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State v. R.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 3, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
R.R., A/K/A A.H., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 02-11-3938.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2008

Before Judges Coburn and Chambers.

A jury found defendant guilty on three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and two counts of third degree terroristic threats, N.J.S.A. 2C:12-3(a). Defendant received an aggregate prison term of thirty-eight years with nineteen years of parole eligibility. He also received the appropriate fines and penalties and was placed on community supervision for life. On appeal, defendant offers the following arguments:

POINT I

TAKEN TOGETHER, THE CSAAS TESTIMONY OF LITTMAN AND THE PROSECUTOR'S CLOSING REMARK THAT THE JURY HAD THE BEST POSSIBLE EVIDENCE OF CHILD SEXUAL ABUSE IMPROPERLY BOLSTERED THE TESTIMONY OF [C.] AND [J.] BY LOWERING THE BURDEN OF PROOF.

A. Littman Improperly Told the Jurors to Disregard any Uncertainty They Felt about the Complainant's Testimony.

B. The Prosecutor Compounded the Errors in Littman's Testimony by Telling the Jury that No Better Evidence was Usually Available in Child Sexual Abuse Cases than the Evidence Presented in this Case.

C. Conclusion

POINT II

THE TRIAL COURT'S JURY INSTRUCTION ON WHAT CONSTITUTES SEXUAL PENETRATION CONFUSED THE JURY, AND THE RE-CHARGE ON THE ELEMENTS OF AGGRAVATED SEXUAL ASSAULT SIMPLY SERVED TO PERPETUATE THE CONFUSION, THEREBY DEPRIVING THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10. (Not Raised Below).

POINT III

WHEN THE JURY ASKED THE COURT FOR A TRANSCRIPT OF TESTIMONY, THE TRIAL JUDGE OFFERED TO LET THEM WATCH THE VIDEOTAPE OF THE TESTIMONY, BUT ONLY IF THE REQUEST WAS UNANIMOUS, THEREBY DENYING THE DEFENDANT A FAIR TRIAL. (Not Raised Below).

POINT IV

AT SENTENCING, DEFENSE COUNSEL'S LACK OF PREPARATION, IGNORANCE OF THE LAW, AND INABILITY TO ARGUE EFFECTIVELY ON R.R.'S BEHALF, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, CONTRARY TO U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART I, ¶¶ 1, 10.

POINT V

THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF HIS PRISON TERM, R.R. WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO RE-OFFEND. (Not Raised Below).

A. Absence of Findings On Aggravating Factor (1)

B. The Judge Improperly Applied Aggravating Factors N.J.S.A. 2C:44-1a(3) and (9) Because He Did Not Provide Adequate Reasons Why Defendant's Recidivism Risk is High.

C. The Judge Should Have Weighed Mitigating Factor N.J.S.A. 2C:44-1b(8).

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments, with the exception of Point III, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments on all the points.

The victims were two little girls, ages 9 and 10. Defendant lived with them and their mother. From September 2000 through late 2000, defendant subjected the girls to repeated acts of sexual violence, including fellatio, cunnilingus, and anal intercourse. They reported the abuse to their mother in late December 2001, and she called the police. Both children described the abuse to which they had been subjected in painful detail to the police and then again at trial.

Julie Littman, Ph.D., testified for the State as an expert witness on the subject of Child Sexual Abuse Accommodation Syndrome ("CSAAS"), as is permitted by law. State v. R.B., 183 N.J. 308, 322-23 (2005). Her testimony concerned the history and impact of the syndrome and how it relates to delayed reports of sexual abuse. Defendant contends that Littman's testimony exceeded the parameters laid down by our Supreme Court by indicating that it was proof that the sexual acts had occurred. But the record is wholly to the contrary.

Littman repeatedly emphasized to the jury that CSAAS "is not a way of deciding whether a child was abused or not." And she clearly explained that CSAAS "just means that this is among the common ways that kids present themselves and you need to know that in order to evaluate this particular case."

Furthermore, the judge clearly and forcefully charged the jury with respect to the proper use of the CSAAS testimony. Since the testimony was properly confined and since a jury is presumed to have followed the charge, State v. Manley, 54 N.J. 259, 271 (1969), we perceive no basis for disturbing the verdict. Nor did the prosecutor's comment during summation (that the jury had "as much evidence as any child abuse case could possibly have in the secrecy of the home other than a videotape of the actions of the defendant") cause any harm in relation to the CSAAS testimony. Since there was no objection at trial, we may conclude that defense counsel did not perceive the comment as prejudicial. State v. Frost, 158 N.J. 76, 83-84 (1999) (citations omitted). Which is hardly surprising since no prejudice appears to us either.

The charge on aggravated sexual assault, to which there was no objection, essentially tracks the model charge. In the context of this case, we do not perceive the reference to "actual" penetration as causing any confusion since the jury was clearly instructed that cunnilingus and fellatio constitute sexual penetration, as they obviously do.

During deliberations the jury asked for transcripts of the testimony of five witnesses, which included the defendant and the two girls and their mother. The judge instructed the jury as follows:

With regard to the second matter, there are no transcripts. Transcripts take months to prepare. What we do have is we have videotape of each witness testifying.

However, I want you to understand that to play the videotape it takes just as long to play the videotape as it did for each witness to testify.

For example, CS testified for 52 minutes, JS testified are for 30 minutes, AA for 22 minutes. [N.R.] at one hour and 6 minutes, and the defendant, [R.R.], testified for 38 minutes, so I have no problems. We'll do whatever you request. If you wish us to play each one, we can do that for you.

But what I'm going to ask you to do is have you go back and see what you want and you'll let me know and send me a note, but we can play each one of them for you if you desire.

Now, if any of you want it, I will play it. You have to be unanimous whether or not you wish me to play it or not play it. Okay? * * * I'll play whatever you want played for you, okay?

Both counsel expressly consented to the charge. Later on, the jury requested a replay of certain testimony without indicating whether that request was unanimous or not, and the judge complied.

Taken literally, two of the statements quoted above are inconsistent: "Now, if any of you want it, I will play it" and then immediately following, "You have to be unanimous whether or not you wish me to play it or not play it. Okay?" (Emphasis added.) Most likely the judge intended to say that the jury did not have to be unanimous to hear testimony read back. As the Court observed when faced with a somewhat similar problem in State v. Burns, 192 N.J. 312, 343 (2007), "[w]e have no way of determining whether the trial court simply misspoke, or whether there is an error in the transcript." Based on the failure to object and correct charging language appearing elsewhere in the jury charge, the Court concluded that "[t]he failure of either defendant or the State to object to the inappropriate comment in the jury charge influences our view that the jury [properly] understood" the legal principles it was to follow. Ibid. The Court also said this:

We conclude that, viewing the instructions as a whole, and in light of the overwhelming evidence of defendant's guilt, the brief inadvertent error in the instructions does not require a new trial. In short, that error was not of such a nature as to have been clearly capable of producing an unjust result.

[Ibid. (quotation and citations omitted).]

Since the judge repeatedly told the jury that he would play back whatever they wanted, and since he clearly stated that if "any" member of the jury so desired, testimony would be replayed, we do not perceive that error clearly capable of producing an unjust result.

We reject, as well, defendant's arguments respecting the sentences imposed. It was not double-counting for the judge to find aggravating factor N.J.S.A. 2C:44-1(a)(1) because the primary offenses were committed not once, but repeatedly, and thus defendant's conduct went beyond what was required to prove the elements of the crime. State v. Varona, 242 N.J. Super. 474, 492 (App. Div.), certif. denied, 122 N.J. 386 (1990). In any case, given defendant's four indictable convictions, and the adequacy of the judge's findings respecting the aggravating and mitigating factors, we perceive no basis for reversing the sentences imposed.

Affirmed.

20080603

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