Opinion
DOCKET NO. A-3476-16T4
12-24-2020
STATE OF NEW JERSEY, Plaintiff-Respondent, v. B.K.K., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Lerer, Assistant Deputy Public Defender, of counsel and on the briefs). Michael J. Williams, Acting Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Rothstadt and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 14-10-0307. Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Lerer, Assistant Deputy Public Defender, of counsel and on the briefs). Michael J. Williams, Acting Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Defendant B.K.K.'s appeal from his March 20, 2017 judgment of conviction returns to us on remand from the Supreme Court. In its order granting defendant's petition for certification and summarily remanding the matter, the Court directed that we reconsider our opinion affirming defendant's conviction, see State v. B.K.K., Docket No. A-3476-16 (App. Div. June 17, 2020), in light of the Court's opinion in State v. G.E.P., 243 N.J. 362 (2020). See State v. B.K.K., 244 N.J. 262 (2020).
In our earlier opinion in B.K.K., we applied our holding in State v. G.E.P., 458 N.J. Super. 436 (App. Div. 2019), that accorded pipeline retroactive applicability to the Court's holding in State v. J.L.G., 234 N.J. 265, 272 (2018). J.L.G., for the most part, barred the admission of expert testimony about the Child Sexual Assault Accommodation Syndrome (CSAAS), but permitted expert testimony regarding a child victim's delayed disclosure. See B.K.K., slip op. at 29 (citing J.L.G, 234 N.J. at 303 and quoting G.E.P., 458 N.J. Super. at 448). We further held in this case that the admission of CSAAS evidence at defendant's trial was erroneous, but the error was harmless in light of the other overwhelming evidence of defendant's guilt. Id. at 31. We did so in the same manner the Court found the other evidence of the defendant's guilt in J.L.G. to be overwhelming, see G.E.P., 458 N.J. Super. at 448-49, but unlike the evidence in the four consolidated appeals that were under review in G.E.P. Id. at 464-65.
The Court described the other evidence in J.L.G. as follows:
The victim testified about a series of escalating acts of sexual abuse. She explained that she used her iPhone to record an encounter during which defendant sexually abused her. The recording corroborated her testimony. Explicit and disturbing language captured on the recording -- in words defendant admits were his own -- graphically confirm the victim's description of an act of sexual abuse by defendant. Law enforcement also monitored phone conversations between the victim and defendant in which he offered her money and other items after asking her to retract her accusations. The jury heard as well from a friend of the victim's mother who once visited the family apartment and found defendant lying on top of the victim, clothed but noticeably erect.
[J .L.G., 234 N.J. at 306.]
In G.E.P., we concluded that the admission of the CSAAS evidence in the four cases under review was not harmless. Ibid. We found in each case, "the State relied almost entirely on the credibility of the victim[, and a]dmission of the CSAAS expert testimony, which severely impaired the defense's ability to test the victim's credibility, [and] was 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
In the Supreme Court's opinion in G.E.P., the Court affirmed that its holding in J.LG. be given pipeline retroactivity. G.E.P., 243 N.J. at 370. The Supreme Court then carefully analyzed the four consolidated cases in G.E.P. and affirmed our vacating the conviction of three of defendants R.P., C.P., and C.K. because
[a]side from the CSAAS evidence presented, these cases were based largely upon the testimony . . . [of the] alleged victims[, and] CSAAS testimony bolstering the alleged victims' testimony was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached."
[Id. at 391-92 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
As to R.P., other than the CSAAS testimony, the State's case relied upon the victim's "testimony; the videos of [her] interviews with investigators describing the abuse; and [her] mother's testimony, which was based on what [the victim] told her." Id. at 392. In C.P.'s case, the other evidence consisted only of the victim's "testimony . . . and witnesses that repeated [her] allegations." Ibid. As to C.K., "[n]one of the evidence directly corroborated the victim's allegations." Ibid.
As to the fourth defendant, G.E.P., the Court reversed our vacating his conviction because it concluded that there was sufficient evidence other than the CSAAS evidence and the victim's testimony to support the defendant's conviction and that "the admission of CSAAS testimony did not deny G.E.P. 'a fair decision on the merits.'" Id. at 390 (quoting State v. Mohammed, 226 N.J. 71, 87 (2016)). That other evidence consisted of "a recorded phone call between [the victim] and G.E.P., and [items similar to what he used in his assault, such as] the straps, clothespins, and other items [that were] seized from G.E.P.'s office." Ibid.
Prior to reconsidering our earlier opinion, we asked the parties to brief the applicability of the Court's opinion in G.E.P. to this case. In response, the State argued that there is no reason for us to disturb our original holding as the evidence presented at trial independent of the CSAAS evidence sufficiently supported defendant's conviction. Defendant argued that "the admission of voluminous CSAAS testimony was not harmless."
With the Court's guidance from G.E.P. in mind, we conclude that upon reconsideration we have no reason to change our earlier affirmance of defendant's conviction. As we detailed in our earlier opinion, defendant's conviction did not turn only on the victims' testimony and the CSAAS evidence. In this case, as described in our earlier opinion, statements made by defendant and his testimony provided additional evidence that the jury could have relied upon. That evidence included his description of how he would massage the victims "all the time" while they watched television, which included rubbing their "tender areas, such as their lower back, hip and thigh." B.K.K., slip op. at 31. In fact, he confirmed that he had massaged one victim's back and thigh on the day her sexual assault was alleged to have occurred.
Also, there was testimony from K.R. that before she was taken to the prosecutor's office, defendant apologized to her and assured her "it [would not] happen again." Ibid. J.R. testified that she saw defendant say something to K.R. while they were at the house before going to the prosecutor's office, but she did not know what he said to K.R. The jury also heard a recorded phone conversation, during which defendant told the victims' mother he loved her, that he "fucked up" and was so sorry, as he "didn't mean to ruin everything[,]" and apologized for ruining their marriage. He also admitted that he knew she was going to hate him and that he "just . . . can't help it." While defendant gave an explanation for these comments that was unrelated to the alleged sexual assaults, the jury was free to disregard the explanations and rely upon them as further evidence of his guilt.
In our earlier opinion, we mistakenly observed that the victim's mother testified about the phone call. B.K.K., slip op. at 9. The recording of the call was played for the jury and they were given a transcript of the call. The mother did not testify to the contents of the conversation. --------
Finally, not only did the two young victims corroborate each other's account of how defendant would carry out his abuse, there was also the rebuttal testimony of B.G., as described in our earlier opinion, who contradicted defendant's assertion that he never abused anyone and undermined his defense that there was no opportunity to sexually assault the two victims because other people were at home. Id. at 31-32. Considering the totality of the evidence, outside of the CSAAS evidence, the evidence adduced at trial was more than enough to sustain defendant's conviction.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION