STATE OF NEW JERSEY v. J.R

 

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NOT FOR PUBLICATION WITHOUT THE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.

J.R.,

Defendant-Appellant.

_____________________________________

September 29, 2015

 

Argued September 30, 2014 Decided

Before Judges Nugent, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-09-1556.

Jeffrey G. Garrigan argued the cause for appellant (Cammarata, Nulty & Garrigan, LLC, attorneys; Mr. Garrigan and Michael S. Doran, on the brief).

Thomas N. Zuppa, Jr., Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorneys; Mr. Zuppa, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

A jury found defendant, J.R., guilty of sexually abusing his stepson's pre-teenage daughter over the course of two years, and a judge sentenced him to an aggregate eighteen-year prison term. Defendant appeals the judgment of conviction and makes the following arguments

I. THE CSAAS TESTIMONY OF DR. TASKA WAS IMPERMISSIBLE BOTH IN ITS INTRODUCTION AND, SUBSEQUENTLY, SCOPE DURING THE COURSE OF THE TRIAL.

A. The Trial Court Erred In Admitting Dr. Taska's CSAAS Testimony.

B. The CSAAS Testimony Offered by the State Went Beyond its Permissible Scope.

C. The Jury Charges Related to the CSAAS and Fresh Complaint Testimony Materially Misled the Jurors, Confused the Issues, and Misrepresented the Evidence.

II. THE TRIAL COURT ERRED IN ADMITTING THE VICTIM'S HEARSAY STATEMENTS TO THE STATE'S MEDICAL EXPERT, DR. PAULETT DIAH.

III. THE TRIAL COURT ERRED IN FAILING TO CONDUCT VOIR DIRE OR INVESTIGATE AN IRREGULARITY INVOLVING A MINOR.

IV. PROSECUTORIAL MISCONDUCT IN THIS CASE DEMANDS THAT DEFENDANT'S CONVICTIONS BE REVERSED.

V. DEFENDANT IS ENTITLED TO A REVERSAL OF HIS CONVICTIONS BASED UPON THE INEFFECTIVE ASSISTANCE OF HIS TRIAL COUNSEL.

VI. THE CIRCUMSTANCES SURROUNDING THIS TRIAL AND THE IMPACT OF HURRICANE SANDY WERE EXTRAORDINARY AND CALLED FOR A MISTRIAL.

VII. THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.

VII. THE COURT ENGAGED IN AN IMPROPER SENTENCING ANALYSIS WHICH LED TO AN IMPOSITION OF A MANIFESTLY EXCESSIVE SENTENCE.

More than ten years ago, the Supreme Court stated explicitly that experts testifying in child sexual abuse prosecutions about Child Sexual Abuse Accommodation Syndrome (CSAAS) "should not describe the attributes exhibited as part of that syndrome due to the risk that the jury may track the attributes of the syndrome to the particular child in the case." State v. R.B., 183 N.J. 308, 327 (2005). In the case before us, the prosecution's expert described attributes exhibited as part of the syndrome. Having considered this prejudicial testimony in light of the record, which demonstrates the case was decided largely on the credibility of defendant and the victim, we cannot conclude the error was harmless. Accordingly, we reverse and remand for a new trial.

I.

A.

A grand jury charged defendant in a four-count indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), second-degree endangering the welfare of child, N.J.S.A. 2C:24-4(a), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and fourth-degree child abuse, N.J.S.A. 9:6-1 & 3. Following the indictment, the State filed a motion to admit at trial "fresh complaint" testimony from the victim's brother, and defendant filed a motion to bar two prosecution witnesses from testifying: an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS) and a doctor who had examined the victim. The court granted the State's motion and denied both defense motions.

A jury found defendant guilty on all counts. Thereafter, the court denied defendant's motion for a new trial and sentenced him on the aggravated assault count to eighteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eight-year prison term on the count charging child endangerment. The court merged the remaining charges and imposed appropriate fines and assessments. Defendant filed this appeal.

B.

The State presented the following evidence at trial. The victim's mother, Alexandra, had two children: her son, Alex, and her daughter, Andrea, the victim.1 The children's father, James, had another son, Jamie. Jamie is a year older than his stepbrother, Alex, and Alex is a year older than his sister, Andrea. Defendant was James' stepfather.

Alexandra and James were in a dating relationship for ten years, but had ended that relationship by 2008 and were no longer living together. In 2008, Alexandra and both her children were living together while James and Jamie lived elsewhere. Alex and Andrea saw their father, James, every other weekend from 2008 through 2010; they were close with their father.

