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.
