July 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
BIGVAL VOLCY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-12-4024.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Espinosa.
In a thirty-one count indictment, defendant Bigval Volcy was charged with fifteen counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one, three, five, seven, nine, eleven, thirteen, fifteen, seventeen, nineteen, twenty-one, twenty-four, twenty-six, twenty-eight, and thirty); five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts fourteen, eighteen, twenty-two, twenty-seven, and thirty-one); ten counts of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a) (counts two, four, six, eight, ten, twelve, sixteen, twenty, twenty-five, and twenty-nine); and one count of making terroristic threats, N.J.S.A. 2C:12-3 (count twenty-three). The charges alleged that defendant sexually abused his two cousins, Molly and Sandra,  over a seven-year period from November 1995 through June 2002.
Defendant's trial took place in July 2009. At the close of the State's case, the court dismissed count twenty-three (making terroristic threats). The jury acquitted defendant of counts one through eighteen, but convicted him of counts nineteen through twenty-two and twenty-four through thirty-one.
On January 21, 2010, the court sentenced defendant to concurrent fifteen-year terms of imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, for six counts of first-degree aggravated sexual assault. The court imposed concurrent seven- year terms of imprisonment for three counts of second-degree sexual assault and three counts of second-degree endangering the welfare of a minor. The court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7-2, and sentenced defendant to parole supervision for life, N.J.S.A. 2C:43-6.4.
Defendant presents the following arguments on appeal:
THE [CHILD SEXUAL ABUSE ACCOMODATION] EXPERT'S TESTIMONY EXCEEDED THE BOUNDS ESTABLISHED BY THE SUPREME COURT IN STATE v. W.B., [205 N.J. 588 (2011)] (Not raised below).
THE COURT ERRED IN PERMITTING THE PROSECUTOR TO INTRODUCE CHILDHOOD PHOTOGRAPHS OF [MOLLY] AND [SANDRA] THAT WERE NOT PROBATIVE OF ANY FACT IN ISSUE.
THE COURT'S REFUSAL TO AMELIORATE THE PREJUDICE ENGENDERED BY THE PROSECUTOR'S MISLEADING REMARKS ABOUT DEFENDANT'S PASSPORT TAINTED THE TRIAL.
After reviewing these arguments in light of the record and the applicable law, we affirm.
Molly and Sandra lived in East Orange with their father, aunt, uncle, several cousins, and defendant. At the time of trial, Molly was twenty years old. She testified that defendant began abusing her when she was eight years old. According to Molly, the abuse happened "a lot, " and continued until she was twelve. However, the girls' father testified that he sent Molly to Haiti to live with her grandmother for "about a year or so" when she was eleven or twelve.
Sandra was twenty-two years old when she testified. She said defendant began abusing her when she was six years old. She further stated the abuse occurred from "once-a-week to almost every other day" until she was twelve years old. Neither Molly nor Sandra told anyone about the abuse they suffered while it was taking place. In March 2006, the girls eventually came forward and provided statements to the East Orange Police Department.
During the trial, Molly testified she did not tell anyone about the abuse, including her father, because she was afraid "that nobody was going to believe [her], " and "scared that the family was going to hate [her]." Sandra did not tell anyone because she was afraid that her father "would be mad at [her]."
The State also presented testimony from Christine Baker, Ph.D., who was qualified as an expert in the field of Child Sexual Abuse Accommodation Syndrome (CSAAS). According to Dr. Baker, CSAAS is a model for "improving [the] understanding of child victims." Dr. Baker testified that "almost fifty percent of victims delay reporting" the abuse they suffer. Dr. Baker never evaluated Molly or Sandra and was not familiar with the specific facts of the case. She testified, however, that CSAAS "does not refer to any particular child. It refers to how children in general react [when] they've been sexually abused."
On cross-examination, Dr. Baker testified:
Q. [C]hildren who make these allegations in your practice, have they lied?
A. The children . . . I see in my practice have been referred to me [and] are not lying. They've been referred to me for evaluation. And when they get to me there's a lot of evidence that comes with them. And I have not had children who lie.. . . .
Q. When children do come forward and they make these allegations some of them are lying, correct?
A. There are some children who, yes, there are some children who make false allegations.. . . .
Q. There are some children who make false allegations and come forward with these false allegations later in life?
A. I would say no to that because generally what happens with children who make false allegations and the literature and the research shows is that those usually happen in the context of custody evaluations. And that generally happens at the time.
The State also introduced twelve photographs of Molly and Sandra taken during the years of the alleged abuse. Defense counsel objected, but the trial court permitted the photographs to be admitted into evidence because they were relevant to the jury's consideration of the girls' "failure to disclose" the abuse.
Defendant testified on his own behalf and denied the allegations. He further testified that he came to the United States by plane on June 11, 1998, three years after the abuse allegedly began. Defendant also presented a passport, issued in 1995, which contained a dated stamp of entry on June 11, 1998. On cross-examination, defendant admitted the passport was a "replacement passport" for his original passport issued in 1989. Defendant's brother confirmed that defendant arrived in the United States in 1998.
The State presented a rebuttal witness, Special Agent Daun White, who was admitted as an expert in immigration law. White testified that a replacement passport is "a passport replacing one that is still active, yet has either been misplaced, lost, stolen, [or] damaged; [so] that it can no longer be used for travel." On cross-examination White testified that, to the best of his knowledge, there was no evidence of defendant entering the country before 1998 "using this name."
During summation, defense counsel stated, "[T]hese allegations stem back to 1995 . . . through half of 1998, June 11th, 1998, and these dates are particularly important because it has been established . . . that my client was not . . . in East Orange. He was not in New Jersey. He was not in the United States of America" before June 11, 1998. In response, the prosecutor stressed that Molly and Sandra were credible witnesses. In addition, the prosecutor stated a replacement passport is "one that is lost or stolen. I wonder what's in that lost or stolen passport. I wonder what stamps are in there."
In his first point, defendant claims that Dr. Baker offered an "implicit endorsement" of Molly and Sandra's testimony, and "impermissibly created the inference" that they were telling the truth. Because defendant did not object at trial, we review the testimony for plain error, Rule 1:7-2, which is an error "clearly capable of producing an unjust result." R. 2:10-2.
CSAAS testimony "cannot be presented to the jury to prove directly and substantially that sexual abuse occurred. . . . [I]t does not detect sexual abuse. Instead, it assumes the presence of sexual abuse, and explains a child's often counterintuitive reactions to it." State v. W.B., 205 N.J. 588, 610 (2011) (internal citations omitted). "The behavioral studies of CSAAS are designed not to provide certain evidence of guilt or innocence, but rather to . . . offer 'the child a right to parity with adults in the struggle for credibility and advocacy.'" Id . at 609 (quoting State v. J.Q., 130 N.J. 554, 571 (1993)). CSAAS testimony "will be upheld so 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." Id . at 611 (quoting State v. R.B., 183 N.J. 308, 328 (2005)). Accordingly, the Court held "expert testimony about the statistical credibility of victim-witnesses is inadmissible." Id . at 613.
Here, Dr. Baker did not "connect the dots" between the syndrome and the behavior of either Molly or Sandra and did not testify whether either was abused. Dr. Baker specifically testified that she had never met either Molly or Sandra, she did not know any of the parties involved in the case, and she did not review any police reports, doctor's reports, or any other material relating to the case. In addition, Dr. Baker admitted that some children do make false allegations of sexual abuse.
Furthermore, the trial court's instructions to the jury clearly outlined the permissible uses of Dr. Baker's testimony:
You may not consider Dr. Baker'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 expert testimony about the accommodation syndrome as proving whether the abuse occurred or did not occur. Similarly, you may not consider that demeanor as proving in and of itself that [Molly] or [Sandra], the alleged victims here, were or were not truthful.
Dr. Baker's testimony may be considered as explaining certain behavior of the alleged victims of child sexual abuse.
As I 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 or deny that any sexual abuse occurred.
. . . .
Here, Dr. Baker testified that in child sexual abuse matters, children may feel that they won't be believed or may be afraid to disclose. This testimony was admitted only to explain that the behavior of the alleged victim was not necessarily inconsistent with sexual abuse.
The weight to be given to Dr. Baker's 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 the defendant committed or did not commit any particular act of abuse. Rather, testimony as to the accommodation syndrome is offered only to explain certain behavior of an alleged victim of child abuse.
Thus, the jury was properly instructed that the testimony could not be used as proof that child abuse occurred in this instance. Under these circumstances we find no error, much less plain error, in Dr. Baker's testimony.
In his second point, defendant argues the trial court "erred in permitting the prosecutor to introduce childhood photographs . . . that were not probative of any fact in issue." We do not agree. "[A] trial court is afforded 'considerable latitude regarding the admission of evidence.'" State v. Nelson, 173 N.J. 420, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). Furthermore, pursuant to N.J.R.E. 403, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." The Court has held that "'the admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests within the discretion of the trial judge.'" State v. Moore, 122 N.J. 420, 466-67 (1991) (quoting State v. Belton, 60 N.J. 103, 109 (1972)). In the present case, the trial court correctly determined that defendant raised the issue of failure to disclose and the photographs made a "big difference in how you consider that testimony." Accordingly, we find no abuse of discretion.
Lastly, defendant argues the trial court erred by refusing to issue a curative instruction, because the prosecutor clearly implied that defendant only produced his replacement passport "because there was something in his previous passport that he deliberately wanted to hide from the jury." We agree that it was improper for the prosecutor to ask the jury to speculate on the contents of a document that was not admitted into evidence. Nevertheless, as defendant concedes in his brief, the jury acquitted him "of all offenses alleged to have occurred before June of 1998, " when he claims he entered the United States. Therefore, any error on the part of the prosecutor was harmless. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971) (Harmful error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.").