                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2882-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLARK GILLIAM,

     Defendant-Appellant.
_______________________________

                   Submitted October 2, 2018 – Decided March 26, 2019

                   Before Judges Suter and Geiger.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 16-05-0346.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Laura B. Lasota, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Michael A. Monahan, Acting Union County
                   Prosecutor, attorney for respondent (Meredith L. Balo,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Clark Gilliam appeals his judgment of conviction claiming the

court deprived him of a fair trial by dismissing a juror while the jury was

deliberating and substituting an alternate. He also claims there were several

errors made in connection with his sentence. While we affirm defendant's

conviction and sentence, we vacate the Sex Crime Victim Treatment Fund

penalty (SCVTF) and remand that issue to the trial court for an ability to pay

hearing. On remand, the court also should place the sentence for count two on

the record to conform it to the judgment of conviction.

                                     I

      We review the pertinent facts. Defendant had a dating relationship with

A.D.'s mother and later moved in with her and her children. A.D. testified that

defendant began to sexually assault her when she was six-years old. After he

moved in, the sexual abuse that included oral, anal and unprotected vaginal sex,

happened "mostly every day" for the next several years.        When A.D. was

thirteen, she became pregnant. The State presented evidence from a forensic

scientist that DNA testing of the fetus that was terminated at fifteen weeks

revealed defendant was the biological father "within a reasonable degree of

scientific certainty."




                                                                        A-2882-16T3
                                         2
        Defendant was indicted on three counts: first-degree aggravated sexual

assault on diverse dates from October 6, 2006 to October 5, 2013, when A.D.

was less than thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count one); first-degree

aggravated sexual assault on diverse dates from October 6, 2013 to December

21, 2013, when A.D. was at least thirteen but less than sixteen years old and

defendant was her guardian or in loco parentis, N.J.S.A. 2C:14-2(a)(2)(c) (count

two); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three).

He was convicted by a jury on the first count of the lesser included offense of

second-degree sexual assault when A.D. was less than thirteen, N.J.S.A. 2C:14-

2(b). He also was convicted on counts two and three. Defendant was sentenced

to two consecutive terms of imprisonment: a ten-year term on amended count

one subject to an eighty-five percent period of parole ineligibility under the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by three years of

parole supervision when released; and a twenty-year term for count two also

subject to NERA with a five year period of parole supervision.                The

endangerment count was merged with count two. Defendant was ordered not to

have contact with the victim, to register and comply with Megan's Law 1 for life,



1
    N.J.S.A. 2C:7-1 to -23.


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                                        3
parole supervision for life and to pay a $3000 penalty to the SCVTF and other

penalties and assessments that are not challenged here.

      On appeal, defendant raises these issues:

            POINT I

            NOTWITHSTANDING         HIS     DOCTOR'S
            APPOINTMENT, JUROR NUMBER TWELVE WAS
            CLEARLY ABLE TO CONTINUE DELIBERATING,
            SO THE JUDGE ERRED IN REMOVING HIM FROM
            THE JURY IN VIOLATION OF RULE 1:8-2(D) (1).

            POINT II

            THE AGGREGATE SENTENCE IMPOSED, WHICH
            CONSISTED OF MAXIMUM, CONSECUTIVE
            TERMS, WAS MANIFESTLY EXCESSIVE, BASED
            ON IMPROPER DOUBLE-COUNTING OF THE
            ELEMENTS    OF    THE   OFFENSES    AS
            AGGRAVATING FACTORS, AND MUST BE
            REDUCED. ADDITIONALLY, THE SENTENCING
            COURT ERRED IN IMPOSING THE MAXIMUM
            SEX CRIME VICTIM TREATMENT FUND
            PENALTY,   AND   FAILED  TO   PROVIDE
            ADEQUATE REASONING FOR THE SENTENCE IT
            IMPOSED.

