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State v. L.A.G.


May 8, 2009


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-10-1356.

Per curiam.



Submitted January 5, 2009

Before Judges Reisner and Sapp-Peterson.

Defendant appeals his conviction, following a jury trial, and the fifteen-year aggregate sentence imposed for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). We affirm.

The evidence presented at trial disclosed that defendant's conviction stems from allegations made to teachers and police by R.C., the daughter*fn1 of defendant's paramour, M.S., that he sexually abused her by touching her inappropriately every day, except weekends when M.S. was home, from age nine to almost thirteen. R.C. was born on October 14, 1990 and, in 1991, was adopted by M.S. In 1998, M.S. began a relationship with defendant, and one year later, he moved in with M.S. and R.C., who was eight years old at the time.

When R.C. was twelve years old, she told M.S. for the first time that defendant was molesting her.*fn2 The initial conversation occurred when M.S. was driving R.C. home. R.C. made gestures, which her mother did not understand, in order to indicate that defendant had touched her genitals with his fingers and tongue, and eventually said, "[M]om, I've been molested." M.S. "was stunned" and responded by asking her daughter whether she was sure she knew what she was talking about, to which R.C. replied "yes."

When they arrived home, M.S. confronted defendant about R.C.'s allegations, asking him whether he "touch[ed] [her] daughter in that manner[.]" Defendant denied having done so, to which R.C. responded, "you touched me there[.]" M.S. testified that R.C. "again point[ed] from the belly button down," and defendant then said, "what are you talking about, I never harmed you, how can you say something like that." After R.C. reasserted her allegations and defendant continued to deny them, she began crying, went upstairs, and did not come down until dinnertime. When she returned, they sat down and ate dinner "[l]ike nothing ever happened." M.S. and R.C. testified that the next day, R.C. apologized to her mother and defendant and admitted she had lied.

R.C. did not tell anyone else about the molestation until March 11, 2005. At that time, R.C. was attending high school. On March 11, her gym teacher saw R.C. upset and crying. The teacher asked R.C. if there was a problem and told R.C. that she could come to her if there was a problem. R.C. hesitated initially, but eventually told the teacher that her stepfather was molesting her. The teacher asked R.C. questions and took her to one of the school social workers, who obtained more information from R.C. and directed the teacher to call the Division of Youth and Family Services (DYFS). The teacher then called DYFS and relayed all the information she had gathered from R.C.

One week later, on March 17, a friend of R.C.'s brought her to J.F., a substance awareness coordinator and counselor at the high school R.C. was attending. R.C. told J.F. that she had been sexually abused by her stepfather. J.F. called DYFS, who promised to "send someone." When no one arrived by two o'clock, J.F. called the prosecutor's office because she "was getting nowhere" with DYFS. The next day, J.F. went to the prosecutor's office and filed a report.

The prosecutor's office assigned Detective Matthew Gallup of the Special Victim's Unit as the lead detective in the ensuing investigation. After reviewing the initial referral, Detective Gallup contacted J.F. and interviewed and took the statements of three teachers from the high school. On March 18, the day after the prosecutor's office received the referral, Gallup contacted M.S., who brought R.C. to the office. M.S. and R.C. were placed in separate interview rooms. Gallup first met with R.C., and she advised him that she had been sexually abused by defendant.

With the aid of a secretary, who typed the questions and answers on a laptop computer, Gallup took a formal statement from R.C. in which she laid out the details of defendant's sexual conduct toward her. R.C. told Gallup that she was nine years old the first time defendant touched her inappropriately. She said that after school on that day, defendant forced her legs open, took her pants off, and "put his finger inside me and his tongue[.]" She clarified that defendant put his fingers and tongue both on top of and inside her vagina. When defendant asked her if she liked it, she said no. She also told Gallup that when defendant hugged her from the front or from behind, she could feel his erect penis against her body, and he would also touch her breasts with his hands and mouth.

In her statement, R.C. stated that defendant did "[t]he exact same thing" to her almost every weekday until she reached the age of thirteen. The incidents occurred either during the day when her mother worked or in R.C.'s room while her mother slept. R.C. stated that she told her aunt, defendant's sister-in-law, and her mother when she was twelve years old, but that her mother "didn't believe me" and "thought I was trying to get attention." She stated, "I was telling [M.S.] the truth about my stepfather and what he was doing to me, but since she didn't believe me, I said forget about it." The last time defendant molested R.C., he forced her against the bed in her mother's room and she "tried to kick him in between his legs, but [she] kicked him in the stomach." R.C. told him to stop because he had promised he would, and she threatened to call the police if he did not. She said defendant did not say anything, but simply put his head down, got mad, and went into the living room. R.C. also stated that defendant moved out of the home after she advised him she reported to a teacher that he had molested her. R.C. reviewed her statement with Gallup, made and initialed any changes, and signed it after swearing to its truthfulness.

While Gallup interviewed R.C., his partner, Detective Tim McConnell, interviewed M.S. and took her statement. M.S. confirmed that R.C. had once confided in her, but added that she did not believe R.C.'s allegations. When the interviews ended, Gallup gave M.S. his cellular phone number and advised her to call him if she spoke to defendant or received any information of his whereabouts. The following day, Gallup received a phone call from defendant, who advised him that he was in Puerto Rico and would return in a couple of days.

On March 24, defendant arrived at the prosecutor's office along with M.S. Gallup put defendant in an interview room and obtained the aid of a Spanish translator. He and the translator advised defendant in both languages of his Miranda*fn3 rights, which defendant waived. Defendant then told Gallup that he "made a mistake" with his daughter. Defendant gave a sworn statement in which he admitted to touching R.C.'s vagina under her panties on one occasion when she was nine or ten. Specifically, he stated that he and R.C. were watching T.V. when he told her something, she took off her pants, and he put his hand "[o]n top of her vagina[.]" He denied touching her on any other occasions and denied ever touching her with his mouth or tongue, touching her chest, or ever hugging her with an erection. He stated that R.C. never made contact with his penis in any way. At the conclusion of the interview, defendant reviewed the statement for accuracy, initialed each page, signed it, and swore to its truthfulness. Defendant was taken into custody and advised of the charges against him. The entire interview was videotaped, and the tape was played during the trial.

Several months before trial, M.S. and R.C. went to the prosecutor's office and requested to speak with Detective Gallup about the investigation. M.S. stated to Gallup, "'I don't know why we're here, but she says she wants to talk to you[.]'" Gallup testified that he believed R.C. came to recant her statement at her mother's behest. He separated R.C. and M.S. During the course of his twenty-minute conversation with R.C., she told him that "she was going to come in here and tell me that this didn't happen because she wanted this all to go away."

Gallup testified that, in fact, "[R.C.] stated that she was receiving a lot of pressure at home from her mom and that her mom was having a hard time paying the bills, and she ultimately said and confirmed that the information she gave was the truth."

Several witnesses testified on defendant's behalf, including R.C., M.S., two family members, and defendant himself. On the stand, R.C. recanted her entire story, claiming to have made the whole thing up because "I was angry and I was jealous [of defendant] about my mother[.]" She testified, "Well, I was really upset, because nobody wouldn't [sic] pay attention to me, and I felt lonely." She claimed that defendant never touched her inappropriately and that she lied to her mother, to her teacher and J.F., and to the detectives.

E.L., defendant's niece and R.C.'s fifteen-year-old step-cousin, testified that R.C. admitted lying about defendant in order to get back at her parents for punishing her. A.S., M.S.'s brother and R.C.'s uncle, testified that R.C. told him the same thing: "[S]he said that she had made it up because she was angry at her mom and her dad[.]" According to A.S., after R.C. expressed a desire to "make things right," he encouraged her to "just come clean and just recant her story and tell the truth." Both E.L. and A.S. testified that no one pressured R.C. to change her story. Defendant testified that although he did make a "mistake" by touching R.C.'s vagina on one occasion as described in his statement, he did so with the palm of his hand and so briefly that it was "like a [flash of] lightning."

In addition to her teacher, J.F., and Gallup, the State called Dr. James P. Cassidy and Dr. Julia DeBellis. Dr. Cassidy, a clinical psychologist, was qualified as an expert in the area of Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Cassidy informed the jury that CSAAS arose from a "landmark" article written by Dr. Roland C. Summit in 1983 in the International Journal of Child Abuse and Neglect. See Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177, 179-88 (1983). He explained that CSAAS includes five distinct dynamics: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed or unconvincing disclosure, and (5) retraction or recantation. As to the fourth dynamic, Dr. Cassidy testified that after a long period of secrecy, child victims of sexual abuse generally make disclosure in a gradual, piece-by-piece fashion so as to gauge reaction, which sometimes leaves adults with the impression that their story has changed or that they are not credible. Concerning the fifth dynamic, Dr. Cassidy stated:

Retraction or recantation is fairly common in child sexual abuse cases....... [W]hen a child comes forward and discloses, the child can be possibly removed from the home, maybe a family member gets arrested, [and] the financial consequences on the family are severe. All of a sudden, they're getting medical exams, they're getting interviewed by the police. Their entire world turns upside down.

Many times, if a child doesn't get support from family, what happens is that they'll try to close Pandora's Box, they'll try to take it back. They'll try to say it didn't happen. They will recant. They'll retract their story.

What we know is that this is fairly common. It doesn't happen in every case, but it's fairly common and it does happen that children will say nope, didn't happen, and they usually come up [with] some kind of a bogus reason about why it didn't happen, you know, I was angry or this or I was jealous and the fact of the matter is what we know about sexual abuse allegations is that kids don't make up allegations of child sexual abuse because they're angry[.]...

Dr. Cassidy did not give an opinion as to whether or not R.C. was sexually abused. He never met R.C. and never read any kind of statement or report about the facts of the case. He described his sole purpose for testifying as "just to educate" the jury about CSAAS. Dr. Cassidy reiterated that CSAAS is not a diagnostic but an educational tool. He explained that the purpose of Summit's article was "to just educate people about how children react when they've been sexually abused.... [in order to explain] why they may have retracted their story, why they may say it didn't happen."

During cross-examination, Dr. Cassidy acknowledged that recantations of a child's sexual abuse allegations are not always false "100 percent of the time." He also agreed that there was "no diagnostic or clinical way of knowing whether that [sic] recantation is true or not." On redirect examination, the assistant prosecutor clarified this testimony by asking Dr. Cassidy how he would proceed in treating a child who recanted previous allegations of sexual abuse. Dr. Cassidy responded:

I'll answer that in two parts. What the research says about false allegations of sexual abuse is that they are very few in number and they usually occur in very specific situations, that is anywhere between five and eight percent of the time when the sexual abuse allegations are not true. They usually occur with very young children, between the ages of three and five and generally occur in the context of a high conflict divorce custody relationship[.]


So if we see those dynamics, we will certainly be very mindful of the fact that okay, the child is making an allegation or recanting that we have to keep those factors in mind.

The flip side of that so if anywhere between five to eight percent of allegations are determined to be false allegations, then anywhere between 92 and 95 percent of allegations are true. What we've learned is that kids don't say this if it's not true, and when they do say it and it's not true, they're usually very specific circumstances. [(emphasis added).]

Dr. Julia DeBellis was qualified as an expert in the examination of sexually abused children. She testified that on May 11, 2005, pursuant to a referral from DYFS, she performed a "head-to-toe examination [of R.C.] with a concentration on the genitalia[.]" Her examination neither "confirm[ed] nor den[ied] the possibility of sexual abuse." She found no evidence of damage or trauma and concluded that the examination results were "normal." Dr. DeBellis testified that it was possible penetration occurred, but she "couldn't put a probability on it."

The jury found defendant guilty of first-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of a child. At sentencing, the court found four aggravating factors: "the nature and circumstances of the offense, and the role of the actor therein," N.J.S.A. 2C:44-1(a)(1); "the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonable should have known that the victim was particularly vulnerable," N.J.S.A. 2C:44-1(a)(2); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and "the need to deter defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). The court found one mitigating factor, the fact that defendant had no prior criminal history, N.J.S.A. 2C:44-1(b)(7). At sentencing, the court merged Count Two into Count One and imposed a fifteen-year term on the aggravated sexual assault. The court imposed a concurrent seven-year term on the endangering count. The present appeal followed.

On appeal defendant raises the following points for our consideration:










Defendant argues that Dr. Cassidy's testimony concerning statistical probabilities for truthful versus false recantations amounted to improperly offering an opinion, albeit indirectly, as to the veracity of R.C.'s recantation. We initially observe that no objection was raised to this testimony during the trial. We therefore review defendant's contention under the plain error standard, namely, whether such testimony was "clearly capable of producing an unjust result." R. 2:10-2. In doing so, the question is whether Dr. Cassidy's testimony in this area was sufficiently prejudicial "to raise a reasonable doubt as to whether [such testimony] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

In 1993, our Supreme Court held that expert testimony in the area of CSAAS is permissible in order to "explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny that anything occurred." State v. J.Q., 130 N.J. 554, 579 (1993) (quoting John E.B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 67-68 (1989)). The Court noted that expert CSAAS testimony helps dispel misconceptions jurors may have concerning the likelihood of the child's truthfulness as a result of his/her delayed disclosure or subsequent recantation of sexual abuse allegations. Id. at 580-82; State v. P.H., 178 N.J. 378, 395 (2004). Such testimony may be properly utilized "to explain why a victim's reactions, as demonstrated by the evidence, are not inconsistent with having been molested." P.H., supra, 178 N.J. at 395.

Despite its recognized probative value, CSAAS testimony is not probative of sexual abuse, but instead assumes the presence of abuse and only seeks to explain a child's reaction to it. State v. Michaels, 264 N.J. Super. 579, 598-99 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). "State v. J.Q. makes clear that, while an expert may explain CSAAS and its characteristics, the testimony must be carefully circumscribed to explaining to the jury that secrecy or delay in reporting [or recantation of] sexual abuse may be typical post-sexual abuse behavior and bears no meaningful correlation to the fact of sexual abuse itself." State v. R.B., 183 N.J. 308, 322 (2005) (citing J.Q., supra, 130 N.J. at 579). Consequently, the potential prejudice to a defendant resulting from such testimony requires strong and carefully worded instructions to the jury that explain the limited purpose of such testimony. J.Q., supra, 130 N.J. at 563-64; State v. Schnabel, 196 N.J. 116, 133 (2008). Such testimony will be upheld as long as the expert does not attempt to "connect the dots" between the particular child's behavior and the syndrome or opine whether the particular child was abused. R.B., supra, 183 N.J. at 328.

Applying these principles here, we do not agree that Dr. Cassidy's testimony in terms of percentages of false versus truthful recantations was clearly capable of producing an unjust result. First, on more than one occasion, Dr. Cassidy testified that his function was purely educational, that he knew nothing of the facts of the case, and that CSAAS is not a diagnostic tool but a way of explaining why some children fail to promptly report sexual abuse or later recant. He explicitly stated: "My purpose is not to come in here and to say sexual abuse happened or didn't happen or substantiate something or not substantiate something." Thus, while Dr. Cassidy's testimony may have approached the line of proper CSAAS testimony under J.Q. and its progeny, he did not cross the line by offering an opinion concerning the ultimate issue of defendant's guilt or by trying to "connect the dots" between the five dynamics of CSAAS and the facts of this case. Ibid.

Second, Dr. Cassidy testified about statistical percentages only after defense counsel framed recantations in terms of percentages. During cross-examination, defense counsel asked Dr. Cassidy, "I'm assuming that your testimony isn't such that you would say that 100 percent of the time recantation is not true. Isn't it fair to say that there are times when a child recants and it's absolutely true?" In response, Dr. Cassidy stated, "Absolutely. You're correct." Then, on redirect the following exchange occurred:

Q:... And, Doctor, just one last question and one last area[.] [Y]ou had stated to [defense counsel] that the - - and we're working I guess in double negatives, but I think your answer was 100 percent of recantations are not always false. Is that correct?

A: Uh-huh.

Q: That, in fact, there are some cases where the child takes it back and [that] might be because it didn't happen. Is that correct?

A: That's right.

Q: And do you experience that?

A: Yes.

Q: Okay. Now, in your job, is it necessary to kind of look at the totality of the situation?

A: Absolutely.

Q: Okay. And engaging - - and is it necessary for your work as a clinician into deciding how to approach the treatment?

A: Absolutely.

Q: Okay. So, therefore, in looking at the totality of the case what will you look for - - in looking at if there is a recantation, what will you - - what else will you look to to determine how to continue with your treatment if at all?

A: Could you clarify that question?

Q: Yes.

A: I'm not sure if you're asking about - -

Q: Let's say you were involved in a treatment with a client.

A: Right.

Q: You know the facts of the case through the history that the child provides and whatever discovery that may be available to you at that time. Fair to say?

A: Right.

Q: Okay. Let's say in the course of treatment or sometime prior to treatment there's a recantation. Is that correct?

A: Right.

Q: And your testimony to [defense counsel] was that sometimes those recantations are actually a true recantation and that the sexual abuse never occurred in the first place.

A: Right.

Q: What would you look at in the case to determine how you're going to proceed with that child?

A: Sure. Thanks for repeating[.] I'll answer that in two parts. What the research says about false allegations of sexual abuse is that they are very few in number and they usually occur in very specific situations, that is anywhere between five and eight percent of the time when the sexual abuse allegations are not true. They usually occur with very young children, between the ages of three and five and generally occur in the context of a high conflict divorce custody relationship - -

Q: And I'm sorry to interrupt you, Doctor, but these are - - you're discussing false allegations. Is that correct?

A: Yes.

Q: Thank you. Please continue.

A: Absolutely. So if we see those dynamics, we will certainly be very mindful of the fact that okay, the child is making an allegation or recanting that we have to keep those factors in mind.

The flip side of that so if anywhere between five to eight percent of allegations are determined to be false allegations, then anywhere between 92 and 95 percent of allegations are true. What we've learned is that kids don't say this if it's not true, and when they do say it and it's not true, they're usually very specific circumstances.

And what we will do in terms of trying to validate if a disclosure can be substantiated or not is to look at information like does the child have age-inappropriate sexual knowledge. Does the child know about oral sex and anal sex and sexual devices. Is the child sexually acting out in some way.

Is... that child experiencing specific behavioral problems. Is that child consistent with their disclosure in what they are reporting remains consistent even though it may expand or contract, but is [their] story consistent and do they have facts that only a child who has been sexually abused may know.

Do they have knowledge that only a child who has been sexually abused may know.

Are they describing ejaculate. Are they talking about what pubic hair would feel like if it was in your mouth. Do they have knowledge of sexual activity that a child generally wouldn't have.

It is evident from this exchange that the prosecutor did not attempt to expound on the percentages testimony that emerged unsolicited. Nor, in his summation, did the prosecutor revisit this testimony by Dr. Cassidy. Trial errors induced by defense counsel do not ordinarily constitute grounds for reversal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

Third, in our view, even if the trial court erred in allowing Dr. Cassidy to offer statistical percentages on the veracity of child sexual abuse recantations, in general, the error was harmless. The clear and forceful jury instruction that explained the limited purpose of Dr. Cassidy's testimony comported with the dictates of P.H., supra, 178 N.J. at 399-400, and therefore vitiated any error the court may have made in permitting the percentages testimony:

As I previously advised you, Dr. James Cassidy was offered as an expert in Child Sexual Abuse Accommodation Syndrome. Once again, the legal terminology, an expert witness is a witness who has some special knowledge, skill, experience or training that is not possessed by the ordinary juror and thus may be able to provide assistance to the jury in understanding the evidence presented and determine the facts in this case.

The law recognizes that stereotypes about sexual abuse complaints may lead some of you to question [R.C.]'s credibility based solely on the fact that she did not complain about the alleged abuse earlier.

You may not automatically conclude that her testimony is untruthful based only on her delayed disclosure. Rather, you may consider the delayed disclosure along with all other evidence including [R.C.]'s explanation for her delayed disclosure in deciding how much weight, if any, to afford to complainant's testimony.

You may also consider the expert testimony that explained that 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 [R.C.] failed to disclose or recanted in a way addressed by Child Sexual Abuse Accommodation Syndrome. In this respect, Dr. James Cassidy testified on behalf of the State. Dr. Cassidy was qualified as [an expert] as to the Child Sexual Abuse Accommodation Syndrome. You may only consider the testimony of this expert for a limited purpose, as I will explain.

You may not consider Dr. Cassidy's testimony as offering proof that child sexual abuse occurred in this case. The Child Sexual Abuse Accommodation Syndrome is not a diagnostic device and cannot determine whether or not abuse occurred. It relates only to a pattern of behavior of the victim which may be present in some child sexual abuse cases.

You may not consider the expert testimony about the Accommodation Syndrome as proving whether abuse occurred or did not occur. Similarly, you may not consider the testimony as proving, in and of itself, that [R.C.], the alleged victim here, was or was not truthful.

Dr. Cassidy's testimony may be considered as explaining certain behavior of the alleged victim of child sexual abuse. As I just stated, the testimony may not be considered as proof that abuse did, or did not, occur. The Accommodation Syndrome, if proven, may help explain why a sexually abused child may delay reporting and/or recant allegations of abuse and/or deny that any sexual abuse occurred.

To illustrate, in a burlgary or theft case involving an adult property owner, if the owner did not report the crime for several years, your common sense may tell you that the delay reflected a lack of truthfulness on the part of the owner.

In that case, no expert would be offered to explain the conduct of the victim, because that conduct is within the common experience and knowledge of most jurors.

Here, Dr. Cassidy testified in child sexual abuse matters concerning Child Sexual Abuse Accommodation Syndrome[,] that there are five categories, one being secrecy, two being helplessness, three being entrapment and accommodation, four being unconvincing disclosure, and five, retraction and recantation.

The weight to be given to Dr. Cassidy's testimony is entirely up to you. You may give it great weight, or slight weight, or any weight in between, or you may disregard - - or you may in your discretion reject it entirely.

You may not consider the expert testimony in any way proving that Luis Angel Gonzalez committed, or did not commit, any particular act of abuse. Testimony as to the Accommodation Syndrome is offered only to explain certain behavior of an alleged victim of child sexual abuse.

Finally, there was other strong evidence pointing to defendant's guilt, namely, his confession that he touched R.C.'s vagina, although he claimed this happened on only one occasion. From his confession, the jury could reasonably have found, as it obviously concluded, that the abuse occurred more than once.

The remaining arguments advanced by defendant related to the denial of his motion for a judgment of acquittal on the first-degree aggravated assault charge at the conclusion of the presentation of the State's case and whether the court abused its discretion in imposing a fifteen-year custodial term are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


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