STATE OF NEW JERSEY v. D.K.

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NOT FOR PUBLICATION WITHOUT THE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.

D.K.,

Defendant-Appellant.

_____________________________________________________

Submitted June3, 2014 Decided June10, 2014

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1272.

Thomas J. Buck, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, and Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This is the third time this matter has come before us.

In 2005, defendant was charged with several counts of endangering the welfare of A.D., a fourteen-year-old girl, and two counts of sexual assault against B.D., defendant's fourteen-year-old stepson. A jury returned guilty verdicts on the charges involving A.D., but could not reach a verdict on the charges relating to B.D. At a second trial regarding the B.D. matters, the jury convicted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and second-degree sexual assault, N.J.S.A. 2C:14-2(c). Defendant appealed, and we reversed, concluding, among other things, that the charges relating to A.D. and B.D. should have been tried separately. State v. D.K., Nos. A-3688-06 and A-5182-06 (App. Div. Aug. 15, 2008). The Supreme Court denied the State's petition for certification. 196 N.J. 601 (2008).

Defendant was retried on the B.D. charges in June 2009. He was again convicted of first-degree aggravated sexual assault and second-degree sexual assault, and sentenced to an aggregate twelve-year prison term subject to a six-year period of parole ineligibility. Defendant then pleaded guilty to the A.D. charges specifically, second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(4), and third-degree official misconduct,1 N.J.S.A. 2C:30-2 and sentenced to an aggregate six-year prison term to run concurrently with the prison term imposed regarding the B.D. matters. Defendant appealed, and we again reversed the convictions regarding the B.D. matters because the trial judge permitted the admission of photographs of defendant's stepdaughter. State v. D.K., No. A-1818-09 (App. Div. June 1, 2011).

The B.D. charges were again tried in September 2012, and defendant was again convicted of both first-degree aggravated sexual assault and second-degree sexual assault. The judge imposed a twelve-year prison term, subject to a six-year period of parole ineligibility.

Defendant appeals, arguing:

I. THE TRIAL COURT'S CHARGE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME ("CSAAS"), WHICH DEVIATED FROM THE MODEL JURY CHARGE, INTRUDED UPON THE JURY'S FUNCTION TO DETER-MINE CREDIBILITY BY INSTRUCTING THE JURY THAT IT "MAY NOT AUTOMATICALLY CONCLUDE" BASED ON B.D.'S SILENCE OR DELAYED DIS-CLOSURE THAT B.D.'S TESTIMONY IS UNTRUTHFUL (Not Raised Below).

II. THE COURT'S JURY INSTRUCTION REGARDING B.D.'S ALLEGATION THAT DEFENDANT HAD SEXUAL-LY ABUSED B.D.'S SISTER, [C.D.], UNDERMINED THE DEFENSE BY FAILING TO EXPLAIN HOW B.D.'S ALLEGATION WAS RELEVANT TO THE DEFENSE THEORY OF THE CASE (Not Raised Below).

III. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN ADMITTING . . . TESTIMONY UNDER THE FRESH COMPLAINT DOCTRINE.

IV. THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE BY PROHIBIT-ING THE TESTIMONY OF [DEFENDANT'S SON-IN-LAW, WHO WOULD HAVE TESTIFIED THAT HE HAD ALLOWED HIS FIVE-YEAR-OLD SON TO STAY IN DEFENDANT'S HOME WITHOUT CONCERNS ABOUT HIS SON'S WELL-BEING].

V. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Point I.

In Point I, defendant argues that the judge erroneously instructed the jury regarding the Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony. In explaining why we disagree, a brief review of the case law on this subject is warranted.

As our Supreme Court held in State v. P.H., 178 N.J. 378, 397 (2004), CSAAS testimony is relevant to explain why "a child victim may remain silent" or why the child victim "may not have made a fresh complaint." CSAAS testimony may also provide an explanation for the child victim's behavior such as "the child's affection towards the abuser" or the "recantation of the complaint" which are matters "that can cast doubt or otherwise affect the evaluation of the credibility of the child's testimony." Id. at 397. The Court explained that judges must instruct juries as to how to consider CSAAS testimony in order to reveal the testimony's true purpose. In P.H., the Court provided a jury charge, which included the phrase defendant now targets for the first time: "You may not automatically conclude that [the complaining witness's] testimony is untruthful based only on [his or her] silence/delayed disclosure." Id. at 400 (emphasis added; other alterations in the original).

More recently, the Supreme Court focused on the word "automatically" that appears in P.H.'s suggested CSAAS charge. State v. W.B., 205 N.J. 588, 621-22 (2011). The Court held the wording of P.H.'s suggested charge was not "cast . . . in stone," and "[t]o the extent a defendant may believe the word 'automatically' unduly limits the jury's right and obligation to evaluate credibility or . . . 'constitute[s] a directive to the jury that it must accept the expert's CSAAS testimony and filter its view of the case through that testimony,' the word 'automatically' is to be substituted by the words 'may or may not conclude that . . .,' or words of like effect." Ibid. The Court also directed the Model Jury Charges (Criminal) Committee to study the issue on an expedited basis. Id. at 622. The model jury charge was thereafter amended and the word "automatically" was excised.

This amendment to the model jury charge was adopted prior to the trial that took place here. Defendant therefore argues that the judge erred in instructing the jury by using the prior version, which contains the "automatically" language in question. This case, however, was tried after W.B. was decided, and the concern defendant now professes about the jury instruction and the judge's use of the word "automatically" was fully illuminated by the Supreme Court in that case. W.B. did not hold that the use of the word "automatically" constitutes reversible error; to the contrary, the Court held that it is incumbent upon the accused to object to the use of the word "automatically" if the accused believes it to be prejudicial in the circumstances. Id. at 621-22. Because defendant did not object to the charge given or its inclusion of the word "automatically," we reject the assertion that a new trial is required.

Affirmed.

1Defendant was a police officer.