On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-07-0667-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically October 25, 2007
Before Judges Lintner, Parrillo and Graves.
Following a jury trial, defendant James Rufflin was found guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b) and (c) (counts one and two); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) and 14-2(b) (counts three and four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count five). He was sentenced to fifteen years imprisonment with an eighty-five percent parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2 (the No Early Release Act) (NERA) for first-degree aggravated sexual assault (count one); to a consecutive term of seven years imprisonment with eighty-five percent NERA parole ineligibility period for second-degree sexual assault (count four); and to a concurrent term of seven years imprisonment for second-degree endangering the welfare of a child (count five). Counts two and three merged into count one for sentencing purposes. Fees and penalties were also imposed. Defendant appeals. Except for vacating the NERA penalty imposed on count four and remanding for resentencing as to that count, for the imposition of certain additional penalties on all counts, and for a statement of reasons for the $1000 fine, we affirm the judgment of conviction in all other respects.
According to the State's proofs, defendant was the Minister of Music and Choir Director at the Metropolitan Baptist Church in Scotch Plains, where M.H. and her five grandchildren, including T.H., attended. T.H., who was born on January 10, 1989, and his sister, A.H., both sang in the choir. T.H. did not have a father figure in his household, and had been raised by his grandmother, who was also his legal guardian, since he was four years old.
T.H. was eleven years old when he first came to defendant's attention. Defendant had called the church pastor to ask permission to be a "godfather" or "role model" for T.H. After the pastor conveyed his approval to M.H., she received a call from defendant, who confirmed that he wanted to act as mentor and role model for T.H., and take him to visit the schools that defendant had attended. M.H., believing defendant to be a "nice, caring guy" and a good role model for the child, agreed to this arrangement.
Although hesitant at first because defendant seemed to him "kind of gayish," T.H. grew to like being with defendant, to trust him, and to consider him a father figure. In time, defendant began taking T.H. out to dinner "mostly every Sunday after church," buying him clothes, and lavishing presents upon him. Indeed, T.H. and his family started referring to defendant by the nickname, "Professor Rufflin."
Defendant's sexual abuse of T.H. began sometime between the summer and fall of 2001, when T.H. was close to turning thirteen. The first incident occurred at defendant's apartment in Newark. When they were about to leave, defendant began touching T.H. and rubbing the boy's chest up and down with his hand. He then rubbed T.H.'s penis from outside his clothing, grabbed his buttocks, and gave T.H. a "tongue kiss." The whole incident lasted about five to ten minutes. Once they got into the car, defendant again rubbed T.H.'s chest, put his hands on the boy's pants, played with his penis and kissed him, before driving him home. T.H. did not tell anyone about the incident because he was embarrassed and scared of "break[ing] us up."
After this incident, T.H. accompanied defendant on overnight stays at a hotel in the Princeton area, with M.H.'s permission, where defendant continued to sexually assault his victim. During the first hotel stay, from February 8 through February 10, 2002, when T.H. was thirteen years old, defendant performed fellatio upon the boy the first night and attempted to anally penetrate him. When T.H. told him to stop because it hurt, defendant continued his sexual assault until he ejaculated. The abuse continued the next night when defendant licked T.H.'s anus. The next hotel stay occurred the following month, from March 28 to March 31, 2002, when defendant once again sexually assaulted T.H. by fellating the boy and inserting his fingers and penis in T.H.'s anus.
From March 1, 2002 to February 28, 2003, defendant leased an apartment in Plainfield where T.H. spent most weekends from June to August 2002, again with the permission of the grandmother, who trusted defendant, "[be]cause he was an adult," "to take care of" T.H. While at the Plainfield residence, defendant sexually assaulted T.H. by performing acts of fellatio and anal penile and oral penetration upon the boy similar to those perpetrated during the hotel stays. In addition, defendant made T.H. fellate him once or twice while at the apartment. Defendant warned T.H. on these occasions "not to tell anybody on us, you better not tell nobody or else you'll be sorry."
Indeed, T.H. kept defendant's sexual abuse secret until about one year after it began, when he revealed it on August 15, 2002, after confronted by his sister, A.H., who overheard T.H.'s sexually explicit conversation on a kids' chat line. At first, T.H. was embarrassed, afraid and confused, denying anything was wrong. When A.H. persisted, by asking pointed questions about defendant, T.H. started crying and then told her about some of the sexual assaults that occurred at defendant's apartment. A.H., herself scared and confused, did not tell her grandmother at first because she loved defendant too and did not want to ruin his reputation. Instead, T.H. spent that night at defendant's apartment where defendant again fellated T.H. and anally penetrated him.
Later that evening, M.H. attempted to reach T.H. by telephone and when no one answered, went to defendant's apartment, accompanied by the police. No one answered the door, nor the telephone, which she kept calling the next morning. When she was finally able to reach defendant on his cell phone, she demanded that he bring T.H. home. When T.H. arrived, M.H., extremely upset and banging on a table, asked what was wrong and T.H. eventually replied that the "Professor [has] been messing with me," which, T.H. further explained, meant that defendant had sexually assaulted him. T.H. was upset, "nervous, shaking and embarrassed" when he revealed defendant's sexual abuse to his grandmother.
When she finally reached defendant by telephone, M.H. was crying and screaming "you better not call my house no more you sick bastard." When she asked him why he had done these things when she had entrusted him with her grandchildren, defendant could only explain that he "loved" T.H., neither denying nor confirming the claims of sexual abuse.
Defendant and his attorney met with police on October 2, 2002, at which time he gave a verbal statement. Defendant gave a formal written statement to police on November 1, 2002, after signing a waiver of Miranda*fn1 rights form, wherein he admitted mentoring T.H., purchasing clothes and school supplies for him, spending the night with him at a hotel and every other weekend at his apartment, but denied committing any sexual abuse of the boy.
T.H. was examined for any sexually transmitted disease on December 6, 2002. At the outset of the examination, T.H. told Dr. Medina that "he had genital to genital contact, oral to genital contact, and hand to genital contact with an adult male." Although Dr. Medina found no abnormalities or physical indications of disease or damage to T.H.'s body, the lack of physical findings was not inconsistent with penile/anal penetration.
Dr. Christine Baker, an expert in child maltreatment and the Child Sexual Abuse Accommodation Syndrome (CSAAS), opined that sexually abused children often delay disclosure of their sexual abuse because they feel responsible for the family dynamics and functioning; and boys who are abused by males are more likely not to disclose and "question whether or not they're manly, whether or not they are gay, or homosexual." Dr. Baker, however, expressly acknowledged that: (1) she did not evaluate T.H.; (2) CSAAS is a syndrome and not a diagnostic tool that can be used to diagnose whether a child has been sexually abused; (3) she was aware of some psychologists who do not believe in the syndrome; and (4) she was not offering an opinion as to whether T.H. was sexually abused.
On appeal, defendant raises the following issues:
I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF COUNTS THREE AND FOUR BECAUSE THE STATE NEVER PROVED THE DEFENDANT'S AGE.
II. THE JURY INSTRUCTIONS REGARDING THE ELEMENTS ON COUNTS ONE, TWO AND FOUR WERE INCORRECT AND INCOMPLETE AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
A. "MENTOR OR GODFATHER" IS NOT A "LEGAL, PROFESSIONAL OR OCCUPATIONAL STATUS" AS THAT TERM IS USED IN THE SEXUAL ASSAULT STATUTE AND, THUS, SHOULD NOT HAVE BEEN INSTRUCTED TO THE JURY AS SUCH.
B. THE TRIAL JUDGE'S REFUSAL TO ANSWER THE JURY'S QUESTION REGARDING THE MEANING OF "IN LOCO PARENTIS" WAS INEXCUSABLE.
C. THE JUDGE FAILED TO ASSIGN A BURDEN OF PROOF TO THE JURY'S DECISION AS TO THE APPLICATION OF NERA TO COUNT FOUR AND THEN DEMEANED THAT ISSUE AS IRRELEVANT NONSENSE WHICH HAD "NO SIGNIFICANCE" WHEN THE JURY ASKED ABOUT IT.
III. THE MODEL JURY INSTRUCTION ON CHILD SEXUAL ABUSE ACCOMODATION 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 VICTIM'S] TESTIMONY IS UNTRUTHFUL BASED ONLY ON HIS DELAYED DISCLOSURE." (Not Raised Below)
IV. THE SENTENCE AND FINE WHICH WERE IMPOSED ARE ...