STATE OF NEW JERSEY VS. V.E. (11-07-0653, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 8, 2018
• Docket: A-1678-16T3
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1678-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.E.,

Defendant-Appellant. _____________________________

Submitted August 1, 2018 – Decided August 8, 2018

Before Judges Hoffman and Currier.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 11-07-0653.

Harkavy, Goldman, Goldman & Gerstein, attorneys for appellant (Martin S. Goldman, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant V.E. appeals from his convictions following a jury

trial, alleging the trial court erred in allowing the jury to hear improper expert testimony and evidence regarding a prior bad act.

He also contends his counsel was constitutionally ineffective. We

affirm.

Defendant was charged in an indictment with three counts of

first-degree aggravated sexual assault on a minor, N.J.S.A. 2C:14-

2(a)(1); three counts of second-degree sexual assault on a minor,

N.J.S.A. 2C:14-2(b); and three counts of second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a). A jury convicted

defendant on all nine counts. He was sentenced to an aggregate

forty-five year prison term, subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2.

During the trial, defendant's three stepdaughters testified

he touched them on their private parts and forced them to touch

his penis and perform other sexual acts on numerous occasions over

the course of three years. They also testified he subjected them

to physical abuse. After one of the children reported the abuse

to her grandmother, the children's mother took them to a hospital

for examinations and contacted the police.

Each of the victims subsequently gave a video-recorded

statement at the prosecutor's office describing the sexual

interactions with defendant. One of the girls stated defendant

"peed" on her legs, describing it as slimy, orange, and green.

2 A-1678-16T3 The State presented the children's grandmother as a "fresh

complaint" witness at trial. She described to the jury the

disclosure to her from one of the victims about defendant's sexual

contact. During an extensive cross-examination, defense counsel

asked numerous questions regarding the child's disclosure. On

redirect, the prosecutor asked the grandmother what else her

granddaughter told her in addition to defendant abusing her. The

witness answered:

She said that [defendant] get on top of her and put his finger on her – on her private part and it hurts a lot. And then . . . he put nasty stuff . . . on top of her body. He peed on — on her. That's . . . her word. That he peed on her.

There was no objection to this testimony.

Dr. Brett Biller, the training director at the Child Abuse

and Maltreatment Center at St. Peter's University Hospital,

testified as an expert on Child Sexual Abuse Accommodation Syndrome

(CSAAS). Advising he was not familiar with the facts of this case

or any of the victims, he explained to the jury the theory of the

syndrome and the factors that compose it – secrecy, helplessness,

entrapment, accommodation, delayed disclosure, and recantation.

Defendant raises the following arguments on appeal:

POINT I: THE TRIAL COURT ERRED IN ALLOWING THE PRIOR BAD ACT OF [V.E.] PEEING ON VICTIM [X.F.] TO MAKE ITS WAY TO THE JURY BY WAY OF FRESH COMPLAINT TESTIMONY (Not Raised Below).

3 A-1678-16T3 POINT TWO: THE TRIAL COURT ERRED IN ALLOWING CSAAS EXPERT TESTIMONY FROM BEING INTRODUCED INTO THE TRIAL (Not Raised Below).

POINT THREE: DEFENSE COUNSEL WAS HIGHLY INEFFECTIVE IN FAILING TO OBJECT TO PEEING INCIDENT, FAILING TO CROSS EXAMINE EXPERT, AND USING THE DISCIPLINARY CHARACTER OF MR. [V.E.] AS A DEFENSE TACTIC AT EXPENSE TO HIS CHARACTER (Not Raised Below).

In addressing points one and two, we note these issues are

raised for the first time on appeal; we, therefore, only review

for plain error. State v. Williams, 168 N.J. 323, 335 (2001); R.

2:10-2.

Defendant argues the bad act conduct elicited from the fresh

complaint witness should have been excluded under N.J.R.E. 404(b)

and the Cofield1 test. Defendant asserts the testimony provided

by the grandmother on redirect was inappropriate for a fresh

complaint witness and had no relevance to the child's initial

disclosure.

As our Supreme Court reaffirmed in State v. R.K., 220 N.J.

444, 455 (2015), the fresh-complaint doctrine allows the State to

present "evidence of a victim's complaint of sexual abuse,

otherwise inadmissible as hearsay, to negate the inference that

the victim's initial silence or delay indicates that the charge

1 State v. Cofield, 127 N.J. 328, 338 (1992).

4 A-1678-16T3 is fabricated." The Court cautioned: "Only the facts that are

minimally necessary to identify the subject matter of the complaint

should be admitted; the fresh-complaint testimony is not to be

used 'to corroborate the victim's allegations concerning the

crime.'" Id. at 456 (quoting State v. Bethune, 121 N.J. 137, 146

(1990)).

During the grandmother's direct testimony, she stated when

one of her granddaughters saw two dogs humping one another, she

started crying and told her grandmother "that happened to her" and

"that must be hurting." The child also told the grandmother

defendant put his finger on her private part. That was the extent

of the State's questioning of the fresh complaint witness.

Cross-examination of the witness, in contrast, ensued over

fifty-seven pages of transcript. The grandmother was asked

detailed questions about the victim's disclosure to her and the

dynamics within the family as well as her feelings about defendant.

On redirect, the prosecutor asked the witness what else the

child told her in addition to the disclosure of the sexual contact;

the grandmother replied her granddaughter stated defendant "peed"

on her. Thereafter, the judge instructed the jury on the

limitations for their consideration of fresh complaint testimony.

In the circumstances existing here, where the defense elicited

5 A-1678-16T3 additional detail from the fresh complaint witness concerning the

victim's disclosure, we perceive no plain error.

The trial judge gave a thorough instruction to the jury,

explaining that the fresh complaint evidence was permitted only

to negate the inference that the children failed to confide in anyone about the sexual offense. . . .

A fresh complaint is not evidence that the sexual offense actually occurred or that . . . the children, themselves, . . . are credible. . . . It does not prove the underlying truth of the sexual offenses.

. . . .

Proof that a complaint was made is neither proof that the sexual offense occurred nor proof that the children are truthful.

The grandmother's testimony on redirect was not elicited to

describe a substantive bad act or other crime. It was instead

conduct relating to the child's disclosure of a sexual assault.

Therefore, the testimony was not subject to N.J.R.E. 404(b) and

there was no need for a Cofield analysis.

We are also unpersuaded the trial court erred in allowing

CSAAS expert testimony. Our Supreme Court previously allowed this

testimony 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, 566 (1993) (quoting John E.B. Myers, Expert Testimony

6 A-1678-16T3 in Child Abuse Litigation, 68 Neb. L. Rev. 1, 67-68 (1989))

overruled in part by State v. J.L.G., __ N.J. __ (2018)(slip op.

at 57).2

Biller explained the theory to the jury and described the

five categories of behavior comprised in the syndrome. He advised

he did not have any information regarding this case and had not

met with any of the victims or witnesses. Defense counsel did not

object to the expert's testimony nor did she cross-examine him on

any aspect of it.

On appeal, defendant does not take issue as to any specific

portion of the CSAAS testimony; instead, he argues this type of

testimony should not be introduced at all. He asserts victims

themselves can explain their delay in reporting or subsequent

denial of abuse. We are satisfied that Biller testified in

accordance with the narrow parameters established in State v.

J.R., 227 N.J. 393 (2017). It was not an abuse of discretion to

permit the limited testimony since CSAAS testimony was still

permitted at the time of defendant's trial.

In his final point on appeal, defendant takes issue with his

counsel's trial tactics, asserting counsel was "highly

2 Our review of the Court's ruling in J.L.G. does not alter our decision in this case as we conclude the CSAAS testimony was harmless in light of the overwhelming proof of defendant's guilt.

7 A-1678-16T3 ineffective." "Our courts have expressed a general policy against

entertaining ineffective assistance of counsel claims on direct

appeal because such claims involve allegations and evidence that

lie outside the trial record." State v. Castagna, 187 N.J. 293,

313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)).

Each argument defendant makes on this direct appeal requires

exploration of the trial attorney's trial strategy and decision-

making process. It is simply not possible to fairly assess those

claims on this record. Preciose, 129 N.J. at 460. The Castagna

principle holds true today, particularly in this case where such

serious allegations are made. Accordingly, we do not address the

points on appeal, but leave it to defendant to file the appropriate

application.

Affirmed.

8 A-1678-16T3