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State v. L.A.G.

May 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
L.A.G., DEFENDANT-APPELLANT.



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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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