495 U.S. at 115,

suggest that a statute completely bereft of a scienter

requirement as to the age of the performers would raise

serious constitutional doubts. It is therefore incumbent

upon us to read the statute to eliminate those doubts so

long as such a reading is not plainly contrary to the

intent of Congress.

[X-Citement Video, 513 U.S. at 78 (emphasis added)

(citations reformatted).]

Significantly, our State's statute makes clear that the Legislature intended

to dispose of the age requirement:

For purposes of this subsection, a person who is

depicted as or presents the appearance of being under

the age of [eighteen] in any photograph, film,

videotape, computer program or file, video game, or

any other reproduction or reconstruction shall be

rebuttably presumed to be under the age of [eighteen].

If the child who is depicted as engaging in, or who is

caused to engage in, a prohibited sexual act or

simulation of a prohibited sexual act or portrayed in a

sexually suggestive manner is under the age of

[eighteen], the actor shall be strictly liable and it shall

not be a defense that the actor did not know that the

child was under the age of [eighteen], nor shall it be a

defense that the actor believed that the child was

[eighteen] years of age or older, even if such a mistaken

belief was reasonable.

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24

[N.J.S.A. 2C:24-4(b)(6).]9

We are therefore satisfied that the statute is neither unconstitutional on its face

nor leaves any ambiguity as to the Legislature's express intent as contemplated

by X-Citement Video.

Defendant's argument that his case is distinguishable from State v. Perez,

177 N.J. 540 (2003), because his case did not involve in-person contact with a

child is equally unavailing. In Perez, our Supreme Court explained that when

looking at the Code of Criminal Justice (Code) as a whole, the Legislature

intended the age standards for sex offenses against children to similarly apply

to the child endangerment statute:

The child-endangerment statute is codified under

chapter 24 of the Code, whereas other sexual offenses

are found under chapter 14. Given the statute's text and

9

Defendant also contends that out-of-state cases applying X-Citement Video

support his argument that N.J.S.A. 2C:24-4(b)(5)(b)(iii) and 2C:24-

4(b)(5)(a)(iii) are unconstitutional. We note at the outset that out -of-state

judicial decisions are not binding on this court. State v. Warriner, 322 N.J.

Super. 401, 407 (App. Div. 1999). Nonetheless, we are unpersuaded. The cases

cited by defendant involved statutes that, for instance, specifically allowed for

a mistake-of-age defense, see, e.g., State v. Zarnke, 589 N.W.2d 370, 372 (Wis.

1999); were ambiguous regarding their mens rea requirement, see, e.g., State v.

Mauer, 741 N.W.2d 107, 109 (Minn. 2007); implemented different mens rea

requirements in different subsections of the statute, see, e.g., State v. Rael, 548

P.3d 66, 69 (N.M. 2024); or required the State to prove that the defendant knew

the victims in the images were minors, see, e.g., Gerbert v. State, 793 S.E.2d

131, 135 (Ga. Ct. App. 2016).

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25

the Code's overall structure, we conclude that the

Legislature intended the chapter 14 standard in respect

of a victim's age to apply here. The import of that

conclusion is that the child-endangerment statute

requires only objective proof that the alleged victim

was a child under the age of sixteen, not that the

accused knew or reasonably should have known that

fact. See N.J.S.A. 2C:14-5(c) (providing that defendant

cannot assert as defense mistaken belief that his or her

victim was "above the age stated for the offense").

Under that standard, the State sufficiently proved the

age of the victim, irrespective of defendant's statement

that [the victim]'s "looks [were] deceiving" and that he

believed that she was "about [sixteen]."

[Perez, 177 N.J. at 555 (second alteration in original)

(citation reformatted).]

Neither can defendant demonstrate that the statute is unconstitutional as

applied to him because even if defendant could have invoked a mistake-of-age

defense, the outcome at trial would have been the same given the strength of the

State's case. The State showed the jury over 100 CSEAM videos along with

graphic titles. Defendant concedes that a mistake-of-age defense would not

apply to all the materials viewed by the jury during the trial, and the parties

agreed that the jury was not required to identify a specific number of CSEAM

images in reaching its verdict. Therefore, the quantity of CSEAM videos

defendant knew depicted children was of no moment so long as there was at

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26

least one file that objectively proved the victim's age and would not have been

subject to a mistake-of-age defense. Such proof was amply adduced at trial.

III.

In Point II, defendant argues that the State's witnesses' testimonies

involving "peer-to-peer file-sharing systems; hash values assigned to files;

torrents; write blockers; various forensic software . . . ; Hyper-V networking

drives; and other obscure technological issues discussed in deep technical detail"

by Lenart, Migliorisi, and Perone "required a duly qualified expert along with

an appropriate instruction to the jury about how to evaluate expert evidence."

Once again, because defendant failed to raise the issue in the trial court, we

review for plain error. See R. 2:10-2.

"Witnesses, including police officers, testify in a variety of roles." State

v. Miller, 449 N.J. Super. 460, 470 (App. Div. 2017), rev'd on other grounds,

237 N.J. 15 (2019). "A fact witness is one who testifies as to what 'he or she

perceived through one or more of the senses.'" Ibid. (quoting State v. McLean,

205 N.J. 438, 460 (2011)). "Testimony of that type includes no opinion, lay or

expert, and does not convey information about what the officer 'believed,'

'thought' or 'suspected,' but instead is an ordinary fact-based recitation by a

witness with first-hand knowledge." McLean, 205 N.J. at 460.

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27

Expert witnesses, however, "explain the

implications of observed behaviors that would

otherwise fall outside the understanding of ordinary

people on the jury." Ibid. "Expert testimony is

admissible '[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in

issue.'" State v. Simms, 224 N.J. 393, 403 (2016)

(quoting N.J.R.E. 702); see also State v. Cain, 224 N.J.

410, 420 (2016). "In other words, to be admissible,

expert testimony should 'relate[ ] to a relevant subject

that is beyond the understanding of the average person

of ordinary experience, education, and knowledge.'"

State v. Sowell, 213 N.J. 89, 99 (2013) (alteration in

original) (quoting State v. Odom, 116 N.J. 65, 71

(1989), abrogated on other grounds by, Cain, 224 N.J.

410). If the matter is within the competence of the jury,

expert testimony is not needed. Ibid.

Lay opinion testimony is governed by N.J.R.E.

701, which permits a witness not testifying as an expert

to provide "testimony in the form of opinions or

inferences . . . if it (a) is rationally based on the

perception of the witness and (b) will assist in

understanding the witness' testimony or in determining

a fact in issue." McLean, 205 N.J. at 456 (quoting

N.J.R.E. 701 (1993)). "Courts in New Jersey have

permitted police officers to testify as lay witnesses,

based on their personal observations and their long

experience in areas where expert testimony might

otherwise be deemed necessary." State v. LaBrutto,

114 N.J. 187, 198 (1989).

[Miller, 449 N.J. Super. at 470-71 (alterations and

omission in original) (emphasis omitted) (citations

reformatted).]

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28

Under N.J.R.E. 702, a witness may be qualified as an expert "by

knowledge, skill, experience, training, or education." To demonstrate sufficient

expertise, an expert witness "must possess the minimal technical training and

knowledge essential to the expression of a meaningful and reliable opinion."

State v. Frost, 242 N.J. Super. 601, 615 (App. Div. 1990). Expertise may be

demonstrated "by occupational experience or by scientific study." Ibid. In other

words, an expert "may be qualified 'by study without practice or by practice

without study.'" Ibid. (quoting State v. Chatman, 156 N.J. Super. 35, 41 (App.

Div. 1978)). Typically, courts take a "generous approach" when qualifying

experts "based on training and experience." State v. Jenewicz, 193 N.J. 440,

454 (2008).

In Miller, like here, the defendant was charged with and convicted of child

endangerment by possessing and distributing CSEAM. 449 N.J. Super. at 465.

During the trial, the defendant objected to the testimony of the detective who

performed the forensic analysis on his laptop because the detective "testified

how peer-to-peer file sharing worked" and "the State had not offered or qualified

him as an expert witness." Id. at 468. In overruling the objection,

[t]he judge cited State v. Doriguzzi, 334 N.J. Super.

530, 538 (App. Div. 2000), for the proposition that

"computers and their functioning are no longer topics

that are so esoteric as beyond the ken of the average

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29

person." The judge further found that [the detective]

testified as a fact witness concerning the process by

which he examined defendant's . . . laptop . . . and

admitted the challenged testimony.

[Miller, 449 N.J. Super. at 468 (citation reformatted).]

The defendant appealed, arguing that the trial court erred in admitting the

testimony without the State qualifying the detective as an expert. Id. at 470. In

rejecting the defendant's argument, we were satisfied that the detective

did not testify as an expert or provide an expert opinion.

Rather, he testified as a fact witness about his forensic

investigation of defendant's laptop, and merely reported

what he found, including the presence of videos and

images depicting child pornography, and peer-to-peer

software that allowed others to access the child

pornography.

[Id. at 470-71.]

We added, however, that even if the testimony "fell within the scope of

the expert opinion rule because it was specialized knowledge based on his

training and experience," the admission of the testimony was "harmless" error.

Id. at 471 (citing R. 2:10-2). In support, we explained that the detective's

testimony made it clear "that he possessed sufficient education, training, and

experience to qualify as an expert in the field of computer forensics." Ibid.

Additionally, the defendant was provided with the detective's "name, address,

curriculum vitae setting forth his qualifications, and his forensic report,"

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30

avoiding any "surprise[]" or "prejudice[]" that may have accompanied the

detective's testimony. Id. at 471-72.

Here, without objection, none of the witnesses were qualified as experts

or offered expert testimony. Instead, they testified as fact witnesses. Lenart's

testimony was based on her personal knowledge and experience using peer-to-

peer software in her role as a detective in the computer crimes unit. She detailed

her investigation in the case, including the forensic analysis she conducted of

electronic equipment seized from defendant's residence during the search.

Similarly, Migliorisi and Perone performed forensic analyses on defendant's

electronics and recounted their respective tasks. Their testimony was limited to

the analyses they performed within the scope of their jobs.

Our Supreme Court explained the difference between fact and expert

testimony in McLean, 205 N.J. at 460:

On one side of that line is fact testimony, through which

an officer is permitted to set forth what he or she

perceived through one or more of the senses. Fact

testimony has always consisted of a description of what

the officer did and saw . . . . Testimony of that type

includes no opinion, lay or expert, and does not convey

information about what the officer "believed,"

"thought" or "suspected," but instead is an ordinary

fact-based recitation by a witness with first-hand

knowledge. . . .

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31

On the other side of the line, we have permitted

experts, with appropriate qualifications, to explain the

implications of observed behaviors that would

otherwise fall outside the understanding of ordinary

people on the jury.

[(Citations omitted).]

Even if the officers' testimonies went beyond that of fact witnesses, we

find any error in their admission does not rise to the level of plain error. Indeed,

"[w]here a witness possesses sufficient qualifications to have testified as an

expert, any error in allowing the lay opinion may be deemed harmless." Miller,

449 N.J. Super. at 471 (citing State v. Kittrell, 279 N.J. Super. 225, 236 (App.

Div. 1995)).

Here, each officer provided ample evidence of their education, experience,

and training to qualify as an expert. Lenart testified that before working at the

MCPO, she had been a detective at the New Jersey Division of Criminal Justice

in the computer analysis and technology unit. Subsequently, as a member of the

MCPO's computer crimes unit, she was "taskforced out to the [FBI] at the New

Jersey Regional Computer Forensic Library." Lenart had attended over thirty

trainings "specific to internet crimes against children, as well as digital

forensics," and peer-to-peer software-specific classes designed "to operate the

law enforcement versions" of the software. She also attended "[twenty-]plus

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32

trainings in digital forensics"; was recognized by the International Association

of Computer Forensic Examiners as a Certified Computer Forensic Examiner;

and "[held] certified computer examiner and investigator['s] certification[s] as

well as industry software[-]specific certifications."

Migliorisi had five years of experience in the MCPO's computer crimes

unit. He had previously been a police officer with a different department for

twelve years. Prior to his career in law enforcement, Migliorisi obtained "some

training in computers and networking" at DeVry University. He also completed

"numerous forensics trainings" that he used "in [his] everyday job in computer

crimes." These trainings included "Magnet Axiom forensic training,"

"Cellebrite forensic training," a course at "the International Association of

Computer Investigative Scientists," and "training courses" with the "National

White Collar Crimes Center." He had received a "mobile device forensics

certification" and a certification in a program "which specialize[d] in

Macintosh[] and Apple products."

Perrone testified that as the CART program coordinator, his main

responsibilities entailed "licensing the software packages[ and] the hardware"

the program purchased; "obtaining" and "testing licenses"; and other duties. He

had been "working with computers since 1991," was accepted into the CART

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33

program in 2007, and "obtained their certification to be a forensic examiner" in

2008. He received a senior forensic examiner certification in 2013 and

underwent general and "vendor[-]specific" trainings through the FBI. As to

certifications, he testified that he "ha[d] probably too many to mention," but they

included engineer, cybersecurity, and forensic examiner and analyst

certifications. He estimated that he had "probably been the lead in over 200

[forensic] exams and . . . probably worked on just as many in some type of an

assistance role." In short, because the State's witnesses "possessed sufficient

education, training, and experience to qualify as . . . expert[s] in the field of

computer forensics," any error was harmless. Ibid.

