RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-2228-08T4

STATE OF NEW JERSEY IN THE

INTEREST OF J.B., a minor.

______________________________________________

Submitted September 15, 2010 - Decided September 27, 2010

Before Judges Cuff, Fisher and Fasciale.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,
Sussex County, Docket Nos. FJ-19-337-08, FJ-
19-439-08, FJ-19-496-08, FJ-19-622-08, and
FJ-19-502-08.

John A. Albright, attorney for appellant,

minor J.B.

David J. Weaver, Sussex County Prosecutor,

attorney for respondent State of New Jersey
(Jerome P. Neidhardt, Assistant Prosecutor,
on the brief).

PER CURIAM

J.B., a juvenile, was adjudicated delinquent for having

engaged in conduct which, if engaged in by an adult, would have

constituted burglary, robbery, and trafficking in stolen

property. In this appeal, the juvenile argues the trial judge

erred in admitting the out-of-court statements of two

individuals involved in the offenses and in admitting Google

Earth maps to prove the juvenile's whereabouts at the time of

the burglary. The juvenile also argues the imposition of four

consecutive sixty-day terms in a juvenile detention facility was

excessive.1 Finding no error or abuse of discretion, we affirm.

The evidence adduced at trial revealed that, on October 24,

2007, the juvenile skipped school and spent the day with two

friends, Clinton Mohn and Anthony Williams, as well as his

girlfriend, A.S.2 The group drove around in Mohn's car for most

of the day before the juvenile was returned to his home at

around 11:00 p.m. After a brief verbal argument with his

mother, the juvenile went to his room upstairs and logged onto

his computer, spending a few minutes accessing social networking

sites.

According to Mohn and Williams, who both testified at

trial, they met with the juvenile after he slipped out of his

1
Specifically, the juvenile was found in this matter to have
engaged in acts which, if committed by an adult, would
constitute: third-degree burglary, N.J.S.A. 2C:18-2(a)(1);
third-degree theft, N.J.S.A. 2C:20-3(a); and trafficking in
stolen property, N.J.S.A. 2C:20-7.1(b). While awaiting
disposition, he pled guilty to three additional offenses: a
violation of probation, N.J.S.A. 2C:45-3; third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-
10(a); and harassment, N.J.S.A. 2C:33-4(b). The four consecutive
sixty-day terms were imposed on adjudications of delinquency in
this matter as well as the others referred to above.
2
Mohn and Williams were adults at the time; J.B. and his
girlfriend were juveniles.

2 A-2228-08T4
house at around 11:45 p.m. that night. After driving around

town for about an hour, Mohn suggested burglarizing the home of

a friend, Alex Witzl, who was away at college. Williams

apparently liked the idea; the juvenile was also "up for it."

According to Mohn and Williams, the three arrived at the Witzl

residence at approximately 12:30 a.m., broke into the residence,

and stole various items, including a jar of coins, a samurai

sword collection, and a laptop. Mohn and Williams testified the

juvenile remained in their company for several hours thereafter,

as they drove around town looking for places to hide the stolen

property. During this time, they visited the home of a friend,

Omar Abhoulson, who testified the juvenile was present during

this visit.

According to Mohn and Williams, the juvenile was returned

home at around 3:00 a.m. A few hours later, the juvenile called

Mohn seeking a ride to school. Mohn arrived at the juvenile's

home at around 7:00 a.m., and drove him to school. However,

after smoking a cigarette in the parking lot, the juvenile

decided to skip school, and he, Mohn and Williams spent most of

the day driving around town trying to sell the stolen swords.3

Defense counsel attempted to discredit Mohn and Williams,

suggesting during cross-examination several inconsistencies

3
They succeeded in selling two of the swords to one of Mohn's
friends.

3 A-2228-08T4
between their out-of-court statements and their testimony. He

further insinuated Mohn and Williams were lying about the

juvenile's involvement in the Witzl burglary to curry a better

plea deal.

In his testimony, the juvenile acknowledged he was with

Mohn and Williams on the day of the burglary, but maintained he

returned home at 11:00 p.m., and did not see them again until

the next day at school; he adamantly denied participating in the

Witzl burglary or the later attempts to sell the stolen goods.

