STATE OF NEW JERSEY v. JOHN B.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5810-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN B.,

Defendant-Appellant.

__________________________________

November 3, 2010

 

Submitted September 15, 2010 - Decided

 

Before Judges Sapp-Peterson and Simonelli.

 

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-09-0346.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Leslie-Ann M. Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant John B., a Catholic priest, was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). The trial judge imposed an eighteen-year term of imprisonment with a seven-year period of parole ineligibility on count one to be served at the Adult Diagnostic Treatment Center (ADTC) and a concurrent eight years with three years of parole ineligibility on count two, which together will run consecutively to a fifteen-year sentence defendant was already serving for first-degree aggravated sexual assault, second-degree sexual assault, and third-degree endangering the welfare of a child conviction stemming from defendant's sexual assault of an altar boy. The judge also imposed the appropriate assessments and penalties, and ordered defendant to pay $10,597.17 to the Violent Crimes Compensation Board.

On appeal, defendant raises the following arguments:

POINT I

THE MODEL JURY INSTRUCTION ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) UNCONSTITUTIONALLY INTRUDES ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TELLS THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT THEIR [THE ALLEGED VICTIMS'] TESTIMONY IS UNTRUTHFUL BASED ONLY ON THEIR SILENCE OR DELAY DISCLOSURE." (Not Raised Below)

 

POINT II

THE TRIAL JUDGE ERRED IN DISMISSING COUNT TWO AT THE END OF THE STATE'S CASE; IN THE ALTERNATIVE, A MORE PRECISE DEFINITION OF "LEGAL DUTY TO CARE" AND "ASSUMED RESPONSIBILITY" SHOULD HAVE BEEN GIVEN TO THE JURY AS PART OF THE ENDANGERING THE WELFARE OF A CHILD CHARGE. (Partially Raised Below)

 

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE

 

We affirm defendant's conviction and sentence on count one. Because we conclude that the evidence failed to establish second-degree endangering the welfare of a child, we are constrained to reverse on count two.

I.

We derive the following facts from the evidence presented at trial.

In 1991, T.P.,1 then six years old, attended public school in New Jersey. He also attended weekly after-school classes of Confraternity of Christian Doctrine (CCD) instruction at the parish center of a Catholic church, where masses were also held. Defendant was the pastor and was commonly seen around the parish's buildings during CCD classes.

T.P. and his family attended masses at the parish center, which defendant officiated. When T.P. was in the second grade, he received his First Holy Communion in a ceremony that defendant officiated.

While attending CCD classes one day, T.P. went to the bathroom in the parish center. He tried to open the bathroom door, but it was locked, and a teacher had to unlock it so that T.P. could enter. Upon entering the bathroom, T.P. saw two pairs of feet in one stall and heard voices. When the stall door opened, T.P. saw defendant, who was wearing his "priest uniform," "step out with a very startled, kind of angry look on his face. Very surprised." T.P. also saw a "little boy" exit the stall. Defendant looked at T.P. angrily and told the other boy he could leave. After the little boy left, defendant ordered T.P. to stay in the bathroom and locked the door. As T.P. faced the urinal to use it, defendant stood "very close[ly]" behind him and instructed him to pull his pants "all the way down" and not turn around. T.P. could feel defendant's body "almost touching" his body. Defendant then unbuckled his belt and remained closely behind T.P. for a long period of time. Before exiting the bathroom, defendant ordered T.P. to wait a couple of minutes before leaving. Defendant then exited the bathroom. T.P. returned to his classroom minutes later and did not disclose the incident to anyone.

Defendant sexually assaulted T.P. in the parish bathroom on numerous, subsequent occasions. T.P. described subsequent assaults as follows:

It was usually the same thing. I would go into the bathroom. He would usually be around the church somewhere. He would see me. He would come into the bathroom after I was in.

 

He would lock the door. And . . . I would stand at the urinal to go to the bathroom. And he could come up behind me, tell me to pull my pants all the way down. And he unbuttoned, undid his belt and pulled his pants . . . down.

 

He told me, . . . I couldn't turn around. So I couldn t really say like how far down they were or anything like that.

 

And at that point . . . when I had went to turn around . . . , he stepped up behind me and . . . I placed my arm behind my back kind of blocking in front of my butt to kind of like block him. At that point he grabbed my arm and kind of twisted it behind my back. And holding it, like kind of putting a strain on. So if I moved, he would apply more pressure. So at that point I pretty much stopped moving.

 

I kind of tried to like move again and he grabbed me by the back of my hair so he was holding my arm behind my back . . . And at that point he . . . took his penis and he put it between my legs and between my butt and proceeded to move back and forth with it.

 

Defendant also ordered that T.P. "better come back and go to the bathroom and do this . . . when [T.P.] was at CCD." On one occasion, the assault "got very violent" after defendant screamed at T.P. "you know, you want it so bad." Defendant also threatened that if T.P told anyone about the assaults "I'll friggen kill you. Who would believe you anyway." Defendant also made threatening comments about T.P.'s younger sister, mother, or close friends if T.P. revealed the assaults.

The sexual assaults continued as escalated to include anal penetration that left T.P. with pain, bleeding, and burning from his anus and penis, difficulty walking and sitting, discomfort while urinating, having a bowel movement or laying on his back, and the inability to engage in physical education class. T.P.'s grades during this time declined, he became increasingly depressed and suffered from "terrible night terrors."

The assaults ceased in 1995, when T.P.'s family moved to California. T.P. remained silent about the assaults. He suffered from depression, anxiety, and substance-abuse problems. Finally, when T.P. was eighteen or nineteen years old, he told a close friend about the assaults and that the perpetrator was a priest. T.P. eventually told his mother, who contacted the local California police in April 2005. An investigation ultimately led to charges in New Jersey of aggravated sexual assault and endangering the welfare of a child, for which defendant was convicted.

T.P.'s delayed disclosure of the sexual assaults was an issue at trial. The State produced Dr. Susan Cohen Esquilin as an expert witness in psychology specializing in childhood sexual abuse, who testified, without objection, about Child Sexual Abuse Accommodation Syndrome (CSAAS). The doctor testified that

CSAAS has five stages: secrecy, helplessness, entrapment and accommodation, disclosure, and recantation or retraction. Two additional syndrome factors exist for boys who have been sexually assaulted by another male: (1) boys question their own masculinity and sexuality because the boy will think that he "must have been gay and that's what attracted" the abuser to him, or "he has become gay" or "people will see him that way anyway" and that makes disclosure harder; and (2) boys tend to be more "externalizing" in that "they are less likely to go to therapy" and more likely to "act out" or be involved in anti-social, aggressive behavior, including substance abuse as a means of avoiding their feelings and memories of the sexual abuse. In addition, sexually abused individuals often suffer from depression because they feel ashamed and guilty, and have negative feelings about themselves. Such individuals also suffer from anxiety, including post traumatic stress disorder, from fear of what the abuser might do, from fear that disclosure will upset people, and from fear that they will not be believed or will be blamed.

On cross-examination, Dr. Esquilin testified that (1) CSAAS was not a specific diagnosis of a particular person; (2) she knew of no details of any person's statement in this case; (3) "there's no way to determine the validity of anybody's report about anything without external corroboration with 100 percent accuracy[;]" and (4) a description of the CSAAS syndrome "is not intended to prove that something happened or didn't happen. This is simply an explanation of the well established fact that most kids do not tell right away."

Defendant produced no expert evidence and did not testify.

II.

For the first time on appeal defendant challenges part of Model Jury Charge (Criminal), "Child Sexual Abuse Accommodation Syndrome," (2004), which provides:

The law recognizes that stereotypes about sexual assault complaints may lead some of you to question [complainant's] credibility based solely on the fact that [he/she] did not complain about the alleged abuse earlier. You may not automatically conclude that his/her testimony is untruthful based only on his/her [silence/delayed disclosure].

 

Defendant contends that the last sentence unconstitutionally intrudes on the jury's function to determine credibility by instructing the jury that it could not automatically reject the complainant's testimony based on his or her delayed disclosure.2 We disagree.

As to witness credibility, the judge instructed the jurors that they could determine which witnesses to believe and give whatever weight they deemed appropriate to each witness's testimony. The judge also instructed the jurors that they "may accept all of [a witness's testimony], a portion of it or none of it."

As to expert witnesses, the judge instructed the jurors that they were not bound by an expert's opinion and could give it whatever weight they deemed appropriate, "whether that be great or slight. Or you may reject it." The judge also instructed that "[t]he ultimate determination of whether or not the State has proven defendant's guilt beyond a reasonable doubt is to be made only by the jury."

The judge further instructed the jury, without objection, as follows:

Now, we had some testimony regarding the child sexual abuse accommodation syndrome. The law recognizes that stereotypes about sexual assault complaints may lead some of you to question [T.P.'s] credibility based solely on the fact that he did not complain about the alleged abuse earlier.

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

 

This language mirrors the CSAAS Model Jury Charge.

"Defendant's failure to 'interpose a timely objection [to a jury charge] constitutes strong evidence that the error belatedly raised [on appeal] was actually of no moment.'" State v. Tierney, 356 N.J. Super. 468, 481 (App. Div.) (quoting State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999). certif. denied, 163 N.J. 397 (2000)), certif. denied, 176 N.J. 72 (2003). Because defendant did not object to the CSAAS charge given here, we review his contention under the plain error standard and must determine whether the charge "possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). In making our determination, we cannot deal in isolation with that portion of the charge alleged to be erroneous, but rather, we examine the charge as a whole to determine its overall effect. State v. Figueroa, 190 N.J. 219, 246 (2007).

Viewing the charges as a whole, we are satisfied that no error, let alone plain error, occurred. Our Supreme Court has approved the very language contained in the sentence of the CSAAS Model Jury Charge defendant challenges. State v. P.H., 178 N.J. 378, 399-400 (2004); see also State v. Schnabel, 196 N.J. 116, 133-34 (2008) (affirming the use of CSAAS expert testimony and the model jury charge). Further, that sentence does not intrude on the jury's function to determine credibility. Rather, the sentence, along with the general instruction on witness credibility, properly guided the jury to consider T.P.'s delayed disclosure, along with all other evidence, in assessing his credibility.

III.

Defendant contends that the trial court erred in denying his motion for judgment of acquittal on the second-degree endangering the welfare of a child charge at the close of the State's case. He argues there was insufficient evidence that he had a duty to care or had assumed responsibility for T.P., and there was no evidence he had a supervisory or caretaking responsibility for T.P.; he was merely a parish priest having no special relationship with T.P. or the child's family.3

Alternatively, defendant contends for the first time on appeal that the jury charge on second-degree endangerment was insufficient because it failed to explain what constitutes an "ongoing responsibility" or a "continuing or regular supervisory or caretaker relationship." Defendant suggests that the charge should have been tailored to the facts.

We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.) (citing State v. Moffa, 42 N.J. 258, 263 (1964)), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).]

 

See also State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); R. 3:18-1.

Under Rule 3:18-1, the court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). Applying these standards, we are satisfied that the judge improperly denied defendant's motion.

The endangering statute, N.J.S.A. 2C:24-4a, provides as follows:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1, [N.J.S.A. 9:6-3] and [N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

 

The defendant's control over the victim is not the test for proving second-degree endangerment, as the State posits here. Rather, our Supreme Court has interpreted N.J.S.A. 2C:24-4 to

apply to those who have assumed a general and ongoing responsibility for the care of the child. That responsibility may be legal and formal or it may arise from informal arrangements. It may be based on a parental relationship, legal custody, or on less-structured relations; or it may arise from cohabitation with the child's parent. The actor, however, must have established a continuing or regular supervisory or caretaker relationship with the child that would justify the harsher penalties of the third-degree crime of child endangerment under N.J.S.A. 2C:24-4. Conversely, a person assuming only temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting, would be chargeable with child endangerment in the fourth degree.

[State v. Galloway, 133 N.J. 631, 661-62 (1993) (emphasis added.)]4

 

Thus, to prove second-degree endangerment beyond a reasonable doubt, the State must prove there was an ongoing supervisory or caretaker relationship between the defendant and victim. Such evidence is lacking here. There is no evidence that defendant had caretaking responsibility for or an ongoing supervisory relationship with T.P. Defendant's status as pastor and his periodic interactions with T.P. in and of themselves do not establish such relationship. Rather, at best, the evidence indicates that defendant may have had a temporary or occasional supervisory relationship with T.P., which is insufficient to establish second-degree endangerment.

Having reached this conclusion, we need not address defendant's challenge regarding the second-degree endangerment jury charge.

IV.

Defendant challenges his sentence as excessive, contending that the judge ignored defendant's age and the actual term consequences of his sentence, which ran consecutively to his prior sentence, resulting in a thirty-three year term of imprisonment.

At sentencing, the trial judge found aggravating factors N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense"), N.J.S.A. 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), and N.J.S.A. 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law"), and mitigating factor N.J.S.A. 2C:44-1b(6) ("[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service"). In making these findings, the judge relied on defendant's prior conviction and a report from the ADTC, which found defendant to be a repetitive and compulsive offender. The report also indicates defendant's continued denial of any wrongdoing in this and the prior matter and lack of motivation for treatment.

Our role in reviewing a sentence imposed by a trial judge is limited. We only determine:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

 

[State v. Megargel, 143 N.J. 484, 493 (1996) (citing State v. Roth, 95 N.J. 334, 363-65 (1984)).]

 

It is well settled that we "may not substitute [our] judgment for that of the trial court," State v. Johnson, 118 N.J. 10, 15 (1990), but may modify a defendant's sentence when we are convinced the sentencing judge was "'clearly mistaken,'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). We may not reach this conclusion unless "'the facts of th[e] case make[] the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting Roth, supra, 95 N.J. at 365); see also State v. Cassady, 198 N.J. 165, 181 (2009).

In sentencing, consideration of aggravating and mitigating factors must be part of the deliberative process, provided such factors are supported by credible evidence. State v. Dalziel, 182 N.J. 494, 505 (2005); see also Cassady, supra, 198 N.J. at 180 (indicating that "'[a]n appellate court is bound to affirm . . . as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence . . . .'" (alteration in original) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989))). Indeed, a "trial judge is required to consider all of the aggravating and mitigating factors and to find those supported by the evidence." Dalziel, supra, 182 N.J. at 505. Error by the trial court in determining the existence of any aggravating or mitigating factors will "nullif[y] the weight accorded to such factors and materially alter[] the calculus in the ensuing balancing of aggravating and mitigating factors." Jarbath, supra, 114 N.J. at 406.

Based on our review of the record, we discern no reason to disturb defendant's sentence on count one. The judge's findings of aggravating and mitigating factors are amply supported by the record, and the sentence does not shock the judicial conscience.

Affirmed in part; reversed in part.

1 Although T.P. is no longer a minor, we use initials to refer to him. N.J.S.A. 2A:82-46a.

2 Defendant does not challenge any other part of the CSAAS charge.

3 Defendant cites the unpublished opinion in State v. Michael F., No. A-1099-03 (App. Div. April 17, 2006) (slip op.) to support his contention. That opinion does not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.

4 Galloway pre-dates the amendment to N.J.S.A. 2C:24-4 making endangerment a second-degree crime; however, the statute's language has not otherwise changed.