STATE OF NEW JERSEY VS. B.K.K. (14-10-3074, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-3476-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
B.K.K.,
Defendant-Appellant.
______________________________
Argued January 21, 2020 – Decided June 17, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Indictment No. 14-10-
0307.
Scott M. Welfel, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Tamar Yael Lerer, Assistant
Deputy Public Defender, of counsel and on the briefs).
Jeffrey L. Weinstein, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Michael J. Williams, Acting Hunterdon
County Prosecutor, attorney; Jeffrey L. Weinstein, of
counsel and on the brief).
PER CURIAM
Defendant B.K.K. 1 appeals from the Law Division's March 20, 2017
judgment of conviction that was entered after a jury found him guilty of three
counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) and
(2)(c), five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), (c)(1)
and (c)(4), and two counts of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). In reaching its verdict, the jury found defendant sexually
assaulted his two minor stepdaughters, J.R. and K.R., beginning in
approximately 2013, when they were 12 and 10 years old respectively.2 The
trial court sentenced defendant to an aggregate term of forty-five years, subject
to a mandatory period of parole ineligibility under N.J.S.A. 2C:14-2(a) and the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues: (1) that testimony from his niece, whom he
allegedly sexually assaulted as early as 2003, was improperly admitted under
N.J.R.E. 404(b); (2) expert testimony about the Child Sexual Abuse and
1
We use initials to protect the privacy of the children and members of the
family. R. 1:38-3(c)(9).
2
Although defendant and the victim's mother participated in a religious
ceremony, they were never legally married. However, it was undisputed that
the victims and the family considered defendant their stepfather.
A-3476-16T4
2
Accommodation Syndrome (CSAAS) was improperly admitted in light of the
Court's holding in State v. J.L.G., 234 N.J. 265 (2018); and (3) defendant's
sentence was excessive. For the reasons that follow, we affirm.
I.
In 2013, J.R. and K.R. lived with defendant, their mother, their brother,
and defendant's son. According to J.R., she was watching television late one
evening while her mother, sister, and brother were in the house sleeping, when
defendant sat next to her on the couch. Defendant then put his hands down J.R.'s
pants, and digitally penetrated her vagina while he masturbated. J.R. stated this
went on for about twenty or twenty-five minutes. She never told anyone about
that incident at the time because defendant told her he would go to jail if she
told anyone what happened, she knew defendant made her mother happy, and
she was afraid her family would be ruined if she disclosed.
J.R. recalled two other instances when defendant sexually assaulted her.
Once while she was lying on the couch late at night, half asleep, defendant
walked in, sat next to her, and turned her over onto her back. J.R. attempted to
resist, but defendant would not stop. He removed her pants and her underwear,
and performed an act of cunnilingus. On another occasion in the middle of the
afternoon, defendant unzipped J.R.'s jeans while she was laying on the couch
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and digitally penetrated her vagina. Defendant committed that assault while
J.R.'s brother was in the same room, but had his back turned and his headphones
over his head.
After this last incident, J.R. texted her mother and her thirteen-year-old
friend, disclosing that defendant assaulted her. Her mother walked into her room
crying and after J.R. explained what happened, her mother told her that
defendant would not do that. J.R.'s mother told her that their family would be
broken up if J.R. repeated her allegation.
After J.R. got home from school the next day, she and her mother talked
about J.R.'s accusation against defendant. Her mother told J.R. that defendant
had taken a lie detector test, which revealed defendant was telling the truth.
After about forty-five minutes of arguing back and forth, J.R. "gave up" and told
her mother she had lied. Her mother then told J.R. that defendant never took a
lie detector test.
Thereafter, on July 2, 2014, K.R. told J.R. that defendant had assaulted
her. In response, J.R. revealed that defendant had done the same thing to her.
J.R. also told K.R. how their mother did not believe J.R., which made K.R.
believe it would be futile to tell their mother defendant had touched her.
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K.R. texted her friend about what defendant had done, but told the friend
not to tell anyone because she did not want to live with her father again, did not
want her family to break apart, and because J.R. told her not to tell anyone. The
friend showed K.R.'s text messages to her sister, and then her mother. The
friend's mother called 9-1-1.
According to Detective Donna Snyder of the Hunterdon County
Prosecutor's Office, she received a phone call on July 3, 2014 that J.R. and K.R.
had been sexually assaulted. Thereafter, arrangements were made for the two
girls to be taken to the prosecutor's office by their grandmother. When K.R.
learned that she was going to the prosecutor's office, she stopped home, where
defendant allegedly told her that he was sorry and it would not happen again.
The children were brought from the prosecutor's office to the Child
Advocacy Center, where Snyder interviewed them. As part of this interview,
K.R. disclosed that on July 2, 2014, defendant touched her vaginal area. J.R.
stated that defendant had abused her several times beginning in the summer of
2012. According to Detective Snyder, J.R. first disclosed her abuse to a close
girlfriend, and then to her mother. Her mother did not believe J.R. and wanted
J.R. to take a polygraph examination to determine whether J.R. was lying.
A-3476-16T4
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Defendant voluntarily appeared for an interview at the prosecutor's office
on July 3, 2014. Defendant denied his stepdaughters' allegations. He admitted
that he massaged his stepdaughters frequently, but understood how others could
think it was strange.
Defendant was arrested and charged with various offenses relating to his
alleged sexual assault of his stepdaughters. On October 30, 2014, a Hunterdon
County Grand Jury returned an indictment charging defendant with: two counts
of first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2(a)(1); one
count of first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-
2(a)(2)(c); two counts of second-degree sexual assault contrary to N.J.S.A.
2C:14-2(b); two counts of second-degree sexual assault contrary to N.J.S.A.
2C:14-2(c)(1); one count of second-degree sexual assault contrary to N.J.S.A.
2C:14-2(c)(4); and two counts of endangering the welfare of a child contrary to
N.J.S.A. 2C:24-4(a).
Prior to his trial, the court addressed several motions filed by defendant
and the State. One motion led to a hearing on the suppression of defendant's
pretrial statement to law enforcement, which the trial court denied. The State
filed a motion to introduce testimony from B.G., defendant's niece, about
defendant having sexually assaulted her from when she was eleven until she was
A-3476-16T4
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eighteen under N.J.R.E. 404(b). On August 2, 2016, the trial court conducted a
Rule 104 hearing, heard testimony from B.G., and on August 16, 2016, the court
entered an order denying the State's motion to admit evidence of defendant's
sexual assault of B.G. in its case-in-chief under N.J.R.E. 404(b). However, the
court reserved its determination about whether the State could admit such
evidence "if and when a material issue in dispute [was] raised which opens the
door to permissible rebuttal evidence."
On November 15, 2016, the trial judge considered the State's motion to
admit expert testimony from Dr. Vincent D'Urso, an authority on CSAAS. After
conducting a Rule 104 hearing, the court granted the motion.
During defendant's ensuing trial, J.R. testified to the above assaults and to
two more occasions where defendant sexually abused her by digitally
penetrating her—including one instance where others were present in the home.
J.R. also stated she did not call for her mother when she was being assaulted
because she felt she would not have done anything. In addition, J.R. testified
that while she was being interviewed by a detective at the prosecutor's office,
her mother was sending her text messages inquiring about her answers to the
detective's questions and reminding her that defendant would go to jail and their
family would be broken up.
A-3476-16T4
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K.R. also testified at trial. She described the one time that defendant
assaulted her. She explained that it occurred when everyone was home but
engaged in their own activities. According to K.R., she was sitting on the couch
when defendant sat next to her and began massaging her back. He gradually
moved his hands down her back and then inside her pants when he started
touching her vagina before digitally penetrating her.
On cross examination, defendant challenged J.R.'s and K.R.'s testimony
by questioning whether it was fabricated in accordance with instructions from
their father. Moreover, the two victims were questioned about how defendant
could have committed the crimes they alleged while other family members were
present in the room or house.
The victims' mother, defendant's wife, testified at trial for the State.3 She
explained the relationship between her, defendant, and her former husband. She
believed her daughters were being influenced by their father when they made
the allegations against defendant. She confirmed at trial however, that at her
plea hearing she testified that she believed that defendant had assaulted her
3
Before defendant's trial, the victims' mother pled guilty to charges of child
abuse, child endangerment, and witness tampering in connection with this
matter. She faced up to nineteen years in prison, but under a plea agreement the
State would recommend five years' probation if she testified truthfully at
defendant's trial.
A-3476-16T4
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daughters. The mother also testified to a phone call she received from defendant
in which he told her he "fucked up," that he was sorry, and could not "help it."
The victims' brother testified at trial for defendant that "there was always
somebody at the house." He stated that, contrary to J.R.'s testimony, he did not
wear headphones when he was on the computer, which was located in the living
room. He also testified that when he was on the computer and J.R. was on the
couch, nothing inappropriate could have happened because he was in the same
room.
Defendant also testified at trial. He stated that the two girls fabricated
their testimony at their father's direction. According to defendant, there was
"quite a bit" of animosity between him and his wife's ex-husband, who
controlled J.R. and K.R. and who wanted defendant "out of the picture." When
he was asked if he ever sexually assaulted J.R., defendant replied that he "never
sexually assaulted anyone." He also denied assaulting K.R. Moreover, he
denied that he was ever alone with them, but admitted to sometimes giving them
massages. As to the phone call he made to his wife, he explained that it referred
to his decision to not take a polygraph test when it was offered by the prosecutor.
Thereafter, the State renewed its Rule 404(b) motion to allow B.G to
testify, arguing that defendant opened the door for her testimony's admission.
A-3476-16T4
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The court concluded that under Rule 404(b), B.G.'s testimony of the prior
assaults against her was admissible to rebut defendant's claims of fabrication,
vendetta, and lack of feasibility/opportunity and to rebut defendant's opening
the door. The judge allowed the testimony, but ordered that it be "sanitized" so
as to mitigate the prejudicial effect of the details of defendant's assault on B.G.
that were not similar in nature to the assaults on J.R. and K.R.
After the defense rested, but before B.G. testified, the trial court delivered
a limiting instruction to the jury about their use of B.G.'s testimony in their
deliberations. B.G., who was then twenty-four years old, testified to defendant
sexually assaulting her on several occasions beginning at the age of eleven, in
2003, until she was fourteen, while other family members were home, in a
manner similar to what J.R. and K.R. described in their testimony. She also
described how defendant told her not to tell anyone about what he was doing
because he would be sent to jail. One incident she described occurred in a hotel
room, while she was on a trip with defendant, his son, and her brother. In
addition, B.G. explained that although she told friends what was happening to
her, she did not tell her father until she learned that defendant was charged in
this matter.
A-3476-16T4
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Defendant and his son testified in rebuttal to B.G.'s testimony. The son,
who had gone on trips with his father and B.G., stated he never saw defendant
assault B.G. or heard anyone else state that defendant had done so. Defendant
denied sexually assaulting B.G. He explained that after B.G. turned eighteen,
she moved in with defendant because her parents were moving to Las Vegas and
she did not want to go with them. Defendant testified that he had sex with B.G.
two or three times after she turned eighteen. However, on cross-examination,
when defendant was confronted with the transcript of a phone call4 between him
and his mother, he recalled his mother asking about B.G.'s age, which was eleven
at that time, and admitted that he thought the two of them were in a relationship
at that time.
On December 7, 2016, the jury convicted defendant on all counts of the
indictment. The trial court sentenced defendant on March 10, 2017. This appeal
followed.
On appeal, defendant argues the following:
POINT I
EVIDENCE OF ENTIRELY UNRELATED
ALLEGATIONS AGAINST DEFENDANT SHOULD
NOT HAVE BEEN ADMITTED BECAUSE IT
4
The judge provided a limiting instruction to the jury that this transcript was
only to be used for the purpose of considering defendant's credibility.
A-3476-16T4
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SERVED ONLY AS PROHIBITED PROPENSITY
EVIDENCE. THE ADMISSION OF THIS UNDULY
PREJUDICIAL EVIDENCE NECESSITATES
REVERSAL OF DEFENDANT'S CONVICTIONS.
....
B. THE EVIDENCE OF PRIOR BAD ACTS
SERVED ONLY TO DEPICT DEFENDANT AS
HAVING BAD CHARACTER AND CRIMINAL
PROPENSITIES. ITS ERRONEOUS ADMISSION
NECESSITATES REVERSAL OF HIS
CONVICTIONS.
POINT II
TESTIMONY ABOUT [CSAAS] WAS NOT BASED
ON RELIABLE SCIENCE, WAS IRRELEVANT,
AND WAS UNDULY PREJUDICIAL. ITS
ADMISSION NECESSITATES REVERSAL OF
DEFENDANT'S CONVICTIONS.
POINT III
DEFENDANT'S SENTENCE IS EXCESSIVE.
We are not persuaded by defendant's arguments about the admission of
B.G.'s testimony or his sentence. As to the CSAAS testimony, we agree that it
should not have been admitted, but we also conclude the error was harmless.
Finally, we find no merit to defendant's argument about his sentence.
II.
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We begin our review by addressing defendant's argument that the trial
court erred by admitting B.G.'s testimony under Rule 404(b). We disagree.
A.
According to the trial court's written decision issued in response to the
State's N.J.R.E. 404(b) pretrial motion to admit B.G.'s testimony, the court
applied the four-factor test articulated in State v. Cofield, 127 N.J. 328 (1992),
and found that while B.G.'s testimony could not be offered as direct evidence, it
could be used on rebuttal if defendant opened the door. The trial court barred
the testimony because although the evidence satisfied the first three Cofield
factors, the court concluded under the last factor that the testimony's probative
value as direct evidence would only be to bolster the credibility of the victims,
which was not permitted. Additionally, the evidence of B.G.'s sexual assault
was highly prejudicial to defendant. The court stated that while the evidence of
B.G.'s sexual assault was inadmissible in the State's case-in-chief, it was
reserving its determination as to whether it could be presented on rebuttal,
should defendant "open the door."
Before later permitting the challenged testimony on rebuttal, the trial court
issued a nineteen-page comprehensive written decision setting forth its reasons.
In its decision, the court re-analyzed the Cofield factors. In its consideration of
A-3476-16T4
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the first factor, after conducting a lengthy discussion of the applicable law, the
trial court relied upon our opinion in State v. Krivacska, 341 N.J. Super. 1 (App.
Div. 2001), and the Court's opinion in State v. Oliver, 133 N.J. 141 (1993). The
trial court found that the proposed evidence of B.G.'s sexual assault was
admissible to rebut defendant's claims that J.R. and K.R. were fabricating their
stories, and that defendant lacked the opportunity or it was not feasible to have
committed the crimes. According to the court, defendant placed those issues in
question by cross-examining J.R. and K.R. as well as calling witnesses who were
in the vicinity of the alleged assaults.
As to the second factor, the judge reaffirmed her earlier decision and
stated the assaults of the three girls were similar in kind given how close in age
each victim was, defendant's relationship to the girls, and the warnings that
defendant gave each victim about what would happen to him if any of them
disclosed his behavior. As to the third factor, the judge found B.G.'s testimony
supplied clear and convincing evidence of the bad act because her testimony was
consistent, she was detailed and specific, and her testimony was straightforward.
Last, the judge found that the probative value of B.G.'s testimony was no
longer outweighed by its prejudicial effect as it was probative of issues
defendant placed in dispute. Nevertheless, the court directed that B.G.'s
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testimony had to be "sanitized" to lessen its potential prejudicial effect. The
court would not allow the State to introduce testimony that defendant's assaults
on B.G. lasted for seven years or occurred beyond B.G. being fourteen years old
or included allegations of sexual intercourse.
Prior to B.G.'s testimony, and afterward in its final charge, the trial court
delivered a limiting instruction as to how and to what extent the jury was to
consider B.G.'s testimony. In the charge, the court informed the jury that B.G.'s
testimony could not be used to prove that defendant had sexually assaulted J.R.
or K.R. Rather, it could only be used to rebut defendant's claims that the girls
fabricated their allegations or that there was no opportunity for him to sexually
assault either of them. The trial court informed the jury:
[Y]ou may not use this evidence to decide that the
defendant has a tendency to commit crimes or that he is
a bad person. That is, you may not decide that just
because the defendant has committed other crimes,
wrongs or acts, he must be guilty of the present crimes.
I have admitted the evidence only to help you to decide
with specific questions of fabrication and opportunity,
access or feasibility. You may not consider it for any
other purpose and may not find the defendant guilty
now simply because the State has offered evidence that
he committed other crimes, wrongs or acts.
Defendant never raised an objection to any of the trial court's charges in this
regard.
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B.
We apply a deferential standard of review to a trial court's admission of
Rule 404(b) evidence. Generally, "[a] trial court's ruling on the admissibility of
evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J.
141, 157 (2011). "The admission or exclusion of evidence at trial rests in the
sound discretion of the trial court." State v. Willis, 225 N.J. 85, 96 (2016).
"When specifically reviewing the sensitive admissibility rulings made
pursuant to the weighing process demanded by Rule 404(b)," Rose, 206 N.J. at
157, we give "great deference" to a trial court's determination on the
admissibility of "other bad conduct" evidence, State v. Goodman, 415 N.J.
Super. 210, 228 (App. Div. 2010) (quoting State v. Foglia, 415 N.J. Super. 106,
122 (App. Div. 2010)). "The admissibility of such evidence is left to the sound
discretion of the trial court, as that court is in the best position to conduct the
balancing required under Cofield due to its 'intimate knowledge of the case.'"
State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Covell, 157 N.J. 554,
564 (1999)).
While we apply an abuse of discretion standard, requiring a "clear error
of judgment" to overturn the trial court's determination, State v. Castagna, 400
N.J. Super. 164, 183 (App. Div. 2008), "[t]hat discretion is not unbounded.
A-3476-16T4
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Rather, it is guided by legal principles governing the admissibility of evidence
which have been crafted to assure that jurors receive relevant and reliable
evidence to permit them to perform their fact-finding function and that all parties
receive a fair trial." Willis, 225 N.J. at 96.
N.J.R.E. 404(b) provides that evidence of other crimes or bad acts is
generally not admissible, unless used for "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue in dispute." The concern in
admitting evidence of other crimes or bad acts is "the jury may convict the
defendant because he is 'a "bad" person in general.'" Cofield, 127 N.J. at 336(quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). The burden of proving that
N.J.R.E. 404(b) evidence should be admitted falls on the moving party seeking
to admit such evidence. State v. Reddish, 181 N.J. 553, 608-09 (2004).
In Cofield, our Supreme Court set forth a four-pronged test to govern the
admission of such evidence:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
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4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover,
Balancing the Presumptions of Guilt and Innocence:
Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135,
160 (1989) (footnote omitted)); see also State v.
Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the
Cofield test).]
Generally, all four Cofield factors must support the admission of the
evidence in question. State v. P.S., 202 N.J. 232, 255 (2010). However, "other
crimes evidence may be admissible if offered for any non-propensity purpose"
if the trial court determines that it is relevant, and its probative value outweighs
the potential prejudicial effect. Rose, 206 N.J. at 180-81; see also Cofield, 127
N.J. at 338. "The threshold determination . . . is whether the evidence relates to
'other crimes,' and thus is subject to . . . analysis under Rule 404(b), or whether
it is evidence intrinsic to the charged crime, and thus need only satisfy the
evidence rules relating to relevancy, most importantly Rule 403." Rose, 206
N.J. at 179.
To determine if evidence "is intrinsic to the charged crime," the Court in
Rose adopted a test enunciated in United States v. Green, 617 F.3d 233 (3d Cir.
2010). Rose, 206 N.J. at 180. The Court held that "two narrow categories of
evidence" of other bad acts are intrinsic to the charged crime: (1) evidence that
A-3476-16T4
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"directly proves the charged" crime; and (2) evidence of bad "acts performed
contemporaneously with the charged crime" that "facilitate[d] the commission
of the charged crime." Ibid. (quoting Green, 617 F.3d at 248-49). Any evidence
of other bad acts not fitting within one of those two "tight description[s] of
intrinsic evidence" must be analyzed under Rule 404(b). Id. at 181.
A court is not limited to "the examples set forth in the rule concerning the
permissible uses of other-crimes evidence [as they] 'are not intended to be
exclusive.'" N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551,
572 (App. Div. 2010) (quoting State v. Nance, 148 N.J. 376, 386 (1997)). "To
be sure, such evidence could be offered to negate accident; to establish motive,
pattern, or design; or for a myriad of other legitimate reasons under the rule."
P.S., 202 N.J. at 240.
By its clear terms, N.J.R.E. 404(b) permits admission of such evidence
when relevant to prove some fact genuinely in issue. State v. Marrero, 148 N.J.
469, 482 (1997); Oliver, 133 N.J. at 151-54; State v. Stevens, 115 N.J. 289, 300
(1989). "Extrinsic acts evidence may be critical to the establishment of the truth
as to a disputed issue," especially where the prosecution's access to significant
information is limited. Huddleston v. United States, 485 U.S. 681, 685 (1988).
The evidence is not required to prove or disprove a fact at issue but need only
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support a desired inference. State v. Swint, 328 N.J. Super. 236, 252-53 (App.
Div. 2000).
"Where such evidence tends to make the existence of a material fact
'reasonably likely,' it should be admitted if its probative worth outweighs its
potential for causing confusion, undue consumption of time or improper
prejudice." Krivacska, 341 N.J. Super. at 39 (quoting Marrero, 148 N.J. at 482);
see also N.J.R.E. 403. In State v. Garrison, 228 N.J. 182 (2017), the Court held
that evidence of defendant's involvement in a game of strip poker with his victim
was admissible since its probative value outweighed any prejudicial effect it
might have had on defendant. Id. at 197-200. Moreover, the Court concluded
that since evidence of the poker game was admissible under the "rigorous"
N.J.R.E. 404(b) standard, it was not obligated to reach the State's argument that
evidence of the poker game was intrinsic and thus only subject to N.J. R.E. 403.
Id. at 201-02; see Rose, 206 N.J. at 178 ("It is therefore more likely that evidence
of uncharged misconduct will be admitted into evidence if it is considered
intrinsic to the charged crime and subject only to Rule 403 than if it is not
considered intrinsic evidence and subject to both Rule 404(b) and Rule 403.").
Non-propensity evidence has been admitted specifically to establish that
a defendant who committed a sexual assault could do so even though other
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people were present. For example, in Oliver, a case relied upon by the trial court
here, the defendant sexually assaulted his victims "while other family members
were downstairs; engaged in conversation with his victims; drank some beer;
and then resorted to brute force to cut off the victims' air supply until they
relented." State v. Sterling, 215 N.J. 65, 99 (2013) (quoting Oliver, 133 N.J. at
145). While the Court in Oliver rejected the use of evidence of one assault to
prove another, it
noted that the same evidence may have been admissible
to prove other facts in issue, namely, the feasibility that
the defendant could assault a woman in his room
without the other family members at home knowing and
to show the success of the defendant's pretext to lure
women to his room.
[Ibid. (citing Oliver, 133 N.J. at 153).]
Similarly, in Krivacska, the other case relied upon by the trial court, we
concluded that other-crime evidence could be introduced to demonstrate
feasibility where "[t]he defense presented numerous witnesses who testified
with respect to the accessibility of that office [where the assaults occurred] and
the ability of those traveling the hallway to have an unobscured view into the
room. The feasibility of defendant committing the offenses was one of the
critical factual issues." Krivacska, 341 N.J. Super. at 41. In that case, we held
the other-crime evidence would be admissible for that purpose after finding that
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"the offenses committed were similar in kind and reasonably proximate in
time. . . . [T]he other-crime evidence had sufficient probative value not to be
outweighed by its potential for undue prejudice. And surely, there was clear and
convincing evidence offered to establish the 'other crimes.'" Ibid.
In State v. Prall, 231 N.J. 567 (2018), the Court reviewed a trial court's
admission of N.J.R.E. 404(b) evidence after initially barring its admission under
Cofield, but allowing it when the defendant "opened the door" by challenging a
victim's testimony about her "purported fear of defendant." Id. at 581-82. In its
discussion of why the challenged evidence was not admissible under the facts
of that case, the Court explained when such evidence is admissible in response
to a defendant's tactics at trial. The Court stated the following:
The "opening the door" doctrine is "a rule of expanded
relevancy and authorizes admitting evidence which
otherwise would have been irrelevant or inadmissible
in order to respond to (1) admissible evidence that
generates an issue, or (2) inadmissible evidence
admitted by the court over objection." State v. James,
144 N.J. 538, 554 (1996) (emphases omitted). In other
words, it permits "a party to elicit otherwise
inadmissible evidence when the opposing party has
made unfair prejudicial use of related evidence." Ibid.(citation omitted). The "doctrine operates to prevent a
defendant from successfully excluding from the
prosecution's case-in-chief inadmissible evidence and
then selectively introducing pieces of this evidence for
the defendant's own advantage, without allowing the
prosecution to place the evidence in its proper context."
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Ibid. The doctrine is limited, however, by weighing the
probative value against the prejudicial nature of the
evidence under N.J.R.E. 403. Ibid.[Id. at 582-83.]
The Court emphasized that the admission of such evidence cannot be
intended "to bolster" another witness's testimony. Id. at 583. In any event, "the
probative value of that testimony would nevertheless need to outweigh its
apparent prejudice," ibid., and be "relevant to a material issue," id. at 584(quoting State v. Sanchez-Medina, 231 N.J. 452, 465 (2018)).
In P.S., the Court made clear such evidence cannot be admitted simply to
bolster a witness' testimony. There the Court concluded "that a defendant's
invocation of the so-called vendetta defense does not permit the prosecutor to
bolster the credibility of a sex abuse victim by adducing evidence of another
molestation." P.S., 202 N.J. at 240. In that case, the State had proffered
evidence of defendant's molestation of a three-year-old boy, years earlier, to
both refute defendant's contention that the instant victim, an eleven-year-old
girl, had fabricated her allegations due to bias and to bolster her credibility. Id.
at 257-61. Unlike the present case, "what was proffered was an unrelated sex
crime, which was only linked to the bias of the State's witnesses by the notion
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23
that if defendant did it before, he likely did it again, thus supporting the
credibility of [the victim and her mother]." Id. at 259.
In State v. G.V., 162 N.J. 252 (2000), the Court considered whether
evidence of the previous molestation of an older daughter by her father was
admissible as other-crime evidence in his trial for committing sexual assault
against his younger daughter. Id. at 256. Both the older daughter and the
younger daughter alleged similar events, including what age the molestation
began, how the intercourse began, and the fact that the intercourse always
occurred while their mother was working. Ibid. The Court recognized that such
other-crime evidence could be admissible to prove feasibility or access and
could be used to refute a contention that the victims were biased against the
defendant. Id. at 264-65.
Here, B.G.'s, K.R.'s, and J.R.'s testimony all described the manner in
which defendant would touch them, how defendant told them all not to disclose
any of his behavior, and how defendant would touch them while others were
nearby. B.G.'s testimony was admitted in response to issues raised by defendant
as to fabrication and feasibility, and to his opening the door to not having
committed other sexual assaults. Under these circumstances, the trial court
properly determined that B.G.'s testimony met the requirements for admissibility
A-3476-16T4
24
as contemplated by the Court and not merely to bolster defendants' victims'
testimony.
Once a trial court deems the non-propensity evidence admissible, it must
give the jury limiting instructions as to how the bad-conduct evidence can be
considered. Garrison, 228 N.J. at 200-01. "[I]n order to minimize 'the inherent
prejudice in the admission of other-crimes evidence, our courts require the trial
court to sanitize the evidence when appropriate.'" Rose, 206 N.J. at 161 (quoting
State v. Barden, 195 N.J. 375, 390 (2008)). The trial court here delivered the
required instructions.
We discern no abuse in the trial court's discretion of its admission of
B.G.'s testimony. We affirm that determination substantially for the re asons
expressed by the trial court in its thoughtful written decision. We add the
following brief comments.
Here, the trial court initially barred B.G.'s testimony under Cofield's
fourth factor, but later allowed it as non-propensity evidence after defendant
took the stand and testified that he never assaulted anyone, knowing that B.G.'s
testimony had already been barred and the State, without leave, could not rebut
his claim. The admission of the testimony was valid for that reason, as the State
was without any other proof that his claim was untrue and because defendant
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repeatedly raised an issue with the jury that he could not commit the charged
crimes since there was always other people present in the home. Evidence that
he successfully committed a similar crime, under similar circumstances, was
permitted as long as it was, as here, accompanied by the appropriate instruction
to the jury and sanitized. We "assume[ the jury] follow[ed] the instruction and
use[d] the information for the limited purpose . . . and not for propensity." State
v. Outland, 458 N.J. Super. 357, 372-73 (App. Div.) (citing State v. Marshall,
173 N.J. 343, 355 (2002)), certif. denied, 239 N.J. 503 (2019).
III.
We turn next to defendant's contention that the admission of expert
testimony about CSAAS, over defendant's objection, was improper. We agree,
but find the error to be harmless.
A.
At trial, Dr. D'Urso was qualified as an expert witness on CSAAS and
testified consistent with his pretrial testimony at the Rule 104 hearing . Dr.
D'Urso explained the five characteristics of CSAAS as well as delayed
disclosure, stating there was no credible study in the world that had concluded
children disclosed their abuse after the first incident of abuse. When Dr. D'Urso
was presented with a hypothetical about a child who disclosed sexual abuse to
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an adult, where the adult did not believe the child, he testified that such a
situation could foster delayed disclosure, recantation, or it could result in the
child disclosing the abuse, but then never discussed it again in his testimony.
Prior to Dr. D'Urso's testimony, and later in its final instructions, the trial
court instructed the jury, in accordance with the Model Jury Charges, that it
could not consider the doctor's testimony for the purpose of determining whether
defendant sexually assaulted J.R. and K.R. The court instructed that the expert
testimony about CSAAS was to be used, not as a diagnostic device, but for
purposes of providing them with general knowledge about delayed disclosure
and to explain behavior of children who were sexually abused. Further, the court
instructed the jurors that they "may or may not conclude that [the victims']
testimony is untruthful based only [on J.R.'s and K.R.'s] silence and delayed
disclosure." Finally, the court instructed the jury it "may not consider that
[expert] testimony as proving in and of itself that J.R. or K.R., . . . were or were
not truthful."
B.
CSAAS is a syndrome "identified [by] five categories of behavior that
were reportedly common in victims of child sexual abuse: secrecy;
helplessness; entrapment and accommodation; delayed, conflicted,
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unconvincing disclosure; and retraction." J.L.G., 234 N.J. at 271. "Courts
across the nation" had allowed "experts to testify about the syndrome in criminal
sex abuse trials. In 1993, th[e] Court found that CSAAS evidence was
sufficiently reliable to be admitted." Ibid.
During the pendency of this appeal, our Supreme Court issued its opinion
in J.L.G., which partially overturned its earlier holdings that permitted expert
testimony about CSAAS. In J.L.G., the Court stated the following:
Based on what is known today, it is no longer possible
to conclude that CSAAS has a sufficiently reliable basis
in science to be the subject of expert testimony. We
find continued scientific support for only one aspect of
the theory—delayed disclosure—because scientists
generally accept that a significant percentage of
children delay reporting sexual abuse.
We therefore hold that expert testimony about CSAAS
in general, and its component behaviors other than
delayed disclosure, may no longer be admitted at
criminal trials. Evidence about delayed disclosure can
be presented if it satisfies all parts of the applicable
evidence rule. In particular, the State must show that
the evidence is beyond the understanding of the average
juror.
[Id. at 272 (citation omitted).]
The J.L.G. Court noted that admissibility of CSAAS expert testimony on
the delayed disclosure aspect of the syndrome "will turn on the facts of each
case." Ibid. When a victim gives "straightforward reasons about why [he or]
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she delayed reporting abuse, the jury [does] not need help from an expert to
evaluate [his or] her explanation. However, if a child cannot offer a rational
explanation, expert testimony may help the jury understand the witness's
behavior." Ibid.
J.L.G. permits expert testimony about delayed disclosure or causes for
delayed disclosure. However, "[t]he testimony should not stray from explaining
that delayed disclosure commonly occurs among victims of child sexual abuse ,
and offering a basis for that conclusion." Id. at 303. For example, we have
found, under J.L.G., it is improper for a CSAAS expert to testify that the five
CSAAS categories of behavior "may be behaviors exhibited by a truthful child
sex abuse victim." State v. G.E.P., 458 N.J. Super. 436, 450 (App. Div.), certif.
granted, 239 N.J. 598 (2019). However, even if improperly admitted,
admissibility of CSAAS expert testimony may be harmless "in light of the
overwhelming evidence of [a] defendant's guilt." J.L.G., 234 N.J. at 306.
Although the Court in J.L.G. did not indicate whether its holding applied
retroactively, in G.E.P., we concluded that the holding "should be given at least
pipeline retroactivity," rendering it applicable to all cases in which the parties
have not exhausted all avenues of direct review when the Court issued its
opinion. G.E.P., 458 N.J. Super. at 448. We therefore conclude here that the
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29
Court's holding in J.L.G. is applicable to defendant as his appeal was pending
when J.L.G. was decided.
Turning to defendant's argument, we initially note that this was not a case
that turned on either victims' failure to report abuse. K.R. disclosed to J.R., and
a friend, the one time she was victimized and explained she did not tell her
mother because J.R. told her their mother would not believe her. J.R. explained
she did not disclose her abuse because defendant told her he would go to jail,
that her mother would not believe her, and that it would harm or break up the
family. These explanations were not beyond the ken of an average juror. See
J.L.G., 234 N.J. at 305 ("[A] young teenager's explanation from the witness
stand may fall within the ken of the average juror and might be assessed without
expert testimony."). Even if either victim had not provided an explanation, Dr.
D'Urso's testimony strayed beyond the limits of "explaining that delayed
disclosure commonly occurs among victims of child sexual abuse, and offering
a basis for that conclusion." Id. at 303. Not only did Dr. D'Urso testify in detail
about the five categories of CSAAS behavior, separate from delayed disclosure
and its causes, he testified that children often exhibit "piecemeal disclosure,"
wherein they disclose different elements of the abuse to different professionals
depending on a given professional's role. Moreover, Dr. D'Urso testified as to
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why a child would disclose their abuse after the first incident of abuse, stating
that "[s]ome kids are better at self-protection than others."
While we conclude it was an error to admit the CSAAS testimony, we find
the error to have been harmless. "An error is harmless unless, in light of the
record as a whole, there is a 'possibility that it led to an unjust verdict'—that is,
a possibility 'sufficient to raise a reasonable doubt' that 'the error led the jury to
a result it otherwise might not have reached.'" Id. at 306 (quoting State v.
Macon, 57 N.J. 325, 335-36 (1971)).
Our conclusion is based upon the overwhelming evidence of defendant's
guilt considered by the jury before reaching its verdict. J.R., K.R., and
defendant all testified that he would sit on the couch with them while they would
watch television. Defendant stated he would give the girls massages all the time.
