Opinion
DOCKET NO. A-2795-12T3
01-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-07-0389. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, on the brief). PER CURIAM
Tried before a jury on a four-count indictment, defendant R.S. was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts one and two); second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:13-3a (count four). The judge merged count four into count one, and sentenced defendant on counts one and two to concurrent fifteen-year prison terms, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release. On count three, the judge sentenced defendant to a consecutive five-year term. The judge advised defendant that he was subject to Megan's Law registration and reporting requirements, and parole supervision for life. The judge also assessed appropriate fines and penalties. This appeal followed.
We use initials to protect the identity of the victim.
On appeal, defendant raises the following contentions:
POINT I
THE ADMISSION OF B.R.'S 404(B) TESTIMONY WAS IMPROPER BECAUSE THE UNPROVEN CHARGES WERE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND BECAUSE THE PREJUDICE OF ADMITTING THOSE CHARGES FAR OUTWEIGHED THE PROBATIVE VALUE U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. 1, 10[.]
A. The evidence of the other crime was not relevant to a material issue in dispute[.]
B. The alleged acts were not similar in nature or close in time or similar in nature[.]
C. The evidence was not clear and convincing[.]
D. The prejudice outweighed any probative value[.]
POINT II
[DEFENDANT'S] STATEMENT CONTAINED 404B EVIDENCE THAT WAS IMPROPERLY SUBMITTED TO THE JURY AND DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. 1, 10 (Not Raised Below) [.]
POINT III
THE STATE IMPROPERLY INTRODUCED TESTIMONY AND OTHERWISE DISCUSSED THE VIRGINITY OF THE ACCUSER, THEREBY DENYING [DEFENDANT] A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. 1, 10 (Not Raised Below) [.]
POINT IV
THE COURT DENIED [DEFENDANT] DUE PROCESS AND A FAIR TRIAL BY PREVENTING TRIAL COUNSEL FROM MAKING FAIR COMMENT ON THE EVIDENCE BEFORE THE JURY AND TELLING THE JURY TO IGNORE DEFENSE SUMMATIONS DESIGNED TO EXPLAIN THE REASONS THAT THE ACCUSER RECEIVED A NEW CELL PHONE[.] U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. 1, 10[.]
POINT V
THE COURT VIOLATED [DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING EVIDENCE AS TO THE ALLEGED CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME AND PREVENTING COUNSEL FROM COMMENTING ON THE PROBLEMATIC NATURE OF THE TESTIMONY[.] U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. 1, 10 (Partially Raised Below) [.]
POINT VI
THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND ERRED BY IMPOSING CONSECUTIVE SENTENCES[.]
After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
The State developed the following proofs at trial. Defendant and J.S. married in 2002, and had a "blended family" of eight children, six of whom were still living at home when the incidents involved at trial began. The victim, K.B., is J.S.'s biological child. Because of the family's religious beliefs, J.S. taught the children at home, and defendant only permitted the children to engage in church-related activities outside the home. Defendant also led the family in "daily devotions together[.]" Defendant worked outside the home as a corrections officer.
K.B. testified that, when her mother first married defendant and moved into the home, she did not have a close relationship with defendant. K.B. testified that, in 2009, when she was almost twelve years old, defendant "started giving, like specific attention to just me alone. . . . He, like approached me and said he wanted to make a covenant with me." The child did not know what the term "covenant" meant, so she told defendant no. He then began to punish her by giving her chores and making her stand in the corner. Defendant told K.B. the punishments "could all go away if I just said yes . . . to the covenant, so I said yes." The child now understood that a "covenant" represented "[a] binding agreement."
Defendant explained that, under the covenant, K.B. would have to stand by the computer desk in the living room and watch a clock. He would then touch, lick, and kiss her breasts for one minute. As soon as the minute passed, K.B. could tell defendant to stop. In return for following the covenant, defendant would permit K.B. to attend a "church . . . family fun night" or give her other rewards. Defendant told K.B. that he was asking her to do this because "[h]e said he got urges." Defendant touched K.B.'s breasts in this manner "at least three" times.
