STATE OF NEW JERSEY v. JAMES RUFFLIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5070-04T45070-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES RUFFLIN,

Defendant-Appellant.

_________________________________

 

Argued Telephonically October 25, 2007 - Decided

Before Judges Lintner, Parrillo and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-07-0667-I.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Leslie-Ann M. Justus, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Justus, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant James Rufflin was found guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b) and (c) (counts one and two); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) and 14-2(b) (counts three and four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count five). He was sentenced to fifteen years imprisonment with an eighty-five percent parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2 (the No Early Release Act) (NERA) for first-degree aggravated sexual assault (count one); to a consecutive term of seven years imprisonment with eighty-five percent NERA parole ineligibility period for second-degree sexual assault (count four); and to a concurrent term of seven years imprisonment for second-degree endangering the welfare of a child (count five). Counts two and three merged into count one for sentencing purposes. Fees and penalties were also imposed. Defendant appeals. Except for vacating the NERA penalty imposed on count four and remanding for resentencing as to that count, for the imposition of certain additional penalties on all counts, and for a statement of reasons for the $1000 fine, we affirm the judgment of conviction in all other respects.

According to the State's proofs, defendant was the Minister of Music and Choir Director at the Metropolitan Baptist Church in Scotch Plains, where M.H. and her five grandchildren, including T.H., attended. T.H., who was born on January 10, 1989, and his sister, A.H., both sang in the choir. T.H. did not have a father figure in his household, and had been raised by his grandmother, who was also his legal guardian, since he was four years old.

T.H. was eleven years old when he first came to defendant's attention. Defendant had called the church pastor to ask permission to be a "godfather" or "role model" for T.H. After the pastor conveyed his approval to M.H., she received a call from defendant, who confirmed that he wanted to act as mentor and role model for T.H., and take him to visit the schools that defendant had attended. M.H., believing defendant to be a "nice, caring guy" and a good role model for the child, agreed to this arrangement.

Although hesitant at first because defendant seemed to him "kind of gayish," T.H. grew to like being with defendant, to trust him, and to consider him a father figure. In time, defendant began taking T.H. out to dinner "mostly every Sunday after church," buying him clothes, and lavishing presents upon him. Indeed, T.H. and his family started referring to defendant by the nickname, "Professor Rufflin."

Defendant's sexual abuse of T.H. began sometime between the summer and fall of 2001, when T.H. was close to turning thirteen. The first incident occurred at defendant's apartment in Newark. When they were about to leave, defendant began touching T.H. and rubbing the boy's chest up and down with his hand. He then rubbed T.H.'s penis from outside his clothing, grabbed his buttocks, and gave T.H. a "tongue kiss." The whole incident lasted about five to ten minutes. Once they got into the car, defendant again rubbed T.H.'s chest, put his hands on the boy's pants, played with his penis and kissed him, before driving him home. T.H. did not tell anyone about the incident because he was embarrassed and scared of "break[ing] us up."

After this incident, T.H. accompanied defendant on overnight stays at a hotel in the Princeton area, with M.H.'s permission, where defendant continued to sexually assault his victim. During the first hotel stay, from February 8 through February 10, 2002, when T.H. was thirteen years old, defendant performed fellatio upon the boy the first night and attempted to anally penetrate him. When T.H. told him to stop because it hurt, defendant continued his sexual assault until he ejaculated. The abuse continued the next night when defendant licked T.H.'s anus. The next hotel stay occurred the following month, from March 28 to March 31, 2002, when defendant once again sexually assaulted T.H. by fellating the boy and inserting his fingers and penis in T.H.'s anus.

From March 1, 2002 to February 28, 2003, defendant leased an apartment in Plainfield where T.H. spent most weekends from June to August 2002, again with the permission of the grandmother, who trusted defendant, "[be]cause he was an adult," "to take care of" T.H. While at the Plainfield residence, defendant sexually assaulted T.H. by performing acts of fellatio and anal penile and oral penetration upon the boy similar to those perpetrated during the hotel stays. In addition, defendant made T.H. fellate him once or twice while at the apartment. Defendant warned T.H. on these occasions "not to tell anybody on us, you better not tell nobody or else you'll be sorry."

Indeed, T.H. kept defendant's sexual abuse secret until about one year after it began, when he revealed it on August 15, 2002, after confronted by his sister, A.H., who overheard T.H.'s sexually explicit conversation on a kids' chat line. At first, T.H. was embarrassed, afraid and confused, denying anything was wrong. When A.H. persisted, by asking pointed questions about defendant, T.H. started crying and then told her about some of the sexual assaults that occurred at defendant's apartment. A.H., herself scared and confused, did not tell her grandmother at first because she loved defendant too and did not want to ruin his reputation. Instead, T.H. spent that night at defendant's apartment where defendant again fellated T.H. and anally penetrated him.

Later that evening, M.H. attempted to reach T.H. by telephone and when no one answered, went to defendant's apartment, accompanied by the police. No one answered the door, nor the telephone, which she kept calling the next morning. When she was finally able to reach defendant on his cell phone, she demanded that he bring T.H. home. When T.H. arrived, M.H., extremely upset and banging on a table, asked what was wrong and T.H. eventually replied that the "Professor [has] been messing with me," which, T.H. further explained, meant that defendant had sexually assaulted him. T.H. was upset, "nervous, shaking and embarrassed" when he revealed defendant's sexual abuse to his grandmother.

When she finally reached defendant by telephone, M.H. was crying and screaming "you better not call my house no more you sick bastard." When she asked him why he had done these things when she had entrusted him with her grandchildren, defendant could only explain that he "loved" T.H., neither denying nor confirming the claims of sexual abuse.

Defendant and his attorney met with police on October 2, 2002, at which time he gave a verbal statement. Defendant gave a formal written statement to police on November 1, 2002, after signing a waiver of Miranda rights form, wherein he admitted mentoring T.H., purchasing clothes and school supplies for him, spending the night with him at a hotel and every other weekend at his apartment, but denied committing any sexual abuse of the boy.

T.H. was examined for any sexually transmitted disease on December 6, 2002. At the outset of the examination, T.H. told Dr. Medina that "he had genital to genital contact, oral to genital contact, and hand to genital contact with an adult male." Although Dr. Medina found no abnormalities or physical indications of disease or damage to T.H.'s body, the lack of physical findings was not inconsistent with penile/anal penetration.

Dr. Christine Baker, an expert in child maltreatment and the Child Sexual Abuse Accommodation Syndrome (CSAAS), opined that sexually abused children often delay disclosure of their sexual abuse because they feel responsible for the family dynamics and functioning; and boys who are abused by males are more likely not to disclose and "question whether or not they're manly, whether or not they are gay, or homosexual." Dr. Baker, however, expressly acknowledged that: (1) she did not evaluate T.H.; (2) CSAAS is a syndrome and not a diagnostic tool that can be used to diagnose whether a child has been sexually abused; (3) she was aware of some psychologists who do not believe in the syndrome; and (4) she was not offering an opinion as to whether T.H. was sexually abused.

On appeal, defendant raises the following issues:

I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF COUNTS THREE AND FOUR BECAUSE THE STATE NEVER PROVED THE DEFENDANT'S AGE.

II. THE JURY INSTRUCTIONS REGARDING THE ELEMENTS ON COUNTS ONE, TWO AND FOUR WERE INCORRECT AND INCOMPLETE AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)

A. "MENTOR OR GODFATHER" IS NOT A "LEGAL, PROFESSIONAL OR OCCUPATIONAL STATUS" AS THAT TERM IS USED IN THE SEXUAL ASSAULT STATUTE AND, THUS, SHOULD NOT HAVE BEEN INSTRUCTED TO THE JURY AS SUCH.

B. THE TRIAL JUDGE'S REFUSAL TO ANSWER THE JURY'S QUESTION REGARDING THE MEANING OF "IN LOCO PARENTIS" WAS INEXCUSABLE.

C. THE JUDGE FAILED TO ASSIGN A BURDEN OF PROOF TO THE JURY'S DECISION AS TO THE APPLICATION OF NERA TO COUNT FOUR AND THEN DEMEANED THAT ISSUE AS IRRELEVANT NONSENSE WHICH HAD "NO SIGNIFICANCE" WHEN THE JURY ASKED ABOUT IT.

