STATE OF NEW JERSEY VS. C.E.L. (11-03-0672, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5783-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
C.E.L.,1
Defendant-Appellant.
___________________________
Argued October 19, 2017 – Decided August 31, 2018
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
11-03-0672.
Louis H. Miron, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Louis H. Miron, on the
briefs).
Annmarie Cozzi, Senior Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Annmarie Cozzi, of counsel and on the brief).
1
Because this matter involves the sexual assault of defendant's
minor daughter, we use initials to identify those individuals
involved in this matter pursuant to Rule 1:38-3(c)(9) and N.J.S.A.
2A:82-46.
PER CURIAM
Following a jury trial, defendant C.E.L. was convicted of
first-degree aggravated sexual assault of a victim less than
thirteen years (his four-year-old daughter, C.L.), N.J.S.A. 2C:14-
2(a)(1) (count one); second-degree sexual assault of a victim less
than thirteen years old, N.J.S.A. 2C:14-2(b) (count two); second-
degree sexual assault of a victim less than thirteen years old,
N.J.S.A. 2C:14-2(b) (count three); second-degree sexual assault
of a victim less than thirteen years old, N.J.S.A. 2C:14-2(b)
(count four); second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (count five); third-degree hindering
prosecution by preventing or obstructing the child victim from
providing testimony or information that might aid in his discovery
or apprehension or in the lodging of a charge against him, N.J.S.A.
2C:29-3(b)(3) (count six); fourth-degree endangering the welfare
of a child by possessing or viewing child pornography, N.J.S.A.
2C:24-4(b)(5)(b) (count seven); and fourth-degree tampering with
evidence by attempting to delete images of child pornography from
a computer, with the purpose of impairing its verity or
availability in an official proceeding or investigation, N.J.S.A.
2C:28-6(1) (count eight).
The trial judge denied defendant's post-trial motion for
judgment of acquittal or a new trial. The judge sentenced
2 A-5783-13T1
defendant to a fifteen-year term of imprisonment on count one; a
consecutive term of seven years on count two; concurrent terms of
seven years on counts three, four, and five; a consecutive term
of three years on count six; a consecutive term of one year on
count seven; and a concurrent term of one year on count eight.
Megan's Law, parole supervision for life, and the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, applied to various counts. Thus,
defendant's aggregate sentence was twenty-six years, with a
twenty-two-year period of parole ineligibility.
On appeal, defendant raises the following contentions:
I. THE TRIAL COURT ERRED IN ADMITTING THE
[STATE v. MICHAELS, 136 N.J. 299 (1994)]
INTERVIEW INTO EVIDENCE AND PERMITTING
THE JURY TO REVIEW THE VIDEO RECORDING
FOUR TIMES DURING THE TRIAL AND
DELIBERATIONS.
A. The Recording of the Michaels
Interview Should Have Been Ruled
Inadmissible Based Upon the
Totality of Circumstances,
Particularly Where C.L.'s
Statements Following the
Suspicious and Inexplicable
"Blackout" Period Were
Materially Different and
Diametrically Opposed to Every
Other Statement Made by C.L.
Prior To and After the
"Blackout" Period.
B. The Trial Court Should Not Have
Permitted the Jury to Review the
Michaels Interview Recording on
Four Separate Occasions During
3 A-5783-13T1
the Trial and Deliberations in
Violation of [State v. Burr, 195
N.J. 119 (2008)] and its Progeny
Because It Resulted in The
Jury's Giving More Weight to
C.L.'s Statements After the
"Blackout" Period Than to C.L.'s
Testimony During Trial.
II. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT RULED THAT [DEFENDANT] WOULD
NOT BE PERMITTED TO USE THE AUDIO
RECORDINGS MADE BY [DEFENDANT'S] WIFE,
M.L., AT THE AUDREY HEPBURN CHILDREN'S
HOUSE AND THE EXCLUSION OF THE
RECORDINGS VIOLATED [DEFENDANT'S] DUE
PROCESS RIGHTS AND HIS SIXTH AMENDMENT
RIGHT TO CONFRONTATION.
III. THE TRIAL COURT SHOULD HAVE GRANTED
[DEFENDANT'S] MOTION FOR A MISTRIAL OR
A CONTINUANCE UPON LEARNING THAT THE
STATE DID NOT PRODUCE THE DISCOVERY
CONCERNING [W.K.'s] CELL PHONE, WHICH
CONTAINED SIGNIFICANT IMPEACHMENT
INFORMATION ABOUT [W.K.] AND
EXCULPATORY EVIDENCE FOR [DEFENDANT],
UNTIL DURING THE TRIAL.
IV. THE TRIAL COURT ERRED IN FAILING TO
INSTRUCT THE JURORS FULLY AND
ADEQUATELY CONCERNING THEIR [AVOIDING]
EXTRANEOUS INFORMATION FROM OUTSIDE OF
THE COURTROOM AND IN FAILING TO VOIR
DIRE THE JURORS UPON THEIR RETURNING TO
THE COURTROOM FOR TRE TRIAL MORE THAN
ONE MONTH AFTER THE JURY HAD BEEN
SELECTED. [(Not raised below).]
V. THE [TRIAL] COURT ABUSED ITS DISCRETION
IN DENYING [DEFENDANT'S] MOTION [TO]
SEVER THE SEXUAL ASSAULT COUNTS (ONE
THROUGH SIX) FROM THE COUNTS RELATING
TO THE CHILD PORNOGRAPHY (SEVEN AND
EIGHT).
4 A-5783-13T1
VI. THE TRIAL COURT ERRED IN NOT GRANTING
[DEFENDANT'S] MOTION TO DISMISS THE
INDICTMENT BECAUSE THE STATE FAILED TO
PRESENT MATERIAL EXCULPATORY EVIDENCE
TO THE GRAND JURY.
VII. THE TRIAL COURT ABUSED ITS DISCRETION
IN DENYING [DEFENDANT'S] MOTION FOR
JUDGMENT OF ACQUITTAL AND FOR A NEW
TRIAL OR, ALTERNATIVELY, [DEFENDANT'S]
CONVICTION SHOULD BE VACATED AND THIS
COURT SHOULD ORDER A NEW TRIAL BASED
UPON THE CUMULATIVE EFFECT OF THE TRIAL
COURT'S ERRORS THROUGHOUT [DEFENDANT'S]
PRE-TRIAL PROCEEDINGS AND THROUGHOUT
HIS TRIAL.
VIII. THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING [DEFENDANT] TO SUCH A
DRACONIAN AND UNJUST SENTENCE BASED UPON
THE RECORD AND, THEREFORE, [DEFENDANT'S]
SENTENCE SHOULD BE VACATED.
We reject these contentions and affirm.
I.
Trial Testimony Relevant to the Issues
Raised On Appeal
On October 6, 2010, C.L.'s nanny, W.K., was caring for C.L.
and her brother, E.L., while defendant and the children's mother,
M.L., attended a baseball game. W.K. testified she began working
for the family in May or June 2010, but knew them for much longer
because her mother and cousin preceded her as the children's nanny.
That afternoon, the children had an after-school playdate at their
home with some friends. The friends' father, J.M., stayed for the
playdate and looked after the children with W.K. At some point
5 A-5783-13T1
C.L. defecated in her underpants, so W.K. took her upstairs to
shower. W.K. testified that C.L. frequently urinated and defecated
in her underpants, and she always had to be very gentle with C.L.
because she was unusually sensitive and never liked to be wiped
in her genital area.
Before taking C.L. out of the shower, W.K. asked if anybody
had ever "touched her there [meaning the genital area] on the
playground or in school[.]" W.K. had twice asked C.L. this
question in the past because of her concern about C.L.'s unusual
objections to being wiped, and C.L. said "no" each time. This
time, however, C.L. hesitated and was silent for a few seconds.
Then, looking at her feet, she said "yes, Daddy does."
W.K. froze and pretended not to hear what C.L. said because
it was so unexpected. She told C.L. she was going to get her new
underwear and they would go back to play. She then got C.L.
dressed and they went downstairs to rejoin the playdate. W.K.
remained shocked and told J.M. what C.L. said. J.M. suggested she
speak more with C.L., and expressed that maybe C.L. simply meant
her father sometimes wiped her too hard.
Later that evening, W.K. took the children upstairs for E.L.'s
shower. While E.L. showered, W.K. spoke to C.L. in her parents'
bedroom. C.L. answered "no" when W.K. asked if she remembered
what she told W.K. earlier and if she meant that her daddy washed
6 A-5783-13T1
or wiped her. W.K. then asked C.L. "when does that happen?," and
C.L. answered "usually, when nobody is home." W.K. asked where
her mother and brother were, and C.L. said they were "out shopping
or something like that." C.L. was behaving normally while she
spoke and at some point jumped off her parents' bed and began
walking around.
W.K. then asked C.L. if she could tell her what her daddy
does. C.L. climbed back on the bed and said "Daddy tell[s] me to
take the winky into my hands and go really, really, really,
fast[,]" moving her hands quickly up and down while making this
disclosure. "Winky" was C.L.'s word for penis.2 C.L. then came
close to W.K., as if she were going to whisper in her ear, and
said "I'll tell you something." W.K. asked "what happened?" and
C.L. said "I don't know what's inside; and she pointed on the
private area; but, something white comes out." C.L. then started
giggling and W.K. giggled with her. C.L. then pointed to the left
side of her parents' bed, indicating it happened there.
W.K. asked if there was anything else, and C.L. said "Daddy
puts medicine on his winky." C.L. then started looking for the
medicine, which she found in a nightstand on her mother's side of
the bed. She showed it to W.K., who saw it was a tube of KY
2
The word is spelled winky or winkie, interchangeably, throughout
the record, and sometimes the word "weenie" is used instead.
7 A-5783-13T1
lubricant. While C.L. made these statements she was acting
normally, no differently than if she were telling her something
that happened at school. W.K. then asked if there was anything
else, and C.L. took W.K. by the hand and led her to the doorway
of her bedroom. C.L. pointed to her bed and said that "last Sunday
she took winky to her mouth. And she went ill."
W.K. brought C.L. back to her parents' bedroom, sat on their
bed, and told C.L. "you know that Daddy's not supposed to do this."
C.L. responded "yes, Daddy told me that it was wrong" and she
"should not say anything to Mommy. Because she would throw me and
Daddy out of the house." C.L. got quiet for a second, and then
said to W.K., "But you won't; right?," to which W.K. answered "no;
of course not."
At this point, E.L. exited the shower and W.K. put C.L. in
the shower. W.K. put the children to bed after they showered and
were in their pajamas. W.K. then spoke to J.M., who testified
that W.K. seemed "upset" and "shaken" by what C.L. told her. He
advised her to act as normally as possible when the children's
parents came home, explaining he did not want them to coach C.L.
or tell her not to repeat what she told W.K. W.K. followed J.M.'s
advice and did not speak with M.L. about what C.L. told her,
explaining she did not think M.L. would believe C.L. over
defendant.
8 A-5783-13T1
After leaving defendant's home that night, W.K. went to J.M.'s
home and he gave her a cassette recorder to document what C.L.
said. However, W.K. never recorded or wrote down anything. J.M.
also told W.K. that he would speak with a friend of his who was a
police officer to ask for advice.
The next day, W.K. returned to defendant's home to work.
After dropping E.L. off at school, she allowed C.L. to play at the
playground. She then took C.L. to her mother's house and then to
a nearby park. W.K. did not speak to C.L. about anything they
discussed the previous day, but spoke with her mother about the
situation.
Meanwhile, that morning J.M. went to the police and told
Sergeant Daniel Kellogg what occurred the previous day, including
C.L.'s disclosures of sexual abuse. He did not identify W.K. or
C.L. by name because he was friendly with defendant and his family,
and W.K. was frightened to speak with the police. Kellogg told
J.M. he had to speak with the child and her nanny immediately. He
also advised J.M. not to use the tape recorder, and asked him to
contact the nanny and encourage her to contact him, which J.M.
did.
Kellogg then contacted the Bergen County Prosecutor's Office
(BCPO) regarding how to proceed. He was advised to identify the
child and have her brought to the Audrey Hepburn Children's House
9 A-5783-13T1
(AHCH) to be interviewed.3
Kellogg subsequently received a call from W.K. She identified
herself as the nanny J.M. spoke to him about, and told Kellogg
what C.L. had told her. Kellogg asked to meet with her so that
the BCPO could conduct an investigation; however, she would not
reveal her identity or agree to meet. She testified she was scared
to put the children through an investigation or have them taken
away from their parents when she "didn't know if it was even true."
Kellogg gave W.K.'s cell phone number to the BCPO, which
provided him with her name and home address. Kellogg then searched
for W.K. in the Police Department's in-house record management
system and discovered she had been involved in a minor motor
vehicle accident eight days earlier, with E.L. and C.L. in the
vehicle.
Kellogg called W.K. and told her he knew her name and address,
knew the family she worked for, and needed to speak with her that
day. Kellogg also contacted M.L. and told her to meet him at the
AHCH in connection with an investigation of child abuse or neglect.
After hearing that M.L. was going to the AHCH, W.K. agreed to meet
with the police. She told C.L. only that they "were going to meet
3
The AHCH is a regional diagnostic center where investigators
conduct forensic interviews of children related to alleged sexual
and physical abuse, and where the children can be seen by doctors
and psychologists.
10 A-5783-13T1
up with Mommy."
M.L. called defendant after she spoke with Kellogg. Between
1:19 p.m. and 5:42 p.m., she and defendant exchanged eight phone
calls and two text messages. However, defendant testified to
knowing only that M.L. would be meeting with the police with
respect to W.K. and C.L. He also testified he believed W.K. may
have done something wrong and said he and M.L. discussed possibly
hiring a new babysitter and that he would have to pick up E.L.
after school. Defendant denied knowing or suspecting he was under
investigation. When presented with evidence he was in contact
with three attorneys that afternoon, while he claimed he was with
E.L. at Dunkin' Donuts and a toy store, he denied any recollection
of those calls.
Detectives Cora Taylor and Barbara Stio from the BCPO's sex
crimes unit were assigned to investigate C.L.'s allegations of
sexual abuse. Taylor worked at the BCPO for fourteen years,
including eight years in the sex crimes and child abuse unit,
where she was trained in how to conduct forensic interviews of
children. She conducted over 100 interviews of young children.
Stio worked as a law enforcement officer for twenty-five
years, the first thirteen with the Bergen County Sheriff's Office,
and the last twelve with the BCPO. She worked on sex crimes
investigations for seven years, was trained in conducting forensic
11 A-5783-13T1
interviews of children, and conducted over 400 interviews.
When Taylor and Stio arrived at the AHCH, they first spoke
with Kellogg, Detective Mike Musto from the Wyckoff Police
Department, and Olivia Troche from the New Jersey Division of
Youth and Family Services (Division),4 and explained how the
investigation would proceed. The officers and Troche next briefly
met with W.K., with Stio questioning her, in order to discover the
nature of the allegations she heard from C.L. From this meeting,
Taylor understood "there was touching of the private parts."
After meeting with W.K., the group spoke with M.L. Stio
testified that M.L. was advised "why we were there and that a
forensic interview was about to take place of her daughter to find
out what the nature of the allegations truly were." M.L. was also
advised that defendant was the suspected perpetrator. M.L.
remained in the waiting room with W.K. while C.L. was interviewed.
They did not discuss what C.L. told W.K.
Taylor conducted the forensic interview of C.L. while Stio
watched by closed circuit television from an observation room,
along with Troche, Kellogg, and Musto. Taylor's interview of C.L.
was videotaped and transcribed, except for an approximately
twenty-minute portion that was not taped because the recording
4
The Division is presently known as the New Jersey Division of
Child Protection and Permanency.
12 A-5783-13T1
equipment malfunctioned. The malfunction was resolved and the
videotaping resumed. Taylor was not advised of the malfunction
until after the interview concluded.
Because it is protocol to interview a child only one time,
start to finish, Taylor's interview of C.L. continued during the
break in recording. The observers could not watch the interview
during that time period, but could hear it. Therefore, that part
of the unrecorded interview was memorialized in Stio's
contemporaneous notes and officers' reports.
Taylor testified she used the rapport, anatomy, touch, abuse
scenario, and closure (RATAC) format during the interview. RATAC
is "a protocol that's used to elicit information from a child in
a credible and reliable way." Interviewers using this format are
trained to pose open-ended, free recall questions, and not leading
or suggestive questions, so the child has the opportunity to give
a narrative. However, interviewers may pose "[f]ocus
questions[,]" once the child has described some type of abuse, in
order to obtain additional information and discover whether any
abuse actually occurred. Interviewers also must take into account
the age and cognitive ability of the child.
During the rapport stage, the interviewer tries to make the
child comfortable and establish communication. During the anatomy
stage, the interviewer finds out what terms the child uses to
13 A-5783-13T1
identify his or her body parts, so those terms may be used during
the interview. During the touch stage, the interviewer explores
the child's understanding of touches and what touches the child
likes or does not like. During the abuse scenario stage, the
interviewer explores whether any kind of abuse occurred. Finally,
in the closure phase, the interviewer closes the interview and
establishes a safety plan for the child, so the child knows he or
she has someone to tell if anything were to happen again.
During the touch stage of C.L.'s interview, she responded
"no" when Taylor asked whether anyone had touched her "peepka"
(C.L.'s word for vagina) in a way she did not like. Taylor
proceeded with the interview nonetheless because the RATAC format
provides a process of inquiry, and she knew that "disclosure is a
process."
Soon after this question and response, the recording
equipment malfunctioned, but the interview continued. Stio
testified that Taylor's tone of voice remained the same during the
break in recording, Taylor never cajoled C.L., showered her with
praise, or offered her rewards, and C.L. made no requests to
terminate the interview.
Stio and Taylor testified that during the break in recording,
Taylor moved from questioning C.L. about body parts to questioning
her about who assisted her in cleaning her body. C.L. said her
14 A-5783-13T1
mother was her primary caretaker, with her nanny also assisting,
and her father cleaned her only when her mother was not home. Stio
testified that C.L. said that her mother sometimes touched her
peepka in order to apply a special ointment when she had accidents
or when her peepka burned. However, her father did not do this;
her mother did all the work. C.L. also said there were two special
ointments.
Taylor next spoke with C.L. about boys' body parts, and C.L.
stated she had seen her brother's winky but never touched it.
Taylor next asked C.L. if she knew why she was there, and C.L.
said that W.K. drove her and she was there because she needed her
mommy's help. Taylor then asked C.L. about her conversation with
W.K. the day before, about whether anyone had touched her "dupee"
(C.L.'s word for butt) or peepka, and C.L. responded that she had
talked to W.K. about touches and "yucky things." Taylor told C.L.
that W.K. shared with her what C.L. told W.K., but did not tell
C.L. what W.K. said.
C.L. then told Taylor that her mother uses a special ointment
that is white when she has accidents, or because her peepka burns,
and her father sometimes uses ointment because he "just wants to."
She then disclosed that her father sometimes puts his finger into
her peepka. Taylor asked C.L. where these things happened, and
what people were wearing. C.L. responded that it happened in her
15 A-5783-13T1
father's bedroom, on his bed, her father was wearing no clothing,
so she could see his winky and dupee, and they were watching
Princess Dora on television. She also said she lay down on the
bed, her father told her to open the winky ointment, and he touched
his winky and also touched her peepka with his finger. According
to Taylor, C.L. also described straddling her father's body and
rubbing winky ointment on his winky.
Taylor asked C.L. if her father ever asked her to do anything
funny to his winky, and C.L. said sometimes "white stuff" comes
out of "the little hole." Taylor asked what was going on, and
C.L. said her father sometimes touched his winky while putting his
finger in her peepka. However, C.L. said her father's winky had
never touched her peepka or dupee.
At this point, the recording resumed. C.L. said that her
father sometimes "touches wrong" by touching his winky while
putting his finger in her peepka, and that while he was doing that
he is also "texting and watching tv" with her. She said that
"white stuff" comes out of his winky, after which he walks to the
bathroom and washes off.
Taylor asked C.L. if her father ever used anything on his
winky, and C.L. responded that he used a special winky ointment
that was in one of his drawers, like she showed her nanny. Taylor
asked C.L. to describe the bottle of ointment, and she said "it
16 A-5783-13T1
has the spell on it[,]" but she did not know how to spell it.
Stio understood C.L. to be saying that the bottle had letters on
it, causing her to jot down a question in her notes as to whether
C.L. was referring to KY lubricant. Taylor asked C.L. how she
felt about this, and C.L. responded that "[a]fter it makes me feel
lame, dumb." She also said it made her feel "[b]ad[,]" "[b]ecause
it's private" and "a bad occasion."
Taylor asked C.L. if her father ever talked to her about
whether she should tell somebody about what he was doing with her.
She responded that her father said to her "please, please, [C.L.]
don't say no." C.L. also said he made her promise not tell
anybody.
Taylor then asked C.L. if her father had ever asked her to
touch his winky, and C.L. initially said "no," looking away from
Taylor as she said it. However, after Taylor said "Remember, what
I told you, everything that we talk about in here is the truth[,]"
C.L. changed her answer and said "sometimes he tells me to touch
it." Taylor denied she was chiding C.L., or suggesting that her
answer was untruthful. She testified she made this remark about
truthfulness in the context of C.L.'s demeanor in turning away
from her and backing into a corner.
Taylor then asked C.L. to tell her about it, and C.L.
responded that her father would put the special ointment on her
17 A-5783-13T1
hand, and at his request she would put the ointment on his winky
and just above his winky and then get on top of him. Taylor next
asked C.L. if her father's winky had ever touched her peepka and
she said "For that - - no." C.L. responded "no" when Taylor asked
if her father's winky had ever touched her dupee or her butt, or
if her peepka ever got on her father's weenie.
Using anatomically correct dolls, Taylor then went through
C.L.'s statement about what her father did with her. Just before
using the anatomical dolls, however, C.L. asked Taylor if she
could tell her mother something. Taylor answered no, but added
that they were going to talk to her mother after they were done.
C.L. asked when they would be done, and Taylor said in a few
minutes. Taylor also asked C.L. if there was any reason she needed
to talk to her mother at that moment, and C.L. said no.
Using the anatomically correct dolls, C.L. took off all of
their clothing, explaining that this was what she and her daddy
did while her mother and brother were not home. She said that "we
both stand up before we do it and then we give kisses." She then
explained how her daddy lay down on the bed and she sat on top of
him, he touched his weenie, she put her hands on his weenie, and
his weenie touched her peepka.
In response to Taylor's questions, C.L. said it hurt when her
father put his hand in her peepka, and that his hand was not wet,
18 A-5783-13T1
but his weenie was. She also described going to the bathroom with
her father and watching him pee on the potty. Taylor asked C.L.
how all of this made her feel, and C.L. said it made her feel
"disgusted[.]" She also said she never told her father how it
made her feel.
Taylor asked C.L. when was the last time she and her father
had lay down and he put his finger in her peepka, and she said
yesterday morning, while her mother was at work and her brother
was at school and before the nanny arrived. Taylor testified that
in asking this question she understood that four and five-year-
old children are generally unable to answer questions about timing
of their abuse. Moreover, C.L. said these incidents happened more
than once.
Taylor then asked C.L. if her father ever said what would
happen to her if she told somebody, and C.L. responded that he
told her she would "get in trouble" and "Get kicked by . . . mom."
C.L. said she believed this would happen because her father said
it, and she said she loved her father, mother, brother, W.K., and
grandmother.
Finally, Taylor asked if everything C.L. had told her about
what she did with her father was the truth, and C.L. responded it
was. Taylor asked C.L. if there was anybody she could tell if she
was being touched in a way she did not like, and C.L. responded
19 A-5783-13T1
she could tell Taylor. Taylor asked C.L. if she could talk to her
mom, and C.L. said no, because her mom would be upset because it
was not a proper thing to do.
Taylor asked if C.L. ever told her nanny about this, and C.L.
said she did yesterday. Taylor then told C.L. that she did not
do anything wrong, and she did a good thing by talking and telling
someone. She also told C.L. she could always speak with the
police, a teacher, or her mother, and assured her that her mother
would not be upset.
Cross-examined about the length of the interview, which was
eighty-three minutes, between 3:12 and 4:35 p.m., Taylor and Stio
conceded that the guidelines suggested interviewing four-year-old
children for only twenty-five minutes. However, they also said
the guideline was not absolute, and their practice was to continue
interviews for as long as the children were engaging in
conversation. In this regard, Taylor testified that throughout
the interview C.L. "was very engaged" and never lost interest.
After the interview concluded, Taylor, Stio, Kellogg, Musto,
and Troche spoke with M.L. and advised her of C.L.'s disclosures.
According to Stio, M.L. cried, was unable to speak, and broke out
in hives. When she got her emotions under control and was able
to speak, she said she did not understand how this could have
happened in her home.
20 A-5783-13T1
M.L. consented to C.L. being physically examined. No injuries
or evidence of trauma were found during the examination. A small
amount of fecal matter was found around C.L.'s anus, and she had
some mild redness in her genital area. However, the doctor who
examined her, Dr. Julia De Bellis, opined that the presence of
fecal matter was merely indicative of poor hygiene, which was
common in young children, and the genital redness was a nonspecific
finding, meaning there could be many explanations for it.
De Bellis further opined that the absence of physical trauma
neither confirmed nor denied the validity of C.L.'s allegations
of abuse. She stated the child's genitalia could appear normal
even if there had been some degree of penetration, and any
superficial injuries could heal quickly without a scar or any
deformity. She testified that in the majority of cases she has
worked on involving alleged digital penetration of a child's
vagina, she found no physical injury. She also stated that the
use of lubricant would decrease the likelihood of injury.
At 5:40 that evening, Taylor and Musto took a statement from
W.K. Meanwhile, Stio and Kellogg went to defendant's home in an
attempt to locate him. Stio testified they arrived at defendant's
home at approximately 6:00 p.m., defendant answered the door, and
she advised him they had to speak with him in reference to his
daughter being interviewed at the AHCH. Defendant and E.L. then
21 A-5783-13T1
left with the officers, who first transported E.L. to the AHCH to
be with M.L. and then transported defendant to the BCPO, where
they placed him under arrest.
W.K. drove C.L. home, while M.L. drove with E.L. When they
arrived home, W.K. told M.L. to give her a call if she needed
anything. The next day M.L. texted W.K. and asked her to take the
children out of the house, which W.K. did, taking them to J.M.'s
house to play. W.K. worked for the family for another three or
four days, after which she never saw C.L. again. She never
discussed with M.L. what had happened.
At approximately 8:30 p.m. on October 7, 2010, Stio returned
to defendant's home along with another detective. M.L. allowed
the officers into the home and consented to their searching the
home for the two ointments C.L. discussed during her interview.
In a nightstand in defendant's bedroom, they found a bottle of KY
lubricant. M.L. also gave them the ointment she used on C.L. The
following day, Stio returned to defendant's home with a search
warrant and retrieved a desktop computer and a laptop computer.
Yanal Bachok, a computer forensic analyst in the BCPO's
computer crimes unit, testified as the State's expert in computer
forensics. He testified that he reviewed hard drives from the two
computers seized from defendant's home, and on his first preview
found no child pornography in the "allocated" space. He explained
22 A-5783-13T1
that information in "allocated" space has not been deleted by the
user, whereas information in "unallocated" space consists of
deleted information. He further explained that although
information in unallocated space has been deleted, it has not been
erased. Rather, the deleted information remains in the hard
drive's unallocated space until it has been overwritten, even
though the user cannot see it anymore.
Bachok testified he found no user data or personal information
in the allocated space on the laptop computer, meaning "no
pictures, no documents, no audio, like songs or video. Nothing
that would indicate that this computer has been used practically
at all[,]" which he said was "an unusual condition. . . ." To
Bachok, this computer looked as though it had just arrived from
the manufacturer because "[t]here was nothing except the operating
system."5 He therefore suspected the hard drive "must have gone
through a process called system recovery[,]" which restores the
hard drive "back to the factory image."
Bachok verified his suspicion by starting up the laptop
computer after imaging the hard drive and replacing it into the
laptop. When he turned the computer on with the hard drive
replaced, and was able to crack the password ("Nurse"), he received
5
Defendant testified that he purchased the laptop in 2008.
23 A-5783-13T1
a message on the screen stating "Preparing your desktop," which
indicated the system restore was in its final stages and the laptop
was being prepared for an initial use. He testified that someone
has to affirmatively access the computer and initiate the system
restore process, and it appeared the system restore was initiated
at 5:52 p.m. on October 7, 2010, i.e., just ten minutes after
defendant's last phone call to M.L. and shortly before Stio arrived
at his home at 6:00 p.m. Defendant denied he initiated the system
restore. He testified that E.L. was using the laptop computer
when the officers arrived, which he claimed was only a minute or
two after his last phone call to M.L.
Bachok testified that when the system restore process occurs,
the hard drive is restored to the factory image, and all of the
allocated information is erased. However, this "doesn't mean
gone"; rather, the information "moves to the unallocated space."
Bachok next performed a review of unallocated space on the
two computer hard drives, using a special forensic program called
NCASE. In particular, he looked for images (jpeg and gif), and
"keywords" that relate to child pornography. He explained that
finding a keyword on the computer means the word is in the
computer's memory because the keyword had been "searched or looked
for or existed as part of like an internet history or a document
or it could be even a dictionary word."
24 A-5783-13T1
In unallocated space on the laptop computer hard drive, Bachok
found "hits" for the keywords "Lolita," "Preteen, "PTHC," which
stands for Preteen Hardcore, "R@ygold," and "Underage." He also
found hits for "Jenny Lays With Dog," "Asian Street Meat," "Dasha-
Models," "Indexlolita," "Little Caprice," "Littleliana," "Little
Virgins," "Nymphets," and "Teenburg." He found 152 "hits" for the
keyword "Limewire," explaining that Limewire "is a peer-to-peer
program for file sharing between computers" that is often used for
sharing illegal content, such as child pornography. He also found
numerous images of suspected child pornography, as well as images
of defendant and his family, and "website banners" that included
key words related to child pornography. The images were shown to
the jury, with the child pornography separated from the family
photos. Because of the system restore, however, Bachok was unable
to recover the internet history for these items, the dates and
times when the files were downloaded or viewed, where the photos
were downloaded from, or the user profile associated with the
files.
Regarding the desktop computer hard drive, Bachok testified
that "[i]t looked like the computer has been used almost every day
since it was purchased[,]" because there was "[a] lot of user
information, whether it's pictures, documents, MP3 files, like
audio, songs, videos and things like that[,]" in both the allocated
25 A-5783-13T1
and unallocated space. He found no child pornography images on
the desktop, but found many "hits" for keywords, mostly in
unallocated space, including "Lolita" (4341 hits), "preteens" (320
hits), "PTHC" (14 hits), "Underage" (58 hits), "Teenburg" (27
hits), "Nymphets" (103 hits), and "Index Lolita" (68 hits). He
also found 152 hits for "Limewire."
Finally, Bachok testified he found the program "Cyberscrub"
installed on the desktop computer, and explained that Cyberscrub
is advertised as a program that deletes your internet history. He
further stated he found 10,089 hits for Cyberscrub on the laptop
computer, indicating that Cyberscrub had also been installed on
this computer, although it was removed to unallocated space during
the system restore.
C.L.'s Recantations
Defendant retained a private investigator, Lisa Reed, to
interview C.L. Reed had prior experience working as a law
enforcement officer in a sex crimes unit and was trained in
interviewing children. She stated that four-year-old children
generally have an eight-minute attention span, but also admitted
"[y]ou interview them until you realize you've lost them or until
you have no other questions."
Reed interviewed C.L. on November 30, 2010, with the interview
lasting twenty-three minutes, between 2:29 and 2:52 p.m. A
26 A-5783-13T1
videotape of that interview was shown to the jury. During the
interview, C.L. mentioned that her brother saw her father in
handcuffs. When asked why he was in handcuffs, C.L. responded
that "somebody thought that daddy did a bad thing. . . . Like me
and my dad, like did something." When asked "What'd you do?[,]"
C.L. responded she had taken her clothes off in her parents' bed,
with her father in it, but he had not asked her to do it, and he
was wearing clothes at the time. Reed asked C.L. if she told "the
ladies something that made them arrest your daddy?[,]" and C.L.
responded she did not know "if he really got arrested."
Thereafter, in response to direct questions (e.g., "Did daddy
ever touch your ah, peepka when you were laying in bed, in, in his
bed?" and "Did you ever touch daddy's weenie?"), C.L. denied her
father ever touched her peepka or put his finger in it, that she
had ever seen or touched his winky/weenie, or seen anything come
out of his winky, or that she sat on top of her father when she
had no clothes on. She also denied ever telling anyone that any
of those things happened. She said her father would clean her
peepka in the shower, but he was wearing a bathing suit when he
did so. C.L. also claimed that W.K. pulled down E.L.'s underwear
in front of his friends, in order to embarrass him, but stated she
never saw this happen, and her brother would tell Reed about it.
At trial, C.L. denied she told W.K. about things that happened
27 A-5783-13T1
between her and her father. She also repeated what she told Reed
about W.K. pulling down her brother's pants in order to embarrass
him, adding that W.K. also hung her brother upside down. She also
said she told her mother about this event, after which W.K. was
no longer her babysitter.6
C.L. testified that she spoke to Taylor and told Taylor her
father "didn't do anything." She denied that anybody ever touched
her private parts, and said her father only did so in order to
apply a Neosporin-type ointment. She also denied her father ever
made her touch his winkie, touched her peepka, or touched his
winkie to her body. She said she only told Taylor these things
happened because W.K. told her to, which was the same reason she
told Taylor that she and her father lay on the bed with no clothes
on. She testified that she told Taylor only what W.K. told her
to say, which was "[t]hat my dad touched me in a place that I
wouldn't want to get touched[,]" and that she touched him.
C.L. claimed that W.K. pulled her into the mudroom, told her
"to tell that my dad touched me in a place that I don't like to
get touched[,]" and when she resisted W.K. told her "well, then
you won't like what's going to happen." She did not know what
W.K. was planning to do to her, but said W.K. had threatened to
6
W.K. denied ever doing this to E.L.
28 A-5783-13T1
stuff cheese down her brother's throat, and "[s]he would make me
and my brother clean, top to bottom, the house."
When questioned whether she ever talked to Taylor about
"winkie ointment," C.L. admitted she had and explained that "one
night I walked in and he -- my dad screamed at me, and then I went
back to my room. I cried, and then nothing happened after that."
When questioned further, she said that when she walked into her
parents' bedroom in the middle of the night, her father was lying
on his side on his bed, wearing only a t-shirt and watching a
movie on his laptop computer, and she saw him putting ointment on
his winkie, which she described as appearing "like silk and gooey
kind of." However, she immediately contradicted herself by saying
she never saw him put the ointment on his body and that the
ointment container was merely lying behind him on the bed.
C.L. testified she told her mother about this incident, and
the incident in which W.K. pulled her into the mudroom and told
her what to say, and also told her therapists about both incidents.
She said she was sad that her father could not be home and she
could not see him. She said that she loved her father and "he's
a good dad[,]" and she wanted him to come home. She also knew
that her mother wanted her father home because it was hard to be
a single mom of two kids, and she knew that her grandfather
(defendant's father), who lived with her, also wanted defendant
29 A-5783-13T1
to come home.
C.L. testified her mother told her they would "try to get him
home together[,]" but also that she was "the main part of this,
and you're the one that will help get him home." Based on what
her mother told her, C.L. believed her father would "be home soon,"
after her therapy was finished and they had a final court date,
"like we are right now." Asked how she felt to be the main part
of this, she responded, "Well, I feel really confident in myself
because I know I can make my dad come home . . . [b]y telling the
truth and not telling a lie to anybody." She said she was in the
courtroom "to get my daddy home[,]" and believed the jurors were
there "to make the decisions if my daddy can come home."
On cross-examination she responded "Yes" when asked: "Would
you say anything you could, no matter whether it was true or not,
to get your daddy to come home?" Following up, defense counsel
asked if she "would lie to us to get your daddy to come home?[,]"
and she responded "No." Thereafter, on redirect, she expressed
her belief that because she testified her father had not touched
her peepka and she had never touched his winkie, "[h]e's going to
come home." When asked what she thought would happen if she said
that her father touched her peepka, or he had her touch his winkie,
she responded "[h]e's not going to come home[,]" and that would
make her feel sad.
30 A-5783-13T1
The Defense
Defendant testified and denied committing the acts alleged
in the indictment and any of the acts alleged in C.L.'s statement
to Taylor. He testified to the incident C.L. spoke of at trial,
where C.L. walked in on him while he was masturbating in his
bedroom, and to the incident C.L. spoke of with Reed, that is, his
getting into the shower with C.L. while wearing shorts, in order
to clean her up after toileting accidents.
Defendant presented character witnesses, who testified he had
a reputation for truthfulness. Defendant also contested whether
C.L. had ever been sexually abused. As to those issues, C.L.'s
pediatrician, Dr. Kimberly Kinney, testified she reviewed C.L.'s
medical records and found no evidence she suffered any trauma from
sexual abuse.
Defendant also contested the validity of C.L.'s disclosures
to W.K. by attacking W.K.'s credibility and claiming she influenced
the child to accuse him of abuse. He also attacked the validity
of C.L.'s statements to Taylor based upon the length of the
interview, the nature of Taylor's questioning, and the gap in the
recording.
Dr. Phillip W. Esplin, an expert in forensic psychology,
testified about the validity of C.L.'s statements to W.K. Esplin
testified that children between three and six years old "have
31 A-5783-13T1
difficulty sorting out the origin of their belief . . . [s]o that
they can become confused in terms of what they may have heard from
somebody or what they may have overheard as opposed to what comes
from their direct experience." They are also socialized to
acquiesce and defer to adults, so they tend to answer a question
even if they do not know the answer, and to change their answer
if their initial answer is not accepted.
Esplin opined one must be wary that an adult might have
influenced the child either by questioning the child, or having
the child overhear the adult's conversations, including negative
statements about the suspected perpetrator, or having the child
observe the adult's demeanor, attitude, or concern, because "all
those factors can influence what the child may say during that
forensic interview." Esplin also opined that when questioning
such young children, the interviewer must be careful that the
child comprehends the basic rules of the interview (e.g., "If I
ask you a question and you don't know the answer, don't guess."),
and the interviewer should exercise caution when using option-
posing questions (e.g., "were your clothes on, or off, or something
else?"), because such questions "are very difficult for that age
group to understand[,]" so sometimes the child will "just begin
to guess and choose one of the alternatives."
Esplin testified that when interviewing children, the focus
32 A-5783-13T1
should be on "invitational questions" (e.g., "tell me what
happened[.]"). He stated that leading questions, also referred
to as "tag questions," are permissible; however, they should not
be the "focus" of the interview, and generally they should not be
posed until later on in the interview, if necessary.
Esplin further testified that the recommended time for
interviewing children between three and five years old is between
fifteen and twenty-five minutes. If the interview exceeds this
time-frame "[t]he risk is that the child may reach a point where
they decide that they're going to tell you what you want to hear
so they can get out of there." They will also lose focus, pay
less attention, and sometimes give confusing answers. He stated
that anyone interviewing a child should keep track of the time,
and also observe whether the child is showing signs of fatigue.
Esplin acknowledged, however, there are individual
differences between children, so each situation must be evaluated
on a case-by-case basis. While he believed that forty minutes was
the outside limit for an interview of a child between three and
five years old, he conceded an interview of that length could
continue, after a break, if the interview was productive.
Regarding breaks generally, Esplin opined that ideally an
interview would continue uninterrupted. However, a child's
request for a break should be respected. Esplin said it was a
33 A-5783-13T1
judgment call as to whether a break should be taken in the event
of a malfunction of the recording equipment, as there were numerous
factors to consider, including the safety of the child and whether
the malfunction occurred at a critical time.
Finally, Esplin testified with respect to the use of dolls
in child interviews that on the one hand "there's some information
that the use of the dolls increases some detail." "At the same
time, it increases the frequency of errors." Also, with school
age children, age six and up, the use of dolls tends "to lessen
the amount of verbal memories you receive." Ultimately, he said
there have "been no studies to demonstrate that the use [of dolls]
increases the yield of reliable information about what may have
happened." Thus, he would not use dolls, or diagrams, unless he
had "exhausted every other avenue of getting verbal memories."
Defendant blamed his father-in-law, K.W. for the child
pornography found on his laptop computer.7 Both defendant and
K.W. testified that on two occasions when K.W. visited defendant's
home, in 2003 and 2008, defendant discovered K.W. was using his
computers to view child pornography and angrily confronted K.W.
about it. On both occasions defendant limited K.W.'s access to
7
Bachok testified that K.W.'s last name had 285 hits on the
desktop computer, and 271 hits on the laptop, which meant only
that the name appeared somewhere on each computer, e.g., an email,
an email address, or a document.
34 A-5783-13T1
the computers and monitored K.W.'s internet history although after
the second incident he never found any evidence that K.W. was
accessing child pornography. In addition, K.W. promised defendant
he would not access child pornography again, and gave defendant
money to replace the computers.
Defendant testified that in 2003 he threw out the old computer
and purchased a new one with money K.W. provided. Thereafter, in
2008, he used K.W.'s money to purchase the laptop computer, which
was kept in the family room and "pretty much everyone used[;]"
however, he did not discard the desktop computer, which was kept
upstairs. Instead, he chose to run Cyberscrub on the desktop
computer, in order to eliminate unwanted material while retaining
everything else. Initially, he claimed to have run Cyberscrub in
2007 or 2008. However, when confronted with his purchase record,
he conceded he did not purchase the program until 2010.
K.W. testified that he used defendant's computers to view
child pornography and claimed he had "a sickness, an addiction"
to child pornography. However, he testified he only viewed child
pornography maybe once a month, or three times per week, and
claimed he only began viewing it in 2006, and completely stopped
viewing it in 2009. He denied having any preference for viewing
any particular sexual acts or body parts, downloading any photos
or emailing them, keeping a collection of child pornography, or
35 A-5783-13T1
trading it with collectors, and using the program Lime Wire.8 He
also said he never went to any particular website, and only
accessed the child pornography through search engines. He recalled
some of the keywords found on the computers, and recalled viewing
some of the photos recovered from the laptop computer's hard drive.
On the other hand, in 2011, K.W. denied to the Division that
the child pornography belonged to him. Moreover, on other
occasions, he indicated he only accessed child pornography twice,
once in the fall of 2003, and the second time in the fall of 2008.
He also claimed that in 2008 he viewed only Japanese comic book
style drawings depicting people engaged in sexual activity with
underage persons, but no pictures of live persons.
II.
Defendant filed a motion to suppress C.L.'s statement to
Taylor. Following a N.J.R.E. 104 hearing, at which W.K., Stio,
and Taylor testified, the court issued a written opinion, finding
the statement trustworthy, notwithstanding the gap in the
recording. The court rejected defendant's argument that Taylor's
questioning of C.L. was "inept, coercive and manipulative,"
stating:
The court disagrees with defendant's
analysis of Taylor's interview of C.L. While
she did employ leading questions, it is
8
Defendant also denied using Lime Wire.
36 A-5783-13T1
apparent that such questions occurred only
after the child made a disclosure, and that
the leading questions were geared to clarify
or to assist the child to specify the
disclosure. The court finds the interview of
. . . C.L., and her resulting statements were
not the product of threats, bias, or
misleading questions. To the contrary, the
court is satisfied that C.L. was able to
articulate the alleged sexual conduct without
prompting or suggestive questioning; that she
was able to describe specific events; that she
did not use words or phrases 'beyond her
years,' but demonstrated her naivety to the
sexual acts portrayed; that she was able to
identify with clarity the parts of her anatomy
and defendant's anatomy involved in the acts;
that she was able to recall events, both as
to time and place, although not with time-
specificity due to her age.
Therefore, based upon the totality of the
circumstances, the court is satisfied that
C.L.'s statement is trustworthy, and should
therefore be admitted at trial, pursuant to
[N.J.R.E. 803(c)(27)].
The fact that this court finds C.L.'s
statement trustworthy for purposes of
admissibility at trial in no way reflects upon
whether or not the incidents actually
occurred. Her statements are subject to
cross-examination at trial, as well as Stio's
notes regarding the gap and Taylor's method
of questioning the child. Whether or not the
incidents actually occurred, is reserved
solely for the jury's providence.
On appeal, defendant contends in Point I that the court erred
in admitting C.L.'s videotaped statement to Taylor. He argues the
statement was untrustworthy because: (1) twenty crucial minutes
of the statement, during which C.L. first made allegations of
37 A-5783-13T1
sexual abuse, went unrecorded, and therefore there is no verbatim
record of what questions Taylor asked or what statements she made
to C.L., and no recording of the tone of Taylor's voice; (2) C.L.'s
failure to make any abuse allegations in the first half of the
statement, and her post-interview recantations of the sexual abuse
allegations, indicate her statements to Taylor were fabrications;
(3) the interview was excessively long for someone of C.L.'s young
age; and (4) Taylor's denial of C.L.'s request to see her mother,
just prior to using the anatomical dolls, "was clearly an abuse
of Taylor's ability to reward or punish C.L. for the child's
responses to Taylor's questions." Only a few of these arguments
were raised before the trial judge.
Defendant further argues the court compounded the error by
permitting the State to play the video twice on its direct case
and during summation, and allowing the jury to watch the video for
a fourth time during deliberations. Defendant claims this enabled
the State to give undue weight to C.L.'s statement and effectively
prevented the jury from considering her sworn trial testimony and
other out-of-court statements denying defendant engaged in any
improper conduct. Alternatively, for the first time on appeal,
defendant argues that when the jury viewed the tape during
deliberations, "[a]t a minimum," C.L.'s trial testimony and her
interview with Reed should have been read back to the jury along
38 A-5783-13T1
with her statement to Taylor.
"[I]n reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse of
discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015)
(citation omitted). Under that standard, "[c]onsiderable latitude
is afforded a trial court in determining whether to admit
evidence," and "an appellate court should not substitute its own
judgment for that of the trial court, unless 'the trial court's
ruling was so wide of the mark that a manifest denial of justice
resulted.'" Id. at 385-86 (alteration in original) (citations
omitted).
Our review of a trial court's decision on a motion to suppress
is limited. State v. Robinson, 200 N.J. 1, 15 (2009). As our
Supreme Court has held:
Appellate review of a motion judge's factual
findings in a suppression hearing is highly
deferential. We are obliged to uphold the
motion judge's factual findings so long as
sufficient credible evidence in the record
supports those findings. Those factual
findings are entitled to deference because the
motion judge, unlike an appellate court, has
the "opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a
reviewing court cannot enjoy."
[State v. Gonzales, 227 N.J. 77, 101 (2016)
(citations omitted).]
39 A-5783-13T1
We will "reverse only when the trial court's determination is 'so
clearly mistaken that the interests of justice demand intervention
and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014)
(citation omitted). However, we owe no deference to the trial
court's legal conclusions or interpretations of the legal
consequences flowing from established facts, and review questions
of law de novo. State v. Watts, 223 N.J. 503, 516 (2015).
N.J.R.E. 803(c)(27) provides as follows:
A statement by a child under the age of 12
relating to sexual misconduct committed with
or against that child is admissible in a
criminal . . . proceeding if (a) the proponent
of the statement makes known to the adverse
party an intention to offer the statement and
the particulars of the statement at such time
as to provide the adverse party with a fair
opportunity to prepare to meet it; (b) the
court finds, in a hearing conducted pursuant
to [N.J.R.E.] 104(a), that on the basis of the
time, content and circumstances of the
statement there is a probability that the
statement is trustworthy; and (c) either (i)
the child testifies at the proceeding, or (ii)
the child is unavailable as a witness and
there is offered admissible evidence
corroborating the act of sexual abuse;
provided that no child whose statement is to
be offered in evidence pursuant to this rule
shall be disqualified to be a witness in such
proceeding by virtue of the requirements of
[N.J.R.E.] 601.
Here, the court considered the evidence and relevant factors
in determining that C.L.'s interview was sufficiently trustworthy
to warrant admission under N.J.R.E. 803(c)(27), including the gap
40 A-5783-13T1
in the recording and the other arguments defendant raised. See
Idaho v. Wright, 497 U.S. 805, 821-22 (1990); State v. P.S., 202
N.J. 232, 248-54 (2010). On the evidence presented at the N.J.R.E.
104 hearing, we discern no reason to second-guess the court's
factual findings, and defendant has not shown an abuse of
discretion in the court's evidentiary ruling.
Regarding defendant's complaint about the number of times the
video was played to the jury, the record reflects the video was
played in full twice during the State's direct case, first during
Stio's testimony, and second during Taylor's testimony. The court
inquired as to whether defense counsel had any objection to the
video being played twice, and defense counsel answered he did not.
Thereafter, defense counsel used the video extensively when
cross-examining Stio and Taylor, as he was critical of the length
of the interview, Taylor's demeanor, her statements to C.L., the
nature of her questions, C.L.'s behavior during the interview, and
Taylor's denial of C.L.'s request to see her mother.9
The court overruled defense counsel's objection to the
prosecutor using two, two-minute clips of the video during
summation. Defense counsel did not use the video during his
9
This string of citations is not meant to reflect a complete
list of times defense counsel played the videos during cross-
examination.
41 A-5783-13T1
summation; however, in attacking Taylor's credibility, he reviewed
the interview in detail with the jury, highlighting particular
questions and particular portions of the interview he argued were
problematic.
During deliberations, the jury requested a playback of a
portion of the video. The court discussed the request and its
proposed response with counsel. During that discussion, defense
counsel did not object to the jury watching the video, or request
that the court require the jury to have a playback or readback of
any other testimony. However, counsel objected to the jury having
the transcript of the video as an aid.
Thereafter, the jury was brought to the courtroom, and the
judge inquired as to which video the jury wanted to watch, "the
Cora Taylor video or the Lisa Reed video," to which the jury
foreperson responded the "Cora Taylor video[.]" The court then
inquired: "[I]s it the entire video that you want to see[,]" and
the foreperson responded: "We don't need the beginning, we would
like it maybe four or five minutes prior to when the tape goes out
and then, obviously we don't want to watch a blank tape for
[twenty] minutes, but then the end of the tape[.]" Finally, jurors
responded affirmatively when the court inquired whether the
foreperson's response was "everybody's choice[.]"
42 A-5783-13T1
The court then replayed the portion of the video the jury
requested, in open court, subject to the court's supervision.
After the playback, the court instructed the jury as follows:
Members of the jury, you've requested a play
back of the testimony of [C.L.] The recorded
testimony has been played for you. In your
deliberations you're instructed to consider
all the evidence presented and not give undue
weight to the testimony you heard and seen
played back and now you can go back into the
jury room and continue deliberations. Thank
you.
The jury then deliberated for another hour, at which time the
court adjourned for the day. The next day the jury resumed its
deliberations. The jury reached its verdict, which the court
accepted, and the court adjourned at 1:04 p.m.
Since defendant did not object to the jury watching the video
twice during trial, or to the jury watching a portion of the video
for a third time during deliberations, we review those issues for
plain error, that is, whether the error was "clearly capable of
producing an unjust result[.]" R. 2:10-2; State v. Weston, 222
N.J. 277, 294 (2015). Defendant bears the burden of proving plain
error. Weston, 222 N.J. at 295.
Under the unique circumstances of this case, where there was
a twenty-minute break in the video due to the recorder
malfunctioning, we find no plain error in the court's permitting
the jury to watch the video during the testimony of both Stio and
43 A-5783-13T1
Taylor. Defendant's failure to object to this procedure, and
defense counsel's extensive use of the video during cross-
examination, indicates his belief that repetition and close
analysis of the video would be helpful, not harmful, to defendant's
case, as it would reveal misconduct or mistakes on the
investigators' part.
There also was no error in the court allowing the prosecutor
to use two short clips from the video during summation. The
prosecutor used those clips to focus the jury's attention on C.L.'s
statements that were supportive of counts in the indictment
alleging specific acts of sexual abuse. Thus, there was nothing
inappropriate in the prosecutor's use of the video. See State v.
R.B., 183 N.J. 308, 330 (2005) (stating that summations should be
limited to discussion of the evidence); State v. C.H., 264 N.J.
Super. 112, 134 (App. Div. 1993) (finding no error in the
prosecutor's commenting on evidence that showed sexual assault by
penetration).
Regarding the jury's review of the video during
deliberations, the law provides that videotaped pretrial
statements of witnesses are a special type of exhibit, akin to
trial testimony. Burr, 195 N.J. at 134. Therefore, they
"require[] special consideration by a court overseeing a trial
that has reached the deliberation stage." Weston, 222 N.J. at
44 A-5783-13T1
289.
"[T]here is no per se rule against the replay of video
recordings during jury deliberations and . . . the decision to
replay a recording is vested in the discretion of the trial judge."
State v. A.R., 213 N.J. 542, 560 (2013). Indeed, absent some
unusual circumstances, a request by the jury to replay a videotaped
statement should be granted, State v. Miller, 205 N.J. 109, 119-
20 (2011), and the court "should honor a jury's specific request
to hear only limited parts" of a video. Id. at 123 (noting that
when a limited playback of testimony is requested, court should
ensure that playback includes relevant direct and cross-
examination).
Nevertheless, certain procedures should be followed.
Specifically, in order to avoid the jury overemphasizing a
particular segment of a video, or viewing a video out of context,
"a trial court should not permit a jury to have unrestricted access
during deliberations to the videotaped pretrial statements of
witnesses." Weston, 222 N.J. at 289, 292-93. Rather, any "replay
of a videotaped statement during deliberations should only be
conducted upon the jury's request, and after a determination that
the jury's concerns cannot be addressed with a readback of
testimony." Id. at 293. In making that determination, the court
also should consider whether testimony from additional witnesses
45 A-5783-13T1
should be replayed in order to provide context. A.R., 213 N.J.
at 560. Moreover, any replay "must be conducted in open court,
under the careful supervision of the trial judge." Weston, 222
N.J. at 293. Finally, "at the time the testimony is repeated,
judges should instruct jurors to consider all of the evidence
presented and not give undue weight to the testimony played back."
Miller, 205 N.J. at 109.
Here, the court complied with the governing law to the extent
that it did not permit a playback of C.L.'s statement except upon
the jury's request, and it required the playback occur in open
court. However, the court did not inquire of the jury whether it
would like a playback or read back of any trial testimony from
C.L. or another witness.
Defendant argues it was plain error to not sua sponte provide
the jury with C.L.'s trial testimony and her interview with Reed,
along with her statement to Taylor. However, the above-cited case
law did not require such an action, defendant did not request it,
and under the circumstances of this case, we perceive no error in
the failure to inquire about a playback or read back of additional
testimony. See Weston, 222 N.J. at 294-300 (engaging in case-
specific inquiry when considering whether trial court committed
plain error in allowing jury unsupervised access to witnesses'
videotaped pretrial statements).
46 A-5783-13T1
C.L.'s statement to Taylor accused defendant of sexual abuse.
Therefore, a read back of C.L.'s trial testimony or a playback of
her interview with Reed would not have provided the jury with the
information it requested.
Furthermore, the defense was that Taylor pressured C.L. to
disclose abuse through her conduct of the interview. The defense
also argued that C.L. was of such a young age she could not stay
focused during an interview exceeding twenty-five minutes. To the
extent the jury was considering those arguments, none of that
information could be gleaned from a read back of the transcript
of C.L.'s videotaped statement to Taylor, nor from a replay of
C.L.'s trial testimony or her statement to Reed. Cf., A.R., 213
N.J. at 561 (finding no error in allowing the jury unsupervised
access to video of witnesses' statements where defense counsel
invited the error by encouraging the jury to review video recorded
statements and urged the court to submit statements to the jury
during deliberations).
We conclude there was no abuse of discretion in the court's
admission of C.L.'s pretrial statement to Taylor under N.J.R.E.
803(c)(27); no plain error in the court's allowing the video to
be played twice during trial; no error in the prosecutor's limited
use of the video during summation; and no plain error in the
court's handling of the jury's request for a replay of a portion
47 A-5783-13T1
of the video during its deliberations.
III.
Defendant contends in Point II that the court erred in barring
audio recordings made by M.L., and exclusion of the recordings
violated his right to due process and his right to confrontation.
We disagree.
The court held a N.J.R.E. 104 hearing to determine the
admissibility of various audio recordings made by M.L. M.L.
testified that the Family court ordered her and her children to
attend therapy sessions at the AHCH. On July 5, 2012, she recorded
a therapy session, where C.L. was also present. She gave the
recording to defendant, who copied it onto a CD and prepared a
transcript.
M.L. also testified she recorded a therapy session on December
27, 2012, where C.L. was also present. She also recorded ten or
fifteen other therapy sessions, as well as her conversation with
Anthony D'Urso, Ph. D. in December 2011. M.L. did not advise the
individuals that she was recording them. She gave the recordings
to defendant. At some point in 2012, M.L. advised the Family
court attorneys that she made the recordings, and gave them the
audiotapes. She testified she made the recordings because she did
not feel comfortable with how the therapy was progressing and
believed the therapy was not being accurately reported to the
48 A-5783-13T1
court.
M.L. testified that on several occasions at home, C.L. said
that W.K. told her what to say about defendant, although C.L. did
not give any details about what W.K. instructed her to say. C.L.
first made such a statement about two months after defendant's
arrest. A few months later, C.L. told M.L. about the incident
when she walked in on defendant masturbating.
Based upon C.L.'s statements to her, as well as defendant
having passed a polygraph and a psychosexual test, M.L. believed
he was innocent, and W.K. was responsible for C.L.'s fabricated
accusations of sexual abuse. M.L. stated she did not speak with
C.L. about what happened since the therapy session recorded on
December 27, 2012. The only things C.L. said to her since then
was that she missed her father and wanted him to come home.
In its oral and written opinions, the court set forth its
understanding that defendant's "application involves the interplay
between the various statutory privileges which protect the
disclosure of therapeutic records . . . particularly in a Title
Nine case, against a defendant's Constitutional Rights of Due
Process insured by the Fifth Amendment, and his Sixth Amendment
Right of Confrontation in criminal proceedings."
Reviewing the governing law and weighing the legal issues,
the court concluded that M.L. "had no authority to waive C.L.'s
49 A-5783-13T1
victim counselor privilege and disclose the conversations between
the child and her therapist to third persons" because she had an
interest in the outcome of the litigation. Specifically, M.L.
believed W.K. told C.L. to fabricate the allegations of sexual
abuse, and "[s]he [was] convinced defendant [was] innocent of all
charges and want[ed] defendant reunited with her and the children."
The court further held that, even if M.L. had the right to waive
C.L.'s privilege, the overriding policy reasons which established
the confidentiality of Title Nine proceedings would defeat such a
waiver, which was not in the best interests of the child.
Nevertheless, in considering defendant's rights to due
process and confrontation, the court held he could admit some
evidence of C.L.'s recantations during the July and December 2012
therapy sessions, but only through therapy progress notes, which
was "a less intrusive avenue than playing the recorded therapy
sessions. . . ." Thus, the court issued a protective order
regarding all of M.L.'s recordings, such that they would remain
under seal with the court and defendant would not be permitted to
use them at trial, or take testimony from the AHCH therapists.
However, the court permitted defendant to present evidence of
C.L.'s alleged recantations of the sexual abuse allegations during
therapy through information from therapy progress reports.
In addition, the court ruled that a thirty-two second, non-
50 A-5783-13T1
confidential recording M.L. made of a conversation with C.L.,
either immediately before or after a therapy session, could be
used at trial. The court noted that during this conversation,
C.L. could be heard crying while telling her mother she knew about
the recorder in her mother's pocket.
After issuing this ruling, the court held another hearing on
these issues on September 9, 2013, at which it addressed how C.L.'s
alleged recantations could be introduced into evidence at trial,
i.e., either through a stipulation between the parties or limited
testimony from a therapist. Thereafter, in a September 25, 2013
order, the court memorialized its above rulings and additionally
held that the therapy progress reports themselves could not be
admitted into evidence. The court also allowed for reconsideration
of its rulings based upon issues that might arise at trial.
The court later issued a supplemental opinion, detailing the
contents of four therapy progress reports. In addition, finding
there were no therapy progress reports for the July 5 and December
27, 2012, therapy sessions, the court ruled that defendant could
introduce information about C.L.'s recantations during those
sessions through testimony of the therapists in attendance, and
if those therapists were unavailable or denied any recantations
occurred, then defendant could renew his request to present M.L.'s
recordings to the jury.
51 A-5783-13T1
At trial, C.L. testified on both direct and cross-examination
that she told both her mother and therapists that W.K. coerced her
into making the abuse allegations. Moreover, on cross-
examination, defense counsel specifically asked C.L. about her
statements at the July and December 2012 therapy sessions.
Thereafter, defense counsel did not call M.L. or any therapists
to testify, or request admission of any of M.L.'s recordings or
therapy progress notes.
On defendant's motion for a new trial, he argued the court
erred in excluding M.L.'s recordings of the therapy sessions. In
denying the motion, the court noted the jury heard C.L.'s
recantations through her trial testimony, and M.L.'s recordings
of the therapy sessions would have been of little value to
defendant in light of the recording M.L. made of her conversation
with C.L., in which C.L. indicated she knew M.L. was recording the
conversation.
Both the Federal and State constitutions protect a
defendant's rights to due process and to confront the witnesses
against him. U.S. Const. amends. V, VI, XIV; N.J. Const. art. 1,
¶¶ 1, 10; State v. Garron, 177 N.J. 147, 168-69 (2003). Notably,
however, the right of confrontation is not absolute. Sometimes
it must give way to accommodate competing interests, such as rules
of evidence and procedure, so long as application of those rules
52 A-5783-13T1
does not deprive a defendant of his right to a fair trial. Chambers
v. Mississippi, 410 U.S. 284, 295 (1973); Garron, 177 N.J. at 169-
72.
Here, the interests competing with defendant's rights of due
process and confrontation are the statutory confidentiality of
Title Nine proceedings, as well as the privilege that protects
victim-counselor therapy sessions. Specifically, under N.J.S.A.
9:6-8.10a, Division records are maintained subject to a "strict
confidentiality requirement" that serves as "a procedural
safeguard to protect victim children from unnecessary disclosure
of his/her abuse which may cause the child further guilt,
vulnerability or humiliation." N.J. Div. of Youth & Family Servs.
v. J.C., 399 N.J. Super. 444, 447 (Ch. Div. 2006).
There are limited exceptions to the confidentiality
requirement, including that records may be produced to a court
"upon its finding that access to such records may be necessary for
determination of an issue before it[.]" N.J.S.A. 9:6-8.10a(b)(6).
Under no circumstances, however, shall the Division "release any
information that would likely endanger the life, safety, or
physical or emotional well-being of a child . . . ." N.J.S.A.
9:6-8.10a. The statute states, in pertinent part:
a. All records of child abuse reports
. . . all information obtained by the
Department of Children and Families in
53 A-5783-13T1
investigating such reports . . . and all
reports of findings forwarded to the child
abuse registry . . . shall be kept
confidential and may be disclosed only under
the circumstances expressly authorized under
subsections b., c., d., e., f., and g. herein.
The department shall disclose information . .
. that is relevant to the purpose for which
the information is required, provided,
however, that nothing may be disclosed which
would likely endanger the life, safety, or
physical or emotional well-being of a child
or the life or safety of any other person or
which may compromise the integrity of a
department investigation or a civil or
criminal investigation or judicial
proceeding. . . .
b. The department may and upon written
request, shall release the records and reports
referred to in subsection a., or parts
thereof, . . . to:
. . . .
(6) A court . . . upon its finding that access
to such records may be necessary for
determination of an issue before it, and such
records may be disclosed by the court . . .
in whole or in part to the law guardian,
attorney, or other appropriate person upon a
finding that such further disclosure is
necessary for determination of an issue before
the court . . . .;
. . . .
Any individual, . . . court . . . or other
entity which receives from the department the
records and reports referred to in subsection
a., shall keep the records and reports, or
parts thereof, confidential and shall not
disclose the records and reports or parts
thereof except as authorized by law.
54 A-5783-13T1
. . . .
The department shall not release any
information that would likely endanger the
life, safety, or physical or emotional well-
being of a child or the life or safety of any
other person.
[N.J.S.A. 9:6-8.10a (emphasis added).]
See also N.J.R.E. 515 (prohibiting disclosure of official State
information "(a) if disclosure is forbidden by or pursuant to any
Act . . . of this State, or (b) if the judge finds that disclosure
of the information in the action will be harmful to the interests
of the public").
In addition, N.J.S.A. 2A:84A-22.13 and N.J.R.E. 517 codify
the victim-counselor privilege, such that "it is the public policy
of this State to extend a testimonial privilege encompassing the
contents of communications with a victim counselor and to render
immune from discovery or legal process the records of these
communications maintained by the counselor." A person may waive
a privilege they hold. N.J.S.A. 2A:84A-29; N.J.R.E. 530. However,
a parent's ability to waive the victim-counselor privilege held
by their child is limited under N.J.S.A. 2A:84A-22.15 and N.J.R.E.
517(1), which set forth that:
In any instance where the juvenile is, in the
opinion of the judge, incapable of knowing
consent, the parent or guardian of the
juvenile may waive the privilege on behalf of
the juvenile, provided that the parent or
55 A-5783-13T1
guardian is not the defendant and does not
have a relationship with the defendant such
that he has an interest in the outcome of the
proceeding.
[(Emphasis added).]
As a general rule, evidentiary privileges are to be narrowly
construed. State v. Szemple, 135 N.J. 406, 413 (1994). Since
they may undermine the administration of justice, "they are
accepted only to the extent that they outweigh the public interest
in the search for truth." Id. at 413-14.
In terms of case law, most relevant are Pennsylvania v.
Ritchie, 480 U.S. 39 (1987), and State v. L.J.P., 270 N.J. Super.
429 (App. Div. 1994). In Ritchie, 480 U.S. at 54, the Court held
the State did not violate the Sixth Amendment's Confrontation
Clause by withholding a child protective services file, where
defense counsel was able to cross-examine his accuser. See also
State v. Nyhammer, 197 N.J. 383, 411-14 (2009) (finding no
Confrontation Clause violation in admitting child sex abuse
victim's statement to police where victim testified at trial and
was subject to cross-examination). However, the Court concluded
that in order to protect a defendant's due process rights, it may
be necessary for a court to review such protective services records
in camera, and order that any material information be disclosed.
Ritchie, 480 U.S. at 56-60.
56 A-5783-13T1
Similarly, in L.J.P., 270 N.J. Super. at 436-38, the defendant
appealed from his conviction of sexual assault and endangering the
welfare of a child, arguing the trial court erred in finding the
psychologist-patient privilege prevented him from introducing
evidence, contained in Division reports already in his possession,
that the child victim had recanted her allegations of sexual abuse
during a conversation with her psychologist.
Considering the issue, we noted that the psychologist-patient
privilege may be defeated if necessary to protect a defendant's
rights to a fair trial and to confront the witnesses against him.
Id. at 439-40. However, in order to pierce the privilege, the
defendant must show: (1) a legitimate need for the protected
information; (2) that the information is relevant and material to
an issue before the court; and (3) no less intrusive source for
the information exists. Id. at 440.
We also noted that at trial a witness testified to the
victim's recantation, and the victim was also cross-examined about
the recantation. However, the victim dismissed the recantation
"as the product of coercion and misguided hopes for a reunified
family." Id. at 442. Thus, we found the recantation allegedly
contained in Division reports "was not otherwise available to the
defense[,]" and its exclusion could not be viewed as harmless
error. Ibid. Accordingly, we reversed and remanded for a new
57 A-5783-13T1
trial, id. at 444, stating: "[T]he defendant's legitimate need for
critical evidence and his right to confront his accuser with her
repudiation of her allegations was far more compelling than the
interests of confidentiality." Id. at 443.
The present case is significantly different than Ritchie and
L.J.P. Unlike in those cases, defendant did not seek Division
records in a manner permissible under the law, specifically
N.J.S.A. 9:6-8.10a(b)(6). See N.J. Div. of Youth & Family Servs.
v. N.S., 412 N.J. Super. 593, 637-38 (App. Div. 2010) ("[T]he
mechanism employed by our Legislature to preserve the
confidentiality of [the Division's] records and protect a victim's
privacy interests is to require judicial review of a party's
written request of the need for disclosure."). Instead, M.L.
surreptitiously recorded therapy sessions and provided the
recordings to her attorney and defendant, who then provided them
to his attorney, all in contravention of the law. These recordings
only came to the criminal court's attention when defendant sought
additional discovery and to admit the recordings into evidence at
trial.
We cannot condone or encourage M.L.'s behavior, as it violates
the public policy set forth in the statutes and evidentiary rules
previously discussed. Moreover, given M.L.'s relationship to
defendant and her belief that he was innocent of the charges, the
58 A-5783-13T1
court correctly ruled she could not waive C.L.'s victim-counselor
privilege. Therefore, in its rulings, the court reasonably
attempted to avoid introduction of the surreptitious recordings
of therapy sessions and instead relied solely on Division records
or testimony from the therapists.
Ultimately, however, no such evidence was necessary because,
unlike in L.J.P., C.L. recanted her allegations of abuse at trial.
She also testified that W.K. coerced her into making allegations
of abuse and told this to her therapists in the July and December
2012, therapy sessions, with defense counsel questioning her about
her statements during those therapy sessions.
Therefore, unlike in L.J.P., defendant did not need M.L.'s
recordings at trial. Through C.L.'s testimony, he got what he
wanted -- C.L.'s multiple recantations presented to the jury,
along with her allegation that W.K. was the source of her
statements to Taylor.10
In sum, the court provided defendant with relevant
information from the Division's records, and defendant had a full
10
Defendant argues he should have been permitted to use the
recorded therapy sessions "to confront the State's witnesses."
However, the only State's witness he could have confronted was
C.L., in order to defuse her allegations of sexual abuse. No
other State's witnesses appeared on the recordings or had any
connection to C.L. at the time the recordings were made in 2012,
two years after defendant's arrest.
59 A-5783-13T1
and fair opportunity to cross-examine C.L. and explore the
recantations with her, even without the recordings. Therefore,
there was no violation of his rights to due process and
confrontation. Ritchie, 480 U.S. at 54, 56-60; Nyhammer, 197 N.J.
at 411-14. Moreover, under the circumstances presented, C.L.'s
prior consistent statements to her therapists would not have been
admissible under the Rules of Evidence. See N.J.R.E. 607; N.J.R.E.
803(a)(2); Neno v. Clinton, 167 N.J. 573, 580 (2001).
Finally, as the court cogently noted on defendant's post-
trial motion, there were risks associated with introduction of the
therapy recordings at trial. Specifically, if defendant had
renewed his request for introduction of the July 5 and December
27, 2012 recordings, then the prosecution likely would have sought
introduction of the recording of C.L.'s conversation with M.L.,
in which C.L. tearfully told her mother she knew she was being
recorded. Introduction of that mother-daughter conversation would
have seriously diluted the value of the July 5 and December 27,
2012 recordings, and supported the State's argument that C.L.'s
family influenced her to recant her accusations. Indeed, that
strategic risk-benefit analysis is the most likely explanation as
to why, once C.L. recanted at trial, defense counsel did not renew
his motion to introduce the recordings, as the court permitted him
to do.
60 A-5783-13T1
As for the recordings of M.L.'s own therapy sessions, which
defendant argues for the first time on appeal should have been
ruled admissible at trial, defendant has made no showing those
recordings would have affected the outcome of the case. R. 2:10-
2. Accordingly, we find no abuse of discretion in the court's
evidentiary ruling with respect to M.L.'s surreptitious recordings
of confidential therapy sessions.
IV.
Defendant contends in Point III that the court erred in
denying his motion for a mistrial or a continuance upon learning
the State did not produce discovery from W.K.'s cellphone until
after trial began, since the cellphone contained significant
impeachment information about W.K.
