Opinion
DOCKET NO. A-2671-10T3
05-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANKLIN JACK BURR II, Defendant-Appellant.
Vincent J. Sanzone, Jr., argued the cause for appellant. Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Ashrafi, and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-00726.
Vincent J. Sanzone, Jr., argued the cause for appellant.
Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). PER CURIAM
Defendant Franklin Jack Burr II was charged in a two-count indictment with second-degree aggravated assault, N.J.S.A. 2C:14-2(b) (count one); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). Following defendant's first trial in 2004, he was convicted of second-degree aggravated assault and the lesser-included offense of third-degree endangering the welfare of a minor. On appeal, we reversed and remanded because the trial court erred "in excluding expert testimony regarding defendant's diagnosis of Asperger's Disorder." State v. Burr, 392 N.J. Super. 538, 555 (App. Div. 2007). The Supreme Court granted the State's petition for certification, 192 N.J. 478 (2007), and the Court agreed that defendant was entitled to a new trial. State v. Burr, 195 N.J. 119, 135 (2008).
Asperger's Disorder is "a pervasive developmental [disorder] characterized by severe and enduring impairment in social skills and restrictive and repetitive behaviors and interests, leading to impaired social and occupational functioning but without significant delays in language development." Steadman's Medical Dictionary 568 (28th Ed. 2006).
At defendant's second trial, the jury was unable to reach a verdict on the first count, but defendant was convicted of third-degree endangering the welfare of a child. On August 20, 2010, the court sentenced defendant to a three-year term of imprisonment and community supervision for life. The court also determined defendant was entitled to 1095 days of jail credit. Defendant presents the following arguments on appeal:
POINT IWe have considered each of these arguments in light of the record, the briefs filed, and the applicable law, and conclude that defendant's contentions are without merit.
DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE THE TRIAL COURT'S JURY CHARGE OF ENDANGERING THE WELFARE OF A CHILD WAS ERRONEOUS, CONFUSING AND PREJUDICIAL (NOT RAISED BELOW).
A. THE JURY VERDICT OF ENDANGERING THE WELFARE OF A CHILD CANNOT STAND BECAUSE THERE WAS NO PREDICATE OFFENSE OF SEXUAL ASSAULT.
POINT II
THE JURY CHARGE AS TO THE DEFENDANT'S EXPERT WITNESS [WAS] DEFECTIVE BECAUSE IT FAILED TO GUIDE THE JURY HOW IT WAS TO CONSIDER THE DEFENDANT'S ASPERGER'S DISORDER TESTIMONY (NOT RAISED BELOW).
POINT III
THE TRIAL COURT ERRONEOUSLY ADMITTED EVIDENCE WHEN IT PERMITTED THE STATE TO HAVE [E.E.] TESTIFY AS TO OTHER CRIMES COMMITTED BY THE DEFENDANT.
POINT IV
THE DEFENDANT WAS SUBJECTED TO DOUBLE JEOPARDY WHEN HE WAS TRIED ON THE SAME INDICTMENT BECAUSE A JUDGMENT OF CONVICTION WAS NEVER ENTERED AFTER THE FIRST TRIAL.
The following facts are derived from defendant's second trial. In 2002, A.A. and her brother, B.A., began taking weekly piano lessons from defendant at a facility in Edison. Defendant left that facility in 2003 and began giving lessons at a local community center (the Center). At the Center, defendant and his wife would individually give the children piano lessons and defendant sometimes gave A.A. academic lessons.
Pursuant to N.J.S.A. 2A:82-46, initials have been used to protect the identity of the victims.
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On January 7, 2004, when A.A. was nine-years old, A.A.'s mother, R.T., arrived at the Center earlier than usual to pick up A.A. and B.A. R.T. testified that when she opened the door to the classroom where A.A had her classes with defendant, she observed defendant and A.A. "in a compromised position at a corner right by the teacher's desk." A.A. and defendant "jumped up startled" when R.T. entered the room.
Later, when R.T. asked A.A. "what was going on," A.A. started crying and told her mother she did not want to return to lessons with defendant. A.A. told her mother that defendant made her "sit on his lap," and he touched her "a lot."
A.A. testified at trial that defendant began to touch her before the lessons moved to the Center and the abuse continued at the Center:
[I]f I finished my piano lesson or I was waiting for [B.A] to finish I would be in the classroom and . . . if [defendant] put a problem on the board he would be sitting at his desk and I would be trying to answer the academic problems and sometimes he [would] pull me on his lap to sit on him or if I was sitting at one of the desks he would put another desk right in front of mine and then he would touch my vagina.A.A. later stated that the touching would be over her clothing and occurred every time she had a lesson. But A.A. never told anyone because defendant "made it seem like it was just a joke as if nothing was wrong with what he was doing."
The trial court allowed Dr. Jamila Irons-Johnson to testify as an expert concerning Child Sexual Abuse Accommodation Syndrome. Dr. Irons-Johnson testified that children who suffer sexual abuse may "feel helpless" and the disclosure of the abuse could be delayed "for months or years".
Prior to trial, the court conducted a Rule 104 hearing to determine the admissibility of N.J.R.E. 404(b) evidence concerning defendant's guilty plea to third-degree endangering the welfare of a child. In the prior matter, defendant was charged with improperly touching a student, E.E., and giving her a t-shirt, bra, and underwear as a gift. The trial court determined that the prior crime evidence created a reasonable inference that defendant "had a sexual purpose" and that his behavior towards A.A. "was not accidental or mistaken."
At trial, Sergeant Randy Colatrella from the Middlesex County Prosecutor's Office was permitted to read defendant's testimony when he entered his guilty plea on February 15, 2002:
[Q:] And in the capacity as the guitar teacher did you present her with some type of a gift?
[Defendant:] I made a gift to the child and the mother together.
[Q:] And that gift, can you tell the court what the gift was?
[Defendant:] That dealt with the sale of musical instrument, musical accessories and musical instructive services. I made a series of gifts one of which was a set of clothing.
[Q:] This set of clothes that you gave to this child under twelve was this set of clothing a tank top with a star on it and a bra and panties?
[Defendant:] It was not a tank top. It was a shirt with a star on it and a bra and panties.
[Q:] You don't admit to doing it but if you did touch her it was because the guitar she had [was] a heavy one [and] it would slip down and I guess it would be your left hand would be accidentally touching her?
[Defendant:] Yes.
The court also permitted E.E. to testify at defendant's trial. According to E.E., when she was twelve years old in July 2001, she took three guitar lessons with defendant. E.E. testified:
[A:] There was a bench and we sat in front of the piano and I was holding the guitar and Mr. Jack Burr sat to the right of me. He took his left arm and reached under me, he placed his hand here and then he slowly moved it up.E.E. also testified defendant touched her "inner thigh" and gave her his telephone number and told her if she "wanted to go over any music material or talk about [her] love life" she could call him.
[Q:] To your breast.
[A:] Yes.
[Q:] So you indicated he put his left hand on your stomach and moved it up your left breast.
[A:] Yes.
[Q:] And how long did he keep it there?
[A:] For thirty seconds.
The court provided the jury with the following limiting instruction at the conclusion of E.E.'s testimony and again in the final jury charge:
The State has introduced evidence that Mr. Burr sexually assaulted this young lady and endangered her welfare during the course of guitar lessons that he gave her. She testified that during the course of these guitar lessons that the defendant made inappropriate sexually charged comments to her, touched her breast and inner thighs as well as giving her the bra and underpants as well as the shirt. Normally such evidence like her testimony is inadmissible under our
Rules of Evidence. And the reason it's so is because the rules state that evidence that a person committed a crime on a prior occasion is inadmissible to prove a disposition to commit a crime on a later date. Therefore, you may not take this evidence from E.E. and conclude that Mr. Burr is a bad person and thus has a disposition which shows he's likely to have done the act for which he's being charged with presently or to show a general predisposition of him to commit bad acts. That's not the purpose of allowing this testimony and should not be considered by you as such.
