STATE OF NEW JERSEY VS. V.E. (11-07-0653, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1678-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
V.E.,
Defendant-Appellant.
_____________________________
Submitted August 1, 2018 – Decided August 8, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
11-07-0653.
Harkavy, Goldman, Goldman & Gerstein,
attorneys for appellant (Martin S. Goldman,
on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant V.E. appeals from his convictions following a jury
trial, alleging the trial court erred in allowing the jury to hear
improper expert testimony and evidence regarding a prior bad act.
He also contends his counsel was constitutionally ineffective. We
affirm.
Defendant was charged in an indictment with three counts of
first-degree aggravated sexual assault on a minor, N.J.S.A. 2C:14-
2(a)(1); three counts of second-degree sexual assault on a minor,
N.J.S.A. 2C:14-2(b); and three counts of second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a). A jury convicted
defendant on all nine counts. He was sentenced to an aggregate
forty-five year prison term, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2.
During the trial, defendant's three stepdaughters testified
he touched them on their private parts and forced them to touch
his penis and perform other sexual acts on numerous occasions over
the course of three years. They also testified he subjected them
to physical abuse. After one of the children reported the abuse
to her grandmother, the children's mother took them to a hospital
for examinations and contacted the police.
Each of the victims subsequently gave a video-recorded
statement at the prosecutor's office describing the sexual
interactions with defendant. One of the girls stated defendant
"peed" on her legs, describing it as slimy, orange, and green.
2 A-1678-16T3
The State presented the children's grandmother as a "fresh
complaint" witness at trial. She described to the jury the
disclosure to her from one of the victims about defendant's sexual
contact. During an extensive cross-examination, defense counsel
asked numerous questions regarding the child's disclosure. On
redirect, the prosecutor asked the grandmother what else her
granddaughter told her in addition to defendant abusing her. The
witness answered:
She said that [defendant] get on top of her
and put his finger on her – on her private
part and it hurts a lot. And then . . . he
put nasty stuff . . . on top of her body. He
peed on — on her. That's . . . her word. That
he peed on her.
There was no objection to this testimony.
Dr. Brett Biller, the training director at the Child Abuse
and Maltreatment Center at St. Peter's University Hospital,
testified as an expert on Child Sexual Abuse Accommodation Syndrome
(CSAAS). Advising he was not familiar with the facts of this case
or any of the victims, he explained to the jury the theory of the
syndrome and the factors that compose it – secrecy, helplessness,
entrapment, accommodation, delayed disclosure, and recantation.
Defendant raises the following arguments on appeal:
POINT I: THE TRIAL COURT ERRED IN ALLOWING
THE PRIOR BAD ACT OF [V.E.] PEEING ON VICTIM
[X.F.] TO MAKE ITS WAY TO THE JURY BY WAY OF
FRESH COMPLAINT TESTIMONY (Not Raised Below).
3 A-1678-16T3
POINT TWO: THE TRIAL COURT ERRED IN ALLOWING
CSAAS EXPERT TESTIMONY FROM BEING INTRODUCED
INTO THE TRIAL (Not Raised Below).
POINT THREE: DEFENSE COUNSEL WAS HIGHLY
INEFFECTIVE IN FAILING TO OBJECT TO PEEING
INCIDENT, FAILING TO CROSS EXAMINE EXPERT, AND
USING THE DISCIPLINARY CHARACTER OF MR. [V.E.]
AS A DEFENSE TACTIC AT EXPENSE TO HIS
CHARACTER (Not Raised Below).
In addressing points one and two, we note these issues are
raised for the first time on appeal; we, therefore, only review
for plain error. State v. Williams, 168 N.J. 323, 335 (2001); R.
2:10-2.
Defendant argues the bad act conduct elicited from the fresh
complaint witness should have been excluded under N.J.R.E. 404(b)
and the Cofield1 test. Defendant asserts the testimony provided
by the grandmother on redirect was inappropriate for a fresh
complaint witness and had no relevance to the child's initial
disclosure.
As our Supreme Court reaffirmed in State v. R.K., 220 N.J.
444, 455 (2015), the fresh-complaint doctrine allows the State to
present "evidence of a victim's complaint of sexual abuse,
otherwise inadmissible as hearsay, to negate the inference that
the victim's initial silence or delay indicates that the charge
1
State v. Cofield, 127 N.J. 328, 338 (1992).