                                     II

                                     A

      Defendant claims the court violated Rule 1:8-2(d)(1) by dismissing a

deliberating juror and replacing him with an alternate juror. The jury deliberated

beginning on Wednesday, June 15, 2016, for approximately one and one -half

                                                                          A-2882-16T3
                                          4
hours. On Thursday, the jury deliberated all day but part of that time was

listening to the requested playbacks of A.D. and her mother's testimony. At the

end of the day on Thursday, the court inquired whether they intended to stay

after 4:30 p.m. or return on Friday. The jury advised by note that they wanted

to continue deliberations on Friday but Juror Twelve could not because of a

scheduled doctor's appointment.     Juror Twelve told the court he had an

appointment with a neurospecialist for a serious eye condition that already had

been rescheduled once and could not be rescheduled. Defense counsel suggested

adjourning deliberations until Monday, but when the court inquired of the jurors

about that, another juror could not be there because he had no one that day to

watch his four dogs. Defendant objected to dismissing Juror Twelve, arguing

that jury deliberations had continued too far. Nonetheless, the court dismissed

Juror Twelve, and substituted an alternate juror. The court found the jury's

deliberation to that point was "very minimal . . . when you add time for lunch

and . . . when you add time for the breaks they took and when you add the times

for the readback, they're just very minimal[]."       An alternate juror was




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                                       5
substituted; the jury commenced deliberations on Friday, following instructions

by the court.2

      While the jury was deliberating, defense counsel suggested the court

should have inquired about juror availability on Tuesday, June 21, 2016.

However, the court recalled that during jury selection, some jurors had problems

for that week. The court calculated that the original jury had deliberated a total

of five and one half hours prior to dismissing Juror Twelve because of the time

used for read backs and breaks. The jury returned a verdict by mid -afternoon

on Friday, June 17, 2016.

      "We traditionally have accorded trial courts deference in exercising

control over matters pertaining to the jury." State v. R.D., 169 N.J. 551, 559-60

(2001). The decision by a trial court to dismiss a juror from a deliberating jury

and substitute an alternate is reviewed for abuse of discretion. See State v.

Musa, 222 N.J. 554, 564-65 (2015); see also State v. Williams, 171 N.J. 151,

156 (2002). The issue is whether the court's actions impaired defendant's right

"to be tried before an impartial jury." See State v. Brown, 442 N.J. Super. 154,

179 (App. Div. 2015) (quoting State v. Loftin, 191 N.J. 172, 187 (2007)). The



2
  Defendant does not challenge the instructions given to the reconstituted jury
by the court.
                                                                          A-2882-16T3
                                        6
substitution of a juror during deliberations "poses a clear potential for

prejudicing the integrity of the jury's deliberative process." State v. Hightower,

146 N.J. 239, 254 (1996); see also State v. Valenzuela, 136 N.J. 458, 468-69

(1994).

      Rule 1:8-2(d)(1) addresses the issue, providing:

            If the alternate jurors are not discharged and if at any
            time after submission of the case to the jury, a juror dies
            or is discharged by the court because of illness or other
            inability to continue, the court may direct the clerk to
            draw the name of an alternate juror to take the place of
            the juror who is deceased or discharged.

      In deciding whether to allow the substitution of a juror, a court should

consider multiple factors, including:

            the timing of the juror's departure, his or her
            explanation of the problem prompting the inquiry, and
            any communications from the jury that may indicate
            whether deliberations have progressed to the point at
            which a reconstituted and properly charged jury will be
            unable to conduct open and mutual deliberations.

            [State v. Ross, 218 N.J. 130, 149 (2014).]

      To protect the right to a fair jury trial, our Supreme Court has restricted

"inability to continue" under Rule 1:8-2(d) to matters that are personal to the

juror, and unrelated to his or her interaction with other jurors. State v. Jenkins,

182 N.J. 112, 124-25 (2004); see also Williams, 171 N.J. at 163. "[O]ur courts


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                                        7
have consistently upheld the substitution of an alternate for a juror excused for

personal reasons unrelated to the case," Ross, 218 N.J. at 148-49, and that "do[]

not pose a threat to the integrity or independence of the deliberative process,"

Jenkins, 182 N.J. at 124.

      Applying these principles, we find no abuse of discretion in the trial

court's decision to discharge Juror Twelve. His reason established that the

juror's "inability to continue" was purely personal and not related to the

deliberative process. The jury had deliberated for a total of five and a half hours.

The jury had not advised it had reached an impasse or had any problems or issues

during deliberations or that it had reached a decision on any legal or factual

issue. It expressed its desire to continue on Friday. Another juror had another

personal reason not to attend on Monday. The court acted appropriately under

Rule 1:8-2(d)(1) in discharging Juror Twelve for "illness or other inability to

continue" and replacing him with an alternate so deliberations could continue.

                                      B

      Defendant contends the trial court double-counted elements of the

offenses as aggravating factors by referring at his sentencing to the victim's age

and defendant's role as her caretaker when the assaults occurred, and then it




                                                                            A-2882-16T3
                                          8
failed to weigh properly the aggravating and mitigating factors. We do not agree

the court abused its discretion.

        Our review of sentencing determinations is limited and governed by the

"clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We

are bound to uphold the trial court's sentence, even if we would have reached a

different result:

              unless (1) the sentencing guidelines were violated; (2)
              the aggravating and mitigating factors found . . . were
              not based upon competent and credible evidence in the
              record; or (3) "the application of the guidelines to the
              facts . . . makes the sentence clearly unreasonable so as
              to shock the judicial conscience."

              [State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth,
              95 N.J. at 364-65).]

See also State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

        The court found aggravating factors two, three, six and nine and no

mitigating factors. 3 For factor two (gravity and seriousness of harm inflicted on

the victim), the court did consider the victim's age, which also was an element

of the offenses, but then took into consideration that A.D. was harmed because

"obviously she got pregnant," and the abuse started "when the little girl was six-

years old and continued for years on a regular basis day after day, week after


3
    N.J.S.A. 2C:44-1(a)(2), (3), (6) and (9); N.J.S.A. 2C:44-1(b).
                                                                          A-2882-16T3
                                         9
week, month after month." Under State v. Taylor, a case involving sexual abuse

of a victim under thirteen, we said that "[t]he extreme youth of the victim was a

proper aggravating factor to have been considered by the court." 226 N.J. Super.

441, 453 (App. Div. 1988). Thus, consideration of A.D.'s age did not constitute

double-counting because both her young age and subsequent pregnancy were

separate harms that defendant inflicted on his victim.

      For aggravating factor three (risk of re-offense), six (prior criminal

record) and nine (need for deterrence), the court considered there was a risk

defendant would re-offend and need to deter because of his history of sexual

assaults "going back into juvenile and going back into adult years." He had three

prior convictions as an adult and an extensive juvenile record. His juvenile

record included sexual offenses. The court found no mitigating factors even

though the defendant urged the court to consider defendant's past family history.

Rather, in weighing the factors, the court was "clearly convinced under the[]

facts and circumstances of this case[,] the years and years and the brutality with

which this went on and the prior record that aggravating . . . [f]actors [two, three,

six and nine] substantially outweigh[ed] no mitigating factors." The court's

analysis of the aggravating and mitigating factors was based on competent and

credible evidence in the record.


                                                                             A-2882-16T3
                                        10
      Defendant challenges the consecutive nature of his sentences, arguing that

the court failed to analyze the evidence under State v. Yarbough, 100 N.J. 627

(1985), or to provide its reasons. We find no error in the court's application and

analysis of Yarbough. The court gave consideration to whether this was just

"one continuous course of conduct," but concluded the offenses "cover two

different time periods, two different statutes." This was a reference to the

indictment where in count one, defendant was charged with sexual assault from

October 5, 2006 to October 5, 2013, when A.D. was under thirteen, and in count

two from October 6, 2013 to December 31, 2013, when defendant was thirteen

but under sixteen. Because there was evidence of sexual assaults over a seven-

year period occurring on a daily basis when A.D. was under thirteen and again

when she was between thirteen and sixteen, we find no error in treating these as

independent time periods based on the victim's age, just as it was charged. See

State v. T.E., 342 N.J. Super. 14, 37 (App. Div. 2001) (allowing consecutive

sentences for aggravated sexual assault and endangering the welfare of a child

because of the added element of parental duty). The record supported that the

assaults were separate acts, but the indictment grouped them in two categories

to reflect A.D.'s age at the time of the offenses and defendant's role as a guardian

or caretaker. We conclude the court properly exercised its discretion on this


                                                                            A-2882-16T3
                                        11
record in sentencing defendant to consecutive sentences. In addition, we discern

no reason to disturb the sentences imposed. They were appropriately explained

and do not "shock the judicial conscience." State v. Case, 220 N.J. 49, 65 (2014)

(quoting Roth, 95 N.J. at 365). See Fuentes, 217 N.J. at 70.

      That said, the court erred in its assessment of the SCVTF penalty by not

considering defendant's ability to pay or by not providing a statement of reasons.

State v. Bolvito, 217 N.J. 221, 234-35 (2014) (providing that a court should

consider the defendant's ability to pay and provide a statement of reasons). We

are constrained to vacate the SCVTF penalty and remand that issue to the trial

court for appropriate consideration. On remand, the court also should make an

oral record of the sentence on count two to conform it to the judgment of

conviction.

      Affirmed in part; vacated and remanded in part for proceedings consistent

with the opinion. We do not retain jurisdiction.




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                                       12
