July 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-11-2733.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2007
Before Judges Weissbard and Graves.
Defendant, D.J.P., appeals from his conviction following a jury trial in September 2005 on five counts of a six-count indictment charging the following offenses: aggravated sexual assault, N.J.S.A. 2C:14-2a(2) (count one); sexual assault, N.J.S.A. 2C:14-2c(4) (count two); endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); criminal sexual contact, N.J.S.A. 2C:14-3b (count five); and endangering the welfare of a child, N.J.S.A. 2C:24-4a (count six). Defendant was acquitted on count four charging aggravated criminal sexual contact, N.J.S.A. 2C:14-3a.
On February 3, 2006, after denying the State's motion to sentence defendant as a persistent offender, the trial judge sentenced defendant to a twenty-year prison term on count one, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Count two was merged with count one. A consecutive ten-year term of imprisonment with five years parole ineligibility was imposed on count three, and another consecutive ten-year term with a five- year parole bar on count six. A concurrent eighteen-month sentence was imposed on count five. As a result, defendant's aggregate sentence was forty years with twenty-seven years of parole ineligibility.
Defendant presents two arguments seeking reversal of his conviction and one argument concerning his sentence, as follows:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO ADEQUATELY DEFINE THE ELEMENT OF "IN LOCO PARENTIS" TO THE JURY. (Not Raised Below)
POINT II: THE MODEL JURY INSTRUCTION ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) UNCONSTITUTIONALLY INTRUDES ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TELLS THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT [THE ALLEGED VICTIMS'] TESTIMONY IS UNTRUTHFUL BASED ONLY ON THEIR SILENCE OR DELAY DISCLOSURE." (Not Raised Below)
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
The following is a brief summary of the facts. B.F. and T.B. worked with defendant at a discount store. B.F.'s son, K.V.O., age fourteen, and T.B.'s son, J.S., also fourteen, would often meet their mothers at the workplace, where they met defendant. Defendant became friendly with the two boys and their mothers. At one point, defendant took K.V.O., T.B., and T.B.'s mother to Atlantic City for the day.
On July 11, 2004, K.V.O. came to the store to celebrate his birthday with his mother. Defendant offered to take him out for the day. He took K.V.O. to breakfast, then to the arcades at nearby Keansburg. When his mother came to pick him up at defendant's apartment, K.V.O. asked if he could sleep over for a few days. The mother agreed and went home.
K.V.O.'s mother took him home on July 13, 2004. He initially made no complaints about his stay with defendant. However, based on a conversation with a co-worker later that day, the mother asked her son if anything had happened. K.V.O. responded that although nothing happened the first night, the second night, defendant touched the boy's penis over his clothing. However, the next night, defendant put his hand under K.V.O.'s pants and manipulated his penis. His mother immediately took him to the authorities. She also spoke with her friend T.B., who then questioned her son, who was at that time staying with his uncle in Chicago.
J.S., who suffered from Attention Deficit Hyperactivity Disorder (ADHD), had a longer relationship with the defendant than did K.V.O. From December 2003 to June 2004, J.S. would spend weekends at defendant's apartment. He told his mother that defendant had begun by touching his penis, then would perform oral sex on him. In return, he would receive gifts from the older man. J.S. stated he never told anyone because he did not want to get in trouble.
At first, J.S. told the police that K.V.O. was also present during these incidents, but later admitted that this was not true. He also admitted that defendant had accused him of stealing money from defendant's apartment.
Linda J. Shaw, M.D., an expert in pediatrics and child abuse, testified that she examined J.S., primarily focusing on his anal and genital areas, on August 19, 2004, and found no "damage or any infection." The doctor was not surprised by the lack of physical findings. Dr. Shaw testified that it was unusual in her practice, and for other practitioners in the field, to find any physical indicia in boys or girls who claim that they were sexually abused.
Mary Fierro, Ph.D., an expert in the field of child sexual abuse, testified that the Child Sexual Abuse Accommodation Syndrome (CSAAS) has five stages: secrecy, helplessness, accommodation, disclosure, and retraction. Dr. Fierro testified, to a reasonable degree of psychological certainty, that: (1) J.S. lied when he claimed that K.V.O. and he were sexually assaulted by defendant at the same time as a way to accommodate the sexual abuse so that the abuse would not feel "as bad if it didn't just happen to [him], it happened to somebody else, or [he] wasn't all alone and that someone was present"; (2) boys have a harder time with sexual abuse than girls because the culture expects males to be able to completely protect themselves and not let sexual abuse happen to them; (3) boys have more difficulty disclosing sexual abuse by another male because the boy will think that he "must be gay" and he was abused because the perpetrator knew he was gay, thus, it was not surprising to her that J.S. did not tell his parents about the abuse; (4) defendant's gifts to J.S. were a way for J.S. to accommodate the sexual abuse so that it did not feel quite as bad to him and served as a way for defendant to manipulate the boy into keeping the abuse a secret; (5) J.S.'s ADHD was relevant in that children with this disorder act impulsively or act without thinking; (6) CSAAS is not a diagnostic tool and cannot diagnose that a child has been sexually abused; (7) a sexual abuse victim need not be a victim of incest or interfamilial abuse for CSAAS to be relevant to explain a victim's behavior; (8) she did not interview J.S. or defendant; (9) there were other hypotheses to explain J.S.'s behavior; (10) she disagreed with the opinion of defense expert, Dr. Elliot Atkins, that CSAAS did not apply where the victim was not abused by "a dad, a step-dad or someone acting in loc[o] parentis as a guardian"; and (11) it was her opinion that CSAAS applied sufficiently to this case because CSAAS is "one of the important and seminal pieces of literature that speaks to what happens to any child that has experienced a child sexual abuse."
Defendant did not testify, but did present two witnesses. Dr. Atkins, who was qualified as an expert in the field of psychology and CSAAS, testified that he agreed with most of what Dr. Fierro wrote in her report regarding J.S., but he did not agree that CSAAS applied to the situation at issue because defendant was not related to J.S. and he was not dependent on defendant for nurturance. Dr. Atkins admitted on cross-examination, however, that: (1) Dr. Fierro provided a lot of helpful information on how children react to sexual abuse and he agreed with her assessments; (2) boys feel powerless and humiliated if they are unable to stop someone from sexually abusing them and that they might react in anger; (3) boys who are sexually abused by male perpetrators may perceive themselves as homosexual which causes boys to delay disclosure; and (4) his only disagreement with Dr. Fierro was whether CSAAS applied to the facts of this case.
The other defense witness, T.L., who was nineteen-years-old at the time of the trial, testified that he considered defendant, whom he had known for years, to be a "good family friend, like an uncle." T.L. would stay with defendant whenever T.L.'s mother would "kick" him out of the house. He had lived with defendant on and off since he was fifteen-years-old. T.L. also stayed at defendant's apartment when T.L. was on home detention and required to wear an ankle bracelet. He claimed he slept on the couch, and that K.V.O. slept on his bed, and defendant slept on his own bed both nights the boy stayed over. T.L. admitted on cross-examination that there were times that defendant was alone with K.V.O. T.L. admitted to three prior criminal convictions, two of which resulted in concurrent five-year prison terms.
Defendant claims that the trial judge failed to adequately instruct the jury on the meaning of "in loco parentis," the critical element that elevates aggravated assault on a minor between thirteen and sixteen years of age from second-degree to first-degree. N.J.S.A. 2C:14-2a(2)(b). In her initial charge, the judge merely stated as follows:
The third element that the State must prove beyond a reasonable doubt is that defendant stands in loco parentis. That is in place of [J.S.]'s parents in the household.
No objection was voiced by defendant's attorney. However, shortly after beginning deliberations on the morning following the charge, the jury specifically asked for a re-charge on the meaning of "in loco parentis." A different judge, covering for the trial judge who had to be absent, provided the following instruction:
Now, during the course of that charge, she had indicated to you the defendant stands in loco parentis. That is, in place of [J.S.'s] parent within the household. That was in regard to Count 1. So, in loco parentis means in place of the parents. And that would be a person that has voluntarily assumed the exercise of parental responsibilities, to assume the role of what a parent would normally do.
There was no objection to that charge either.
At a later point that day, the jury asked if there were "any time frames in reference to loco parentis," as well as the "necessary elements of loco parentis." The covering judge instructed as follows:
As to Count 1 of the indictment, it's alleged by the State that the aggravated sexual assault occurred at some point between December 1st 2003 and June 16th of 2004. So therefore, that element you must find must have occurred during that period of time.
That has to do with [J.S.]. In terms of the Count 4, the aggravated criminal sexual contact, involving [K.V.O.], that particular incident has a time period of July 12th and July 13th of 2004. So you have to look at each and every count, you look separate and apart from every other count.
Now, you further asked, all necessary elements of loco parentis, and if you're talking about -- and I'm not quite sure if, when you're talking about time frames, you're talking about actual dates, and maybe my answer to the second part of this question will help you.
Your second part, again, all necessary elements of loco parentis. And I'll answer that by saying this to you. And again, you have two separate counts, and you have to evaluate those counts separate and apart from each other. You have to look at the facts and apply those facts as you find them to be to the law that applies to each count.
A verdict on one count doesn't necessarily mean you have the same verdict on another count.
When we talk about the necessary elements of loco parentis, a defendant, and the defendant in this case, must have assumed the parental responsibility over the child in Count 1, the child in Count 4, on a regular or continuing basis, during a period of time alleged in the indictment.
His relationship with the child must not be a temporary, brief or occasional relationship, such as a person who would on occasion baby sit minor children. Defendant must have exercised the discipline and supervision that a parent would exercise over the child. This exercise of supervision and discipline must have been done on a regular and continuous basis. The supervision or discipline cannot be casual or fleeting, but must be the type of supervision and discipline and responsibility that a parent would exercise in the supervision of their child.
The following colloquy then occurred between the judge and defense counsel:
[DEFENSE COUNSEL]: Your Honor, the only objection I would have, just to note for the record, is that it may be somewhat confusing in the second part of the statute talks about discipline in supervisory positions, such as a coach and things like that. I understand your explanation to the jury is this is having that supervision, discipline, power that a parent would have. I just think it might be somewhat confusing. That would just be my concern.
THE COURT: Well, you know, I certainly gave counsel an opportunity to supply me something that you would think is not confusing. I don't really think it's confusing. I'm basically telling them that exercise the discipline and supervision that a parent would exercise over a period of time. It can't be casual or fleeting.
[DEFENSE COUNSEL]: Thank you, Your Honor.
Defendant contends that the charge was inadequate. We disagree.
In addressing another section of N.J.S.A. 2C:14-2a, dealing with the elevating element of "supervisory power over the victim by virtue of the actor's legal, professional, or occupational status," we made clear that a recitation of bare statutory language was not sufficient, but that the judge should list for the jury factors to be considered on the question. State v. Buscham, 360 N.J. Super. 346, 362 (App. Div. 2003). Applied to this case, we agree that the initial charge was deficient, providing little, if any, guidance. However, the second instruction was more complete, and the third even more so. See Hardwicke v. Am. Boy Choir, 188 N.J. 69, 91-92 (2006). Indeed, we are dismayed that defendant's appellate counsel fails to even mention, much less discuss, the third instruction. Such an omission is not consistent with counsel's obligations to the court and does not assist our review function.
We conclude that the third instruction provided the jury with appropriate guidance on this critical issue. Contrary to defendant's argument, we believe that the jury, as its questions reflected, clearly understood that it had to find this element. In addition, while arguments of counsel in summation cannot serve as a substitute for proper instructions, they do provide a relevant frame of reference in which to evaluate the sufficiency of a charge. State v. Townsend, 186 N.J. 473, 499 (2006).
Here, both counsel specifically addressed "in loco parentis" in their closing arguments.
The evidence in this case was sufficient to allow the jury to consider the "in loco parentis issue" and we need not resort to "plain error" analysis to conclude that the instructions, taken together, were sufficient. See State v. Labrutto, 114 N.J. 187, 204 (1989).*fn1
For the first time on appeal, defendant argues that the model jury instruction on CSAAS unconstitutionally intrudes on the jury's fact-finding function. The charge as delivered here states in full as follows:
Now, let's talk for a minute about the child sexual abuse accommodation syndrome. The law recognizes that there are stereotypes about sexual assault complainants which may lead some of you to question [K.V.O]'s or [J.S.]'s credibility based solely on the fact that they did not complain about the alleged abuse earlier. You may not automatically conclude that their testimony is untruthful based only on their silence or delay[ed] disclosure.
Rather, you may consider the silence or delayed disclosure along with all the other evidence, including [K.V.O.]'s or [J.S.]'s explanation for his silence or delayed disclosure in deciding how much weight, if any, to afford to each complainant's testimony. You may also consider the expert testimony that explained that silence or delay is one of the many ways in which a child may respond to sexual abuse. Accordingly, your deliberations in this regard should be informed by the testimony presented concerning the child sexual abuse accommodation syndrome. You may recall evidence that [K.V.O.] or [J.S.] either failed to disclose or partially recanted something they said or acted or failed to act in a way addressed by the child sexual abuse accommodation syndrome.
In this respect, Dr. Mary Fierro, a psychologist, testified on behalf of the State. Dr. Elliot Atkins, also a psychologist, testified on the defense's behalf. Both witnesses were qualified as experts. Both were qualified to give opinions about the child sexual abuse accommodation syndrome. You may only consider the testimony of these experts for the limited purpose, and let me explain what that is.
You may not consider Dr. Fierro's testimony as offering proof that child sexual abuse occurred in this case. Remember, they told you, this is not diagnostic. Likewise, you may not consider Dr. Atkins testimony as proof that child sexual abuse did not occur. The child sexual abuse accommodation syndrome is not a diagnostic tool. Cannot determine whether or not abuse took place.
It relates only to a pattern of behavior of the victims which may be present in some child sexual abuse cases.
You may not consider expert testimony about the syndrome as proving whether abuse occurred or did not occur. Similarly, you may not consider that testimony as proving in and of itself that [K.V.O.] or [J.S.], the alleged victims here, were or were not truthful. Dr. Fierro's testimony may be considered as explaining certain behavior of the alleged victims of child sexual abuse. As I stated, that testimony may not be considered as proof that abuse did or did not occur.
Now, remember, the accommodation syndrome, if proven, may help explain why a sexually abused child may delay reporting or recant certain allegations of abuse. To illustrate, take a burglary or theft involving an adult property owner. If the owner did not report the crime for several years, your common sense might tell you that the delay reflected a lack of truthfulness on the part of the property owner. In that case no expert would be offered to explain the conduct of the victim, because that conduct is within the common experience, the common knowledge of most jurors.
Here Dr. Fierro testified that in a child sexual abuse case children delay disclosure, do not make full disclosure, aren't chronological. They may change the details. They may recant certain allegations. This testimony was admitted only to explain that the behavior of the alleged victims were not necessarily inconsistent with sexual abuse. Here Dr. Atkins testified that in sexual abuse matters the child sexual abuse accommodation syndrome should be used in intrafamily child sexual abuse cases and not in a case such as this one.
The weight to be given to Dr. Fierro's or to Dr. Atkins' testimony is entirely up to you.
You may give it great weight or slight weight or any weight in between, or you may in your discretion reject it entirely. You may not consider the expert testimony as in any way proving that [D.J.P.] committed or did not commit any particular act of abuse. Testimony as to the accommodation syndrome is offered only to explain certain behavior in alleged victims of child sexual abuse. [(emphasis supplied).]
Defendant contends that the improper portion of the charge is the single sentence that, "you may not automatically conclude that [the victim's] testimony is untruthful based only on their silence or delayed disclosure." He argues that a jury may always reject testimony for whatever reason it wishes, and the challenged portion of the instruction intrudes on and limits that fundamental power. While most of the CSAAS instruction is couched in permissive terms, telling the jury how it "may" use the evidence, the sentence at issue appears to be mandatory, instructing the jury that it cannot use silence or non-disclosure as a basis on which to reject testimony. In effect, defendant claims, the instruction requires a jury to "filter all of the evidence through CSAAS before it reaches a conclusion of credibility."
Defendant acknowledges that the language in question was specifically suggested by the court in State v. P.H., 178 N.J. 378, 399-400 (2004), language which he characterizes as dicta since it was not essential to the result reached in that case, noting that in P.H. the court referred to a similar suggestion it had made in State v. J.Q., 130 N.J. 554 (1993), as dicta. P.H., supra, 178 N.J. at 393-94.
Defendant's argument has merit. The Court has consistently declared that the jury's exclusive role in assessing witness credibility may not be usurped. State v. Vandeweaghe, 177 N.J. 229, 239 (2003); State v. Crisantos, 102 N.J. 265, 272 (1986). We are not at all sure that the Court fully considered the suggested instruction in light of the argument made here. Nevertheless, the instruction came directly from the Supreme Court and as an intermediate court we are not free to disregard clear language in the Court's opinions, dicta or not. State v. Jordan, 378 N.J. Super. 254, 260 (App. Div. 2005) (quoting State v. Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005)). As a result, we are constrained to reject defendant's argument, which should be addressed to, and hopefully considered by the Court. It is a significant question which will always be of importance in child sex abuse cases and will frequently reoccur since it finds its genesis in a Model Charge.
Because of our disposition we have no need to decide whether the error, if indeed it was error, was sufficiently prejudicial in this case to warrant reversal. We note in that regard, however, the obvious fact that defendant's convictions rest solely on the uncorroborated credibility of the two victims.
Finally, defendant argues that his sentence is excessive, noting, quite correctly, that given his age, it amounts to a life sentence without parole. Specifically, defendant contends that the imposition of consecutive sentences on the endangering charges was unwarranted. We disagree. While harsh, the sentence was fully justified by the judge under State v. Yarbough, 100 N.J. 627 (1985); see also State v. Molina, 168 N.J. 436, 442 (2001); State v. Miller, 108 N.J. 112, 122 (1987). Defendant's extensive prior record, including eighteen years served in prison on a thirty-five year sentence imposed in 1979 for sexual offenses, speaks for itself. The sentence, for the reasons expressed by Judge Chaiet, does not shock our judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).