The Rules of Evidence permit such evidence where it relates to some other fact in issue here as motive, including intent, including absence of mistake or accident or some other issue. Here, the evidence was admitted as it may be on the issue of whether the alleged touching of the young lady we heard from the other day was accidental or was it a mistake. Likewise, it may also bear on his motive for allegedly touching [A.A.] to obtain sexual gratification or whether his touching of [A.A.] was intentional.
Now, whether such testimony does in fact bear on any issue that I've talked about is for you to decide. Listen. You may determine from the testimony that it does not bear on those issues and it has no bearing or relationship at all to those issues and if you feel that way you may disregard the testimony as not being helpful to you at all or you may consider such evidence as bearing on one of those issues that I just made reference to. It's for you to decide. Nobody else. Remember that. So what you may not do under the circumstances is consider such evidence as indicative of a general predisposition or disposition on
behalf of Mr. Burr's alleged crimes here. It wasn't introduced for that purpose.
After the State rested, defendant presented the testimony of Issac Shladosky. Shladosky testified he is a licensed psychologist in the state of New Jersey and does "some evaluations and some counseling or psychotherapy of clients." Shladosky examined defendant in 2004, and testified he had never met anyone in his "professional life," who was so bereft of "social intelligence." However, Shladosky also testified defendant was "highly intelligent," and is "[a] man who knows right from wrong."
Defendant also presented testimony from Dr. I. Richard Kleinmann, a psychiatrist, regarding Asperger's Disorder:
[T]here is the variant [of autism] Hans Asperger developed in the 1940s. . . . There was a constellation of children, young teenagers, mostly male, where the physical behaviors were much closer to the norm but that there were profound problems with communication. There were profound problems with understanding how to relate to other people, how to express their minds, how to understand language in the give and take [of] conversation and how to basically interact.Dr. Kleinmann diagnosed defendant with Asperger's disorder in 2004. With regard to defendant's interaction with children, Dr. Kleinmann testified that "having a child sit on the lap or playing the piano or the violin or reading a book would not be seen by a person with Asperger's disorder as inappropriate sexual behavior." However, Dr. Kleinmann acknowledged that defendant knew it would be wrong for an adult to engage in "activities with a child for sexual purposes."
. . . .
The primary problem with Asperger's is not the physical behaviors. They are much less. There may be minor physical gestures like hand movement or twisting a ring on a finger or just doing some of the things that sets them off from other people as being strange
or eccentric or weird. It's the problem, and usually there's no moaning, there's no whistling, the problem is with the social mind. What we call the social mind in psychiatry the ability of a person usually starting at ages seven and eight to kind of figure out what other people want of me and how I can express to them what I want from them. The ability to interpret language in the pragmatic way we're used to [in] language which is not there.
Additionally, defendant presented several witnesses who testified to defendant's good character, and that he was a good music teacher who never engaged in any inappropriate sexual conduct. Alan Cooper, one of the individuals in charge of the Center, testified he "always found [defendant] to be truthful, up front, reliable, dependable. A man of integrity."
On appeal, defendant first argues the "jury charge for endangering the welfare of a child is so patently deficient on its face that it cannot stand constitutional muster." Because defendant did not object at trial, we review the charge for plain error, Rule 1:7-2, which is an error "clearly capable of producing an unjust result." R. 2:10-2. We must evaluate defendant's claim in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)).
As our Supreme Court recently explained:
The verdict sheet, in conjunction with the jury charges, constitutes the trial court's direction to the jury. This Court has repeatedly emphasized the importance of correct jury instructions in criminal cases. Accurate and understandable jury
instructions in criminal cases are essential to a defendant's right to a fair trial. The charge must provide a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find. . . . [A] jury charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.
[State v. Galicia, 210 N.J. 364, 386 (2012) (internal quotation marks and citations omitted).]
Defendant argues the jury charge was "erroneous, confusing and prejudicial," because there is no way to tell whether defendant "was convicted for sexual endangering, which requires community supervision for life (CSL), or child endangering for abuse or neglect which does not require CSL." Defendant specifically objects to the portion of the jury charge read by the court stating, "The second count deals with endangering the welfare of a child. The statute on which this is based reads as follows: Any person who engages in sexual conduct which would impair or debauch the morals of a child or would cause the child harm that would make the child an abused or neglected child is guilty of a crime."
Although the court correctly noted that the statute refers to sexual conduct which would impair or debauch the morals of a child and other conduct that would cause the child to be abused or neglected, it is clear from the State's proofs, and the attorneys' remarks in their opening and closing statements that this case only involved allegations of sexual abuse. Moreover, the court properly instructed the jury that the State was required to prove beyond a reasonable doubt that: (1) defendant "knew or reasonably should have known [A.A.] was under the age of sixteen" at the time of the offense; (2) defendant "knowingly engaged in sexual conduct"; and (3) defendant "engaged in the sexual conduct knowing that it would impair or debauch the morals of the child." In addition, the jury verdict sheet specifically stated, under the heading "Endangering the Welfare of a Child":
How do you find as to the charge that the Defendant, Franklin Jack Burr II, on various and diverse dates between November 1, 2002 and January 7, 2004, in the Township ofUnder these circumstances, we are satisfied that there was no error, much less plain error, in the jury charge for endangering the welfare of a child.
Edison, born December 31, 1994, knowingly did engage in sexual conduct which would impair or debauch the morals of [A.A.].
In his next point, defendant argues the court's instruction on expert testimony "constituted plain error." Defendant claims the court erred by failing to explain to the jury that Dr. Kleinmann's testimony was offered to show that defendant's "ability to make certain social judgments [was] impaired." We do not agree.
The trial court instructed the jury on the use of expert testimony when Dr. Kleinmann testified and again during the general jury charge. On both occasions, the instruction substantially mirrored the Model Jury Charge for expert witnesses. Model Jury Charge (Criminal), "Expert Testimony" (2003). Thus, the jury was adequately and properly instructed on the use of expert testimony, and no additional instruction was necessary.
In his third point, defendant argues the trial court erroneously admitted the evidence of other crimes, in violation of N.J.R.E. 404(b), which states:
Other crimes, wrongs, or acts. Except as otherwise provided by Rule 608(b) 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.
A trial court's determination to admit evidence of other crimes is "'reviewed under an abuse of discretion standard.'" State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). The determination will only be overturned if it was "so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).
In determining the admissibility of other-crimes evidence, a trial court must apply a four-prong test:
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.
[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
Here, the trial court found the State satisfied the Cofield test because: (1) the evidence was relevant to rebut the defendant's claim that any touching "was accidental or mistaken"; (2) the prior crime was "strikingly similar" to the offense charged; (3) E.E.'s testimony regarding the prior crime was "clear and convincing"; and (4) the "probative value" of the prior conviction outweighed "any apparent prejudice."
Defendant argues the trial court erred because "the evidence was more prejudicial than probative." The Court has recognized that the fourth prong is "'the most difficult part of the test' . . . [d]ue to the inherently prejudicial nature of other-crimes evidence." State v. Gillispie, 208 N.J. 59, 89 (2011) (quoting State v. Barden, 195 N.J. 375, 389 (2008)).
In this case, the trial court found that E.E.'s testimony was "highly probative." The court also concluded that "any potential prejudice" could be cured with a limiting instruction immediately following the conclusion of E.E.'s testimony and again during the general jury charge. As previously noted, the court provided the jury with a specific and thorough limiting instruction, and the record fully supports the trial court's findings and conclusions. We agree that E.E.'s testimony was admissible to establish defendant's motive, intent, and absence of mistake.
Lastly, defendant argues a "judgment of conviction was never entered after the first trial" and, therefore, "double jeopardy occurred when the second trial took place." This argument is without sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION