STATE OF NEW JERSEY VS. MICHAEL D. MILLER
A-0459-15T4
Following a bench trial, defendant was convicted of second-
degree child endangerment for distributing child pornography,
N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment by
possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). In
affirming defendant's conviction, we hold that the trial court
did not err in allowing a detective, who was not presented as an
expert witness, to testify as a fact witness regarding his
forensic examination of defendant's computer and defendant's use
of peer-to-peer file sharing programs. In any event, any error
in the admission of the challenged testimony was harmless as the
detective possessed sufficient education, training, and
experience to qualify as an expert in the field of computer
forensics, and defendant was not surprised or prejudiced by the
detective's testimony.
We further hold that, in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the trial court engaged in impermissible double-counting. We also conclude that, under the specific facts presented, defendant's convictions for fourth-degree
possession of child pornography and second-degree distribution
of child pornography merge. Accordingly, we remand for the
court to resentence defendant without consideration of
aggravating factor one, and for merger of the two offenses.