As set forth in greater detail below, defendant did not move
for a mistrial or a continuance based on late discovery of the
information found on W.K.'s cellphone. Rather, he moved only for
admission of certain photos and text messages exchanged between
W.K. and her boyfriend, which the court found irrelevant and
therefore inadmissible under N.J.R.E. 401.
At trial, the prosecutor belatedly produced digital discovery
of the contents of W.K.'s cellphone. The court held a N.J.R.E.
104 hearing to determine whether evidence of "sexting" between
W.K. and her boyfriend was admissible. At the hearing, W.K.
61 A-5783-13T1
testified that she used the cellphone while working for defendant's
family, and gave it to the police for analysis on October 8, 2010.
W.K. testified that on September 29 and 30, 2010, her then-
boyfriend sent her three photos of his penis, including two with
semen on it. Also on September 30, 2010, she sent her boyfriend
a photo of herself posing in underwear in defendant's bathroom.
She explained she took the photo while in the bathroom, with the
door locked. The cellphone also contained other texted photographs
and W.K. explained the messages were a form of entertainment for
them.
W.K. testified that her cellphone was always in her pocket
or her purse, and she knew of only one occasion when E.L. accessed
it in order to answer a call from his father when W.K. had left
the children in the car for two minutes while she dropped off some
insurance documents. However, that incident occurred in the summer
of 2010, before the photos at issue were taken.
In terms of accessing the cellphone, W.K. testified that an
incoming phone call could be answered while the cellphone was
locked by simply pressing the green headphone button. However,
in order to access the entire phone, the user had to press both
the send button and the star button at the same time. If the
cellphone was unlocked in that manner, the text messages could
then be accessed by opening the menu and selecting messages. To
62 A-5783-13T1
her knowledge, neither C.L. nor E.L. had ever seen the photos at
issue. She never showed them the photos, and never saw them
looking at the photos.
The court barred the photos and text messages from W.K.'s
cellphone under N.J.R.E. 401 because there was no evidence that
C.L. ever saw them and nothing showing the photos and text messages
were relevant to W.K.'s motives. However, the court permitted
defendant to renew his application if other evidence came to light
that made this information relevant.
When trial resumed, defense counsel questioned W.K. about
text messages that showed she and her boyfriend were arguing on
October 6, 2010, and she needed money for a deposit on a new
apartment. Counsel also suggested that W.K.'s nanny job was in
jeopardy, although she denied knowing it was. Thereafter, defense
counsel renewed his request to admit the photos and text messages.
Counsel argued the photos were relevant to establish W.K.'s motive
to coerce C.L. into accusing defendant of sexual abuse because
W.K. needed money and was afraid of losing her job. The court
denied the motion under N.J.R.E. 401, for the same reasons it
previously expressed.
Defendant raised this evidentiary issue on his post-trial
motion. In denying the motion, the court declined to address the
contents of W.K.'s cellphone, other than to note the "issue was
63 A-5783-13T1
fully developed at a [N.J.R.E.] 104 hearing."
As previously discussed, we review evidentiary rulings for
an abuse of discretion. Kuropchak, 221 N.J. at 385. We review
motions for a mistrial or a continuance abuse of discretion. State
v. Smith, 224 N.J. 36, 47 (2016).
Whether a mistrial is required will depend upon "the unique
circumstances of the case." Ibid. If there is a reasonable
alternative to a mistrial, such as "a curative instruction, a
short adjournment or continuance, or some other remedy," then
granting a mistrial would constitute an abuse of discretion.
Ibid.
Depending upon the facts of the case, late discovery may form
the basis for grant of a continuance or a mistrial.
Late discovery can cause unfair surprise and
raise due process concerns. When a party
fails to comply with its obligations, the
discovery rule expressly states that the court
may "grant a continuance or delay during
trial" or "enter such other order as it deems
appropriate." A court's failure to take
appropriate action to remedy a discovery
violation can implicate the defendant's right
to a fair trial.
[Id. at 48 (citations omitted).]
Here, because there was no basis for concluding that C.L.
ever saw the photos on W.K.'s cellphone, the court did not err in
concluding they were irrelevant under N.J.R.E. 401 and not
64 A-5783-13T1
exculpatory of defendant. Moreover, the photos did not depict the
sexual acts C.L. alleged defendant committed during her interview
with Taylor. Thus, there was nothing tying the photos on M.L.'s
cellphone to C.L.'s disclosures of sexual abuse. See N.J.R.E. 401
("'Relevant evidence' means evidence having a tendency in reason
to prove or disprove any fact of consequence to the determination
of the action."); Burr, 195 N.J. at 126-27.
The photos were produced to defendant after C.L. testified.
However, C.L. never mentioned any photos in her pretrial statements
or trial testimony. Had defendant wanted to explore the photos
issue with C.L., he could have requested that she testify at the
N.J.R.E. 104 hearing, but did not do so.
Also contrary to defendant's argument, the photos did not
constitute impeachment evidence with respect to W.K. because they
did not constitute extrinsic evidence relevant to the issue of her
credibility. N.J.R.E. 607; State v. Hockett, 443 N.J. Super. 605,
615-16 (App. Div. 2016). Introduction of the photos would have
served only to distract the jury from the issues presented, that
is, whether defendant committed the criminal acts alleged in the
indictment, by presenting it with salacious details of W.K.'s
consensual, adult sexual relationship with her boyfriend, none of
which was known to C.L. Accordingly, we find no abuse of
discretion in the court's evidentiary ruling, excluding the photos
65 A-5783-13T1
and text messages from W.K.'s cellphone, and thus no plain error
in the court not sua sponte granting a mistrial or a continuance
based upon the State's late production of discovery.
V.
Defendant contends for the first time on appeal in Point IV
that the court erred in failing to instruct the jurors fully and
adequately concerning their avoiding information from outside of
the courtroom and voir dire the jurors upon their returning to the
courtroom for the trial more than one month after the jury had
been selected. This contention lacks merit.
During jury selection in December 2013, prospective jurors
were asked whether they had any knowledge of the case or anyone
involved in the case. The court also admonished prospective jurors
to not discuss the case with anyone and to not do any research
regarding the case. Once the jury was empaneled, the court gave
a more detailed instruction, stating:
It is extremely important that you do not
discuss the case amongst yourselves. You
don't discuss it at home with your families
or friends. Don't go online. Don't use any
Internet sites or . . . do any research of us,
of the defendant, of the attorneys. And,
. . . again, . . . don't go on any online
sites to look for any of us, and particularly
the three of us -- the attorneys and myself
and the defendant, or don't discuss the law
or try to find out what the law is all about
or the facts, anything like that.
66 A-5783-13T1
And the reason I say that is obvious.
You haven't heard . . . anything yet. But,
also, understand that if there's any outside
influence it will taint this trial completely.
And, . . . unfortunately it's happened
before where we've been through a trial two
or three weeks and somebody -- one of the
members of the jury did some outside research
or researched about . . . information about
one of the parties and that got circulated and
everybody wasted their time and we had to
start all over. Not with that jury, because
that jury had to be discharged. Not happy
because they had to spend time out of their
lives.
So, it is critically important that
. . . your deliberations are based solely on
what happens inside this Courtroom, without
any interference from anybody. And don't
discuss, as I said, the case with family or
friends. You really don't know anything.
What you have are only allegations. You know
nothing else about that.
In time you will hear all the facts.
You'll hear argument of counsel. You'll be
instructed on the law from me and then you
guys can talk amongst yourselves.
Compare with Model Jury Charges (Criminal), "Preliminary
Instructions to the Jury" (May 12, 2014).
Trial reconvened in January 2014. Throughout the trial the
court admonished the jurors to avoid outside information about the
case, including media coverage and independent research or
discussions with other jurors or family members or friends. In
the final charge, the court also instructed the jury that its
67 A-5783-13T1
verdict must be based solely upon the evidence produced at trial.
Here, there is no basis whatsoever to conclude the jury was
tainted by outside influences. We must presume that the jurors
followed the court's instructions to avoid outside sources of
information, State v. Ross, 218 N.J. 130, 152 (2014) because there
is nothing in the record suggesting otherwise. Defendant was
arrested in 2010, and the trial did not occur until 2014.
Defendant produced no evidence this trial received extensive news
coverage or that the jury was tainted by such coverage.
Moreover, the jurors in this case were diligent about their
obligations. In another instance, they advised the court of a
juror's misconduct (prematurely discussing his belief as to
defendant's guilt or innocence), which resulted in that juror
being excused. Therefore, it is reasonable to conclude the jurors
also would have informed the court if it appeared a juror was
tainted by outside information. We find no error, let alone plain
error in the court's failure to sua sponte voir dire the jury
regarding that issue.
VI.
Defendant contends in Point V that the court erred in denying
his motion to sever the sexual assault charges (counts one through
six) from the child pornography and tampering/attempted
destruction of evidence charges (counts seven and eight). Before
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trial, he moved to sever counts seven and eight from the rest of
the indictment. In a written opinion, the court denied the motion,
stating:
In this case, the Cofield[11] factors weigh
in favor of the State such that the child
pornography and destruction of evidence
charges should not be severed from the sexual
assault charges.
Defendant argues that the sexual assault
charges have nothing in common, either in fact
or by way of proof, with the child pornography
and destruction of evidence charges. The
court disagrees, as these allegations are
intertwined and there is a sufficient nexus
to each other to justify joinder. [State v.
Morton, 155 N.J. 383, 451 (1998); State v.
Chenique-Puey, 145 N.J. 334 (1996)]. C.L.
stated that defendant was "texting and
watching TV" while performing the alleged
sexual conduct. The two separate charges are
similar in kind to each other and occurred
within a reasonably close time from each
other. Moreover, the alleged destruction of
evidence demonstrates defendant's state of
mind and intent relative to any charges
pertaining to deviant sexual conduct. While
the evidence of one crime vis a vis the other
crime is prejudicial, such prejudice does not
outweigh its probative value.
The court also agrees with the State's
position that the evidence between the two
allegations of sexual assault and child
pornography/destruction of evidence is
"intrinsic" to each other. As set forth in
[State v. Rose, 206 N.J. 141, 181-82 (2011)
(citing United State v. Green, 617 F.3d 233
(3d Cir. 2010)),] evidence which is
intrinsically intertwined with the other crime
11
State v. Cofield, 127 N.J. 328 (1992).
69 A-5783-13T1
charged, provides a background to the events,
or "completes the story" is such intrinsic
evidence.
In another pretrial motion, defendant renewed his request for
severance, which the court denied for the reasons previously
stated. During trial, defendant again moved for severance of the
child pornography charges, and the court denied the motion for the
reasons previously stated, also noting C.L.'s trial testimony that
she observed defendant masturbating while watching something on
the laptop computer.
Rule 3:7-6 allows for two or more offenses to be charged
together in the same indictment "if the offenses charged are of
the same or similar character or are based on the same act or
transaction or on 2 or more acts or transactions connected together
or constituting parts of a common scheme or plan." Under Rule
3:15-1 (emphasis added):
(a) Permissible Joinder. The court may order
2 or more indictments . . . tried together if
the offenses . . . could have been joined in
a single indictment or accusation. . . .
(b) Mandatory Joinder. Except as provided
by [Rule] 3:15-2(b), a defendant shall not be
subject to separate trials for multiple
criminal offenses based on the same conduct
or arising from the same episode, if such
offenses are known to the appropriate
prosecuting officer at the time of the
commencement of the first trial and are within
the jurisdiction and venue of a single court.
70 A-5783-13T1
Finally, under Rule 3:15-2(b), if for any "reason it appears that
a defendant or the State is prejudiced by a permissible or
mandatory joinder of offenses . . . in an indictment . . . the
court may order an election or separate trials of counts[.]"
We review a court's ruling on a severance motion for abuse
of discretion. Chenique-Puey, 145 N.J. at 341. In ruling on a
motion to sever, the court should consider the potential harm to
defendant, as well as the need for judicial economy and expediency.
Coruzzi, 189 N.J. Super. at 297-98. The key to determining whether
joinder is prejudicial to a defendant is whether, if the crimes
were tried separately, evidence of the severed offenses would be
admissible under N.J.R.E. 404(b) in trial of the remaining charges.
Chenique-Puey, 145 N.J. at 341. "If the evidence would be
admissible at both trials, then the trial court may consolidate
the charges because 'a defendant will not suffer any more prejudice
in a joint trial than he would in separate trials.'" Ibid.
(quoting Coruzzi, 189 N.J. Super. at 299).
N.J.R.E. 404(b) provides, in pertinent part, that
evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person acted
in conformity therewith. Such evidence may
be admitted for other purposes, such as 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.
71 A-5783-13T1
A four-pronged test is used to determine the admissibility of
evidence under the rule:
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
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 Presumption of Guilt
and Innocence: Rules 404(b), 608(b), and
609(a), 38 Emory L.J. 135, 160 (1989)).]
The second prong of the test is not found in N.J.R.E. 404(b).
Therefore, it "need not receive universal application in Rule
404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007).
"The fourth prong, whether the probative value of the evidence is
outweighed by its apparent prejudice, is generally the most
difficult part of the test." State v. Barden, 195 N.J. 375, 389
(2008).
Under the facts presented, the court did not abuse its
discretion in denying defendant's motions to sever the child
pornography and tampering/attempted destruction of evidence counts
from the sexual assault counts. As the court noted, these crimes
were inextricably intertwined and intrinsic to one another, in
72 A-5783-13T1
that C.L. stated defendant was texting and watching television
while he sexually abused her, suggesting he was using the laptop
computer at the time. C.L. also testified to observing defendant
masturbate while he was watching a movie on the laptop, and
defendant attempted to destroy the child pornography on the laptop
just minutes after M.L. called him from the AHCH, and minutes
before the police arrived at his home to arrest him on the sexual
assault charges. Thus, the court properly denied the severance
motion because there was no way to tell the story of his arrest
for sexual assault without also addressing the child pornography
found in his possession at the time of his arrest, as well as his
attempted destruction of the child pornography. See State v.
Gorthy, 226 N.J. 516, 539 (2016).
Furthermore, performing an analysis under N.J.R.E. 404(b),
the court reasonably concluded that all four prongs of the Cofield
test were established: (1) the child pornography crimes were
relevant to material issues regarding the sexual assaults,
including defendant's intent and state of mind; (2) the child
pornography crimes were similar in kind and reasonably close in
time to the sexual assault offenses in that defendant possessed
the pornography and attempted to destroy it near the time of his
arrest for sexual assault; (3) the evidence of the child
pornography crimes was clear and convincing and supported by expert
73 A-5783-13T1
forensic analysis of defendant's computers; and (4) the probative
value of the evidence did not outweigh its apparent prejudice.
We acknowledge the child pornography evidence was prejudicial
to defendant. R. 3:15-2(b). However, the evidence was not
prejudicial in the sense that N.J.R.E. 404(b) proscribes, i.e.,
that it would focus the jurors' attention on defendant's criminal
character and divert their attention from their duty to consider
only the crimes charged. See, e.g., Williams, 190 N.J. at 132.
To the contrary, as the court found, the evidence of
tampering/attempted destruction of the child pornography was
relevant to defendant's state of mind, i.e., his consciousness of
guilt for the sexual assaults. See id. at 125-34 (recognizing
relevance of post-crime conduct to defendant's consciousness of
guilt, particularly attempts to cover up crime).
As well, the jury could have considered the child pornography
evidence with respect to defendant's motive, intent, and state of
mind with respect to the sexual assault charges, because it
demonstrated his sexual interest in children, which he denied at
trial, and because it contradicted his claim that he would not
have committed the alleged crimes because he would never hurt his
daughter or any child. See Covell, 157 N.J. at 561, 566-71.
Finally, it is significant that in summation, defense counsel
stated the State wanted the jurors "to believe that because there's
74 A-5783-13T1
. . . child porn on there that he must be a child abuser." The
court sustained the State's objection and instructed the jury that
the State did not want the jurors to make any such presumption,
and the law required them to consider each charge separately. In
the main charge, the court also instructed the jurors in greater
detail on their obligation to separately consider each alleged
crime. We conclude there was no abuse of discretion in the court's
denial of defendant's motions to sever.
VII.
Defendant contends in Point VI that the court erred in denying
his motion to dismiss the indictment based upon the State's failure
to present the grand jury with exculpatory evidence, namely,
"C.L.'s repeated statements to investigators and professionals
denying that [defendant] had engaged in any improper conduct."
Defendant made a pretrial motion to dismiss the indictment, but
it does not appear he raised this argument. At most, he argued
"that C.L. gave 'many inconsistent statements' in her statement
concerning the alleged sexual assaults." The court denied the
motion, finding that:
inconsistent statements do not rise to the
level of "clearly exculpatory," to result in
a dismissal of the indictment. Those
statements, if inconsistent, are ripe for
cross-examination at trial and preserve
defendant's Sixth Amendment right of
confrontation. Resolutions of factual
75 A-5783-13T1
disputes are not the province of the grand
jury. [State v. Hogan, 144 N.J. 216, 235
(1996).]
Also as relates to this issue, it is relevant that the grand
jury presentation occurred on March 23, 2011. C.L.'s statement
to Reed was taken a few months earlier, on November 30, 2010.
However, the record does not indicate when the defense provided
that statement to the State. Moreover, C.L.'s alleged recantations
in therapy sessions occurred on July 5 and December 27, 2012,
after the grand jury presentation.
We review motions to dismiss an indictment for abuse of
discretion. Id. at 229. We discern no abuse of discretion here.
The grand jury is "an accusatory and not an adjudicative
body." Id. at 235. Its duty is to determine whether the State
has presented a prima facie case that a crime has been committed,
and the defendant committed it. Id. at 228.
The prosecutor must present to a grand jury any evidence in
its possession that directly negates the defendant's guilt and is
clearly exculpatory. Id. at 236. However, in considering whether
the prosecutor erred in not presenting such evidence, courts must
give "due regard to the prosecutor's own evaluation of whether the
evidence in question is 'clearly exculpatory.'" Id. at 238. Thus,
it is anticipated that "only in the exceptional case will a
prosecutor's failure to present exculpatory evidence to a grand
76 A-5783-13T1
jury constitute grounds for challenging an indictment." Id. at
239.
Recantations by the victim are not viewed as clearly
exculpatory. Id. at 239. Rather, they present questions of
credibility to be resolved by a petit jury. Id. at 239-40. Thus,
even assuming the State was aware of C.L.'s recantations before
presenting evidence to the grand jury, which defendant has not
established, "[t]he recantation did not affect the State's prima
facie case of guilt against defendant, and thus the prosecutor did
not commit misconduct in not revealing the recantation to the
grand jury." Id. at 240. Moreover, the petit jury considered all
of C.L.'s statements at trial, along with her trial testimony, and
determined her recantations were not credible. United States v.
Mechanik, 475 U.S. 66, 70 (1986); State v. Cook, 330 N.J. Super.
395, 411 (App. Div. 2000). Accordingly, we affirm the court's
denial of defendant's motion to dismiss the indictment.
VIII.
Defendant contends in Point VII that the court erred by
denying his motion for judgment of acquittal, or alternatively, a
new trial. He argues the evidence was insufficient to sustain a
guilty verdict on all charges, and alternatively, that the
cumulative trial errors previously discussed deprived him of a
fair trial. Considering defendant's post-trial motions, the court
77 A-5783-13T1
rejected his complaints about various evidentiary rulings, and
concluded that the evidence at trial supported the jury's verdict.
A motion for judgment of acquittal under Rule 3:18-1 should
be granted "if the evidence is insufficient to warrant a
conviction."
[T]he question the trial judge must determine
is whether, viewing the State's evidence in
its entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as well
as all of the favorable inferences which
reasonably could be drawn therefrom, a
reasonable jury could find guilt of the charge
beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
A motion for a new trial may be granted "if required in the
interest of justice." R. 3:20-1. "The trial judge shall not,
however, set aside the verdict of the jury as against the weight
of the evidence unless, having given due regard to the opportunity
of the jury to pass upon the credibility of the witnesses, it
clearly and convincingly appears that there was a manifest denial
of justice under the law." Ibid.; R. 3:20-1; State v. Perez, 177
N.J. 540, 555 (2003). There is no manifest denial of justice if
the jury rationally could have found defendant's guilt beyond a
reasonable doubt. State v. Jackson, 211 N.J. 394, 413-14 (2012).
We agree with the court that since the evidence supported the
jury's verdict on each charge of the indictment, defendant was not
78 A-5783-13T1
entitled to a judgment of acquittal or a new trial based upon the
weight of the evidence. In addition, we find no merit to his
claim that he was deprived of a fair trial due to cumulative error,
State v. Jenewicz, 193 N.J. 440, 473-74 (2008), and affirm the
denial of his post-trial motion for judgment of acquittal or,
alternatively, a new trial.
IX.
Defendant challenges his sentence in Point VIII. He argues
the sentence is draconian and unjust.
In issuing its sentence as to counts one, two, three, and
four, the court found aggravating factors two, N.J.S.A. 2C:44-
1(a)(2) (the gravity and seriousness of harm inflicted on the
victim, including that the victim was particularly vulnerable to
extreme youth), three, N.J.S.A. 2C:44-1(a)(3) (risk of re-
offense), four, N.J.S.A. 2C:44-1(a)(4) (defendant took advantage
of a position of trust or confidence to commit the offense), and
nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter). With respect
to counts five, six, seven, and eight, the court found only
aggravating factors three and nine.
The court found mitigating factors seven, N.J.S.A. 2C:44-
1(b)(7) (defendant has no history of prior delinquency or criminal
activity, noting as well defendant's years of military service),
and eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment
79 A-5783-13T1
would entail excessive hardship to his dependents, albeit self-
imposed). As to all counts, the court found the aggravating
factors outweighed the mitigating factors. Nevertheless, the
court issued only mid- or low-range sentences.
Specifically, as to count one (first-degree aggravated sexual
assault of a victim less than thirteen years old), with a
sentencing range of ten-to-twenty years, N.J.S.A. 2C:43-6(a)(1),
the court sentenced defendant to fifteen years. As to count two
(second-degree sexual assault of a victim less than thirteen years
old), with a sentencing range of five-to-ten years, N.J.S.A. 2C:43-
6(a)(2), the court sentenced defendant to seven years, consecutive
to count one, since it was different in nature.
As to counts three (second-degree sexual assault of a victim
less than thirteen years old), four (second-degree sexual assault
of a victim less than thirteen years old), and five (second-degree
endangering the welfare of a child), the court sentenced defendant
to terms of seven years, concurrent to count two, since the crimes
were similar in nature.
As to count six (third-degree hindering prosecution), with a
sentencing range of three-to-five years, N.J.S.A. 2C:43-6(a)(3),
the court sentenced defendant to a term of three years, consecutive
to count counts one and two, because it was independent of the
sexual assault offenses.
80 A-5783-13T1
As to count seven (fourth-degree endangering the welfare of
a child by possessing child pornography), with a sentencing range
of up to eighteen months, N.J.S.A. 2C:43-6(a)(4), the court
sentenced defendant to a term of one year, consecutive to the
other terms, because it was a completely different offense from
the sexual assault and hindering offenses.
Finally, as to count eight (fourth-degree tampering with
evidence by attempting to delete the child pornography), the court
sentenced defendant to a term of one year, concurrent to count
seven, since the two offenses occurred similar in time and had
similar objectives.
Regarding each of the consecutive terms, the court made
findings consistent with State v. Yarbough, 100 N.J. 627, 633-34
(1985). Finally, the court made findings that Megan's Law, parole
supervision for life, and NERA applied to certain counts. Thus,
the aggregate sentence imposed was twenty-six years, with twenty-
two years subject to NERA.
We review a court's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(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
81 A-5783-13T1
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Ibid. (alteration in original) (quoting State
v. Roth, 95 N.J. 334, 364-65 (1984)).]
We have considered defendant's contention in light of the
record and applicable legal principles and conclude it is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We affirm substantially for the reasons the court
expressed at sentencing. We are satisfied that the court did not
violate the sentencing guidelines and the record amply supports
its findings on aggravating and mitigating factors. The sentence
is clearly reasonable and does not shock our judicial conscience.
Affirmed.
82 A-5783-13T1