From 2008 through 2010, Alex and Andrea would see defendant and their paternal grandmother on the same weekends they saw their father. At first, defendant lived "across the hallway" from his stepson, James. James subsequently moved twice, and each time his father, defendant, also moved and relocated nearby: first to an apartment in the same building as his son's and then to a building next door to his son's building. The children were always in and out of James' residence and in and out of defendant's residence. Alexandra and James would also ask defendant to babysit, and the children would sometimes sleep over at defendant's place. Alex and Andrea occasionally went to work with defendant, who had a restaurant and also worked as a trucker. Defendant was allowed to pick them up from school. Defendant organized family camping trips and family trips to Atlantic City, which Alex and Andrea attended with their father, James. Alexandra and James never noticed anything wrong with the children after these visits and never suspected that defendant was doing anything inappropriate with Andrea. Alexandra testified that during the period from 2008 through 2010, there were no lasting fights between members of the family and there were no major family issues involving defendant. James confirmed that none of his children ever told him they were having any problems with their grandfather.

Andrea testified that defendant began abusing her during the spring of her fourth-grade school year, when she was ten years old, and continued until the spring of her sixth-grade school year when she was twelve-years old. The first time defendant touched her, she was at her father's house for the weekend. She explained that she had been playing hide-and-go-seek with her older brothers; she was hiding and she went to defendant's apartment and locked the front door so her brothers could not get in. This was when defendant lived across the hall from her father.

Andrea went into defendant's bedroom, where defendant was, and sat down on his bed. Defendant took a "big silver fan[]," put it on his bedroom door, and closed and locked it. Defendant came over to where Andrea was sitting on his bed, "started touching [her] breast and then started kissing [her]." He kissed her on the mouth and his hands were touching her breasts in "a circular motion." His hands were underneath her clothes. After touching her breasts, defendant put his hands down her pants and started touching her vagina. He was touching the internal part of her vagina, "[t]he part you can't see." In other words, he was penetrating her with his fingers.

Defendant laid Andrea down on his bed, removed her clothes, and then removed his clothes. Defendant then put his penis "where [her] vagina [was]," moving it "up and down." When he finished, he left the room, returned, and wiped her vagina down with what felt like a rag. Defendant put Andrea's clothes back on and unlocked his door. Andrea went back to where her brothers were. She did not say anything about what happened because she was scared and thought she would get in trouble.

After that first time, Andrea kept seeing defendant, and he touched her at his other houses as well. His second residence was downstairs from her father's residence. His third house or apartment was close to her father's; she had to go through an alley to get to it. In addition to molesting her at his residences, defendant touched Andrea at his restaurant, in "storage trucks," and in his work truck.

Andrea recounted various instances of defendant abusing her, including penetrating her vagina and touching her chest in his second apartment; putting his penis on her vagina and going "up and down" in his third residence; rubbing lotion on her vagina; touching his penis to her vagina in his work truck when he brought Andrea to work with him; and rubbing his penis against her vagina in the sleeper area of the truck's cabin. Defendant also touched her in his storage truck, which was apparently different from his work truck. He also abused her in the back office of his restaurant once, forcing her to perform oral sex. Defendant's abuse of Andrea over the years included putting "[h]is mouth on [Andrea's mouth,] . . . his mouth on [her] vagina[,] . . . his penis in [her] mouth[,] [a]nd his penis in her vagina."

Andrea testified that after the first encounter she was too scared to tell anyone because she thought defendant would hurt her or her family. After the second time, defendant told her not to tell anyone and asked her if she "liked it." Andrea did not disclose the abuse even after it continued, because she was scared and she thought she would get in trouble "[b]ecause [she] kept it for so long." Eventually, however, Andrea told her brothers about the abuse.

Andrea and her brothers were in defendant's "truck car," and they were sitting in the "trunk" together. She told her brothers that defendant was touching her, to see if she could get them to make defendant stop. When she told them, they said they would hurt defendant if he ever tried to do it again. She told them not to tell anyone, and she acted normal whenever she went to defendant's residence because she did not want anyone to know. Andrea remained afraid she would get in trouble.

The State presented Andrea's brother, Alex, as a "fresh complaint" witness. According to Alex, he was in defendant's SUV with his sister, brother, aunt, little cousin, defendant, and his grandmother when Andrea told him that defendant was touching her. It was sometime in 2009, and Alex was in sixth grade. Alex, Andrea and Jamie were all sitting together "in the trunk, or all the way in the back, the last row." Andrea said that their "grandfather was touching her." After she said this, a conversation ensued between Andrea, Alex, and Jamie; Andrea whispered throughout. Alex explained that he did not tell an adult right away because Andrea asked him not to.

Alexandra testified that while the kids seemed to enjoy their time with defendant, Andrea started to "isolate herself in her room." While this behavior concerned Alexandra, she thought that it was due to Andrea becoming a teenager. However, one Friday night Alexandra told Andrea that she and James were going to go out in an attempt to reconcile. Defendant was going to take care of Andrea. Andrea told her mother that she did not want to go, but Alexandra just thought Andrea was objecting because her brothers did not have to go and Andrea did not want to be bored. Andrea did not tell her parents why she did not want to go to defendant's home. Alexandra made her go, and Andrea was at defendant's residence all weekend.

During Alexandra's direct examination, the State attempted to establish that Andrea had not been exposed to any sexual or age-inappropriate material at home. Alexandra monitored her daughter's cell phone and Internet use; Andrea was not exposed to anything of an adult nature in her mother's house. However, Alexandra could not say the same of James's apartment and was unaware if he had adult cable channels, magazines, or pictures. In fact, James did come to find out that his children may have been exposed to adult material; a locked box, where he kept adult movies, had been broken into. Additionally, "somebody ordered" an adult channel in his residence, but once he found out about it, he disconnected the channel. Defense counsel later examined Jamie, who said that Andrea had once seen a condom at their father's house.

During cross-examination, Alexandra testified that she and James attempted to reconcile in the Winter of 2009 through the Spring of 2010. She and James went out and sometimes slept over at each other's apartments. During the period of reconciliation, they were intimate with one another in their respective bedrooms. Alex and Jamie later made Alexandra aware that they had overheard her being intimate with James. In fact, they started teasing her about it, and it became a family joke. In other words, it was no secret to the children that Alexandra and James were involved again sexually. Jamie testified that Andrea was aware that her parents had had sex. The reconciliation took place around the same time as the night Andrea told her mother that she did not want to go to defendant's house for the weekend: March 2010.

Both the State and defense counsel elicited testimony about Andrea's performance in school. Alexandra testified that from 2008 through 2010, Andrea was in the fifth and sixth grades. From the fourth grade through the sixth, Andrea was "failing in a lot of classes." To deal with her bad grades, Alexandra had defendant tutor Andrea. By the time of trial, however, Andrea had become an honor student.

The children finally disclosed the sexual abuse to an adult on May 11, 2010. Alexandra was getting Alex and Andrea ready for school and getting herself ready for work intending to drop her children at her mother's house. The children were fine, fooling around and teasing each other as usual, and after Alexandra dropped them off at her mother's house, she took a bus into New York City for work. Later that morning, she received a text from Andrea saying she and Alex were "bickering," and that Alex was "playing with her face." Shortly thereafter, Alex texted Andrea the following message: "Mom, [Andrea is] having sex with grandpa." Alex told Andrea that he had sent the text, and she "went to the bathroom."

Concerned about the contents of the text, Andrea called James, who was shocked. Alexandra left work and went to the children's school. When she arrived, she met with the assistant principal and showed the principal the text message. The assistant principal contacted the school resource officer, who interviewed Alexandra, then Alex, and then Andrea. During the interview with Andrea, her mother asked about the text message, and Andrea brought her hands up to her face and started crying. She was very upset. The resource officer notified Lieutenant Honey Spirito, who was in charge of the Hudson County Sexual Assault Victims' Assistance Unit (SAVA). Lt. Spirito asked him to bring Andrea and her mother to SAVA's Child Advocacy Center, which he did. He then returned to the children's school to pick up Alex, whom he also transported to SAVA headquarters.

That day, detectives spoke at different times with Andrea, Alex, and James. The detectives interviewed Jamie at a later date.

The State presented the testimony of two experts: Dr. Lynn Taska, a CSAAS expert, and Dr. Paulett Diah, an expert in the "area of child sexual abuse, pediatrics, and examinations." Dr. Taska began her testimony by stating she had no knowledge about the facts of the case or the identity of Andrea. She explained that her role was not to render an opinion about the specific case being tried, but "rather to educate the jury about how children who are . . . sexually abused typically behave. What are the common ways in which we see children recovering and adapting to this experience."