K.B. explained that defendant's actions "progress[ed]" when defendant asked if she wanted a cell phone. When she said yes, "he was like, well, if you want a cell phone, then you have to give me a blow job." The child did not know what that term meant, so defendant "showed" her what to do. The first incident occurred in K.B.'s bedroom. Defendant then told K.B. she had to give him "six blow jobs a month to keep [her] cell phone." There were approximately twelve of these incidents. Each time, after defendant ejaculated, he cleaned himself off with a disposable "wipe" or a washcloth, which he would throw in the trash.
When K.B. was thirteen years old, defendant took away her cell phone and "said that the only way I was going to get it back is if I had sex with him." K.B. stated that, the first time, defendant had a condom and put "blankets on the floor" of the basement. He told K.B. "to lay down" and she complied. K.B. testified that defendant then
K.B. understood the term "sex" to mean "vaginal intercourse."
got on top of me and I told him, like, started crying and I asked him to get off and, like to get out and to just leave me alone but he didn't.The child testified that defendant had vaginal intercourse with her "at least five" times "up until" March 8, 2010.
He kept, like, holding me down and then I, like, just started crying and just kind of gave up and then he got off of me and I put on my pants and went back upstairs.
On the morning of March 8, defendant and K.B. had an argument after she did not clean her room. Defendant grabbed her during the argument, twisted her arm, and tried to hit her with a belt. Later that night, defendant went into K.B.'s room and asked her for oral sex. He pushed the frame of a futon against the bedroom door to make sure no one could come in. The child described the incident as follows:
he had two wipe[]s with him, like, to ejaculate in and he shut the door, like cracked it . . . and left the bathroom light on.
. . . .
I gave him a blow job and then he, like, ejaculated onto the wipes but got it on, like, my blanket and my sheets.
He wiped them off with, like, the wipes. Like, wiped it up with the wipes and then he said something like, it's already 11:00 now. Don't stay up too late, and like, moved my bed and walked out the door.
The next morning, K.B. told her mother about the covenant while defendant was at work. The child explained that she did not tell anyone before because defendant told her that she "was going to lose [her] family if [she] told" because he was "the bill payer. He was the one who provided everything so if he left, then [her] family was going to be broken apart . . . and [she] would be the ruiner of [her] family."
J.S. called the State Police, who went to the house and spoke to K.B. and J.S. The troopers collected K.B.'s clothing from the previous night, along with her bed sheet, and some wipes from the trash. The troopers did not take any of defendant's clothing and did not collect any DNA samples from the basement. The troopers did not take K.B. for a medical examination because she stated she did not have vaginal intercourse with defendant the night before.
When defendant arrived home, he sat in his truck outside the house and called J.S. The troopers told her not to answer. One of the troopers approached defendant and he continued to sit in his truck with a "vacant look in his eyes. . . . He never asked anything. He just blank stared." The trooper asked defendant to get out of the truck and he complied. The troopers then transported him to headquarters, where he gave a taped statement, portions of which were played for the jury. Defendant denied K.B.'s allegations. The troopers took a buccal swab from defendant's mouth.
Dr. Margaret Paul, who was qualified to testify "as an expert in the field of forensic serology, specifically bodily fluid analysis[,]" analyzed K.B.'s bed sheet, K.B.'s clothing from March 8, 2010, and the wipe tissues taken from K.B.'s home. Dr. Paul testified that she detected semen on K.B.'s bed sheet, but not on the other items she tested.
Dolores Coniglio, who was qualified "as an expert in the area of forensic DNA[,]" testified that defendant's DNA from his buccal swab matched the seminal fluid found on K.B.'s bed sheet.
The State called Dr. Julie Ann Cohen Lippmann, a licensed psychologist with expertise in child sexual abuse, to testify regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Lippmann described five behavioral patterns associated with victims of child abuse, beginning with secrecy. She indicated that in many cases, children are bribed to remain silent about the abuse. Dr. Lippmann never interviewed K.B., was not familiar with the specific facts of the present case, and did not render an opinion as to what may or may not have happened between defendant and K.B. The trial judge gave the jury an appropriate instruction concerning the CSAAS testimony after Dr. Lippmann testified, and again at the conclusion of the trial.
As our Supreme Court recently reaffirmed, "[t]he use of . . . [CSAAS] expert testimony is well settled." State v. W.B., 205 N.J. 588, 609 (2011). The Court first discussed and accepted this psychological phenomenon over twenty years ago in State v. J.Q., 130 N.J. 554, 579 (1993), 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."
The behavioral patterns are: secrecy, helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and recantation.
Defendant called J.S. to testify. J.S. described defendant as the disciplinarian of the family, who oversaw the money and the children's religious training. J.S. testified she never engaged in sexual intercourse with defendant upstairs or in K.B.'s bedroom. She stated she had sexual intercourse with defendant "the day before he was arrested[.]" On that day, J.S. stated that she did not know what defendant did to "clean himself up[.]" The couple did not use condoms and J.S. stated that defendant would usually clean himself with "a dirty shirt," which he would then place in "[h]is laundry[.]"
J.S. confirmed that defendant purchased a new cell phone for K.B. and her step-sister, C.S. Defendant's attorney asked if "that was part of some kind of Friends and Family" plan, and J.S. replied, "I guess. All I know is, he brought home these high-tech cell phones, [and] I was shocked." After K.B. received the cell phone, J.S. stated that defendant began treating the child differently. If J.S. told defendant that K.B. was misbehaving, he would minimize the child's behavior. J.S. stated that "[t]he way they spoke to each other . . . [t]he arguments just seemed very . . . intimate. More like a husband and wife than a father and a child." She described defendant's argument with K.B. on March 8, 2010 as "intense, unusual" and as "one of the worst fights [she] had ever seen between the two[.]"
J.S. stated that she told the police on the day she called them that she "still loved" defendant. At trial, however, she testified she later filed for divorce on the grounds of "extreme mental cruelty." Defendant's attorney asked J.S. numerous questions about her complaint for divorce and her reasons for filing it.
Defendant called his biological daughter, C.D., who briefly testified that she lived with defendant and J.S. "from mid-2008 to about mid-2009." Defendant then called his employer's payroll manager, who testified that defendant did not work on March 8, 2010, but did work on March 9, 2010.
Defendant called no further witnesses and did not testify on his own behalf.
In rebuttal, the State called defendant's half-sister, B.R. B.R. testified that, in 2003 when she was "around" seventeen years old, she and her mother were living with defendant, J.S., and their children. B.R. stated that defendant made an "arrangement" with her that he would let her drive his car if she sat on his lap as she did so. When she agreed, defendant would "move . . . his [h]ips and . . . penis" underneath her and would "get an erection." This happened more than five times. B.R. testified that defendant told her he would give her the car if the "arrangement" continued.
As will be discussed in greater detail below, "[t]he defense contended that J.S. and K.B. were making false accusations to get [defendant] out of the picture and out of the home." Prior to trial, the judge granted the State's motion to present rebuttal evidence under N.J.R.E. 404(b) and State v. G.V. 162 N.J. 252 (2000), to address defendant's "vendetta defense" and his claim that K.B. was biased against him.
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Defendant tried to "put his hands down" B.R.'s pants "once but [she] stopped him." B.R. testified that, on another occasion, defendant told her she could go to her brother's house if she agreed to give defendant "[a] tongue kiss." Defendant then "hugged" her and "made me kiss him."
B.R. testified that she attempted to "press charges" against defendant, but she subsequently "dropped" them when J.S. made B.R. and her mother leave the home. She stated she still "love[d] my brother" and had no "ax to grind or any ill feelings towards" him. On cross-examination, defense counsel asked B.R. whether she made up the charges because defendant would not let her have a boyfriend. B.R. denied this allegation.
II.
In Point I, defendant argues the trial judge "improperly admitted testimony from [B.R.] that [defendant] had sexually assaulted her years beforehand to refute the defense claims that K.B. was fabricating the charges." We disagree.
A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). This standard governs review of the admissibility of prior bad acts under N.J.R.E. 404(b), which is left to the discretion of the trial court, "'because of its intimate knowledge of the case[.]'" State v. Covell, 157 N.J. 554, 564 (1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).
N.J.R.E. 404(b) provides:
[E]vidence 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.Evidence of other crimes, wrongs or acts, is inadmissible "to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Stevens, 115 N.J. 289, 293 (1989). However, "[t]he Rule expressly permits such evidence to be admitted to prove other facts in issue," including motive and absence of mistake or accident. Ibid.
In State v. Cofield, the Supreme Court enunciated a four-part test for admission of evidence of other crimes or bad acts under N.J.R.E. 404(b):
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).]
With regard to the first prong of the Cofield test, our Supreme Court has held that other-crimes evidence is admissible to counter a claim of bias on the part of the victim of sexual abuse or a witness, such as that arising in the context of the so-called "vendetta defense." G.V., supra, 162 N.J. at 264-65. In G.V., the defendant theorized that the victim of a sexual assault fabricated her story because she wanted revenge on the defendant for abandoning her and her mother. Id. at 263. The testimony of another daughter, who previously was subjected to similar abuse, was offered by the State to prove that the victim's allegations were not fabricated from her bias against the defendant. Id. at 264.
The Court found that this evidence was relevant to a material issue, the bias of the victim against the defendant, but it observed that the issue of bias would not become a material issue until the defendant actually rebutted the victim-witness's testimony at trial. Ibid. As the Supreme Court put it:
If, at the hearing prior to trial under Evidence Rule 104, defendant disclaims the use of the vendetta defense, the State would
have no basis for admitting the evidence. On the other hand, if defendant renews the vendetta defense, it appears to us that the testimony of the older sister is relevant to show that the testimony of [the victim] is not the product of bias.The Court further ruled that, in order to be admissible, the evidence had to meet the remainder of the Cofield test. Id. at 264-65.
[Ibid.]
In State v. P.S., 202 N.J. 232, 257 (2010), the Court reminded trial judges that this type of rebuttal evidence should only be admitted when "the bias of the victim against the defendant was an issue materially in dispute." In that case, the defendant was charged with sexually assaulting his eleven-year-old step-daughter. Id. at 241, 258 n.5. The State filed a motion to admit rebuttal evidence that, six years before, the defendant had sexually assaulted a three-year-old boy while defendant was a resident of a halfway house. Id. at 242. Citing G.V., the trial judge held that the evidence of this prior sexual assault "would be admissible to bolster the credibility of [the victim] and to rebut claims of bias . . . if defense counsel challenged the credibility of [the victim] and her mother by placing their bias in issue." Id. at 242-43.
The Court reversed the defendant's conviction, finding that, unlike in G.V., supra, "which involved two similar sets of accusations by sisters living in the same household," the State did not proffer any "evidence of a common pattern or motive" between the defendant's alleged assault of his eleven-year-old stepdaughter and the completely separate allegations involving an unrelated, three-year-old boy. Id. at 258. Thus, the Court concluded that the latter allegation would not address the defendant's claim of bias and, instead, would merely serve to bolster the step-daughter and her mother's testimony. Id. at 258-59. As the Court stated, "[h]ere, what was proffered was an unrelated sex crime, which was only linked to the bias of the State's witnesses by the notion that if defendant did it before, he likely did it again, thus supporting the credibility of" the victim and her mother. Id. at 259.
Applying these principles, we discern no basis for disturbing the trial judge's evidentiary ruling concerning the admissibility of B.R.'s rebuttal testimony. Here, defendant specifically raised a claim of bias on the part of K.B. and J.S, and asserted they fabricated K.B.'s allegations as a way of getting defendant out of the house. For example, in his opening statement to the jury, defense counsel argued:
I think when you get to the end of this case, you're going to find that this case has a theme and the theme of this case is going to be, blood is thicker than water.
You've got two people who are related in this case biologically; [J.S., K.B.] and they're not biologically related to [defendant] at all, but you're going to find two people that are going to stick together.Defense counsel also questioned K.B. about her bias against defendant during cross-examination and called J.S. as a witness to testify about her motivation for seeking a divorce and what she hoped to gain by obtaining one. Thus, K.B. and her mother's alleged bias against defendant was a material issue in this case.
And why . . . are they sticking together? Because they want to get rid of [defendant]. They want to excise him out of their lives and the best way to excise somebody out of your life, where they have absolutely no impact on anything you do, is to . . . accuse them of a heinous allegation.
Who's going to give credibility to somebody charged with a sex assault? Who's going to give them credibility in a divorce proceeding? Who's going to give them credibility in a case where there's custody issues for children? Who's going to do that.
This was a plan and the evidence and the facts that you're going to hear are going to show you, this was a plan to get rid of him. Anybody can make allegations. Anybody can say this happened to me or that happened there or this happened.
In order to address defendant's claim that K.B. and her mother were biased against defendant because they wanted to get him out of the home, the State proffered B.R.'s testimony. As in G.V., and unlike in P.S., there was a readily discernible pattern between defendant's behavior with K.B. and B.R. P.S., supra, 202 N.J. at 258. In both cases, defendant chose victims who were under his care and related to him. In each incident, defendant made agreements with the child to give them something in return for permitting him to touch them inappropriately. If the children refused to comply, defendant retaliated; in K.B.'s case, by punishing her and taking away her cell phone, and by withholding the use of the car in R.B.'s situation. He also raised the ante in each case, giving the children progressively greater rewards for their continued acquiescence to his sexual demands. He gave K.B. the cell phone after she agreed to give him oral sex, and promised B.R. to give her the car, rather than just let her drive it, when she continued to let him sit on her lap.
Thus, we concur with the trial judge's conclusion that the first prong of the Cofield test was met. Defendant raised a clear claim of bias and the State's rebuttal evidence went directly to that material issue. As in P.S., this evidence also demonstrated defendant's motive and the common pattern of his scheme, both of which are additional, permissible purposes for the use of other-crimes evidence. P.S., supra, 202 N.J. at 255, 258.
We are also satisfied that the judge properly found that the second Cofield prong was met. B.R.'s account of defendant's actions was "similar in kind" to what happened to K.B. Cofield, supra, 127 N.J. at 338. Contrary to defendant's contention, the "arrangement" defendant made with B.R. in 2003 was also "reasonably close in time to the offense[s] charged" involving K.B. in 2009 and 2010. Ibid.
After observing B.R. testify at a N.J.R.E. 104 pre-trial hearing, the judge concluded that she was an "extremely credible witness[.]" Thus, there is ample support in the record for the judge's determination that "[t]he evidence of the other crime [was] clear and convincing." Ibid. Finally, in light of its strong probative value to negate the "vendetta defense" urged by defendant, the probative value of B.R.'s testimony was not outweighed by its apparent prejudice, thereby satisfying the fourth prong. Ibid.
For all these reasons, we reject defendant's claim that the judge abused his discretion in admitting B.R.'s rebuttal testimony.
III.
In Point II, defendant argues for the first time on appeal that, during his interview with the State Police on March 9, 2010, a trooper made a reference to an investigation the Division of Youth and Family Services conducted concerning him and J.S. The trooper stated that K.B. and her step-sister, C.S., "had a bruise from a spanking;" they received from defendant or J.S. after an incident where the children ran away from home and were brought back by the police. Defendant concedes he did not object to this statement at the time the videotape was played to the jury. However, he now argues that the admission of this statement requires that his conviction be reversed.
When a party argues for the first time on appeal that an error occurred during trial, we analyze the argument under a plain error standard. R. 2:10-2. Under that standard of review, we disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011).
We perceive no plain error here. Defendant does not explain how this testimony was prejudicial to him. Indeed, at trial, he referred to the children running away as evidence that K.B. might be biased against him. The brief reference on the videotape was fleeting and not repeated during the trial or the prosecutor's summation. Thus, we reject defendant's contention on this point.
IV.
Defendant argues in Point III, again for the first time on appeal, that the prosecutor improperly asked K.B. whether she was "a virgin when [she] had sex with" defendant. Defendant also complains that, during his summation, the prosecutor told the jury that defendant "took [K.B.'s] virginity."
While we believe the prosecutor's question about K.B.'s prior sexual history was impermissible under the Rape Shield Statute, N.J.S.A. 2C:14-7, we conclude that this error was not "clearly capable of producing an unjust result[.]" R. 2:10-2. Again, defendant did not object to this testimony or to the prosecutor's subsequent reference to it during his summation. "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 57 6 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Moreover, during his own summation, defendant's attorney criticized the State Troopers for not taking K.B. for a medical examination after J.S. called to report K.B.'s allegations. Defense counsel stated, "We asked the officer; take her for an examination? Maybe test virginity, maybe to see if she's got an STD. You know, you might want to look out in that way just in case. No, nothing that proves medically that [K.B.] is in any way a victim." Under these circumstances, we cannot conclude that the prosecutor's brief retort during his summation that defendant "took [K.B.'s] virginity" was so egregious that it warrants a reversal of defendant's conviction. See State v. Smith, 212 N.J. 365, 403-04 (2012) ("an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel"), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
V.
In Point IV, defendant argues that the judge improperly told the jury to disregard his attorney's arguments concerning defendant's cell phone plan. This argument lacks merit.
As previously noted, during her testimony, defense counsel asked J.S. if the phones defendant brought home for K.B. and her step-sister were "part of some kind of Friends and Family" plan. J.S. replied, "I guess. All I know is, he brought home these high-tech cell phones, [and] I was shocked." Defendant did not ask J.S. any additional questions concerning the purchase.
During his summation, defense counsel argued that the State failed to prove that defendant gave K.B. the phone in exchange for her agreeing to his sexual demands. Instead, counsel argued that defendant received the phone through a "family plan" and pursuant to a "two year contract," and had obtained an "upgraded" phone as the result of an "incentive."
At the conclusion of the summation, the judge called the attorneys to sidebar and told them that, contrary to defense counsel's argument, "[t]here is zero proof as to how the cell phones were purchased, meaning what plan, whether they got a deal." Defense counsel replied that he was attempting to explain "the way the world works[,]" but he provided no citation to the record to support the specific arguments he presented to the jury on this topic. The judge therefore instructed the jury to disregard defense counsel's speculation about "what cell phone plan was offered to [defendant], what choices were made on the day the cell phones were purchased [and] whether they could have gotten one phone or another phone. That's just not in evidence . . . ."
Prosecutors and defense attorneys must confine their arguments "to the facts in evidence and the reasonable inferences which may be drawn therefrom." State v. Perry, 65 N.J. 45, 47-48 (1974). As the judge properly found, J.S.'s testimony did not support defense counsel's argument. She did not know whether defendant purchased the phones under a family plan or whether he received any incentives or upgrades. We therefore discern no error in the judge's decision to give the jury a curative instruction on this subject.
VI.
In Point V, defendant argues the judge erred in admitting Dr. Lippmann's testimony about the CSAAS theory. Defendant does not contend that the judge failed to follow any of the procedural requirements for the admission of this testimony, or that Dr. Lippmann strayed from the limitations placed on experts in this field. W.B., supra, 205 N.J. at 609-11.
Instead, for the first time on appeal, defendant raises a host of scientific and policy arguments as to why CSAAS expert testimony should no longer be deemed admissible in criminal prosecutions in our State. Defendant argues that, in light of subsequent research, the scientific underpinnings of the theory are no longer valid. Defendant also identifies several other states that have precluded or disfavored CSAAS expert testimony, and urges that New Jersey courts follow this approach. Defendant contends that, despite his lack of an objection to Dr. Lippmann's testimony by his trial counsel, he was deprived of due process and a fair trial by the admission of that expert testimony.
We decline to entertain defendant's newly minted arguments for several reasons. First and foremost, our institutional role as an intermediate appellate court is a limited one. We are bound to follow the precedents of the United States Supreme Court and the Supreme Court of New Jersey, regardless of a party's contention that those precedents may be outmoded. See, e.g., State v. Carrero, 428 N.J. Super. 495, 511 (App. Div. 2012) (declining a defendant's request that we reconsider the Supreme Court's holding on the admissibility of Alcotest results). Thus, we continue to follow the Supreme Court's direction on the admissibility of CSAAS evidence. W.B., supra, 205 N.J. at 609.
Second, because defense counsel did not object at trial to Dr. Lippmann's expert testimony, the present record is woefully inadequate to evaluate the scientific basis, if any, of defendant's current contentions. There was no evidentiary hearing requested or conducted under N.J.R.E. 104 concerning the admissibility of the CSAAS testimony. Therefore, there is no evidentiary basis for defendant's arguments on this point.
Finally, we are satisfied that Dr. Lippmann's testimony in this case did not transgress the boundaries set forth in the governing case law. From our reading of the transcript, we discern no impropriety in Dr. Lippmann's opinions or explanations. She explained the well-known aspects of CSAAS that have been previously identified in literature and New Jersey case law, and she appropriately cautioned that CSAAS is not to be used as a predictor or diagnostic tool. Dr. Lippmann couched her opinions in general terms, and did not offer any views about whether K.B., whom she never examined, had exhibited the characteristics of CSAAS. The judge carefully instructed the jury, immediately after Dr. Lippmann testified and again at the end of the trial, on the proper use of the CSAAS testimony. Therefore, the judge did not err in permitting Dr. Lippmann's testimony.
Defendant also argues that the judge improperly told the jury to disregard his attorney's argument that other states now precluded testimony about CSAAS. We disagree.
During his summation, defense counsel argued that the jury should give the CSAAS testimony little, if any, weight. Counsel also argued that Dr. Lippmann admitted that "[s]ome states don't recognize" the CSAAS theory. At the sidebar the judge conducted following defense counsel's summation, the judge explained that, although other states might not recognize the CSAAS theory, the jury needed to be instructed that, under the decisions of our Supreme Court, the CSAAS testimony was admissible and should be considered for whatever weight it was due. The judge then instructed the jury as follows on this point:
[T]he Child Sexual Assault Accommodation Syndrome, and I'll get into this more in my charge on the law. And I'm not suggesting that you should accept or reject any of the testimony of any of the witnesses. That's your responsibility.
But you cannot disregard the testimony with regards to [CSAAS] because some other states may not . . . recognize it. In New Jersey, the New Jersey Supreme Court has recognized it.
That's the law of the State of New Jersey, so you can't reject it just because another state might have rejected it. You have to analyze it, but when you analyze it, you may accept it or you may reject it. That's up to you.
We reject defendant's contention that this curative instruction prejudiced him in any way. The judge correctly stated the law and emphasized that, while the CSAAS testimony was properly permitted under New Jersey law, the jurors could accept or reject the testimony as they saw fit. The judge followed up by more thoroughly instructing the jury on this point in his final charge at the conclusion of the summations. Therefore, defendant's argument lacks merit.
VII.
Finally, in Point VI, defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 19-20) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 20; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code. The application of the factors to the law, including the imposition of consecutive sentences, do not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, (slip op. at 20); O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION