STATE OF NEW JERSEY VS. B.D., JR. (14-05-0334, SALEM COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3999-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
B.D., JR.,
Defendant-Appellant.
________________________________
Submitted January 10, 2017 – Decided August 17, 2017
Before Judges Reisner and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 14-
05-0334.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Marianne V. Morroni,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A jury found defendant B.D.,Jr.1 guilty of committing first-
degree aggravated sexual assault, N.J.S.A 2C:14-2(a), against his
daughter, S.D., between 1987 and 1993, while she was under the age
of thirteen. Defendant appeals from the judgment of conviction
and his fifteen-year prison sentence subject to five years of
parole ineligibility. After reviewing the record in light of the
applicable law, we affirm both the conviction and the sentence.
I.
At a Rule 104 (a) fresh complaint hearing, Be.D., defendant's
wife and S.D.'s stepmother, testified that in May 1997, S.D. told
her about the years of sexual abuse she suffered from defendant.
Be.D. also testified as to the context in which the disclosure
occurred. Be.D. recalled cutting short an out-of-town trip after
defendant telephoned her to tell her that S.D., sixteen years old
at the time, had run away from home. Before finding S.D., Be.D.
was able to reach her on the phone. S.D., hysterical and crying,
told Be.D. that she ran away from home because defendant failed
to heed S.D's warning not to peek at her when she was in the
bathroom.
After Be.D. located S.D., she drove her to school, and during
the drive, S.D. revealed details about defendant's sexual abuse
1
We use initials to preserve the confidentiality of the victim.
R. 1:38-3(c)(12).
2 A-3999-14T1
over the course of many years. Again, S.D. was very emotional.
She told Be.D. that defendant liked her to dress up and wear high
heels, and that they engaged in oral sex. She also described a
scar on defendant's penis and alleged that he digitally penetrated
her anus and vagina. S.D. also showed Be.D. that she had been
cutting herself, "because she felt [the abuse] was her fault."
When Be.D. and S.D. arrived at school, defendant was in the
parking lot and tried to get S.D. into his car. Be.D. testified
that S.D. refused, and was "hysterical[,] crying and, you know,
screaming, 'Don’t let him get me; don’t let him get me.'" About
a week later, Be.D. separated from defendant by moving out of
their home, with S.D. and her younger brother, B.D., joining her.
The trial judge held that Be.D.'s testimony was admissible
as fresh complaint evidence based upon consideration of: the
nature, time, and place of the complaint; S.D.'s age at the time
of the complaint; the circumstances under which she made the
complaint; the complaint was against her father; S.D.'s conduct
at the time of her complaint; and the proofs S.D. offered to her
stepmother. As for the time it took S.D. to eventually reveal the
abuse, the judge reasoned:
One, [] the victim remained in the defendant's
home; two, the defendant threatened her; and
three, [] he continued to abuse her in
3 A-3999-14T1
Tennessee 2 throughout this time as she is
maturing, until she finally reaches the age
of approximately 16 and indicates . . . to her
stepmother that she had had enough . . .
[T]hose factors are [] often discussed in our
case law. And I would suggest that they
adequately explain the delay. And what I mean
by ‘delay’ . . . I want to make sure I’m pretty
specific – there was no delay at least on the
facts that I’ve gotten. . . . this isn’t a
situation where the conduct stopped and five
years later the victim made an allegation.
At trial, S.D., then thirty-two years old, testified
regarding her parents' separation, and living with her brother,
defendant and Be.D. According to S.D., defendant's physical and
sexual assault began when she was between the ages of three and
five years old. When she was six, defendant was performing oral
sex on her, forcing her to perform oral sex on him, making her
watch pornographic movies in order to emulate what the women were
doing in those movies, and coercing her to get naked so that he
could suck on her toes, kiss every part of her body and ejaculate
on her. S.D. described, in detail, a scar on defendant’s penis
that he told her occurred when he was a child. Defendant made her
pay particular attention to the scar during oral sex because it
was sensitive. S.D. also testified that defendant digitally
2
In addition to the sexual abuse incidents in New Jersey,
defendant and S.D. had lived in Tennessee, where defendant pled
guilty in 1998 to amended counts of sexual battery resulting in a
suspended sentence and probation.
4 A-3999-14T1
penetrated her vaginally and anally, and attempted to penetrate
her vaginally with his penis on numerous occasions.
S.D. testified that, at age seven, defendant was abusing her,
"several times a week to every day and sometimes more than once a
day," depending on when defendant's job took him away from home.
Although S.D. had doctor’s appointments while growing up, she did
not disclose the abuse, and she did not have any vaginal exams
that could have exposed sexual activity.
When defendant wanted to have sex with S.D., he would wait
until Be.D. and her brother were not home, and then lock the door.
If S.D.'s brother did not accompany their stepmother when she left
the house, defendant would send him outside to do chores. There
were also times that defendant would take S.D. to a "house behind
the property that he was caretaker of" to abuse her. When
defendant could not get Be.D. and her brother out of the house,
he would take S.D. on rides in his car and force her to perform
oral sex on him in the car. If a car passed by with a driver who
could see inside their vehicle, defendant would slap S.D.'s head
away so no one could see what they were doing. Additionally, when
defendant worked driving an 18-wheeler tractor-trailer, he would
sometimes take S.D. with him, then force her to look at
pornographic magazines and engage in oral sex.
5 A-3999-14T1
If S.D. refused to have sex, defendant would choke her,
threaten her and her brother with homelessness, or assault her
brother in front of her. Defendant also claimed that he knew
people in the "mob" who would kill her and dispose of her body in
a barrel if she ever told anyone about having sex with him.
After a speaker talked to her third-grade class about sexual
abuse, she recalled crying in class afterwards, but since no one
asked her why she was upset, she did not tell anyone about
defendant's abuse. S.D. also never told anyone at school because
she believed defendant's threats.
S.D. stated that defendant's abuse made her punish herself
as she grew older. She cut herself, deprived herself of food or
made herself throw up, and attempted suicide.
S.D. confirmed her stepmother's testimony about how in May
1997, she revealed defendant's sexually abusive conduct towards
her throughout her youth, and that thereafter, she never again
lived with defendant. She did not report defendant's conduct to
the police because when she relocated to Tennessee after moving
out of defendant's house, she was advised that she could not press
charges there for offenses occurring in New Jersey. She eventually
reported defendant's abuse to law enforcement in 2012, when New
Jersey State Police Detective Neal Everingham contacted her. She
admitted she did not tell Everingham that defendant had threatened
6 A-3999-14T1
to kill her and place her in a barrel, or that she cried in the
third grade after a class speaker talked about sexual abuse.
Everingham testified that he conducted an investigation into
defendant's alleged abuse after being contacted by the Salem County
Prosecutor's Office. 3 Based upon his training and experience
investigating sexual abuse cases, it was not uncommon for victims
to wait "sometimes years" before reporting the abuse because of
fear.
Everingham stated that he had several telephone conversations
with S.D., because she was not living in New Jersey. S.D. told
him that on a regular basis between 1986 and 1993 in New Jersey,
defendant abused her through, "[o]ral sex, both given and received.
Sucking on toes, dress-up in adult clothing. . . reenacting of
pornographic videos or scenarios. Digital penetration, both
vaginal and anal."
He also testified that in separate interviews, both S.D. and
Be.D. mentioned that defendant had a scar on the "underside of his
penis, just below the head [of the penis.]" A photograph of the
scar, obtained through a search warrant, was admitted into
evidence.
3
The investigation was initiated as a result of B.D.'s report of
being sexually abused by defendant.
7 A-3999-14T1
The State also presented the expert testimony of Dr. Julie
Lippmann, a clinical child psychologist, regarding Child Sexual
Abuse Accommodation Syndrome (CSAAS). She did not comment on the
specific allegations against defendant, but explained that CSAAS
involves the often-delayed reporting of sexual abuse by child
victims who are "abused repeatedly, over and over again perhaps,
by someone that they love and trust; [such as] a parent . . . ."
In addition, Be.D. reiterated the testimony she gave at the
fresh complaint hearing concerning S.D.'s revelation of
defendant's sexual abuse. She mentioned that defendant spent
more time with S.D. to the exclusion of his son, and that defendant
would send her out of the house on errands, like grocery shopping,
and suggest that she take his son with her. On cross-examination,
she confirmed that defendant did not drive an 18-wheeler when the
family lived in New Jersey, which controverted S.D.'s allegations
of sexual abuse in an 18-wheeler.
Defendant exercised his right not to testify. After
deliberating, the jury found defendant guilty of first-degree
aggravated sexual assault.
At sentencing, the judge denied defendant's request that he
not consider information related to a charge, dismissed the day
before the trial started, that defendant had sexually abused his
son at various times between 1987 and 1993. The judge found that
8 A-3999-14T1
aggravating factors two, three, six, and nine applied. N.J.S.A.
2C:44-1(a)(2)(gravity and seriousness of harm inflicted on a
vulnerable victim); -1(a)(3)(the risk of re-offense); -1(a)(6)
(the extent of defendant's prior criminal record and the
seriousness of the current offense); and -1(a)(9) (the need for
deterrence). He also found that mitigating factors seven and ten
applied. N.J.S.A. 2C:44-1(b)(7)( no history of prior criminal or
delinquent conduct); and -1(b)(10)(likely to respond affirmatively
to probationary treatment). The judge determined that the
aggravating factors substantially outweighed the mitigating
factors, and sentenced defendant to a fifteen-year prison term,
with five years of parole ineligibility. This appeal followed.
II.
Defendant raises the following arguments for our
consideration:
POINT I
THE TRIAL COURT ERRED IN ALLOWING [BE.D.] TO
TESTIFY ABOUT S.D.'S ACCUSATIONS AGAINST
DEFENDANT BECAUSE THAT EVIDENCE DID NOT MEET
THE REQUIREMENTS OF THE FRESH COMPLAINT
DOCTRINE.
POINT II
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT
THE JURY THAT S.D.'S PRIOR INCONSISTENT
STATEMENTS IN POLICE WITNESSES' REPORTS WERE
ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not
Raised Below).
9 A-3999-14T1
POINT III
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE BECAUSE IT IS FOUNDED ON
IMPROPER FINDINGS REGARDING AGGRAVATING
FACTORS.
Defendant argues in Point I, that the trial judge violated
his rights to a fair trial and due process by misapplying the
fresh-complaint doctrine in admitting S.D.'s out-of-court
statements to her stepmother reporting defendant's sexual abuse.
Specifically, he argues that the testimony did not qualify as
fresh complaint evidence because the allegations were not
spontaneous and were the result of a series of questions from
Be.D. We disagree.
In reviewing the fresh-complaint doctrine, our Supreme Court
has stated:
That doctrine allows the admission of 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 is
fabricated. See State v. Hill, 121 N.J. 150,
163 (1990); State v. Balles, 47 N.J. 331, 338
(1966), cert. denied, 388 U.S. 461, 87 S. Ct.
2120, 18 L. Ed. 2d 1321 (1967). In order to
qualify as fresh-complaint evidence, the
victim's statement must have been made
spontaneously and voluntarily, within a
reasonable time after the alleged assault, to
a person the victim would ordinarily turn to
for support. State v W.B., 205 N.J. 588, 616
(2011); Hill, supra, 121 N.J. at 163 (citing
State v. Tirone, 64 N.J. 222, 226-27(1974));
10 A-3999-14T1
Balles, supra, 47 N.J. at 338-39. These
requirements are relaxed when they are applied
to juvenile victims. State v. Bethune, 121
N.J. 137, 143-44 (1990). This Court has
recognized that children may be "too
frightened and embarrassed to talk about" the
sexual abuse they have encountered, and
therefore, juvenile victims are given
additional time to complain, and their
complaint may be elicited through non-coercive
questioning. Ibid.[State v. R.K., 220 N.J. 444, 455 (2015).]
"[T]he fresh complaint rule was developed to counteract the
persistent 'timing myth' that victims of sexual assault would cry
out and alert others to the crime." W.B., supra, 205 N.J. at 616(quoting State v. P.H., 178 N.J. 378, 392 (2004)). "The rule
allows the State to neutralize this myth by introducing evidence
that the victim did indeed make a complaint within a reasonable
time after the alleged assault." Ibid.The Court has cautioned that a child's statements
made directly in response to coercive
questioning are inadmissible under the fresh-
complaint rule, because coercive
interrogation robs those statements of the
self-motivation necessary to qualify as fresh
complaint.
. . . .
There is a line, however, between questioning
that merely precedes a complaint of sexual
abuse and coercive questioning. We leave it
to the trial court to determine when that line
is crossed. In each case the trial court must
11 A-3999-14T1
examine the degree of coercion involved in the
questioning of the child and determine whether
the child's complaint was spontaneous or
directly in response to the interrogation.
Among the factors the court should consider
in arriving at its determination are the age
of the child, the child's relationship with
the interviewer, the circumstances under which
the interrogation takes place, whether the
child initiated the discussion, the type of
questions asked, whether they were leading,
and their specificity regarding the alleged
abuser and the acts alleged.
[State v. Bethune, 121 N.J. 137, 145 (1990).]
Applying these principles, we discern no abuse of the judge's
discretion in admitting Be.D.'s testimony. Our review of the
record demonstrates that S.D.'s statements were general inquiries
about why S.D. was upset and what happened, and by no means were
coercive. Moreover, Be.D.'s testimony was not the sole account
of S.D.'s complaint or defendant's sexual abuse of S.D. See ibid.(fresh complaint to social worker "was not of singular weight or
importance at trial."). The jury heard S.D.'s first-hand account
of her complaint to Be.D. and the constant sexual abuse inflicted
upon her by defendant throughout her youth. Further, the
credibility of Be.D.'s and S.D.'s recollections were both subject
to cross-examination. See ibid.Turning to Point II, defendant contends his conviction should
be reversed because the judge should have instructed the jury that
12 A-3999-14T1
S.D. made prior inconsistent statements regarding defendant's
abuse that were admissible as substantive evidence. Defendant
acknowledges that he did not request such instruction, but that
the judge's failure to do so was plain error, which had the clear
capacity to lead to an unjust result. In particular, defendant
cites to allegations in S.D.'s testimony - defendant threatened
to kill her and stuff her body in a barrel if she told anyone
about the sexual abuse, the third grade speaker who spoke to her
class, about sexual abuse, and the allegation that defendant told
her that he ate specific fruits to make his semen taste a certain
way – that was not included in her statement to Everingham.
Defendant contends that the judge erred in instructing the jury
that they only had to "'determine the credibility of the
witnesses', including considering 'whether the witness made any
inconsistent or contradictory statements.'" We find no merit in
this contention.
We are mindful of some well-settled principles. A defendant
is entitled "an adequate instruction of the law." State v.
Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (citation
omitted), aff'd, 158 N.J. 149, 150 (1999). "Clear and correct
jury instructions are essential for a fair trial." State v.
Randolph, 441 N.J. Super. 533, 558 (2015) (quoting State v. Brown,
138 N.J. 481, 522 (1994)). "'[E]rroneous instructions on material
13 A-3999-14T1
points are presumed to' possess the capacity to unfairly prejudice
the defendant." State v. Baum, 224 N.J. 147, 159 (2016) (quoting
State v. Bunch, 180 N.J. 534, 541-42 (2004)).
Where, however, a "defendant did not object to the jury
instructions at trial, we must apply the plain error standard."
State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State
v. Torres, 183 N.J. 554, 564 (2005)). Regarding a jury charge,
the plain error analysis requires demonstration of "[l]egal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant sufficiently grievous to justify notice
by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust
result." Ibid. (quoting State v. Jordan, 147 N.J. 409, 422
(1997)). An "error in a jury instruction that is 'crucial to the
jury's deliberations on the guilt of a criminal defendant' is a
'poor candidate[] for rehabilitation' under the plain error
theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422).
Nevertheless, any such error is to be considered "in light of 'the
totality of the entire charge, not in isolation.'" Ibid. (quoting
State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any
alleged error also must be evaluated in light 'of the overall
strength of the State's case.'" Ibid. (citation omitted).
14 A-3999-14T1
Applying these principles, we are satisfied there was no
plain error due to the judge's decision not to charge the jury
that S.D.'s prior inconsistent statements regarding defendant's
abuse were admissible as substantive evidence. We have held that
“[a]n apparently inconsistent pretrial statement of a witness . .
. is not limited to . . . affecting the witness’s credibility at
trial. The rule is clear that such statements are admissible for
their substantive content.” State v. Ramos, 217 N.J. Super. 530,
538 (App. Div.), certif. denied, 108 N.J. 677 (1987). However,
when a witness’s prior testimony is not substantially different
from his or her trial testimony, a general credibility jury
instruction will not constitute plain error. See Ibid.; see also
State v. Turner, 310 N.J. Super. 423, 431 (App. Div. 1998).
Here, there are no substantial differences in between S.D.'s
pretrial statement and her trial testimony assertions regarding
defendant's sexual abuse. In both situations, S.D. consistently
reflected her allegations concerning oral sex, digital
penetration, defendant’s toe fetish, and the distinguishing scar
on his penis. Moreover, she consistently alleged that defendant
regularly abused her throughout her youth until she ran away from
home at the age of sixteen. The fact that S.D. may have provided
certain allegations in her testimony that were not mentioned in
her pretrial statement did not constitute inconsistency, and did
15 A-3999-14T1
not warrant the specific jury charge defendant now claims the
court should have given.
Lastly, we address defendant's argument in Point III that the
judge made errors at sentencing. Defendant maintains his sentence
should be vacated because the judge improperly considered the
unproven charge of sexual abuse related to his son, which the
State dismissed prior to trial, and because the judge
insufficiently explained the application of aggravating factor
nine. We disagree.
We begin by noting that review of a criminal sentence is
limited. A reviewing court must decide "whether there is a 'clear
showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221,
228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
Under this standard, a criminal sentence must be affirmed unless:
"(1) the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were not 'based upon competent
credible evidence in the record;' or (3) 'the application of the
guidelines to the facts' of the case 'shock[s] the judicial
conscience.'" Ibid. (alteration in original) (citation omitted).
If a sentencing court properly identifies and balances the factors
and their existence is supported by sufficient credible evidence
in the record, this court will affirm the sentence. See State v.
16 A-3999-14T1
Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J.
484, 493-94 (1996).
We agree with defendant's contention that under State v.
Lawless, 214 N.J. 594, 609 (2013), "consideration of an
inappropriate aggravating factor violates the guidelines and thus
is grounds for vacating [a] sentence." (quoting State v. Pineda,
119 N.J. 621, 628 (1990); internal quotation omitted). However,
despite initially rejecting defendant's request that the dismissed
charge not be considered, the judge does not appear to have
considered that information when he imposed sentence. There is
no indication in the judge's detailed explanation of the
aggravating factors that he in fact considered the allegations
concerning the son. At most, the judge's initial comment was
harmless error.
Our review of the record leads us to conclude the record
supports the aggravating factors the judge applied. This includes
application of aggravating factor nine, the need to deter defendant
and others from violating the law, given the seriousness and the
extended time of the sexual abuse against S.D. Thus, the judge
did not abuse his discretion, and we discern no basis to vacate
defendant's sentence.
Affirmed.
17 A-3999-14T1