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

IV. THE SENTENCE AND FINE WHICH WERE IMPOSED ARE MANIFESTLY EXCESSIVE.

We address these issues in the order raised.

(i)

Defendant contends that because the State offered no direct evidence as to his age relative to that of the victim, the State failed to prove a requisite element of the offense beyond a reasonable doubt. We disagree.

An element of the offense of sexual assault under both N.J.S.A. 2C:14-2(b) (count four) and N.J.S.A. 2C:14-2(c)(4) (count three) is that the actor be "at least four years older than the victim." Here, there was uncontradicted direct evidence that defendant was twelve and thirteen years old when he was sexually assaulted by defendant. Of course, the State is also permitted to prove age through inferences, State v. Lassiter, 348 N.J. Super. 152, 161-62 (App. Div. 2002), and there was substantial circumstantial evidence of defendant's adult status in this case from which a reasonable jury could find guilt of the charge beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 459 (1967). Defendant represented to others that he graduated from high school and had attended Princeton University or, alternatively, Westminster Choir College. There was also evidence that he had engaged in adult activities such as renting an apartment and limousine, and paying for a hotel bill with a credit card. Moreover, his occupation of minister and choir director, and his relationship to the victim as "godfather," "role model," and "father figure" bespoke his adult status. Indeed, defense counsel himself characterized defendant as a "mentor" and a "godfather," and argued to the jury that defendant was a "good man" (emphasis added) who loved the victim "like [a] son."

More significantly, although defendant's demeanor while sitting at counsel table may not be considered as evidence against him, State v. Gould, 123 N.J. Super. 444, 448-49 (App. Div.), certif. denied, 64 N.J. 312 (1973), this proscription does not extend to evidence that the jurors may adduce with their own eyes. "Jurors are expected to use their common sense and experiences" to determine "where the truth lies," ibid., and thus are permitted to consider defendant's physical appearance as evidence of his age relative to the victim. See State v. Collins, 262 N.J. Super. 230, 236 (App. Div. 1993) (citing State v. Lefante, 12 N.J. 505, 513 (1953) (the defendant "knows his own age better than any one else and so he does not need proof on the subject. Nor in many cases does the jury require such proof" because, in this case, "the eyes of the jurors told them that the 53 year old defendant was 'of the age sixteen or over'") (emphasis added)).

Because a jury may "use its eyes" to determine that a defendant in his late forties at time of trial was at least four years older than his victim, who was twelve and thirteen years old when the offenses occurred, it was not error for the prosecutor to have referred to defendant as a "40 something year old man" in her opening, and as a "47 year old man" in summation. A prosecutor is permitted to comment on the evidence and draw reasonable inferences therefrom. See State v. Chew, 150 N.J. 30, 84 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled on other grounds, State v. Boretsky, 186 N.J. 271, 284 (2006); State v. Johnson, 120 N.J. 263, 296 (1990); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). Moreover, defense counsel did not object to the characterizations of defendant's age at the time, strongly suggesting that counsel did not then consider them to be prejudicial or error. See State v. Wilson, 57 N.J. 39, 50-51 (1970); State v. Robinson, 266 N.J. Super. 268, 281-82 (App. Div. 1993), rev'd on other grounds, 136 N.J. 476 (1994). Nor did counsel raise this issue on the two occasions he moved for judgment of acquittal at trial.

We conclude there was no error here. The judge properly instructed the jury, and reiterated several times, that the State was required to prove the age element beyond a reasonable doubt, and the jury so found upon sufficient circumstantial evidence that defendant was at least four years older than his victim.

(ii)

Defendant raises the two-fold contention, for the first time on appeal, that the judge erred in: (1) instructing the jury to consider defendant's status as "godfather" in determining whether defendant had supervisory or disciplinary authority over the victim in order to elevate the offense charged in count one to a first-degree crime under N.J.S.A. 2C:14-2(a)(2)(b); and (2) ignoring the jury's question on count two regarding the definition of in loco parentis within the meaning of N.J.S.A. 2C:14-2(a)(2)(c). Because no objection to the charge was voiced below, we consider these dual contentions under the plain error rule, R. 2:10-2, and when so considered, we conclude there was no error, much less plain error, in the court's instructions.

(a)

As charged in count one, sexual assault is a crime of the second degree, but if the actor had "supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status," the offense is elevated to aggravated sexual assault, a crime of the first degree. N.J.S.A. 2C:14-2(a)(2)(b). Defendant argues that the jury was erroneously instructed to consider whether defendant's status as "mentor" or "godfather," which he claims falls solely within the "familial" relationship contemplated in Section 2(a)(2)(c), may also satisfy the "legal, professional, or occupational status" element referred to in Section 2(a)(2)(b). We disagree.

In State v. Buscham, we declined to restrict the "supervisory or disciplinary" relationship to those found between leaders and participants in "institutional activities such as organized leagues or school teams." 360 N.J. Super. 346, 361-62 (App. Div. 2003) (a part-time sports coach may have this power over a team member if the relationship is "inherently unequal"). Instead we provided the following guidance:

On remand, the jury must be told what factors to consider, with particular reference to the evidence presented during the course of the trial.

Depending upon the evidence presented, the jury may consider whether there was a significant disparity in ages and/or maturity level between the two; the role that the athletic activity plays in the life of the alleged victim; the extent, if any, to which the coach has offered guidance and advice to the alleged victim on questions and issues outside the athletic arena; and the power or ability of the coach to affect future athletic participation or success. We list these factors by way of example only, with no intent to exhaust the field. Counsel and the trial court may well be able to identify additional items. The jury should examine the entire context of the relationship.

[Id. at 362.]

Here, the judge's instruction closely tracked our language in Buscham:

[The] [t]hird element the State must prove beyond a reasonable doubt is that the defendant had a supervisory or disciplinary power over the victim because of his legal, professional, or occupational status.

In this case the State alleges that the defendant had a supervisory power over [the victim] because [sic] the defendant's status as his mentor or godfather.

In determining whether the defendant had supervisory or disciplinary power over [the victim], you must examine the entire context of the relationship between the defendant and [the victim].

To do so you should consider the nature of the relationship between the defendant and the victim and whether the relationship was so unequal as to vest supervisory or disciplinary power in the defendant.

Among the factors you may consider, whether there was a significant disparity in the age or majority level between the defendant and the victim.

Whether the defendant offered the advice and the guidance to [the victim] on questions and issues outside the defendant's role as the mentor or godfather.

And the power or ability of the defendant to affect [the victim's] future participation [or] success.

We perceive no undue emphasis on defendant's status as "godfather" to the exclusion of all other aspects of the relationship between defendant and T.H. On the contrary, the judge instructed the jury to determine "[w]hether the defendant offered the advice and the guidance to [the victim] on questions and issues outside the defendant's role as the mentor or godfather." (emphasis added). Also, the judge instructed the jury to consider "the power or ability of the defendant to affect [the victim's] future participation [or] success," thereby implicitly referencing defendant's status as minister of the church T.H. attended and as director of the choir for which T.H. sang.

In any event, we disagree with the proposition that the terms "godfather" and "mentor" denote only a familial relationship under subsection (a)(2)(c), to the exclusion of those encompassed within (a)(2)(b). The term "[g]odfather" refers to "a man who acts as a sponsor for a child at baptism and agrees to insure its Christian training," G.L. & R. Realty Corp. v. State Liquor Auth., 356 N.Y.S.2d 994, 997 (Sup. Ct.), aff'd, 361 N.Y.S.2d 217 (App. Div. 1974), and the term "mentor" is defined as "[a] wise and trusted teacher or counselor." Webster's II New Riverside University Dictionary (1984). Neither of these terms fairly suggests only a familial relationship.

Thus, we discern no error in the court's reference to defendant's status as "godfather" or "mentor" as relating to those supervisory or disciplinary relationships enunciated in Section (a)(2)(b). Buscham explicitly charges the jury with examining "the entire context of the relationship" and allows the trial court to "identify additional items" because the factors listed were "by way of example only, with no intent to exhaust the field." 360 N.J. Super. at 362. We likewise find no error in failing to explicitly mention defendant's status as minister or choir director, which undoubtedly falls within Section (a)(2)(b)'s scope, since such was implicit in the charge as a whole, and therefore serves as a basis for finding criminal liability thereunder.

(b)

As charged in count two, second-degree sexual assault is also elevated to first-degree aggravated sexual assault when the actor "stands in loco parentis within the household." N.J.S.A. 2C:14-2(a)(2)(c). Thus, as to count two, the judge gave the following instruction:

The third element the State must prove beyond a reasonable doubt is that . . . the defendant is [the victim's] foster parent, the defendant is [the victim's] guardian, or stands in loco parentis, that's the Latin term which means that is in the place of [the victim's] parents within the household.

During its deliberation, the jury inquired whether the term "godfather" is "encompassed in the term [in] loco parentis," and while conferencing with counsel the judge told them, "[m]y answer would be that it's a fact question for them to determine." Both attorneys agreed. The judge then told the jury,

That's for you to decide. Okay? That's what you're here for. You have to decide that.

If you want me to read the definition [of in loco parentis], I'll be happy to do [that] for you.

The jury did not ask the court to repeat the previously stated definition of "in loco parentis."

Defendant argues that the judge abdicated his duty to instruct the jury "thoroughly and accurately" by failing to "supplement the model jury instruction," and that the judge should have instead given the jury additional defining factors set forth in Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 91-93 (2006), and Buscham, supra, 360 N.J. Super. at 362. We disagree. In "examin[ing] the charge in its entirety, to ascertain whether it is either ambiguous and misleading or fairly sets forth the controlling legal principles relevant to the facts of [this] case," we conclude that the trial judge not only gave an adequate jury instruction, but responded to this fact question from the jury in the most appropriate way. State v. LaBrutto, 114 N.J. 187, 204 (1989) ("A party is entitled only to a charge that is accurate and that does not, on the whole, contain prejudicial error.").

In defining in loco parentis as standing "in the place of [the victim's] parents," the judge quoted verbatim the definition from Black's Law Dictionary, which was adopted in Hardwicke, supra, 188 N.J. at 91. The reason for further elucidation on the applicability of the term in loco parentis in Hardwicke was simply because the defendant there was not a natural person, but an institution - specifically, a school. Id. at 91-92 (affirming the lower court's determination that defendant school acted in loco parentis by providing "'necessary shelter, food, education, recreation, and succor'").

Here, the judge's charge adequately instructed the jury to determine whether defendant, considered the victim's "godfather," was acting in the place of a parent, as a "mentor" or "father figure," in spending time with T.H. outside of church and choir activities and buying him gifts. Specifically, there was evidence that defendant frequently took meals and spent holidays with T.H.'s family; counseled T.H. as to school and his grades; and encouraged T.H. in his pursuit of a career as a singer. There was also proof that T.H.'s father was absent and his grandmother agreed that defendant would be T.H.'s godfather because T.H. needed a "male role model." Thus, there was ample evidence from which a reasonable jury could find an in loco parentis relationship. Moreover, jurors may use their personal experience and common sense to identify characteristics of a parental relationship. See State v. Vick, 117 N.J. 288, 291-92 (1989). In sum, the judge's charge generally, and his definition of in loco parentis specifically, were sufficient and there was ample evidence for the jury to find that defendant stood in the place of a parent.

(iii)

Defendant next claims that the court's model jury charge on CSAAS testimony "grossly intrudes upon the jury's function to make credibility determinations" inasmuch as it instructs the jury "not [to] automatically conclude that [the victim's] testimony is untruthful based only on his delayed disclosure." Defendant did not object below, therefore we review this for plain error, R. 2:10-2; State v. R.B., 183 N.J. 308, 323 (2005), and once again find no error, much less plain error, in the CSAAS instruction.

Because delay in reporting abuse may cast doubt on a child's veracity, our courts have determined that CSAAS can serve a "'useful forensic function'" in explaining why a child might delay disclosure of sexual abuse. State v. P.H., 178 N.J. 378, 394-95 (2004) (quoting State v. J.Q., 130 N.J. 554, 579 (1993)). Therefore, where a victim has made an untimely charge of sexual abuse, the State is permitted to introduce expert testimony regarding CSAAS to offer an explanation for the delay other than recent fabrication. J.Q., supra, 130 N.J. at 556, 579-81; see also P.H., supra, 178 N.J. at 395-400 (setting forth the language of the model jury charge, which warns of the limited use of such testimony).

Consistent therewith, and as previously noted, Dr. Baker testified as the State's expert on CSAAS. Just prior to her testimony, the jury was instructed that they were "not bound by [the] expert['s] opinion [and] may reject it," and that it was the jury's function "to determine whether the facts on which . . . the testimony of [the] expert is based actually exist[]." In later instructing the jury on all charges, the judge addressed CSAAS specifically, as follows:

The law recognizes that stereotypes about sexual assault complaint[s] may lead some of you to question the complainant's credibility based solely upon the fact that he did not complain about the allege[d] abuse earlier.

You may not automatically conclude that his testimony is untruthful based upon his delayed disclosure; rather, you may consider the delayed disclosure along with all other evidence, including the complainant's explanation of his delayed disclosure in deciding how much weight, if any, to afford to the complainant's testimony.

You may also consider the expert's opinion that explains the delay as one of the many ways in which a child may respond to sexual abuse.

Accordingly, your deliberations in this regard should be informed by the testimony presented concerning the Child Sexual Abuse Accommodation Syndrome.

The judge further warned the jury that it "may only consider the testimony of the expert for the limited purpose for which the Court is going to explain" and that CSAAS is "not a diagnostic device and cannot determine whether or not abuse occurred." The judge reiterated "that [expert] testimony may not be considered as proof that the abuse did or did not occur" but if CSAAS were proven it "may help explain why a sexually abused child may delay reporting abuse." The judge concluded his instruction with:

The weight to be given to Dr. Baker's testimony is entirely up to you. You may give it great weight, or slight weight, or any weight in between. You may, in your discretion, reject it entirely. You may not consider the expert's testimony as in any way proving the defendant committed or did not commit any particular act of sexual abuse. Testimony as to accommodation syndrome is offered only to explain certain behavior of an alleged victim of sexual abuse.

These instructions closely track those provided in P.H., supra, and the current model jury instructions for CSAAS. Contrary to defendant's contention, they do not impermissibly intrude on the jury's ability to make credibility determinations. Indeed, the charge expressly permits the jury to reject the expert testimony on CSAAS entirely, and as such, does not command the jury to determine the victim's credibility solely through the "filter" of CSAAS, as defendant asserts. In fact, not only was the jury to determine the credibility of the expert testimony, but the applicability of CSAAS to the facts in issue. The so-called challenged mandate "not [to] automatically conclude . . ." is simply a direction to the jury to hear and consider the CSAAS testimony, and not that it be deemed credible or even applicable to this particular victim. Quite the opposite, the court's instruction permits a variety of jury responses, allowing the jury to either: (1) find the CSAAS testimony credible and the victim credible because he suffers from CSAAS; (2) reject the expert testimony entirely and consider CSAAS not at all in determining the credibility of the victim; or (3) find the CSAAS testimony credible but determine that CSAAS does not apply to T.H. on these facts. Therefore, in reviewing the court's charge as a whole, R.B., supra, 183 N.J. at 324-25, we conclude there was no interference with the jury's function in determining witness credibility.

(iv)

Lastly, defendant raises a host of challenges to his sentence. He argues it was excessive; the terms should all have been concurrent; no reasons were given to support the $1000 fine on the first-degree conviction; and that the NERA feature imposed on count four must be vacated because the judge failed to instruct the jury that it must find beyond a reasonable doubt that the acts alleged occurred on or after the date NERA was amended to expressly include this offense. The State agrees that a limited remand is in order because the judge failed to make findings in support of the $1000 fine, as required by N.J.S.A. 2C:44-2. See State v. Miller, 108 N.J. 112, 122 (1987). We further direct on remand that the Sexual Assault Nurse Examiner (SANE) Program penalty of $800, which the judge imposed only once, be imposed for each of defendant's five convictions. N.J.S.A. 2C:43-3.6(a) (the penalty is imposed "for each such offense"); State v. Milledge, 386 N.J. Super. 233, 237 (App. Div.), certif. denied, 188 N.J. 355 (2006) (the imposition of three $800 SANE penalties on three applicable convictions, two of which were merged for sentencing purposes, was "appropriate").

That said, we find no warrant for interference with defendant's twenty-two year aggregate term. As to the claim of excessiveness, we discern no impermissible double-counting of aggravating factors #1 and #2: "[t]he nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), and "[t]he gravity and seriousness of harm inflicted," N.J.S.A. 2C:44-1(a)(2). Suffice it to say, there was evidence, apart from the victim's youth and sexual nature of the crimes, supporting application of these two aggravating factors. As the trial judge noted, the fact these crimes were perpetrated over the course of a year, as well as the particular types and varieties of degradatory conduct engaged in, was itself "cruel and depraved." Moreover, T.H. was particularly vulnerable given his slightness of build and emotional and physical inability to resist these sexual assaults, which caused him continuing psychological harm. Accordingly, application of these aggravating factors was not error.

Nor was there error in imposing consecutive sentences for defendant's conviction on counts one and four. In the first place, our sentencing scheme contains "no presumption in favor of concurrent sentences," and "the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions." State v. Abdullah, 184 N.J. 497, 513-14 (2005) (citing N.J.S.A. 2C:44-5(a)). Defendant's aggregate prison sentence of twenty-two years is well within the permissible sentencing range for these two convictions and therefore, this sentence does not shock the judicial conscience.

Moreover, counts one and four represent separate acts of sexual abuse taking place over the course of a year at different locations - count one when the victim, then twelve, visited defendant's apartment, and count four some months later when the victim had turned thirteen, at various hotel rooms where defendant and victim shared a bed overnight. The judge found that the acts constituting the two separate offenses were "predominantly independent" of one another, and we have no quarrel with that determination. State v. Yarbough, 100 N.J. 627, 644-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

We do, however, find error in the application of the NERA enhancement penalty to defendant's conviction on count four. To convict under N.J.S.A. 2C:14-2(b), the jury had to find that defendant sexually assaulted T.H. prior to the victim's thirteenth birthday on January 10, 2002. Equally clear is that to warrant a NERA enhancement for this crime, the acts charged in count four would have had to have been committed on or after June 29, 2001, the effective date of the statutory amendment expressly applying the NERA penalty of a mandatory eighty-five percent parole ineligibility bar to this particular crime. N.J.S.A. 2C:43-7.2; see also Pressler, Current N.J. Court Rules comment 1.3.5 on R. 3:21-4 (2007).

As such, during the charge conference, it was established that NERA would automatically apply to count four if the acts alleged therein occurred on or after June 29, 2001. At defense counsel's request, the court agreed to ask, "If guilty, did the acts occur [on or] after June 29, 2001, yes or no?" Accordingly, the judge instructed the jury, "[a]s to the crime of sexual assault alleged[] to have been committed upon [the victim] between the time of January 10, 2001, and January 9, 2002":

If you find [defendant] guilty, you must then answer did this offense occur after June 29th, 2001, yes or no? All right?

As noted, the jury convicted defendant of count four and then answered "yes" to the question of whether the offense occurred on or after June 29, 2001. Accordingly, the judge applied the mandatory NERA penalty to enhance defendant's sentence on count four.

Defendant now argues the judge committed error in failing to instruct the jury that the State must prove that the offense occurred on or after June 29, 2001 beyond a reasonable doubt. The State counters that the date of NERA applicability is not an element of the offense defined in N.J.S.A. 2C:14-2(b), and thus need be proven only by a preponderance of the evidence, citing N.J.S.A. 2C:1-13(d). We agree with defendant.

The fact that the date of the offense is not an element of the crime charged is not dispositive of the issue. In State v. Torres, 236 N.J. Super. 6, 13 (App. Div. 1989), certif. denied, 122 N.J. 153 (1990), we held that "in prosecutions under N.J.S.A. 2C:35-5 the jury must find that defendant manufactured, distributed, dispensed or possessed the relevant quantity or quality of C.D.S. by proof beyond a reasonable doubt" even though "the quantity and quality are not elements of the offense . . . ." See also State v. Moore, 304 N.J. Super. 135, 145 (App. Div. 1997). In other words, the State has to prove, and the jury has to find beyond a reasonable doubt, how much the defendant possessed in order to satisfy our criminal code's grading provisions. Moore, supra, 304 N.J. at 145; Torres, supra, 236 N.J. Super. at 13.

Indeed, it is well settled that, under the Code of Criminal Justice, the jury must find beyond a reasonable doubt the existence of critical facts required to elevate the degree or gradation of crime. See, e.g., State v. Federico, 103 N.J. 169, 174-75 (1986) (State has the burden of proving the factor which elevates kidnapping from second degree to first degree crime); State v. D'Amato, 218 N.J. Super. 595, 604-05 (App. Div. 1987) (requiring the fact-finder to determine the amount involved in a theft for grading purposes), certif. denied, 110 N.J. 170 (1988); State v. Burks, 188 N.J. Super. 55, 60 (App. Div.) (in theft offense jury must make finding of value for purposes of gradation), certif. denied, 93 N.J. 285 (1983).

As with degree and gradation of crime, our Court has held with respect to parole disqualifiers under NERA, that the so-called "NERA factors" are to be heard by a jury under the "beyond a reasonable doubt" standard. State v. Johnson, 166 N.J. 523, 540-41, 544 (2001), overruled on other grounds, State v. Stanton, 176 N.J. 75 (2003); see also Abdullah, supra, 184 N.J. at 510 n.4. In holding that "the application of NERA could be understood to require [constitutional doubt] protections," the Johnson Court reasoned that the "'punishment' imposed by NERA could be more severe than the punishment imposed by the hate crimes law held unconstitutional in Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)]," Johnson, supra, 166 N.J. at 542, and that "'real time is the realistic and practical measure of the punishment imposed.'" Id. at 541 (quoting State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001)).

Understood in that context, and by parity of reasoning, we conclude that the predicate question of NERA's applicability, dependent as it is here on the date on which the offense was found to have been committed, is one to be resolved by the jury under the reasonable doubt standard. Although this predicate fact of NERA sentencing is not necessarily encompassed by an element of the count four crime with whose commission defendant is charged, nevertheless it undeniably affects defendant's real time sentence, as "parole ineligibility is the backbone of the sentence." State v. Kovack, 91 N.J. 476, 481 (1982). Indeed, no one here disputes that the facts requiring pre-amendment NERA to apply - namely defendant's threat or use of physical force to effect the sexual assault - were simply not indicated in the record. Thus, the only predicate for the application of NERA to the offense charged in count four was its commission on or after the effective date of the amendment that expressly designated N.J.S.A. 2C:14-2(b) as a covered offense. Because the court's instruction to the jury failed to provide they must find the predicate fact beyond a reasonable doubt, it constituted plain error. Consequently, the NERA feature attaching to the sentence imposed on count four is vacated and the matter remanded for resentencing on this count.

 
The judgment of conviction is modified to vacate the NERA parole ineligibility term on count four, and we remand for resentencing on count four, for imposition of the SANE penalties consistent with this opinion, and for reconsideration of the $1000 fine. In all other respects, the judgment of conviction is affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

As originally enacted in 1997, NERA applied generally to any violent crime of the first- or second-degree, and was, prior to its amendment effective June 29, 2001, applied to sentences imposed for sexual assault convictions only if the defendant used or threatened to use physical force. Pressler, supra, comment 1.3.5 on R. 3:21-4 (citing L. 2001, c. 129); State v. Thomas, 166 N.J. 560, 572 (2001) (sexual assault offenses that do not contain a NERA factor as a constituent element of the offense can be brought within the scope of NERA only upon proof of a NERA factor beyond a reasonable doubt).

During deliberations the jury asked for the clarification of the "significance" of this date. Consistent with defense counsel's suggestion, the judge instructed the jury:

[June 29th] involve[d] a question of law which really has nothing to do with the case. If -- when you arrive at that question, and you come to answer that question, answer that question, but there is no significance to your deliberations. All right? So it's something outside of the case that the Court needs [sic] answer to.

(continued)

(continued)

29

A-5070-04T4

RECORD IMPOUNDED

November 16, 2007