Opinion
DOCKET NO. A-4354-12T1
04-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. B.W., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-01-0010. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). PER CURIAM
Tried to a jury, defendant B.W. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After initially sentencing defendant to an extended term of life imprisonment with a twenty-five-year term of parole ineligibility, the trial judge resentenced defendant to a life term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge deemed the life sentence to be seventy-five years, and calculated the NERA eighty-five percent period of parole ineligibility to be sixty-three years and nine months.
Defendant raises four points for the first time on appeal and challenges his sentence:
POINT I
THE CONVICTION FOR AGGRAVATED SEXUAL ASSAULT MUST BE REVERSED BECAUSE THE COURT INSTRUCTED THE JURY BOTH THAT IT MUST BE UNANIMOUS AND THAT IT NEED NOT BE UNANIMOUS ON AT LEAST ONE FORM OF SEXUAL PENETRATION, AND BECAUSE THE VERDICT SHEET DID NOT ALLOW FOR A UNANIMOUS FINDING ON ANY PARTICULAR FORM OF PENETRATION. (Not Raised Below)
POINT II
THE CONVICTIONS FOR SEXUAL ASSAULT AND ENDANGERING THE WELFARE OF A CHILD MUST BE REVERSED BECAUSE THE COURT INSTRUCTED THE JURY BOTH THAT IT MUST BE UNANIMOUS AND THAT IT NEED NOT BE UNANIMOUS ON AT LEAST ONE QUALIFYING ACT, AND BECAUSE THE VERDICT SHEET DID NOT ALLOW FOR A UNANIMOUS FINDING ON ANY PARTICULAR ACT. (Not Raised Below)
POINT III
TESTIMONY ABOUT THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME SHOULD NOT HAVE BEEN
ADMITTED UNDER N.J.R.E. 702, WHICH ALLOWS FOR EXPERT-OPINION TESTIMONY, BECAUSE IT IS NOT BASED ON RELIABLE SCIENCE. (Not Raised Below)We are not persuaded by any of these arguments and affirm defendant's convictions and sentence.
POINT IV
TESTIMONY ABOUT THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME SHOULD NOT HAVE BEEN ADMITTED UNDER N.J.R.E. 702, WHICH ALLOWS FOR EXPERT-OPINION TESTIMONY, BECAUSE IT WAS NOT NEEDED TO EXPLAIN THE DELAYED DISCLOSURE. (Not Raised Below)
POINT V
THE LIFE TERM, WITH A PAROLE DISQUALIFIER OF MORE THAN 63 YEARS, VIOLATES DOUBLE JEOPARDY AND IS EXCESSIVE.
I.
K.H. (Katie) was born in 1996 to defendant and S.H. (Sharon). Defendant spent the first few years of Katie's life in prison while Sharon cared for her. Defendant began to spend time with Katie when she was seven, and continued to see her until she moved with Sharon to North Carolina at age eleven.
We employ pseudonyms to protect the minor and for ease of reference.
The jury was not told about defendant's incarceration, only that Sharon and defendant broke up.
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When Katie was thirteen, she first told her mother that defendant had sexually assaulted her on several occasions. At the time of trial, Katie was sixteen. She testified that, beginning at age eight, defendant penetrated her vaginally and anally on numerous occasions with his penis, fingers, and tongue. Katie said she did not tell anyone because defendant threatened to harm Sharon if she did.
She described the first attack, which took place at defendant's house after he took her to McDonalds. She fell asleep and awoke to find her pants and panties down to her ankles and defendant lying on top of her. Defendant had inserted his penis into her vagina, and she told him to get off of her. He did not stop and she began to cry. Defendant continued until he "finished." Defendant asked Katie how it felt and she replied, "it hurt." Katie testified that defendant then proceeded to penetrate her anus with his penis.
Katie testified that on another occasion, she was watching television at defendant's house and fell asleep. When she awoke, defendant's penis was in her vagina. When he finished, defendant inserted his penis in her anus. Defendant then repeated the vaginal and anal penetrations while taking pictures of the acts with his cell phone camera. After defendant left the room, Katie tried to delete the pictures, but he returned before she was able to do so.
The State called Dr. Brett Biller, a psychologist who was accepted as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Biller testified that CSAAS was originally identified by a pediatrician, Dr. Roland Summit, in 1983. According to Dr. Biller, Dr. Summit found "a pattern of characteristics [in child sexual abuse victims] that ordinarily are unrelated, [but] together may be indicative of something that has occurred." He identified the five characteristics as secrecy, helplessness, entrapment or accommodation, delayed or disorganized disclosure, and recantation. Dr. Biller confirmed that he observed these characteristics in studying his own child sexual abuse patients.