IV.

In Point III, defendant argues that he must be resentenced because the

judge "erroneously used his claims of innocence as an aggravating factor to

enhance his sentence." We disagree.

We review sentences "in accordance with a deferential standard," State v.

Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute

[our] judgment for those of our sentencing courts.'" State v. Cuff, 239 N.J. 321,

347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will

affirm the sentence unless (1) the sentencing guidelines

were violated; (2) the aggravating and mitigating

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34

factors found by the sentencing court were not based

upon competent and credible evidence in the record; or

(3) "the application of the guidelines to the facts of [the]

case makes the sentence clearly unreasonable so as to

shock the judicial conscience."

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Under New Jersey's penal code, "a sentencing court first must determine,

pursuant to N.J.S.A. 2C:44-1(a) and (b), whether aggravating and mitigating

factors apply. After balancing the factors, the trial court may impose a term

within the permissible range for the offense." State v. Bieniek, 200 N.J. 601,

608 (2010). We do not "'substitute [our] assessment of aggravating and

mitigating factors' for the trial court's judgment." State v. Miller, 205 N.J. 109,

127 (2011) (quoting Bieniek, 200 N.J. at 608).

Ultimately,

[w]hether a sentence should gravitate toward the

upper or lower end of the range depends on a balancing

of the relevant factors. Fuentes, 217 N.J. at 73.

"[W]hen the mitigating factors preponderate, sentences

will tend toward the lower end of the range, and when

the aggravating factors preponderate, sentences will

tend toward the higher end of the range." State v.

Natale, 184 N.J. 458, 488 (2005).

[Case, 220 N.J. at 64-65 (second alteration in original)

(citations reformatted).]

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35

Here, the judge sentenced defendant to four years in prison on the third-

degree child endangerment count, and a concurrent eight-year term on the

second-degree child endangerment count. The judge found aggravating factors

one, two, three, and nine based on the heinous nature of the offenses, the gravity

and seriousness of the harm inflicted on the victims, the high risk of re-offense,

and the strong need for deterrence. See N.J.S.A. 2C:44-1(a)(1), (2), (3), (9).

The judge found mitigating factors seven and eleven based on defendant's lack

of a prior criminal history and the hardship imprisonment posed to him and his

wife. See N.J.S.A. 2C:44-1(b)(7), (11). After weighing the factors, the judge

determined the aggravating factors substantially outweighed the mitigating

factors.

Defendant asserts that the judge erred in applying aggravating factor three

based on his claims of innocence. In finding aggravating factor three, the judge

relied on "[d]efendant's repeated refusal to accept responsibility," explaining

that:

This is coupled and consistent with the findings of Dr.

Wolpert who indicated during his evaluation [10] [that]

[d]efendant portrayed himself as quote, "relatively free

of common shortcomings most individuals would be

10

See N.J.S.A. 2C:47-1 (requiring the completion of a psychological

examination of the offender for designated offenses, including child

endangerment as charged here).

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36

willing to acknowledge and [d]efendant was reluctant

to recognize even minor faults in himself[,"] end quote.

Not surprisingly [d]efendant saw, quote, "no

need for changes in his behavior[,"] end quote. An

individual with . . . such limited insight and desire or

willingness to change is at risk of re-offense.

I balance this with his advanced age and medical

concerns, but note that these offenses were committed

from the comfort of his home when he was

approximately [sixty-nine] years of age. While the

passing of time and worsening of his medical

conditions may temper his ability to seek out the

materials that were [the] subject of this conviction, they

do not prevent him from engaging in this type of crime

as long as he has access to the internet. I give this factor

moderate weight.

Aggravating factor three contemplates "[t]he risk that the defendant will

commit another offense." N.J.S.A. 2C:44-1(a)(3). Although "sentencing courts

frequently look to the defendant's criminal history" when applying aggravating

factor three, "the absence of a criminal record will not preclude application of

aggravating factor three so long as it is supported by other credible evidence in

the record." State v. Rivera, 249 N.J. 285, 300 (2021). "For example, a

sentencing judge may reasonably find aggravating factor three when presented

with evidence of a defendant's lack of remorse or pride in the crime." Ibid.

(citing State v. O'Donnell, 117 N.J. 210, 216 (1989)).

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37

Here, we discern no abuse of discretion in the judge's application of

aggravating factor three, nor did she—as defendant contends—use defendant's

professed innocence against him. Rather, the judge's finding is based on

competent and credible evidence in the record.

Affirmed.

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