To support his alibi, the juvenile called his mother to

testify. She corroborated some of her son's story, claiming she

remembered he came home at 11:00 p.m. on the night of the

burglary and, once he was home, "[h]e came upstairs" and

apologized, and then "proceeded to go on the computer and was on

the computer until 12:30 in the morning." The juvenile's mother

also testified she was absolutely certain the juvenile was home

for the entire night because she periodically checked on him

throughout the evening.

To rebut this alibi evidence, the State produced phone

records and a Verizon representative's testimony, which

demonstrated calls were made from the juvenile's cellphone while

the phone was in the vicinity of the burglary, not in the

vicinity of the juvenile's home, where he claimed to be. In

response, the juvenile testified that Mohn borrowed his phone on

4 A-2228-08T4
the night of the burglary -- he claimed he placed it on his

bedroom windowsill -- and did not return it until the next

morning.

After weighing the evidence and making credibility

findings, the trial judge found the juvenile engaged in the

charged conduct and imposed consecutive sixty-day terms in a

juvenile correction facility.

The juvenile appealed, raising the following arguments for

our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY

ADMITTING THE HEARSAY STATEMENTS OF J.B.'S
CO-DEFENDANTS INTO EVIDENCE IN THEIR ENTIRE-
TY, AS PRIOR CONSISTENT STATEMENTS UNDER
N.J.R.E. 607 (Partially Raised Below).

A. The Prior Inconsistent State-

ments Made By J.B.'s Co-Defendants
Presented Legitimate Avenues For
Cross-Examination By Defense Coun-
sel; However, Their Prior Consis-
tent Statements Were Inadmissible
Hearsay, Unaccompanied By Any Suf-
ficient Charges Of Recent Fabri-
cation Or Improper Influence Or
Motive.

B. The Prior Consistent Statements

Of J.B.'s Co-Defendants Were Inad-
missible Hearsay, As They Were
Offered Simply To Prove The Truth
Of The Matter Asserted And To
Bolster The Credibility Of The
State's Two Key Witnesses.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY

ADMITTING GOOGLE EARTH PHOTOGRAPHS INTO EVI-
DENCE WITHOUT PROPER AUTHENTICATION.

5 A-2228-08T4
 III. THE FOUR CONSECUTIVE SIXTY-DAY TERMS OF
DETENTION IMPOSED WERE MANIFESTLY EXCESSIVE
AND AN ABUSE OF THE TRIAL COURT'S DIS-
CRETION.

We find no merit in these arguments and affirm.

II

In considering the admissibility of Mohn and Williams's

out-of-court statements, it is important to understand how they

were used during trial.

During cross-examination, the juvenile's attorney attempted

to discredit Mohn and Williams by revealing the differences

between their out-of-court statements and their trial testimony.

In one instance, counsel asked Mohn why he told police the

juvenile was the first person to enter the Witzl residence, only

to later testify that the juvenile followed Mohn into the house.

In addition, while cross-examining Williams, the juvenile's

attorney asked why he told police the juvenile never went home

on the night of the burglary, only to testify at trial that Mohn

dropped the juvenile off at home and picked him up again at

around 11:45 p.m. The juvenile's attorney pointed out other

differences between the out-of-court statements and Mohn and

Williams's testimony.

As a result, during redirect examination, the prosecutor

sought to introduce Mohn and Williams's out-of-court statements

pursuant to N.J.R.E. 803(a)(2), to demonstrate that those prior

6 A-2228-08T4
statements were consistent with their trial testimony as a means

of eviscerating the attack on their credibility. The juvenile's

attorney objected, claiming the statements were inadmissible

because they were "long and voluminous," and contained "lots of

improper questions," and, also, because both Mohn and Williams

appeared to testify. The trial judge rejected these objections,

concluding that, although the statements might have been

voluminous, irrelevant portions could be redacted and, even

though both witnesses testified, their out-of-court statements

were admissible as prior consistent statements.

Just before summations were to commence, the juvenile's

attorney renewed his objection, arguing his use of the out-of-

court statements during cross-examination of Mohn and Williams

did not render the statements admissible pursuant to N.J.R.E.

607:

[T]he relevan[t] rule is 607 [and pursuant

to that rule,] the only way that [prior
consistent] statements come in is if there
is the suggestion of recent fabrication.
And merely the opposing lawyer pointing out
inconsistencies, contradictions in a wit-
ness'[s] testimony from the witness stand
which is always done and that's typical
cross examination, that is not what that
[the] rule has in mind for a recent
fabrication.

In rejecting this argument, the judge explained there was "an

implied charge" by the juvenile's attorney:

7 A-2228-08T4
 that the witnesses had created this
fabrication as late as May of 2008. That
the[re] were stories that had changed from
the beginning and . . . therefore the
[p]rosecution had a right to show that with
regard to the critical fact of [the
juvenile] being present during the . . .
burglary, that [the juvenile] was in fact
there.

In this appeal, the juvenile claims the statements were

inadmissible because they "were offered by the State simply to

show that [the juvenile] committed the offenses charged by

bolstering the credibility" of the declarants. In other words,

the juvenile argues that "the State introduced the statements

simply to prove the substantive truth of the matter," i.e., that

the juvenile, while in the company of Mohn and Williams,

participated in the burglary.4 We disagree.

As a general matter, a party may not introduce evidence for

the sole purpose of bolstering his own witness's credibility.

See 1 McCormick on Evidence § 47 at 219 (6th ed. 2006).

However, once a witness's credibility has been attacked, a party

may attempt to repair any perceived damage. Ibid. N.J.R.E. 607

permits the use of a prior consistent statement to repair the

4
The juvenile notes in his appeal brief that this issue was
"partially raised below," apparently recognizing his trial
attorney only invoked N.J.R.E. 607, and not both N.J.R.E. 607
and N.J.R.E. 803(a)(2), as he now argues. Because we agree the
judge did not abuse his discretion regardless of the grounds the
juvenile may have asserted, we need not consider whether any
part of the argument contained in Point II was properly
preserved for appeal.

8 A-2228-08T4
credibility of a witness, but only when an adverse party has

suggested the witness's testimony is either the product of

"recent fabrication" or the witness had an "improper influence

or motive" to testify falsely. See also State v. Johnson, 235

N.J. Super. 547, 555 (App. Div.), certif. denied, 118 N.J. 214

(1989). N.J.R.E. 803(a)(2) also permits use of a prior

consistent statement in language essentially identical to

N.J.R.E. 607. Any nuances or theoretical differences that may

exist between the two rules, see, e.g., Biunno, Current N.J.

Rules of Evidence, comment 2 on N.J.R.E. 803(a)(2) (2010), have

no relevance here. In essence, under either rule, the proponent

of the statement must demonstrate that the witness has been

accused of either a "recent fabrication" or "improper influence

or motive" as a basis for the statement's admission.

In reviewing a trial judge's decisions regarding the

admission of evidence, we do not intervene unless the ruling

constituted an abuse of discretion. State v. Muhammad, 359 N.J.

Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003).

We find no abuse of discretion here; indeed, we conclude the

trial judge properly admitted the out-of-court statements.

Specifically, counsel posed an array of questions about a

number of key differences between the out-of-court statements

and the versions recounted by Mohn and Williams during their

direct examination. Counsel's obvious objective was to suggest

9 A-2228-08T4
that Mohn and Williams fabricated a different story at some

point between the time they spoke to police and the time of

trial. Furthermore, the juvenile's attorney also sought to

elicit the witness's purported motive to fabricate by

demonstrating during cross-examination that Mohn and Williams

hoped to receive a better plea deal from the prosecutor in

exchange for their testimony; for example, the following

transpired during the cross-examination of Mohn5:

Q. And as part of your plea, you indicated

on the form that with the charges that were
pending against you before you entered into
the plea bargain, you were looking at a
maximum time of a[n] approximation of 26 and
a half years, is that right?

A. Yes.

Q. $98,000 in fines?

A. Yes, sir.

Q. And as a result of the plea bargain, you

were expecting to receive a flat four years?

A. Yes, sir.

Q. Right? And one of the things that you had

to do to get the benefit of that plea
bargain was to testify against [the
juvenile], right?

A. Yes, sir.

And, in his cross-examination of both Mohn and Williams, the

juvenile's attorney suggested they falsely inculpated the

5
The cross-examination of Williams was nearly identical.

10 A-2228-08T4
juvenile because they knew he would likely be punished less

severely due to his age.

In essence, counsel not only attempted to detail the

differences between the witnesses' out-of-court statements and

their testimony, but also insinuated Mohn and Williams were not

presenting an accurate recitation of the facts in their

testimony. In those circumstances, it was quite reasonable --

and hardly an abuse of discretion -- for the judge to conclude

that the out-of-court statements could be admitted under either

N.J.R.E. 607 or N.J.R.E. 803(a)(2).

III

To discredit the juvenile's alibi that he was at home

during the time of the burglary, the prosecutor introduced phone

records, which showed several calls made from the juvenile's

cellphone at the time of the burglary. Unrebutted testimony

from a Verizon representative demonstrated that a cellphone call

is first transmitted to the cell tower closest to the caller.6

Here, the telephone records established that calls from the

juvenile's cellphone at the time of the burglary were

transmitted to the cell tower located at 3000 Continental Drive

6
The Verizon representative testified that this was not
necessarily true when calls are made at peak hours. However, it
was neither argued nor suggested that the use of the juvenile's
cellphone at or around the time of the burglary was at a peak
hour.

11 A-2228-08T4
in Mount Olive (the "Continental tower"). To demonstrate the

calls were more likely placed nearer the Witzl residence than

the juvenile's residence -- where the juvenile said he was at

the time of the burglary -- the prosecutor sought to prove that

the Continental tower was the closest to the Witzl residence and

that if the juvenile were at home during the burglary, as he

asserted, any calls made from his cellphone would have been

transmitted to the cell tower located at 16 Bridget Way in Byram

(the "Bridget tower").

In seeking to prove the juvenile's house was closer to the

Bridget tower than the Continental tower, the prosecutor

produced a satellite photograph generated by the Google Earth

software program7; the photograph was represented to be an aerial

snapshot of Sussex County with computer-generated markings at

the estimated locations of the two residences and the two cell

towers. The juvenile's attorney objected, asserting there was

no "foundation in terms of how accurate [Google Earth] is." The

judge sustained the objection and barred use of the Google Earth

photograph as substantive proof of the distances between the two

locations and cell towers, explaining that "although Google

7
Google Earth is an internet-based program that provides a
virtual globe through a compilation of, among other things,
satellite imagery, maps, terrain, buildings, and other
structures. In short, it is a virtual repository of countless
overhead photographs of the entire globe. See Google Earth Home
Page, http://www.google.com/earth (last visited Sept. 20, 2010).

12 A-2228-08T4
Earth is a tool that a lot of people are using . . . I don't

know that [its] [reliability has] been established at this

point."

The prosecutor subsequently called Detective Duffy to

testify regarding what the judge referred to as "the predicate

information" required to assess the value of his Google Earth

photographs. The detective testified how he personally visited

each of the residences and cell towers in question, and measured

the distances between those locations on the odometer of his

police cruiser. The prosecutor offered this testimony as

evidence of the reliability of Google Earth and to demonstrate

that the Continental tower was closer to the Witzl residence and

the Bridget tower was closer to the juvenile's residence.

In order to illuminate the significance and accuracy of the

detective's geographic testimony, the prosecutor showed the

detective an atlas map of Sussex County that contained markings

at the estimated locations of the two cell towers.8 Then, the

prosecutor provided the detective with two Google Earth

photographs: the first was an overhead image of an area

containing the Witzl residence and the Continental tower; the

second was an overhead image of Byram and Sparta that contained

computer-generated markings at the estimated locations of the

8
The juvenile's attorney did not object to the State's use of
this map.

13 A-2228-08T4
two residences and the two cell towers. Defense counsel again

objected, but this time the judge overruled his objection:

The [c]ourt finds that other than very

recently what would have happened is . . .
that the State would have brought in an
atlas map and ask[ed] somebody familiar with
the area to point on the map where different
locations are and how you would get there.
And this is just an updated manner of
getting the same information. If the
[d]efense wants to show that the information
is incorrect, they can certainly do it by
either cross examination or they can do
exactly what I just suggested and bring in
an atlas map and show where the exhibit that
the State is offering is incorrect.

In appealing, the juvenile claims the trial judge erred in

allowing the State to use the two Google Earth photographs

because they were not properly authenticated pursuant to

N.J.R.E. 901. Specifically, the juvenile complains "there was

no testimony that the Google Earth images were accurate

reproductions of what they purported to represent at the time of

the incident in question, or that the purported representations

had not changed between the time of the incident and the taking

of the images."

Trial courts generally enjoy broad discretion in admitting

"replicas, illustrations and demonstrations and in controlling

the manner of presentation and whether or not particular items

are merely exhibited in court or actually received in evidence."

Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154,

14 A-2228-08T4
165 (App. Div. 2004). Whether a demonstrative aid will be

admitted ordinarily turns on whether it sufficiently replicates

whatever it is designed to illustrate. Persley v. N.J. Transit

Bus Operations, 357 N.J. Super. 1, 14 (App. Div.), certif.

denied, 177 N.J. 490 (2003); Balian v. Gen. Motors, 121 N.J.

Super. 118, 126 (App. Div. 1972), certif. denied, 62 N.J. 195

(1973). Of course, demonstrative evidence must be properly

authenticated before it can be admitted, Rodd, supra, 373 N.J.

Super. at 165, which, such as in the case of a photograph,

"requires testimony establishing that: (1) the photograph is an

accurate reproduction of what it purports to represent; and (2)

the reproduction is of the scene at the time of the incident in

question, or in the alternative the scene has not changed

between the time of the incident in question and the time of the

taking of the photographs." Biunno, supra, comment 4 on

N.J.R.E. 901; see also Saldana v. Michael Weinig, Inc., 337 N.J.

Super. 35, 46-47 (App. Div. 2001).

In applying these standards, we conclude the trial judge

did not abuse his discretion in allowing the prosecutor to use

the two Google Earth photographs in order to illuminate

Detective Duffy's testimony about the distances between the cell

towers and locations in question. However, even if we were to

agree with the juvenile's hypertechnical argument, we cannot

conclude this purported error was capable of producing an unjust

15 A-2228-08T4
result, particularly when the photographs were not offered as

substantive proof of the distances between the residences and

the cell towers but merely as illustrative aids to the

testimony. See State v. Scherzer, 301 N.J. Super. 363, 434-35

(App. Div.) (upholding the State's demonstrative use of a

replica baseball bat because the record contained testimony that

a baseball bat was used against the victim), certif. denied, 151

N.J. 466 (1997). Because the images were not offered as

substantive evidence, they were unnecessary to prove the

underlying facts -- that the Witzl residence was nearer the

Continental tower and the juvenile's house was nearer the

Bridget tower -- and their exclusion would not have altered the

trial in any material or meaningful way. Indeed, the trial

judge expressed his own skepticism about the reliability of

gauging the distance between objects by way of a Google Earth

map as opposed to a map taken from an atlas, upon which the

judge placed his reliance.

Moreover, the interesting question regarding the

authentication of Google Earth maps was further rendered

inconsequential by the concession of the juvenile's attorney

during his summation that the State had proven beyond a

reasonable doubt that the juvenile's cellphone was at the Witzl

residence during the burglary. As a result, the only disputed

fact to be resolved regarding the cellphone was not its location

16 A-2228-08T4
at the time of the burglary but the location of the juvenile at

that time. This required that the judge determine whether the

juvenile's claim that he lent his cellphone to Mohn that night

was credible. The judge found the juvenile was not credible for

numerous good reasons; that finding is entitled to our

deference.9

We lastly find insufficient merit in the arguments

contained in the juvenile's Point III to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

9
Indeed, the juvenile's story about lending the cellphone to Mohn
was demonstrated by the judge as nonsensical in light of the
calls -- at the time of the robbery -- between the juvenile's
cellphone and Mohn's. As the judge rhetorically asked during
his oral decision, if Mohn was in possession of both cellphones,
why would he place a call on one to the other?

17 A-2228-08T4