He stated he would massage them in tender areas, such as their lower back, hip,
and thigh. K.R. testified that before the girls left for the prosecutor's office,
defendant told her he was sorry and that "it won't happen again." Both J.R. and
K.R. testified that defendant told them not to disclose their abuse because any
disclosure would destroy their family dynamic. J.R. testified that she was
digitally penetrated on multiple occasions after she had been abused numerous
times throughout the summer 2012. She testified that she did not want to
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31
disclose her abuse to her mother because she was afraid her mother would not
believe her and knew that defendant made her mother happy. Moreover, B.G.'s
testimony about defendant touching her while other people were home, in the
same fashion he did with K.R. and J.R., and telling her why she should not
disclose to others, rebutted defendant's testimony that he never assaulted anyone
and that he could not have committed the crimes because other people were in
the house.
Under these circumstances, the admission of the CSAAS testimony was an
error, we find no harmful error warranting a reversal of defendant's conviction.
IV.
Finally, we consider defendant's argument that his sentence to an
aggregate custodial term of forty-five years with a minimum of thirty-seven
years, fifteen months, and five days of parole ineligibility was excessive as he
was a first-time offender. We find no merit to this contention.
A.
At sentencing, the trial court considered the statutory aggravating and
mitigating factors before imposing sentences on each count. The court stated
aggravating factor one, the "nature and circumstances of the offense," N.J.S.A.
2C:44-1(a)(1), was inapplicable because the age of the victim was already what
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32
made the defendant's crime a first-degree offense. It found aggravating factor
two, "[t]he gravity and seriousness of harm inflicted on the victim," N.J.S.A.
2C:44-1(a)(2), applied to counts one, two, and seven because defendant
manipulated the victims into not disclosing his assaults, knowing that his victims
cared for their family. The court also found aggravating factor three, "[t]he risk
that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), applied
because defendant committed multiple offenses against different victims, and
because his psychological report 5 noted he was at high risk to commit another
offense. It also found that aggravating factor four, "defendant took advantage
of a position of trust or confidence," N.J.S.A. 2C:44-1(a)(4), applied only to
counts one and seven to avoid double counting because defendant took
advantage of a position of trust by telling the victims the family would be
destroyed if they disclosed anything. Last, given defendant's "consistent denial
of involvement and lack of remorse," the judge found aggravating factor nine ,
"[t]he need for deterring the defendant," N.J.S.A. 2C:44-1(a)(9), applied to deter
him from violating the law. The only mitigating factor the judge found was
factor seven, whether defendant previously led a law-abiding life, N.J.S.A.
5
The full psychological report is not contained in the record, though some
excerpts are contained in the adult presentence report.
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2C:44-1(b)(7), as defendant only had one misdemeanor prior to the current
offenses.
After weighing the aggravating and mitigating factors, the trial court was
"clearly convinced" that the aggravating factors substantially outweighed the
mitigating factors. It also determined that parole ineligibility periods applied
under N.J.S.A. 2C:14-2 and NERA, N.J.S.A. 2C:43-7.2, and that consecutive
sentences were warranted.
The trial court found consecutive sentences were appropriate, given that
defendant engaged in a pattern of behavior amounting to a series of separate
offenses. The judge found there were two victims and the crimes committed on
each were separate, independent acts of sexual assault as they were committed
at different times and places. Even though defendant's ultimate goal may have
been the same as to each victim, the court did not consider them as part of a
single period of abhorrent behavior.
B.
We review sentencing decisions under an abuse of discretion standard.
State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J.
503, 512 (1979)); see also State v. Fuentes, 217 N.J. 57, 70 (2014) ("Appellate
courts review sentencing determinations in accordance with a deferential
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34
standard. The reviewing court must not substitute its judgment for that of the
sentencing court."). We will affirm a trial court's sentence unless:
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Trial courts have broad sentencing discretion as long as the sentence fits
within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005).
They must identify and consider "any relevant aggravating and mitigating
factors," State v. Case, 220 N.J. 49, 64 (2014), that "are called to the court's
attention," ibid., (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)), and
"explain how they arrived at a particular sentence," id., at 65 (2014).
In determining whether to impose a consecutive sentence, the judge
undertook the analysis required by State v. Yarbough, 100 N.J. 627, 643-44
(1985). There, the Court set forth the following criteria for determining whether
to impose concurrent or consecutive sentences:
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
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(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of violence
or threats of violence;
(c) the crimes were committed at different times
or separate places, rather than being committed so
closely in time and place as to indicate a single period
of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to
be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense; and
(6) there should be an overall outer limit on the
cumulation of consecutive sentences for multiple
offenses not to exceed the sum of the longest terms
(including an extended term, if eligible) that could be
imposed for the two most serious offenses.
[Ibid. (footnote omitted).]
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Applying these controlling principles, we conclude the trial court did not
abuse its discretion in sentencing defendant. Although his sentence was lengthy,
the court properly performed a qualitative analysis of the applicable aggravating
and mitigating factors. It adequately explained its reasons for finding each
factor, and appropriately considered the nature of each of defendant's offenses
and the effects his conduct has had on the victims. Moreover, the court's
imposition of consecutive terms, considering the multiple victims, was
consistent with Yarbough. Given the broad discretion trial judges have in
fashioning sentences, the judge's aggravating and mitigating factors were
supported by credible evidence, and the sentence does not shock the judicial
conscience.
Affirmed.
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