STATE OF NEW JERSEY v. R.D.

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NOT FOR PUBLICATION WITHOUT THE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.

R.D.,

Defendant-Appellant.

_______________________________

September 20, 2013

 

Argued September 10, 2013 - Decided

 

Before Judges Messano and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-04-0832.

 

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

 

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).

PER CURIAM

After a February 2012 non-jury trial, defendant R.D. was convicted of six counts of second-degree sexual assaults upon his daughter C.D. ("Cassie")1 while she was under the age of thirteen, N.J.S.A. 2C:14-2(b) (counts one, two, four, six, eight and nine); three counts of second-degree engaging in sexual conduct that would harm, impair, or debauch the morals of Cassie while under a legal duty to care for her, N.J.S.A. 2C:24-4(a) (counts three, ten, and thirteen); two counts of first-degree aggravated sexual assault of Cassie while she was under the age of thirteen, N.J.S.A. 2C:14-2a(1) (counts five and seven); one count of third-degree terroristic threats to Cassie if she disclosed the sexual abuse, N.J.S.A. 2C:12-3a (count eleven); and one count of third-degree attempt to cause or recklessly cause significant bodily injury to Cassie, N.J.S.A. 2C:12-1b(7) (count twelve). The trial judge imposed upon defendant what he intended to be a seventy-year2 aggregate prison sentence, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

Defendant now appeals. His principal argument, which was not raised at trial, is that the court improperly admitted and relied upon opinion testimony presented by the State's expert concerning Child Sexual Abuse Accommodation Syndrome ("CSAAS"), in connection with Cassie's delay in reporting her father's alleged acts of sexual abuse. Defendant further argues that the court's sentencing analysis is erroneous and incomplete in several respects, and that a remand for resentencing is warranted if the court affirms his convictions. For the reasons that follow, we affirm the convictions, but remand, with the State's consent, this case for resentencing.

I.

The State's proofs at trial3 essentially showed that defendant repeatedly sexually assaulted his daughter Cassie on numerous occasions from the time she was the age of four until the age of ten. Centrally, the State relied upon the testimony of Cassie herself, who was fifteen years old at the time of trial. The State also presented testimony from a police detective, Barbara Stio, who interviewed Cassie about the sexual abuse, and from Dr. Anthony D'Urso, a psychologist who provided expert opinion explaining the theory of CSAAS as it relates to the delays of child victims in reporting such sexual abuse. Defendant elected not to testify and did not call any witnesses on his own behalf.

The testimony shows that Cassie lived in the same household with defendant, her mother, her sister, and, at times, also her grandmother, from birth. She recalled that defendant would touch her breasts over and under her clothing, starting when she was around the age of four or five, making her feel uncomfortable. Around the time that Cassie was in first grade, defendant began making her touch his penis. The sexual abuse thereafter worsened, as defendant began demanding that Cassie take off her clothes. Cassie testified that he would touch her body with his penis, and at times, she would see him ejaculate. According to Cassie, defendant also vaginally penetrated her with his penis on numerous occasions, usually in her bedroom or in the living room where defendant slept. At times, the assaults took place in the bathroom when Cassie was taking a bath, in which defendant would not only fondle her, but also get physically aggressive, leaving red marks on her when she resisted his advances. Cassie testified that the sexual assaults would get more frequent as she got older, to a point that they were happening several times a month.

Near the end of the school year in 2009, Cassie reported the sexual abuse to a person at her school. According to Cassie, the reason that she finally reported the abuse was that she was afraid that defendant, who was then in prison on an unrelated matter, was going to be released and would resume abusing her. Detective Stio of the Bergen County Prosecutor's Office interviewed Cassie, who was then thirteen years old, and Cassie recounted several of the acts of sexual abuse in a videotaped interview. The detective also interviewed Cassie's younger sister, who denied being herself abused by defendant, but acknowledged that Cassie had told her something about their father's conduct. Cassie was not medically evaluated after her videotaped statement, since the last instance of abuse had occurred over a year beforehand.

After hearing the trial testimony of Cassie, Detective Stio, and Dr. D'Urso, and considering the closing arguments of counsel, the trial judge issued an extensive oral opinion on February 16, 2012, finding defendant guilty beyond a reasonable doubt of all counts charged in the indictment. In his opinion, the judge predominantly discussed Cassie's narrative account and indicated that he had observed her testify "extremely carefully." The judge also closely reviewed Cassie's videotaped courtroom testimony. Based upon Cassie's demeanor and other appropriate credibility factors, the judge found that he had "no doubt in [his] mind" that her accusations of defendant were truthful. The judge accepted Cassie's explanation that she had delayed in reporting defendant's attacks out of fear, and was persuaded that her account was not fabricated or spawned by improper motives.

On appeal, defendant advances the following arguments for our consideration:

POINT I

 

THE COURT VIOLATED R.D.'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING EVIDENCE AS TO THE ALLEGED CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. 1, [PARAS.] 1, 10. (Not Raised Below)

 

A. THE HISTORY AND PURPOSE OF CSAAS.

 

B. THE PRESENT STATUS OF CSAAS.

 

1. Generally Reliable Scientific Research Fails To Support CSAAS.

 

2. Various Jurisdictions Preclude Expert Testimony As To CSAAS.

 

a. Kentucky

 

b. Mississippi

 

c. Pennsylvania

 

d. Tennessee

 

C. BECAUSE CSAAS IS NOT BASED ON RELIABLE SCIENCE, IT SHOULD NOT BE ACCEPTED UNDER N.J.R.E. 702.

 

1. CSAAS Is Not Based On A Sound, Adequately-Founded Scientific Methodology Involving Data And Information Of The Type Reasonably Relied On By Experts In The Scientific Field.

 

a. Disclosure Is Not Impeded By The Severity Of Abuse.

 

b. "Accommodations" Such As Denials, Recantations, and Re-Disclosures Are Not Typical Of Child Sexual Assault Victims.

 

2. The Testimony Of Knowledgeable Experts Would Contradict Summit's Theory Of CSAAS.

 

3. Authoritative Scientific Literature Contradicts CSAAS.

 

4. Judicial Decisions From Kentucky, Mississippi, Pennsylvania, and Tennessee Disfavor CSAAS.

 

D. EVEN IF THIS COURT IS DISINCLINED TO ABANDON SUMMIT'S UNSUBSTANTIATED THEORY OF CSAAS, EXPERT TESTIMONY IS NOT NEEDED TO ADVANCE THAT PORTION OF SUMMIT'S THEORY SUBSTANTIATED BY THE SCIENTIFIC RESEARCH, NAMELY THAT DELAYED DISCLOSURE OF ABUSE IS COMMON AMONGST VICTIMS OF CHILD SEXUAL ABUSE.

 

E. GIVEN THE FOREGOING, ADMISSION OF THE TESTIMONY AS TO CSAAS WAS IMPROPER REQUIRING REVERSAL AND REMAND FOR A NEW TRIAL; OR, ALTERNATIVELY, THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT FOR A PLENARY HEARING AS TO THE SCIENTIFIC VALIDITY OF CSAAS.

 

POINT II

 

THE SENTENCE IMPOSED IS AN AGGREGATE OF TWENTY-FOUR YEARS SUBJECT TO NERA, NOT SEVENTY YEARS.

 

 

 

POINT III

 

BECAUSE THE JAIL CREDITS ARE NOT EXPLAINED IN THE RECORD, A REMAND FOR DETERMINATION AS TO THE APPROPRIATE CREDIT IS NECESSARY.

 

POINT IV

 

THE SENTENCE IS MANIFESTLY EXCESSIVE BECAUSE, AFTER EXPIRATION OF HIS PRISON TERM, R.D. WILL BE CLOSELY MONITORED FOR THE REST OF HIS LIFE AND WILL BE A LOW RISK TO RE-OFFEND.

 

A. R.D. Cannot Be Punished For Exercising His Constitutional Rights.

 

B. The Sentencing Court's Analysis Of Deterrence Was Fundamentally Flawed.

 

1. Because R.D.'s offense was intra-familial, he is less likely to re-offend in the future.

 

2. Various Jurisdictions Preclude Expert Testimony As To CSAAS.

 

Defendant adds the following point in his reply brief:

REPLY POINT I

 

THIS COURT HAS THE AUTHORITY TO REMAND THIS MATTER TO DEVELOP A HEARING ON THE SCIENTIFIC VALIDITY OF CSAAS IN THAT SAME FASHION AS THE NEW JERSEY SUPREME COURT DID IN STATE V. HENDERSON, A-8 (FEBRUARY 26, 2009).

 

II.

We first address defendant's primary argument which, in essence, mounts a broadside attack upon the admissibility of CSAAS expert testimony in the courts of New Jersey. Although his criticisms of CSAAS were not raised below, defendant maintains that the scientific underpinnings of the syndrome are suspect. He further argues, again for the first time on appeal, that in any event, Dr. D'Urso's testimony in this case went beyond the bounds established for CSAAS expert opinion, and that the expert's testimony materially prejudiced him in the trial judge's assessment of his guilt.

As our Supreme Court not long ago observed in State v. W.B., 205 N.J. 588, 609 (2011), the use of CSAAS expert testimony is "well settled." Since 1993, the Court has maintained that such 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.'" Ibid. (quoting State v. J.Q., 130 N.J. 554, 579 (1993)). The underlying rationale supporting the use of CSAAS testimony "was first presented in a comprehensive manner by Dr. Roland Summit." Ibid. According to Dr. Summit's scientific research of child sexual abuse victims, such victims may engage in five categories of behavior, "each of which contradicts the most common assumptions of adults." Id. at 609-10. Those identified behaviors are: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed disclosure; and (5) retraction. Id. at 610 (citing J.Q., supra, 130 N.J. at 568-70).

When CSAAS expert testimony is presented at a criminal trial, it is appropriately offered to "explain[] a child's often counter-intuitive reactions" to sexual abuse. Ibid. (citing J.Q., supra, 130 N.J. at 579). The expert proof, however, cannot be presented "to prove directly and substantially that sexual abuse occurred." Ibid. (citing J.Q., supra, 130 N.J. at 574). On appeal, the "introduction of such evidence will be upheld so long as the expert does not attempt to 'connect the dots' between the particular child's behavior and the syndrome, or opine whether the particular child was abused." Id. at 611 (citing State v. R.B., 183 N.J. 308, 328 (2005)).

In his brief on appeal, defendant raises a host of scientific and policy arguments as to why CSAAS expert testimony should no longer be deemed admissible in criminal prosecutions in our State. Defendant maintains that Dr. Summit's theories, in light of other research, are unsubstantiated and not based on reliable science. He contends that CSAAS expert testimony fails to pass muster for admissibility under N.J.R.E. 702. Defendant identifies several other states that have precluded or disfavored CSAAS expert testimony, and urges that New Jersey courts follow their approach. He further contends that, despite the lack of objection to Dr. D'Urso's CSAAS testimony by his trial counsel, he was deprived of due process and a fair trial by the admission of that expert testimony.

We decline to entertain defendant's newly-minted arguments for several reasons. First and foremost, our institutional role as an intermediate appellate court is a limited one. We are bound to follow the precedents of the United States Supreme Court and the Supreme Court of New Jersey, regardless of whether those precedents are unwise or outmoded. See, e.g., State v. Carrero, 428 N.J. Super. 495, 511 (App. Div. 2012) (declining defendant's request that we reconsider the Supreme Court's holding on the admissibility of Alcotest results); State v. Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004) (recognizing that, as an intermediate appellate court, we are bound by the Supreme Court's holdings and dicta), certif. denied, 182 N.J. 628 (2005); State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976) (same). In fact, defendant in this matter moved for direct certification in the Supreme Court, an application that was denied. ___ N.J. ___ (2013). Without commenting here about the significant policy arguments raised in defendant's briefs, we simply note that the appropriate forum to decide whether existing precedent about CSAAS should be altered is the Supreme Court itself.

Second, because defense counsel did not object at trial to Dr. D'Urso's expert testimony, the present record is woefully inadequate to evaluate the scientific underpinnings of his opinions about CSAAS and the present state of the scientific research. There was no evidentiary hearing requested or conducted under N.J.R.E. 104 concerning the admissibility of the CSAAS expert testimony. We imagine that, if prompted to do so, the State would wish to present competing scientific evidence that CSAAS remains a valid and reliable form of expertise and edification for a fact-finder.

We decline defendant's suggestion that we remand this particular case to conduct what we envision would be such an extensive hearing. We leave it to the Supreme Court whether such a Rule 104 hearing is warranted, or perhaps the appointment of a Special Master to preside over such hearings and issue a comprehensive report to the Court on the subject. See, e.g., State v. Henderson, 208 N.J. 208 (2011) (relying upon a Special Master's report concerning the admissibility of eyewitness identifications); State v. Chun, 194 N.J. 54 (2008) (relying upon a Special Master's report concerning the reliability and admissibility of the Alcotest device).

Regardless of the ultimate continued institutional viability of CSAAS expert testimony in New Jersey prosecutions, we are satisfied that Dr. D'Urso's testimony in this case did not transgress the boundaries set forth in the governing case law, and that any alleged surplusage in the opinions that he expressed did not materially prejudice defendant. Defendant faults Dr. D'Urso for testifying about the reasons why a child might engage in delayed reporting, rather than simply identifying the phenomenon of delayed reporting itself.

From our reading of the transcript, we discern no impropriety in Dr. D'Urso's opinions or explanations. The expert explained the well-known aspects of CSAAS that have been previously identified in literature and New Jersey case law, and he appropriately cautioned that CSAAS is not to be used as a predictor or diagnostic tool. He couched his opinions in general terms, and did not offer any views about whether the child victim in this case, whom he never examined, had exhibited the characteristics of CSAAS. He did not violate the Supreme Court's prohibition against "connect[ing] the dots" between Cassie's behavior and the syndrome. See W.B., supra, 205 N.J. at 611; R.B., supra, 183 N.J. at 328. Notably, defense counsel's cross-examination of Dr. D'Urso was very brief. It essentially (1) confirmed that the psychologist had not reviewed the discovery in this case, and (2) reiterated the general, well-settled proposition that CSAAS is "a description [of behavior] and not a scientific predictor."

In any event, the trial judge in this case made it abundantly clear in his bench opinion that his assessment of defendant's guilt was based upon Cassie's credible testimony as "the gist of this case," and "not Dr. D'Urso's testimony." The judge's analysis of the evidence only briefly alluded to Dr. D'Urso's testimony, which the judge merely noted in a conclusory fashion that he had "taken [it] into consideration."

Any error in the admission of Dr. D'Urso's expert opinion at this non-jury trial was manifestly harmless at best. See State v. Sterling, ___ N.J. ___, ___ (2013) (applying the harmless error doctrine in upholding a defendant's conviction, despite infirmities in the trial); State v. Macon, 57 N.J. 325 (1971) (same). There was certainly no plain error arising from this issue, an issue that was not raised below. See State v. Chapland, 187 N.J. 275, 288-89 (2006) (analyzing the defendant's belated challenge to an allegedly faulty jury instruction on a plain error basis).

III.

We briefly turn to the sentencing issues. We need not say much about the subject, since the State concedes that the matter should be remanded for resentencing. In particular, the trial judge did not make entirely clear which sentences on which counts of the indictment were intended to be consecutive rather than concurrent, nor did he amplify why the consecutive sentences he imposed were justified under the factors of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The State also concurs with defendant that a remand is necessary for the trial court to specify and explain the "gap time" and jail credits to which defendant may be entitled. See State v. Hernandez, 208 N.J. 24, 38 (2011). Although defendant has further argued that the sentencing judge misapplied the pertinent aggravating factors relating to each discrete component of the sentence, see N.J.S.A. 2C:44-1a, we decline to review those arguments at this time until a resentencing has been completed by the trial court. If defendant thereafter seeks review again of his sentence, he may do so through a new appeal through the excessive sentencing calendar procedures. See R. 2:10-3.

Affirmed as to defendant's convictions; remanded for resentencing. We do not retain jurisdiction.

1 For clarity and privacy reasons, we refer to the child victim by the pseudonym, "Cassie." See State v. G.C., 188 N.J. 118, 121 n.1 (2006).

2 As explained in Part III, infra, defendant contends on appeal that the court's sentencing analysis was flawed, and that the aggregate sentence imposed was only twenty-four years. The State's brief calculates the apparently-imposed aggregate sentence at fifty-four years, but acknowledges that the court's sentencing was unclear as to which counts were to run concurrently and which were to run consecutively.

3 Defendant waived a jury.