STATE OF NEW JERSEY v. E.C.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.C.B.,

Defendant-Appellant.

__________________________________

July 21, 2015

Submitted February 2, 2015 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-08-0784.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the briefs.

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

PER CURIAM

After a jury trial, defendant was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

The charges stemmed from defendant's repeated acts of sexual assault on his stepdaughter, C.W. ("Chrissie")1, over a three-year period, when she was the ages of ten through thirteen. The sexual assaults included acts of penetration.

Several years before charges were brought, Chrissie revealed to a friend, K.P., that she had been "raped" by her stepfather. After the sexual assaults continued, Chrissie eventually disclosed the conduct to a male high school friend, S.C., and also to her guidance counselor, Ms. B. The counselor, in turn, related Chrissie's allegations to the county prosecutor's office. DNA swabs taken from defendant in the ensuing investigation showed a profile matching his DNA on Chrissie's underwear.

Defendant did not testify at trial or present any witnesses. The jury found him guilty on all four counts of the indictment.

Judge Greta Gooden-Brown sentenced defendant to two consecutive fifteen-year custodial terms on the aggravated sexual assault counts, subject to the parole ineligibility strictures of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(a). The other two convictions merged for purposes of sentencing.

On appeal, defendant presents the following points for our consideration

POINT I

BECAUSE THE JURY WAS NOT INSTRUCTED THAT C.W.'S DISCLOSURE TO K.P. WAS FRESH COMPLAINT EVIDENCE, THE JURY WAS FREE TO IMPROPERLY CONSIDER THE OUT-OF-COURT STATEMENT THAT C.W. WAS RAPED BY HER STEP-FATHER AS SUBSTANTIVE EVIDENCE. (Not Raised Below).

POINT II

THE COURT ERRED IN DENYING E.C.B.'S MOTION TO EXCLUDE THE EXPERT TESTIMONY ABOUT CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME BECAUSE THE JURY WAS FULLY CAPABLE OF UNDERSTANDING THE WITNESS'S OWN REASONABLE EXPLANATION FOR WHY SHE DID NOT COME FORWARD WITH HER ALLEGATIONS SOONER. (Partially raised below).

POINT III

THE TRIAL COURT ERRED BY ALLOWING ADMISSION OF HIGHLY PREJUDICIAL EVIDENCE, WHICH WAS NOT PROVIDED TO E.C.B. UNTIL THE EVE OF TRIAL, WHEN THE STATE HAD THIS EVIDENCE IN ITS POSSESSION FOR OVER TWO YEARS.

POINT IV

ALTERNATIVELY, THE LETTER TO E.W. SHOULD HAVE BEEN EXCLUDED UNDER BOTH N.J.R.E. 403 AND N.J.R.E. 404(b) BECAUSE THIS EVIDENCE WAS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE AND DID NOT MEET THE THIRD PRONG OF COFIELD[2].

POINT V

THE CUMULATIVE IMPACT OF THE ERRORS DENIED E.C.B. A FAIR TRIAL. (Not Raised Below)

POINT VI

THE TRIAL COURT ERRED BY BASING AGGRAVATING [SENTENCING] FACTOR THREE ON E.C.B.'S MAINTAINING OF INNOCENCE.

Defendant also raises these amplifying points in his reply brief

REPLY POINT I

THE STATE'S ARGUMENT CONCERNING THE FRESH COMPLAINT JURY INSTRUCTIONS DOWNPLAYS THE INADEQUACY OF THE INSTRUCTION AND SHIFTS THE BURDEN TO THE DEFENDANT TO ENSURE THAT THE JURY IS PROPERLY CHARGED.

REPLY POINT II

THE STATE FAILS TO ADDRESS WHETHER THE CSAAS EXPERT TESTIMONY MET THE REQUIREMENTS OF N.J.R.E. 702.

REPLY POINT III

THE STATE MISUNDERSTANDS THE APPLICABILITY OF MISSOURI V. FRYE[3] AND LAFLER V. COOPER.[4]

We reject these arguments and affirm defendant's convictions and sentence.

Defendant's first claim is that he was deprived of a fair trial because the judge's instructions to the jurors concerning their consideration of the State's "fresh complaint" evidence only specifically mentioned Chrissie's reports of sexual wrongdoing to S.C. and to Ms. B., and did not also make reference to her statements to K.P. We are satisfied the omission was harmless.

Judge Gooden-Brown provided the jurors with appropriate conceptual guidance about the limited uses of fresh complaint evidence, consistent with case law. See, e.g., State v. Hill, 121 N.J. 150, 151, 163 (1990); see also State v. R.E.B., 385 N.J. Super. 72, 89 (App. Div. 2006). Her instructions tracked the language of the model charge on fresh complaint evidence. See Current N.J. Model Jury Charge (Criminal) "Fresh Complaint" (2007). The charge correctly explained that proof of the child's communications to others that she had been victimized by acts of sexual misconduct was to be used solely to negate any inference that her assumed silence meant those sexual wrongs had not occurred.

The Supreme Court's recent opinion on fresh complaint evidence in State v. R.K., 220 N.J. 444 (2015), is not helpful to defendant here. The Court vacated a defendant's conviction of sexual offenses in R.K. in a situation where the fresh complaint proof was "provocative" and "more descriptive" than the victim's trial testimony, where the proof conveyed that the defendant had threatened the victim not to report his misdeeds, and where the court gave no limiting instruction whatsoever. Id. at 460-61. By contrast here, the fresh complaint evidence was no more prejudicial in content than the victim's trial testimony.

Moreover, Judge Gooden-Brown did issue fresh complaint instructions, both during the trial and in the final charge, that were not limited to the two "example[s] given" concerning S.C. and Ms. B. There is no reason to believe that the jury would fail to extend those same concepts to Chrissie's statement to K.P. The fact that the jurors posed a question to the court during their deliberations about the timing of Chrissie's conversation with K.P. does not signify that they were misusing that fresh complaint evidence. Furthermore, the strong forensic DNA proof of defendant's guilt here made the fresh complaint evidence less significant than it was in R.K.

We likewise reject defendant's second point alleging that the court improperly allowed the State to present expert testimony on child sexual abuse accommodation syndrome ("CSAAS"). The expert testimony on CSAAS is clearly allowed by "well settled" Supreme Court precedent. State v. W.B., 205 N.J. 588, 609 (2011). The expert generally testified in abstract conceptual terms and did not explicitly link CSAAS to the victim here. We discern no violation of that case law here, nor any violation of the expert witness rules, including N.J.R.E. 702.

As to defendant's third point, we are satisfied that the trial judge properly exercised her discretion in admitting proof that, after his indictment, defendant wrote a letter to his wife E.W. in which he asked her and Chrissie not to testify against him and offered her money if they complied with his request. Although the prosecution should not have delayed turning over the letter until about three weeks before trial, we defer to the judge's finding that the delay was inadvertent. The letter was clearly admissible under N.J.R.E. 404(b) as proof of intent and of defendant's guilty state of mind. Moreover, there is no indication defendant's trial defense was prejudiced by the delay.

We also reject defendant's claim that the delayed turnover of the letter substantially hindered his ability to engage in meaningful plea discussions. Defendant has not shown that, had the letter been provided sooner, the State would have made a plea offer that he would have accepted. Frye, supra, ___ U.S. at ___, 132 S. Ct. at 1409, 182 L. Ed. 2d at 392.

Defendant's challenge to his sentence is unavailing. The judge's reliance on aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense) in its sentencing calculus was entirely appropriate under the circumstances here. Defendant repeatedly took advantage of his minor stepdaughter and sexually assaulted her over a period of about three years. The judge did not unfairly penalize him at sentencing for having maintained his innocence at trial. We defer to the judge's sound discretion in applying the sentencing factors to defendant, and in imposing a lengthy custodial term that does not shock our conscience. State v. Case, 220 N.J. 49, 63-65 (2014) (reaffirming the deferential standard of appellate review of trial judges' discretionary sentencing decisions); State v. Bieniek, 200 N.J. 601, 608 (2010) (same).

All other arguments raised by defendant, including his claim of cumulative error, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 To protect the victim's privacy, we shall refer to her by the fictitious name of "Chrissie," and refer to other persons by their initials.

2 State v. Cofield, 127 N.J. 328 (1992) (concerning the proper application of N.J.R.E. 404(b) to prior bad acts).

3 Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (applying the Sixth Amendment's effective assistance of counsel principles to a plea context).

4 Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012) (likewise applying the Sixth Amendment's effective assistance of counsel principles to a plea context).