Dr. Taska discussed the five CSAAS phases or areas: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation. Secrecy refers to "[c]hild sexual abuse occur[ing] in secret." It usually happens only when a child is alone with someone "[a]nd in many cases, the offender will do something specifically to encourage the child to keep the secret." For example, abusers can employ threats: "if you tell, you'll get in trouble"; "if you [tell] I'll hurt you"; and "[i]f you tell, you know, your mother will never believe you." Abusers can also try and bribe children. And even if the abuser has not said anything, "the kid pretty frequently figures out, this is not something we're supposed to talk about." Most children keep abuse secret; "[i]f it comes out, it comes out in adulthood, usually."

In discussing the secrecy aspect of CSAAS, Dr. Taska noted that "when there's a lot of attention, like recently with this Penn State case and Jerry Sandusky, there's an increase in disclosure. Here in New Jersey, there's many more reports to [the Division of Youth and Family Services (the Division)] lately as a result of that case."

As to helplessness, Dr. Taska explained "that kids are completely dependent on adults." Children are generally obedient and lack the power to refuse or say no to unwanted contact; they also lack the capacity to consent. "[K]ids are instructed all the time to do things that they don't want to do, so they go along." And, rather than having the "fight-or-flight" response that adults would have in a dangerous situation, children instead "tend to have . . . a freeze response or play possum." "They won t stop the person from doing what they're doing to their body and then they try to run away."

The third area, entrapment and accommodation, pertains to how children cope with sexual abuse. Dr. Taska said most abuse "is not a one-time occurrence." The data shows that if the child does not disclose within forty-eight hours of the first instance of abuse, "there's a seventy percent chance it's going to happen again." And if the abuse is repeated, "the kid starts to feel responsible" and can blame himself or herself for the abuse.

While discussing entrapment and accommodation, Dr. Taska elaborated on how children cope with sexual abuse. In doing so, she described the type of behavior sexually abused children might engage in

One of the ways kids survive is by trying to control the environment. There are many kids who adapt by being really good really other-oriented . . .

And these kids are very obedient. They look very responsible, well-adjusted, they do well in school in general, and this leads people then to not believe them if they tell, but this is a normal thing that happens in real cases of sexual abuse, . . . [T]hat's one form of adaptation.

We have everything in between, all the way down to the kid who's acting out, telling lies, setting fires, torturing small animals, acting out from him or herself sexually . . .

In between that we have everything. You know, a kid who is self-injuring, a kid who's using drugs and alcohol, a kid who's [sic] - disassociating.

As to the fourth area of CSAAS, delayed and unconvincing disclosure, Dr. Taska opined that most children never disclose sexual abuse. If they do, "many of those disclosures are accidental." Additionally, "children often give . . . unconvincing disclosure[s]." That is, a child might give a partial disclosure, be vague about details, or even name the wrong person as his or her abuser. Children do this because they're afraid to "get somebody in trouble," afraid of the process, afraid of having to go to court, and afraid of potential involvement from the Division.

Lastly, Dr. Taska explained that in the fifth area of CSAAS, retraction or recantation, a child might occasionally retract a disclosure because of the consequences of the disclosure, such as involvement by the Division or police, or of being blamed for the family "falling apart"; in other words, there are many stressors, all of which might cause a child to try and retract his or her disclosure.

The State's other expert, Dr. Diah, examined Andrea at the request of the Division. When asked if "the purpose of your examination of [Andrea was] for diagnosis and treatment[,]" the doctor responded: "Well, in this particular case, it was . . . evaluation for the possibility of sexual abuse." She explained that she spoke to each child she examined in order

to gather information that [she] need[ed] to make a diagnosis and treatment of that child and determine whether or not the child may have infections, some diseases that may need to be treated, [and] whether or not the child may need to be referred for a consultation is . . . the final decision.

Andrea related that she had been touched on her breast and in her vaginal area. She also told Dr. Diah that "the touching" had started two years earlier and that the last time it happened was around April 2010, about eight weeks before the examination. At the time of the examination, Andrea was twelve years old.

Dr. Diah asked Andrea what parts of the defendant's body had made contact with her body, and Andrea "said his hand, his mouth[,] and his private part." When Andrea confirmed that there had been genital-to-genital contact, Dr. Diah asked her if "anything c[a]me out of his private part." Andrea "responded affirmatively." She did not, however, say whether the perpetrator had fully penetrated her vagina with his penis. Dr. Diah asked Andrea if there had been oral-genital contact, and she again responded affirmatively. Dr. Diah also asked Andrea whether there had been any anal contact and she said no.

The doctor conducted a head-to-toe examination of the child, including eyes, ears, head, mouth, lungs, heart, abdomen, and legs, but with a focus on the genitalia and anus. The doctor also took blood to test for syphilis, Hepatitis B, and Hepatitis C; and an oral swab to test for gonorrhea. The tests were negative.

Dr. Diah testified "the examination neither confirmed [n]or denied the possibility of sexual abuse." She explained that a lack of redness or injury could still be consistent with sexual abuse. In a case like Andrea's, where the last alleged instance of abuse occurred several months before the examination, Dr. Diah would not expect to make any findings. In fact, Dr. Diah opined that whether the patient is a teenager or child, "after they provide this type of disclosure of this type of contact, most of the examinations are normal and it's quite normal to be normal."

Defendant testified and adamantly denied the charges against him and specifically testified that all of the individual sex acts his granddaughter accused him of "[n]ever happened." Rather, from 2008 through 2010 when he saw his grandchildren nearly every other weekend when they visited their father, he played games with them and took them places, activities which they all enjoyed. He insisted that he had a normal, healthy relationship with his grandchildren.

Defendant's stepdaughter corroborated his testimony about his close relationship with his grandchildren, the extent to which he spent time with them, and the activities they enjoyed together. Defendant's stepdaughter also observed that whenever Andrea greeted defendant throughout 2008, 2009, and 2010, she would "run over to him and hug and kiss him, and say, 'Hi, Grandpa.'" Another witness who had known defendant since age three, when her mother dated him, looked upon him as a grandfather. She would see defendant during birthday and holiday celebrations and spoke to him almost daily. She testified about defendant's good character. A business acquaintance of defendant also testified about his good character.

In addition to the other witnesses presented by defendant, he called Detective Dargan, who had taken the recorded statement from Andrea. Detective Dargan was examined at length about the details of the statement as well as inconsistencies between the statement and Andrea's trial testimony.

As previously noted, the jury found defendant guilty on all counts in the indictment.

II.

Defendant first contends the trial court committed three errors involving the testimony of the State's CSAAS expert. First, the court erred by admitting the expert testimony because it was not relevant. Second, the court permitted the expert to testify about certain issues that case law prohibits. Third, the court's instructions to the jury on the use of CSAAS testimony were wrong. We agree with the latter two arguments.

A.

"The use of Child Sexual Abuse Accommodation Syndrome (CSAAS) expert testimony is . . . permissible in order 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. W.B., 205 N.J. 588, 609 (2011) (quoting State v. J.Q., 130 N.J. 554, 579 (1993)). The syndrome "represents a common denominator of the most frequently observed victim behaviors." State v. J.Q., 130 N.J. 554, 568 (1993) (quoting Ronald C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177, 180 (1983)). Those behaviors, which contradict the most common assumptions adults make about sexually abused children, are: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed disclosure; and (5) retraction. Id. at 568-70. Because "[t]he expert should not be asked to give an opinion about whether a particular child was abused[,] . . . care should be taken to avoid giving the jury an impression that the expert believes based on CSAAS . . . a particular child has been abused." State v. Michaels, 264 N.J. Super. 579, 599 (App. Div. 1993), aff'd, 136 N.J. 299 (1994).

Defendant acknowledges the general purpose for which CSAAS testimony is admissible. He contends, however, that at the hearing on his motion to bar the State's CSAAS expert from testifying, the trial court did not determine whether Andrea "exhibited the characteristics of CSAAS requiring the introduction of expert testimony to rebut the child's 'counter-intuitive reactions.'" Defendant points out that at the hearing on his motion, the trial court stated, "I don't know the facts, I don't know if it's a delayed reporting case, if it's retraction[,] . . . I don't know what's going on in terms of your case." The prosecutor did, however, represent to the court that she would present the CSAAS expert after the fact witnesses testified at trial, thus implicitly suggesting the court would have the opportunity to re-visit the issue after hearing the fact witnesses and thereby be in a better position to evaluate the relevancy of the CSAAS testimony.

Contrary to her pre-trial representation to the court, the prosecutor called the State's CSAAS expert as the State's first witness. Defendant contends the "testimony was irrelevant and prejudicial as it failed to address a single factual dispute. Not one of the five aspects of CSAAS testified to by Dr. Taska were exhibited by [Andrea]." Defendant's factual predicate for this assertion is Andrea's pre-trial statement to police, in which she said she promptly reported the first incident of abuse to her brothers.

Defendant's argument has no merit. In relying on Andrea's statement, defendant entirely overlooks Andrea's trial testimony that after the first time defendant abused her she was too scared to tell anyone what happened because she thought defendant would hurt her or her family. She also testified that after the second episode defendant told her not to tell anyone. Lastly, she testified she did not disclose the abuse even after it had been going on for a while, because she was scared. She thought she would get in trouble "[b]ecause [she] kept it for so long." Even Andrea's brother, Alex, testified that Andrea first told him about the abuse sometime in 2009 when he was in sixth grade; Andrea had testified the first incident occurred in 2008. In short, there was ample trial evidence from which the jury could have concluded Andrea did not report the abuse for a long time, and only after she had been abused repeatedly. The CSAAS testimony was relevant and admissible.

Defendant's primary argument that the trial judge should have determined whether the CSAAS testimony was relevant before admitting it is not entirely without merit. The trial court should have made the determination either at the hearing on defendant's motion or before Dr. Taska was permitted to testify at trial. It does not appear that the determination was particularly difficult.

By the time trial commenced, the State should have been able to make a proffer as to whether its witnesses would establish, among other things, facts from which the jury could conclude the abuse took place in secrecy, the victim delayed disclosure, the abuse took place on multiple occasions, or the victim retracted her allegations. Nevertheless, for the reasons we have explained, the CSAAS testimony was admissible. Consequently, what occurred during argument on defendant's motion to bar the expert is moot.

B.

Defendant next contends Dr. Taska exceeded the scope of permissible CSAAS testimony when she described the character traits of sexually abused children. Defendant also claims that Dr. Taska's testimony implicitly profiled defendant when the doctor made these statements: "In many cases, the offender will do something specifically to encourage the child to keep a secret"; "[s]trangers are generally not a risk to children"; and child abusers "tend[] to be someone that the child knows." Defendant also asserts that Dr. Taska repeatedly referred to family dynamics and a child's fear of disrupting the family. Defendant argues that, "collectively, Dr. Taska's statements amounted to "type-casting of usual abusers which track so closely to [d]efendant was the blueprint for [d]efendant's convictions." Lastly, defendant asserts that Dr. Taska's reference to the Sandusky case "placed in the minds of the jury what is possibly the most publicized instance of a convicted criminal who engaged in numerous acts of sexual abuse."

The State responds that "Dr. Taska's testimony was limited to the common behaviors exhibited by child sexual abuse victims and the impact that the behavior of offenders has on the children." The State acknowledges that the doctor's testimony included examples and characteristics of each "element." The State also argues that "[t]he jury, rather than Dr. Taska, evaluated the elements of CSAAS and had the responsibility of determining whether the characteristics exhibited by [Andrea] were in conformity with those of a child abuse victim." Lastly, the State argues that defendant exaggerates the context of Dr. Taska's reference to the Sandusky case. The State's responsive arguments on this point are devoid of any discussion of case law.

Ten years ago, in a child sexual abuse prosecution in which a CSAAS expert named Dr. Taska had testified at trial2, the Supreme Court held that it was error, albeit harmless error, for the expert to have testified about a "list of some behaviors that coincide with some of the behaviors exhibited by [the victim] and separately testified to by [the victim]'s mother[.]" R.B., supra, 183 N.J. at 323, 328. There, the expert described to the jury "the torturing of animals and the setting of fires [was] . . . among the range of behaviors consistent with the syndrome." Because the victim's mother testified, among other things, about the victim torturing animals and setting fires, the CSAAS testimony was improper. The Court explained

In a proper CSAAS case, "[t]he expert [is] not [] asked to give an opinion about whether a particular child was abused." State v. Michaels, supra, 264 N.J. Super. at 599. For that reason, the CSAAS expert should not describe the attributes exhibited as part of that syndrome due to the risk that the jury may track the attributes of the syndrome to the particular child in the case.

[Id. at 327.]

The Court found the error harmless because the reference to two such attributes "was fleeting, was made without connecting those elements to [the victim], and was made in the context of substantial other evidence of guilt." Ibid. The Court cautioned, however, that "this case comes perilously close to the setting we condemned in State v. J.Q., 130 N.J. 554 (1993), where the . . . CSAAS expert testified not only to the 'various aspects of CSAAS, but also "related them to the behavior she had observed in [the child victims].'" R.B., supra, 183 N.J. at 327 (quoting J.Q., supra, 130 N.J. at 559). The Court further cautioned,

In the future, prosecutors and trial courts must insure that the scope of a CSAAS expert's testimony is carefully circumscribed and does not exceed its proper bounds: solely to explain to the jury why it is not uncommon for sexually abused children, without reference to the child victim in that case, to delay reporting their abuse and why many children, again without reference to the child victim in that case, recant allegations of abuse and deny the events at issue.

[Id. at 329.]

Here, neither the prosecutor nor the trial court ensured that the scope of Dr. Taska's testimony was carefully circumscribed and did not exceed its proper bounds. In addition to explaining the five CSAAS phases or areas, Dr. Taska described the type of behavior sexually abused children might engage in. She described extremes that ranged from children being really good and obedient that do well in school, "and this leads people then to not believe them if they tell," to "everything in between, . . . to the kid who's acting out, telling lies, setting fires, torturing small animals . . . ." The doctor further explained that in between "we have everything[,] . . . a kid who is self-injuring, a kid whose using drugs and alcohol, and a kid whose . . . disassociating." This testimony is exactly the type of testimony the Supreme Court held to be improper in R.B.

Here, the improper CSAAS testimony created precisely the risk that should be avoided when such expert testimony is carefully circumscribed and does not exceed the purpose for which it is offered. Not only did Dr. Taska describe the wide range of behavior that children engage in, but by suggesting that children who cope by being well-behaved may not be believed by adults, she suggested that such children should be believed. This testimony would have explained why, as Andrea testified, she continued to act normally when in the presence of defendant because she did not want anyone to know what happened.

We also conclude that the error in admitting Dr. Taska's description of behavior sexually abused children might engage in was not harmless. In R.B., supra, 183 N.J. at 327, the court found that the expert's improper testimony was harmless because her reference to torturing animals and setting fires "was fleeting, was made without connecting these elements to [the victim], and was made in the context of substantial other evidence of guilt. In contrast, here we do not find as "fleeting" the expert's reference to behavior engaged in by sexually abused children. The doctor did not make a fleeting reference to one or two types of behavior, but rather elaborated on a wide range of behavior exhibited by such children. And though the expert did not explicitly connect a specific type of behavior to Andrea, the jury could have readily inferred from the expert's testimony that Andrea's behavior, described by her mother, including Andrea's poor grades during the time the abuse occurred as well as Andrea isolating herself in her room, fell within the range of behavior described by Dr. Taska. Perhaps most significantly, there was no "substantial . . . evidence of guilt" other than Andrea's testimony. Defendant did not admit to the police or anyone else that he had abused Andrea; rather, he adamantly denied doing so. And, as the State's other expert testified, there was no forensic or physical evidence that Andrea had been abused. Under those circumstances, we cannot conclude that the error was harmless. R. 2:10-2.

Defendant's argument that the elements of CSAAS described by Dr. Taska the syndrome occurs when children are abused by family members or people they trust, the abusers often use threats, implicit or explicit, and "the kid pretty frequently figures out, this is not something we're supposed to talk about" profile defendant is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Those are elements of CSAAS that in part explain a sexually abused child's silence during continued abuse and delayed reporting. The examples bear directly on one of the CSAAS phases; unlike, for example, a child's torturing animals or setting fires, consequences of sexual abuse but not directly relevant to explain one of the five CSAAS phases.

We do, however, agree with defendant that the expert should not have referenced the Sandusky case. The reference had no bearing on the issues the jury had to decide. The expert should not reference the Sandusky case when this matter is tried again.

C.

Defendant next contends the court erred in its jury charges concerning Dr. Taska's testimony and Andrea's fresh complaint testimony. Specifically, defendant alleges that "in attempting to reconcile the clearly incompatible facts as they related to the fresh complaint and CSAAS testimony, the [c]ourt clearly misled the jurors, confused the issues, and misrepresented the testimony of the State's expert witness." Defendant also contends that the court misstated Dr. Taska's testimony. Lastly, defendant argues that the court's erroneous instructions and

misinterpretation of the CSAAS theory resulted in the [c]ourt improperly citing Dr. Taska's testimony and, in doing so, instructing the jury to consider the delayed disclosure period from the first incident of alleged abuse until the time the Hudson County Prosecutor's Office became involved in the investigation, rather than when the victim made the fresh complaint.

Defendant claims that this mistake "bolstered the State's case and allowed the jury to render a verdict on misinformation."

The trial court instructed the jurors in accordance with Model Jury Charge (Criminal) Child Sexual Abuse Accommodation Syndrome (2011) (Rev. 5/16/11), with one exception; the court gave the charge only with respect to Andrea's delayed disclosure to authorities, not to her brother. As to Andrea's disclosure to her brother, the court gave a charge substantially similar to Model Jury Charge (Criminal), Fresh Complaint (Rev. 2/5/07). As defendant correctly points out, there was no evidence presented at the trial, nothing in Dr. Taska's testimony, and nothing in case law to suggest that "CSAAS testimony is designed to explain a child's delayed reporting of abuse to authorities."

We begin by noting that the fresh complaint and CSAAS instructions are not inconsistent or inherently confusing when the State has introduced fresh complaint evidence. In such cases, the purpose of the fresh complaint charge is to explain the law's recognition "that people might assume that anyone subjected to a sexual offense would complain within a reasonable time to someone whom [the victim] would ordinarily turn for sympathy, protection or advice[,]" and "[i]f there was no evidence that [the victim] made such a complaint, some might conclude that no sexual offense occurred." Model Jury Charge (Criminal), Fresh Complaint (Rev. 2/5/07). The CSAAS charge may help explain why a sexually abused child may . . . delay reporting." Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (Rev. 5/16/11).

Thus, where there is a delay between the inception of sexual abuse and the victim's disclosure, but the disclosure is nonetheless considered "fresh complaint" evidence, the fresh complaint charge explains the limited purpose for which the jury may consider the fresh complaint evidence, and the CSAAS charge explains how the jury may evaluate the delay in making the fresh complaint. Having said that, we nonetheless agree with defendant that here the trial court's charge contained errors.

The trial court's charge had no basis in the evidence or the law. The expert's testimony addressed a child sexual assault victim's reasons for delaying disclosure generally, not for delaying disclosure specifically to authorities. Moreover, in giving the charge, the court misstated that Dr. Taska testified "children may keep silent about the abuse and delay reporting to the authorities." Dr. Taska's testimony was certainly not restricted to children disclosing abuse to the authorities.

The court's fresh complaint and CSAAS instructions may have had the potential for confusing the jury about why they would treat delayed reporting to a brother differently from delayed reporting to authorities. But we fail to discern how, as defendant argues, "[b]y doing so, the [c]ourt improperly bolstered the State's case and allowed the jury to render a verdict on misinformation." In any event, we are confident the trial court will not repeat the error.

III.

In view of our disposition of defendant's first argument, we address only those of his remaining arguments that might recur in the retrial. Defendant argues the court erred in admitting Andrea's hearsay statements to the State's medical expert, Dr. Diah. The State contends Andrea's statements to the doctor were admissible as an exception to the hearsay rule, namely, a statement made for purposes of medical diagnosis or treatment. The purpose of Dr. Diah's examination of Andrea is not entirely unequivocal. When specifically asked whether the purpose of her examination of Andrea was for diagnosis or treatment, the doctor responded, "Well, in this particular case, it was . . . evaluation for the possibility of sexual abuse." Significantly, the doctor found no evidence of such abuse. In view of that finding, it would appear that the only relevance of the doctor's testimony was that the absence of findings was not inconsistent with sexual abuse. The State may, however, be offering the evidence for other relevant reasons.

In any event, "[t]here is no doubt that if the examination . . . was conducted for evidence gathering purposes, the hearsay statements contained in the medical history would be inadmissible as not falling within the rule." State v. Pillar, 359 N.J. Super. 249, 289 (App. Div. 2003). Moreover, it is the State's burden to establish that Andrea's hearsay statements to the doctor fall within the hearsay exception. Ibid. Before admitting the doctor's testimony when the case is retried, the trial court should determine whether Andrea's statements to Dr. Diah fall within the hearsay exception. If necessary, the trial court should conduct a hearing under N.J.R.E. 104.

Defendant contends the prosecutor committed misconduct by repeatedly leading the State's witnesses in disregard of the trial court's instructions not to do so, vouching for the credibility of the State's witnesses, improperly bolstering their testimony, and improperly arguing to the jury that Alex's fresh complaint testimony corroborated Andrea's testimony. We need not address the merit, or absence of merit, of these arguments. We note only that from our review of the record it appears that the trial court properly interceded when the prosecutor's examinations of witnesses and comments in summation bordered on improprieties. We also add two comments: First, the prosecutor should refrain from arguing in summation anything about fresh complaint evidence other than its limited purpose, which the trial court clearly defined in its charge to the jury. Second, to the extent defendant believes that the prosecutor asked improper questions, sought to admit inadmissible evidence, or otherwise engaged in inappropriate conduct, defendant should file in limine motions with specific citations to the record. Courts cannot make definitive rulings on generalities and conclusory assertions.

Reversed and remanded for a new trial.

1 We use pseudonyms for all family members.

2 In R.B., the Hudson County Prosecutor's Sexual Assault Victim's Assistance Unit was involved in the investigation and at least one investigator has the same last name as the lead investigator in this case.