4 A-1678-16T3
is fabricated." The Court cautioned: "Only the facts that are
minimally necessary to identify the subject matter of the complaint
should be admitted; the fresh-complaint testimony is not to be
used 'to corroborate the victim's allegations concerning the
crime.'" Id. at 456 (quoting State v. Bethune, 121 N.J. 137, 146
(1990)).
During the grandmother's direct testimony, she stated when
one of her granddaughters saw two dogs humping one another, she
started crying and told her grandmother "that happened to her" and
"that must be hurting." The child also told the grandmother
defendant put his finger on her private part. That was the extent
of the State's questioning of the fresh complaint witness.
Cross-examination of the witness, in contrast, ensued over
fifty-seven pages of transcript. The grandmother was asked
detailed questions about the victim's disclosure to her and the
dynamics within the family as well as her feelings about defendant.
On redirect, the prosecutor asked the witness what else the
child told her in addition to the disclosure of the sexual contact;
the grandmother replied her granddaughter stated defendant "peed"
on her. Thereafter, the judge instructed the jury on the
limitations for their consideration of fresh complaint testimony.
In the circumstances existing here, where the defense elicited
5 A-1678-16T3
additional detail from the fresh complaint witness concerning the
victim's disclosure, we perceive no plain error.
The trial judge gave a thorough instruction to the jury,
explaining that the fresh complaint evidence was permitted only
to negate the inference that the children
failed to confide in anyone about the sexual
offense. . . .
A fresh complaint is not evidence that
the sexual offense actually occurred or that
. . . the children, themselves, . . . are
credible. . . . It does not prove the
underlying truth of the sexual offenses.
. . . .
Proof that a complaint was made is
neither proof that the sexual offense occurred
nor proof that the children are truthful.
The grandmother's testimony on redirect was not elicited to
describe a substantive bad act or other crime. It was instead
conduct relating to the child's disclosure of a sexual assault.
Therefore, the testimony was not subject to N.J.R.E. 404(b) and
there was no need for a Cofield analysis.
We are also unpersuaded the trial court erred in allowing
CSAAS expert testimony. Our Supreme Court previously allowed this
testimony to "explain why many sexually abused children delay
reporting their abuse, and why many children recant allegations
of abuse and deny that anything occurred." State v. J.Q., 130
N.J. 554, 566 (1993) (quoting John E.B. Myers, Expert Testimony
6 A-1678-16T3
in Child Abuse Litigation, 68 Neb. L. Rev. 1, 67-68 (1989))
overruled in part by State v. J.L.G., __ N.J. __ (2018)(slip op.
at 57).2
Biller explained the theory to the jury and described the
five categories of behavior comprised in the syndrome. He advised
he did not have any information regarding this case and had not
met with any of the victims or witnesses. Defense counsel did not
object to the expert's testimony nor did she cross-examine him on
any aspect of it.
On appeal, defendant does not take issue as to any specific
portion of the CSAAS testimony; instead, he argues this type of
testimony should not be introduced at all. He asserts victims
themselves can explain their delay in reporting or subsequent
denial of abuse. We are satisfied that Biller testified in
accordance with the narrow parameters established in State v.
J.R., 227 N.J. 393 (2017). It was not an abuse of discretion to
permit the limited testimony since CSAAS testimony was still
permitted at the time of defendant's trial.
In his final point on appeal, defendant takes issue with his
counsel's trial tactics, asserting counsel was "highly
2
Our review of the Court's ruling in J.L.G. does not alter our
decision in this case as we conclude the CSAAS testimony was
harmless in light of the overwhelming proof of defendant's guilt.
7 A-1678-16T3
ineffective." "Our courts have expressed a general policy against
entertaining ineffective assistance of counsel claims on direct
appeal because such claims involve allegations and evidence that
lie outside the trial record." State v. Castagna, 187 N.J. 293,
313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)).
Each argument defendant makes on this direct appeal requires
exploration of the trial attorney's trial strategy and decision-
making process. It is simply not possible to fairly assess those
claims on this record. Preciose, 129 N.J. at 460. The Castagna
principle holds true today, particularly in this case where such
serious allegations are made. Accordingly, we do not address the
points on appeal, but leave it to defendant to file the appropriate
application.
Affirmed.
8 A-1678-16T3