STATE OF NEW JERSEY v. JUAN L. GIL

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NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN L. GIL, a/k/a JUAN

L. JIL,

Defendant-Appellant.

December 12, 2016

Submitted September 22, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-11-1994.

Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).

PER CURIAM

A jury convicted defendant Juan L. Gil of repeatedly sexually assaulting his stepdaughter, Bonnie,1 over the course of eighteen months. The trial court sentenced him to twenty-three years in prison and assessed a $3,000 Sex Crime Victim Treatment Fund (SCVTF) penalty. Defendant appeals, arguing

Point I

The trial court erred in denying defendant's motion to exclude testimony about child sexual abuse accommodation syndrome [CSAAS]because it was irrelevant, unduly prejudicial, and not based on reliable science.

A. The Trial Court Erred in Admitting CSAAS Testimony Because it is Not Based on Reliable Science.

B. The Trial Court Erred in Admitting CSAAS Testimony Because it was Irrelevant and Unduly Prejudicial in This Case.

Point II

The conviction for aggravated sexual assault, aggravated sexual contact, and endangering must be reversed because the court failed to ensure a unanimous finding.

Point III

The instruction on defendant's exercise of his right to remain silent created the impression that he had an obligation to testify, violating his constitutional right to remain silent.

Point IV

The case must be remanded for resentencing because the judge erred in imposing the lengthy [twenty-three-year] sentence with a [seventeen-year] parole bar, and in imposing the maximum sex crime victim treatment fund penalties.

For the following reasons, we affirm defendant's convictions and prison sentence but vacate defendant's SCVTF penalty and remand for correction.

I.

We derive the following facts from the trial record. Defendant began dating Jennifer in 1996, when Bonnie was three months old. Shortly thereafter, defendant moved in with Jennifer and assumed the role of Bonnie's father. Defendant and Jennifer had a son together, James, in 2002, and the four lived together as a family in Jersey City.

Defendant began engaging in sexual activity with Bonnie when she was fourteen. For the next eighteen months, defendant engaged in a pattern of increasingly-aggressive sexual behavior with Bonnie. He made Bonnie record him masturbating, performed oral and digital sex on her, and engaged in vaginal intercourse with her at least four times.

Bonnie testified she never wanted to engage in sexual activity with defendant. Defendant would bribe her, giving her substantial sums of money after every encounter. Additionally, Bonnie testified defendant would threaten her with physical violence, pointing a gun at her and threatening to hurt her, her mother, and James if she ever told anyone about the assaults. Bonnie recorded one of the last assaults on her phone. The recording captured Bonnie say, "This is going to be the last thing ever." Defendant replied, "[T]hat is the stupidest thing I have ever heard."

Around June 2012, one of Jennifer's friends entered the home to find defendant laying on top of Bonnie in the living room. The friend called Jennifer and told her about what he saw. Jennifer immediately returned home and questioned Bonnie about the incident. While holding a knife, Jennifer said, "[I]f he's doing something, I I'm going to fucking kill him." Bonnie denied any sexual activity and said the friend had lied. Bonnie testified she did not tell her mother the truth because she "didn't want her to do anything for her to get locked up."

Bonnie finally informed her mother about the sexual assaults in late June 2012, about ten days after defendant last had sex with her. Jennifer called the police, and an investigation ensued. Defendant fled the scene before police arrived. After interviewing Bonnie, the Special Victims Unit (SVU) conducted a "consensual intercept," where they monitored and recorded two phone calls from Bonnie to defendant. During these calls, Bonnie tried to elicit a confession and apology from defendant. Although defendant never admitted assaulting her, he apologized several times for "making [her] miserable." Importantly, he offered to give her money, presumably in exchange for lying to the police and dropping any charges against him. The police eventually found defendant at a friend's house and arrested him.

A Hudson County grand jury returned an indictment against defendant, charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count four); fourth-degree criminal contempt, N.J.S.A. 2C:29-9 (count five); third-degree stalking, N.J.S.A. 2C:12-10(b) (count six); fourth-degree criminal contempt, N.J.S.A. 2C:29-9 (count seven); fourth-degree stalking, N.J.S.A. 2C:12-10(b) (count eight); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count nine).

Defendant moved for severance of counts five, six, seven, eight, and nine. The State opposed defendant's motion with respect to count nine, arguing the jury would need to know about the sexual assault allegations against defendant in order to fully understand the facts behind his tampering charge. On July 3, 2014, the trial court severed counts five, six, seven, and eight, but declined to sever count nine. The State dismissed count four on a separate motion.

Prior to trial, the prosecution represented that it intended to offer expert testimony regarding CSAAS at trial. This expert testimony would explain why Bonnie did not report the alleged abuse right away. On February 10, 2014, defendant filed a motion to exclude any CSAAS expert testimony, which the trial court denied. Specifically, the court concluded that CSAAS expert testimony in this case was relevant, not unduly prejudicial, and satisfied the requirements for admission of expert testimony in New Jersey.

On December 3, 2014, trial began on counts one, two, three, and nine. The jury returned its verdict on December 11, 2014, finding defendant guilty on all four counts. The trial court sentenced defendant on March 13, 2015. Applying aggravating factors three, six, and nine, and no mitigating factors, the court imposed an aggregate sentence of twenty-three years of imprisonment,2 with eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Along with other penalties and assessments, the court also imposed SCVTF penalties totaling $3,000, N.J.S.A. 2C:14-10.3

II.

Defendant appeals (1) the trial court's admission of CSAAS expert testimony, (2) the court's failure to ensure a factually specific verdict, (3) the court's jury instruction on defendant's right to not testify, (4) the court's sentence term, and (5) the court's SCVTF penalty amount. We consider each of these arguments in turn.

A. Admission of CSAAS Expert Testimony.

The admissibility of CSAAS expert testimony is well settled. State v. W.B., 205 N.J. 588, 609 (2011). Our Supreme Court first accepted this type of evidence over twenty years ago, permitting the State to present expert 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, 579 (1993) (citation omitted).

In W.B., the Court reiterated CSAAS testimony is "designed not to provide certain evidence of guilt or innocence, but rather to insure that all agencies, including the clinician, the offender, the family, and the criminal justice system offer 'the child a right to parity with adults in the struggle for credibility and advocacy.'" W.B., supra, 205 N.J. at 609 (quoting J.Q., supra, 130 N.J. at 571).

Here, after accepting Dr. Lynn Taska, a clinical psychologist, as an expert in CSAAS, the trial judge provided limiting instructions to the jury

You may not consider Dr. Taska's testimony as offering proof that child sexual abuse occurred in this case. Okay?

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 abuse occurred or did not occur.

. . . .

As I just stated, the testimony may not and I emphasize not be considered as proof that abuse did or did not occur. The accommodation syndrome, if proven, may explain why the sexually abused child may delay reporting.

On cross-examination, Dr. Taska acknowledged CSAAS is "not a tool meant to diagnose and determine whether or not sexual abuse occurred in any individual case." We therefore conclude the trial court properly allowed Dr. Taska to testify.

We also reject defendant's argument that the trial court should have excluded Dr. Taska's testimony pursuant to N.J.R.E. 702 because it "was not needed in this case to explain the delayed disclosure."

N.J.R.E. 702 provides, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." The jury had to determine the credibility of Bonnie's testimony that defendant bribed and threatened her. If the jury found her testimony incredible, the State would have to explain why Bonnie had not immediately reported the sexual assaults. Unlike the experts in State v. Simms, 224 N.J. 393, 409 (2016), and State v. Cain, 224 N.J.410, 429 (2016), Dr. Taska did not testify to defendant's state of mind. Instead, Dr. Taska provided relevant testimony explaining "if you have a delayed disclosure, for example, that doesn t mean it didn't happen." We are satisfied the trial court properly admitted and limited the CSAAS testimony to rebut the natural tendency to question the credibility of a child victim of sexual abuse due to a delay in reporting. W.B., supra, 205 N.J. at 579, 609.

B. Failure to Ensure a Factually Specific Verdict.

The New Jersey Constitution mandates unanimous verdicts in criminal trials. N.J. Const. art. I, 9; R. 1:8-9. "General charges on unanimity are insufficient where there is the risk of jury confusion or a fragmented verdict." State v. Tindell, 417 N.J. Super. 530, 555 (App. Div. 2011) (citing State v. Gandhi, 201 N.J. 161, 193 (2008)).

Courts are required to provide "'specific unanimity' instructions that is, impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict when there is a specific request for those instructions and where there exists a danger of a fragmented verdict." Gandhi, supra, 201 N.J. at 192 (quoting State v. Parker, 124 N.J. 628, 637 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992)). In the absence of a request for a specific unanimity charge, however, a court's failure to give the charge will not "necessarily constitute reversible error," id. at 193, unless the failure is "clearly capable of producing an unjust result." Parker, supra, 124 N.J. at 638.

"[T]he core question is, in light of the allegations made and the statute charged, whether the instructions as a whole [posed] a genuine risk that the jury [would be] confused." Gandhi, supra, 201 N.J. at 193 (second and third alterations in original) (quoting Parker, supra, 124 N.J. at 638). We are required to "examine two factors: whether the acts alleged are conceptually similar or are 'contradictory or only marginally related to each other,' and whether there is a 'tangible indication of jury confusion.'" Ibid. (quoting Parker, supra, 124 N.J. at 639).

In Gandhi, the Court rejected defendant's claim the trial court should have given a specific unanimity charge to support the elevation of his stalking conviction to a third-degree offense because the record was unclear if the jury unanimously found the defendant violated the same prior no-contact order. Gandhi, supra, 201 N.J. at 191. The Court concluded the record did not show the jurors may have reached contradictory findings as to which no-contact order the defendant had violated. Id. at 193. The Court explained "each [order] was related to previous orders, with no break in time when defendant was not subject to a no-contact order during the period charged in the offenses, [and] there was no risk of a fragmented verdict based on contradictory findings." Ibid. The Court also found the jury was not confused as to which no-contact order provided the basis for the separate stalking offenses. Id. at 193-94. It reasoned the State's, defense counsel's, and the court's closing instructions clarified which evidence the jury should consider for each charge, and "the jury never sought clarification or otherwise expressed uncertainty regarding the execution of its fact-finding duties." Ibid.

Here, neither the jury instructions nor the verdict sheet stated the entire jury needed to find defendant committed any specific sexual act. The verdict sheet asked only generally: for count one, whether defendant performed "an act of sexual penetration" on Bonnie; for count two, whether defendant committed "an act of sexual contact" on Bonnie; and for count three, whether defendant "caused harm to" Bonnie. Defendant argues based on this overly-general language, "the jurors could convict [defendant] . . . if some of them found he committed one form of penetration while others found a different form, and they were not unanimous on one specific form."

Notwithstanding defendant's arguments, we discern no plain error. Bonnie alleged various acts of sexual penetration: oral, digital, and penile. Importantly, nothing on cross-examination contradicted Bonnie's claims with regard to one form of penetration over another. Thus, a reasonable jury could not have found her testimony credible with regard to one form of penetration but not with regard to another, so the record shows no "tangible indication of jury confusion." Gandhi, supra, 201 N.J. at 193 (quoting Parker, supra, 124 N.J. at 639). Moreover, each of the alleged forms of penetration would have satisfied the penetration requirement for aggravated sexual assault. The court's general jury instruction, therefore, did not prejudice defendant.

Furthermore, the prosecutor very well could have charged defendant with multiple individualized counts of sexual assault, each based on a different form of penetration occurring at different times. Instead, the prosecutor consolidated all of the assaults into one charge. In this respect, defendant benefitted from the general charge. Accordingly, the trial court did not commit plain error when it failed to ask the jury for specific findings of fact as to each alleged form of sexual penetration. Parker, supra, 124 N.J. at 638.

C. Jury Instruction on Defendant's Right to Not Testify.

Defendant challenges the following instruction in the trial court's jury charge

The defendant in this case chose not to be a witness. It is the Constitutional right of a defendant to remain silent. I charge you are not to consider for any purpose or in any manner in arriving at your verdict the fact that defendant did not testify, nor should that fact enter into your deliberations or discussions in any manner at any time. The defendant is entitled to have the jury consider all the evidence and he is entitled to the presumption of innocence, even if he does not testify as a witness.

A trial court must properly charge a jury in order to protect the defendant's right to an impartial jury and a fair trial. State v. Collier, 90 N.J. 117, 122-23 (1982). Because defendant did not object to this jury instruction at trial, the plain error standard of review applies. See State v. Nero, 195 N.J. 397, 407 (2008).

According to defendant, the words "even if" undermine the entirety of the instruction. He argues the most recent model jury charges on a defendant's election not to testify, amended in 2009, have changed the language of the instruction from "even if he/she chooses not to testify" to "whether or not he/she chooses not to testify." Criminal Model Charges, Defendant's Election Not to Testify (revised May 4, 2009).

In State v. Miller, 205 N.J. 109, 126-27 (2011), the defendant raised this precise argument, also as plain error. In explicitly rejecting the argument, the Court noted its agreement with our assessment

Nonetheless, we are persuaded that the charge given in this case, read as a whole, had no capacity to lead the jurors astray. The jurors were clearly directed that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time.

[Id. at 127 (quoting State v. Miller, 411 N.J. Super. 521, 533 (App. Div. 2010), aff'd, 205 N.J. 109 (2011)).]

These observations are equally applicable here. We are satisfied, after reading the charge as a whole, the words "even if" did not have the capacity to create an unjust result or cause the jury to believe defendant was obligated to testify. Accordingly, we conclude the trial court did not commit plain error when it instructed the jury.

D. Length of Prison Term.

As guided by our Supreme Court, we apply a deferential standard when reviewing sentencing determinations, and should not substitute our judgment for the judgment of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence unless

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Here, the trial court found aggravating factors three (risk of recidivism), six (criminal history), and nine (specific and general deterrence). N.J.S.A. 2C:44-1(a)(3), (6), (9). Defendant does not assert the factors do not apply; rather, he only argues the court gave them too much weight. The court imposed a sentence within the guidelines: eighteen years for first-degree aggravated sexual assault, five consecutive years for third-degree tampering, and concurrent terms for the two remaining counts. Therefore, this court's scope of review on appeal is limited to whether the sentence shocks the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215 16 (1989). We conclude it does not.

With regard to the sentence for first-degree aggravated sexual assault, the court sentenced defendant to a prison term of eighteen years, less than the maximum term of twenty years. N.J.S.A. 2C:43-6(a)(1). Considering defendant was convicted of repeatedly raping his stepdaughter, which began when she was fourteen-years-old, we see no reason, and defendant provides none, for reversing the sentence as conscience-shocking. Defendant argues factors three, six, and nine "should be given no special weight in this case, where the defendant had only one prior indictable offense, a 1997 drug conviction." However, the record does not show the trial court gave special weight to these aggravating factors. The court did not find any mitigating factors, so the aggravating factors would clearly, by default, prevail for sentencing purposes. Even without giving special weight to the aggravating factors applied in this case, the eighteen-year sentence was not patently unreasonable in light of the absence of any mitigating factors and the heinous nature of the offense.

Defendant also argues the trial court should have sentenced him to a term at the bottom of the sentencing range for his witness-tampering conviction because "the judge had reservations about whether the defendant's actions even rose to the level of witness tampering." However, defendant submits no legal authority allowing us to reduce a sentence because the sentencing judge had reservations about whether or not the defendant's acts were illegal but ultimately concluded they were. The trial court dismissed defendant's motion for acquittal of the tampering charge, and the jury ultimately convicted him. We see no sentencing error, considering "the severity of the crime is now the single most important factor in the sentencing," State v. Hodge, 95 N.J. 369, 378-79 (1984), and defendant used his parental authority to conceal his sexual assault of his adolescent step-daughter for eighteen months. The trial court properly exercised its discretion when it sentenced defendant within the guidelines, notwithstanding whether or not the court expressed uncertainty before deciding the charge was warranted.

E. SCVTF Penalty.

In 2005, the Legislature enacted the SCVTF, N.J.S.A. 52:4B-43.2, to "defray the cost of counseling and treatment services for the victims of certain sex offenses and their families." State v. Bolvito, 217 N.J. 221, 223 (2014). The Legislature enacted N.J.S.A. 2C:14-10 to fund these services. The statute provides

[A] person convicted of a sex offense . . . shall be assessed a penalty for each such offense not to exceed

(1) $2,000, when the conviction is a crime of the first degree;

. . . .

(3) $750, when the conviction is a crime of the third degree . . . .

[N.J.S.A. 2C:14-10(a).]

In Bolvito, the Court interpreted "shall" in the statute to "mandate[] that a sentencing court impose an SCVTF penalty on a defendant convicted of an offense listed . . . [and therefore] the sentencing court lacks the discretion to dispense with the SCVTF penalty." Bolvito, supra, 217 N.J. at 231. The Court noted although a sentencing court must impose the penalty, it "has substantial discretion with respect to the amount of the SCVTF penalty" and "may impose a penalty in any amount, from a nominal amount up to the statutory maximum based on the defendant's offense." Id. at 231-32. In determining the amount of the penalty, the Court held sentencing courts should consider the nature of the offense and a defendant's ability to pay. Id. at 233-34. The Court also stated sentencing courts "should provide a statement of reasons when it sets a defendant's SCVTF penalty within the statutory parameters." Id. at 235.

During sentencing, the court noted defendant was "not very cooperative" in his presentence interview with probation. He did not "remember any real employment history" and did not "remember how far he went in school." The presentence report also stated, "No debts/assets reported." Given defendant's failure to provide meaningful input during his presentence interview, we reject defendant's argument that the court failed to consider his ability to pay in assessing the SCVTF penalties.

Defendant does correctly identify a minor point of sentencing error, as the trial court did incorrectly assess a $1,000 penalty for defendant's conviction of third-degree aggravated criminal sexual contact. N.J.S.A. 2C:14-10(a)(3) authorizes the court to impose a maximum penalty of $750 for a third-degree offense. We therefore vacate the SCVTF penalty imposed and remand to the trial court to assess the correct penalty amount.

Affirmed as to defendant's convictions and sentence, with the exception of the SCVTF penalty, which we vacate and remand for correction. We do not retain jurisdiction.

1 We refer to the victim and witnesses using pseudonyms to protect their privacy.

2 Specifically, the court sentenced defendant to eighteen years on count one, five concurrent years on count two, ten concurrent years on count three, and five consecutive years on count nine.

3 The court assessed a $2,000 SCVTF penalty for the first-degree aggravated sexual assault conviction and a $1,000 SCVTF penalty for the third-degree aggravated criminal sexual contact conviction.