Dr. Biller described the five categories and explained that CSAAS recognizes that children who are victims of sexual abuse often keep the abuse a secret out of fear; they are often victimized by people they know and trust; they experience helplessness because of the power disparity between victim and abuser; they often do not report the abuse as they feel no one will believe them because they have let it go on for so long; they fear how disclosure will impact others; they may have a "positive regard" for the abuser and not want that person to go to jail; and they are subject to anxiety, fear, and trepidation.
II.
Defendant first argues that the court erred by instructing the jury on the aggravated sexual assault count that it did not have to be unanimous in deciding the form of sexual penetration in order to convict defendant. As defendant did not raise this objection at trial, we review for plain error and reverse only if the error is clearly capable of producing an unjust result. R. 2:10-2.
Defendant was charged in count one with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), "upon [Katie], a child less than 13 years of age, by committing an act or acts of sexual penetration upon [Katie]." Katie testified that defendant penetrated her vaginally and anally with his penis, fingers, and tongue. The judge instructed the jury that
Now, according to the law, sexual penetration includes vaginal intercourse, cunnilingus, or anal penetration between persons. Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.
. . . .
Ladies and gentlemen, I further charge you that in order to find the Defendant guilty, you be unanimous to at least one specific act of sexual penetration.
If you find that the State has proven beyond a reasonable doubt each and every element as I have described them to you or as I have defined them to you, then you must
find the Defendant guilty of the crime of aggravated sexual assault.
The judge then told the jury they would be given a verdict sheet:
Now, ladies and gentlemen, you will see on . . . Count One, aggravated sexual assault, I have given you a description to help you remember it as you deliberate, but certainly you consider all of the definitions and the elements that I have explained to you.
The judge then charged the jury on count two, second-degree sexual assault, N.J.S.A. 2C:14-2(b), and informed them that the indictment charged that defendant "did commit an act of sexual assault by committing an act of sexual contact upon [Katie], a child less than 13 years of age, and [d]efendant being at least four years older than [Katie.]" After defining the elements of this crime, the judge informed the jury that "in order to find the [d]efendant guilty, you must be unanimous as to at least one specific act of sexual assault."
Defendant acknowledges the propriety of these instructions but claims that the judge "steered the jury in the opposite direction, telling them that they need not be unanimous on the specific form of penetration that supplied the basis for the charged offense." In support of this claim, defendant cites the judge's reference to the verdict sheet:
So, it's Count One, aggravated sexual assault, vaginal penetration and/or anal penetration and/or cunnilingus upon [Katie], a child less than 13 years of age, not guilty or guilty.
Now, you will all have the Jury verdict sheets in the room, but I'm going to explain this in more detail when we select the Foreman or the Forelady of the Jury.
As to count one, the verdict sheet provided:
On or about May, 9, 2004, up to and including July 31, 2007, in Paterson, N.J.
Count 1 — Aggravated Sexual Assault — vaginal penetration and/or anal penetration and/or cunnilingus upon [Katie], a child less than 13 years old.
Not Guilty __________
Guilty __________
Defendant argues that the verdict sheet and the judge's reference to it "contradicted" the prior unanimity instructions. We disagree.
The principle of unanimity in criminal trials is deeply ingrained in our jurisprudence. State v. Frisby, 174 N.J. 583, 596 (2002) (citing State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992)). Rule 1:8-9 requires that "[i]n every trial by jury the verdict . . . shall be unanimous in all criminal actions. . . ." Courts should provide "specific unanimity" instructions, which impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict, when there is a specific request for those instructions and there exists a danger of a fragmented verdict. Parker, supra, 124 N.J. at 637.
Although defendant did not request a specific unanimity charge, the trial court gave such a charge when she instructed the jury that "in order to find the [d]efendant guilty, you [must] be unanimous to at least one specific act of sexual penetration." We do not view the verdict sheet, or the judge's passing reference to it, as contradicting this clear instruction. The verdict sheet merely noted that there were three types of sexual penetration, any one of which could support a guilty verdict as to aggravated sexual assault. We are satisfied that the references to the different types of penetration contained in the sheet did not contradict the judge's clear charge that the jury had to be unanimous to at least one specific act of penetration.
Defendant presents the same argument in challenging the jury charges as to the counts charging sexual assault and endangering the welfare of a child. As to the sexual assault, the judge instructed the jury that "in order to find the [d]efendant guilty, you must be unanimous as to at least one specific act of sexual assault." She defined sexual contact as "an intentional touching by . . . the [d]efendant, either directly or through clothing, of [Katie's] or the [d]efendant's intimate parts for the purpose of degrading or humiliating [Katie] or sexually arousing or sexually gratifying the [d]efendant."
The verdict sheet was consistent with the judge's instruction that sexual assault could be proven with an intentional touching for the purpose of degrading or humiliating Katie or to sexually arouse or gratify defendant. We again find no contradiction between the specific unanimity instruction and the verdict sheet.
We reject defendant's similar challenge to the verdict sheet on the endangering count for the same reasons. We note that the judge repeated the specific unanimity instruction for the third time when instructing the jury on the endangering charge. There was no request for more specificity on the verdict sheet and none was required.
Defendant next claims that the admission of Dr. Biller's expert testimony as to CSAAS violated N.J.R.E. 702, as it was not based on reliable science. We disagree.
The use of CSAAS expert testimony is well settled. State v. W.B., 205 N.J. 588, 609 (2011). The Court first accepted this type of evidence over twenty years ago in State v. J.Q. to permit the State to present expert testimony to "explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny that anything occurred." 130 N.J. 554, 579 (1993).
In W.B., the Court reiterated that CSAAS testimony is "designed not to provide certain evidence of guilt or innocence, but rather to insure that all agencies, including the clinician, the offender, the family, and the criminal justice system offer 'the child a right to parity with adults in the struggle for credibility and advocacy.'" W.B., supra, 205 N.J. at 609 (quoting J.Q., supra, 130 N.J. at 571).
After accepting Dr. Biller as an expert in CSAAS, the trial judge provided limiting instructions to the jury:
You may only use the testimony of the expert for the limited purpose as I will explain.
You may not consider Dr. Biller's testimony as offering proof that child sex abuse occurred in this case.
The Child Sexual Abuse Accommodations Syndrome is not a diagnostic device, and cannot determine whether or not abuse occurred.
It relates only to a pattern of behavior of the victim which may be present in some child sexual abuse cases.
You may not consider expert testimony about the Accommodations Syndrome as proving whether abuse occurred or did not occur.
Similarly, you may not consider that this — this testimony as proving in and of itself that [Katie], the alleged victim here, was or was not truthful.
Dr. Biller's testimony may be considered as explaining certain behavior of the alleged — of an alleged victim of child sexual abuse.
As I just stated, this testimony may not be considered as proof that abuse did or did not occur.
The Accommodations Syndrome, if proven, may help explain why a sexually abuse[d] child may delay reporting, and/or recant allegations of abuse, and/or deny that any sexual abuse occurred.
. . . .
This testimony is admitted only to explain that the behavior of the alleged victim was not necessarily inconsistent with sexual abuse.
The weight to be given to the doctor's testimony is entirely up to you.
In addition, Dr. Biller, unprompted, qualified his testimony by noting that CSAAS is not diagnostic in that "it doesn't mean just because we have a helplessness then [the abuse] happened."
Dr. Biller's testimony was particularly helpful to the jury because Katie delayed reporting her father's abuse for several years. As such, his testimony served a "useful forensic function" to explain the delay. State v. P.H., 178 N.J. 378, 395 (2004). We see no error in the admission of Dr. Biller's testimony, let alone plain error.
We also reject defendant's argument that Dr. Biller's testimony should have been excluded pursuant to N.J.R.E. 702 as it was "not needed to explain the delayed disclosure."
N.J.R.E. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Defendant claims that Katie gave a "perfectly understandable reason for her delayed reporting: she said her father threatened to harm her mother if she revealed the abuse." Defendant's counsel challenged this explanation and Katie's credibility during his summation, noting that Katie called defendant after she moved to North Carolina. He then commented, "Now, this is [a] girl who is escaping violent anal rape." Counsel also questioned what prompted Katie to disclose her abuse after moving to North Carolina:
According to her mother, she said she saw a change in [Katie's] behavior after she moved to North Carolina.
. . . .
What took place [during those] two years, we will never know. Even today, we don't know. We have nothing from North Carolina talking about it. No doctors, no therapists, no nobody.
All we can guess is that [Katie] was exposed to something and she holds her father responsible for abandoning her.
Defense counsel's suggestion that Katie was falsely implicating defendant and then asking the jury to speculate as to her reasons for doing this and why there was not a more immediate outcry, is precisely why CSAAS evidence was appropriate here. As the Court held in P.H., CSAAS "helps to dispel preconceived, but not necessarily valid, conceptions jurors may have concerning the likelihood of the child's truthfulness as a result of her delay in having disclosed the abuse or sought help." P.H., supra, 178 N.J. at 395.
We are satisfied that the CSAAS testimony was admitted solely to rebut the natural tendency to question the credibility of a child witness who has been a victim of sexual abuse due to a delay in reporting and that the jury was properly instructed on the limited nature of the CSAAS proofs.
Finally, defendant claims that his sentence violates double jeopardy and is excessive.
Defendant was initially sentenced on March 8, 2013. On the aggravated sexual assault conviction, the court imposed a life sentence with a twenty-five-year parole disqualifier. After defendant filed notice of appeal, the New Jersey State Parole Board notified the court that defendant's sentence should have contained an eighty-five percent NERA parole disqualifier on the life sentence.
On June 11, 2013, the judge notified the Clerk of our court pursuant to Rule 3:21-10(d) that she had scheduled a review of defendant's sentence. After hearing oral argument, the judge resentenced defendant on count one to life imprisonment with an eighty-five percent parole disqualifier pursuant to NERA. Count two merged with count one. On count three, the judge imposed a ten-year sentence to run concurrently.
We reject defendant's claim that the imposition of the corrected sentence subjected him to double jeopardy. The constitutional protection against double jeopardy precludes prosecuting a defendant for the same offense after an acquittal, prosecuting a defendant for the same offense after a conviction, or imposing multiple punishments for the same offense on a defendant. Jones v. Thomas, 491 U.S. 376, 380-81, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322, 331 (1989).
There are two categories of illegal sentences: (1) those that exceed the penalties authorized by statute for a particular offense; and (2) those that are not in accordance with the law, including dispositions that are not authorized by our criminal code. State v. Murray, 162 N.J. 240, 246-47 (2000). Defendant's initial sentence was illegal as it was not subject to NERA, and fits within the latter category. Rule 3:21-10(a) provides that a court may "change a sentence, either on motion or on its own initiative, by order entered within 75 days from the date of the judgment of conviction and not thereafter." Rule 3:21-10(b) provides: "A motion may be filed and an order may be entered at any time . . . correcting a sentence not authorized by law . . . ." We have repeatedly held that a court may correct an illegal sentence at any time, "even though the imposition of a lawful term involves an increase in a defendant's aggregate sentence." State v. Baker, 270 N.J. Super. 55, 76 (App. Div.), aff'd o.b., 138 N.J. 89 (1994); accord State v. Chambers, 377 N.J. Super. 365, 369 (App. Div. 2005); State v. Johnson, 376 N.J. Super. 163, 170 (App. Div.), certif. denied, 183 N.J. 592 (2005).
Defendant relies on our decision in State v. Eigenmann, 280 N.J. Super. 331 (App. Div. 1995), in arguing that the judge was required to preserve the twenty-five year parole disqualifier and adjust the base term of life imprisonment. We find defendant's reliance on Eigenmann for this proposition is misplaced.
In Eigenmann, we reversed the defendant's original sentence as a young adult offender because the judge imposed an indeterminate, twenty-eight-month period of incarceration that was illegal. Id. at 334. On remand, the judge chose not to sentence the defendant as a youthful offender and instead imposed concurrent terms aggregating fifteen years. Id. at 335. Applying double jeopardy principles, we reversed, holding that "once service of the sentence commence[s], the lawful discretionary elements of the sentence . . . [cannot] be made more burdensome." Id. at 348. We observed that the exercise of discretion in initially imposing a youthful-offender sentence was proper and remanded for the "resentencing of defendant as a young adult offender to concurrent indeterminate terms of five years each[.]" Ibid.
Eigenmann has no application to this case. While the judge's initial decision to impose a life sentence was discretionary, she failed to include a period of NERA parole ineligibility that was mandatory. Therefore, any increase in the period of parole ineligibility upon resentencing would not result from a discretionary decision of the judge. Rather, that increase arises solely from the correction of the illegality of the judge's original sentence and does not offend double jeopardy.
We also reject defendant's argument that his sentence is grossly excessive. In her initial sentence, the court found aggravating factors three (the risk that defendant would commit another offense), N.J.S.A. 2C:44-1(a)(3), six, (the extent of defendant's prior criminal record), N.J.S.A. 2C:44-1(a)(6), and nine (the need for deterring the defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors.
On appeal, defendant does not challenge the findings as to the sentencing factors. Rather, he suggests that the twenty-five-year parole disqualifier contained in the original sentence "insured that the public safety was amply protected" and the NERA term was grossly excessive.
Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). If the sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J. 165, 180-81 (2009). We are loath to second-guess a sentence that adheres to the applicable guidelines, and only modify a sentence if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
We are satisfied that the appropriate aggravating factors were identified and applied by the sentencing judge. The sentence imposed does not shock our judicial conscience and we discern no abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION