STATE OF NEW JERSEY v. AURELIO LIBRADO

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4972-16T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

AURELIO LIBRADO,
a/k/a PAYASO,

     Defendant-Appellant.
____________________________

                   Submitted January 15, 2020 – Decided February 3, 2020

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No.15-03-0228.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Marcia H. Blum, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Robert John Wisse, Assistant
                   Prosecutor, on counsel and on the brief).

PER CURIAM
       Defendant Aurelio Librado appeals from his April 24, 2017 convictions

of aggravated sexual contact, endangerment, luring, and criminal restraint of the

minor L.A.1 The trial court erred in admitting both expert testimony of Child

Sexual Assault Accommodation Syndrome (CSAAS) and the victim's belated

responses to her parents' questions and subsequent disclosure to her godmother

as fresh complaint evidence. We agree and reverse.

       A jury convicted defendant of third-degree aggravated criminal sexual

contact,  N.J.S.A. 2C:14-3(a) (count three); fourth-degree criminal sexual

contact,  N.J.S.A. 2C:14-3(b) (count four); third-degree endangering the welfare

of a child,  N.J.S.A. 2C:24-4(a)(1) (count five); second-degree lure or entice a

child,  N.J.S.A. 2C:13-6 (count six); and third-degree criminal restraint,  N.J.S.A.

2C:13-2(a) (count seven). Defendant was sentenced to an aggregate eight-year

prison sentence.

       Trial testimony revealed the following facts. On Saturday, May 25, 2013,

between twenty-five and forty guests were invited to defendant's home to

celebrate his nephew's first communion. Defendant lived with his girlfriend,

their three children, his girlfriend's two children, and his brother's family.




1
    We use initials pursuant to  N.J.S.A. 2A:82-46 and Rule 1:38-3(c)(9).
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      L.A.'s mother, the communicant's godmother, attended the party with her

husband and daughters.       Guests were scattered throughout the home and

backyard. L.A., then fifteen years old, spent most of her time playing with

defendant's young daughters on the front porch.

      L.A. exited from the first-floor bathroom and noticed defendant "right

outside." Although L.A. had seen defendant "around" prior to this party, she

had "never had a conversation with him or anything like that."               While

defendant's girlfriend testified that defendant did not drink during the party, L.A.

recalled that defendant's breath smelled like alcohol. He told her in Spanish that

"he wanted [her] to go with him, to speak to him." L.A. responded in Spanish

and said that she did not want to, but defendant "pushed" her right arm, directing

her out of the first-floor apartment and into a hall. Defendant locked the door

from where they exited and the door between the front porch and the hall where

they were standing. He then led her down the stairs into the basement, locking

the door behind them.

      L.A. explained that once in the basement, she did not say anything because

she knew nobody would hear her. Defendant pushed L.A. into the wall and

kissed her. He pulled down her shirt and bra and sucked on her breast before

trying to vaginally penetrate her. Unable to do so, he turned L.A. around and


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inserted his penis between her buttocks. After a few minutes, L.A. turned around

and defendant again tried to vaginally penetrate her. At that time, L.A. told

defendant to leave her alone, but he kept insisting they continue. She said to

him that someone will be looking for her, but he said that no one noticed that

she was gone. L.A. pushed defendant and quickly pulled up her pants before

heading towards the stairs. Defendant grabbed L.A.'s hand and told her not to

tell anyone what happened. He kissed her again and then unlocked the door.

      L.A. went straight into the bathroom and noticed semen on the tissue she

was using to clean herself. About ten minutes later, L.A. returned to the front

porch. Defendant's girlfriend's son, J.M. who is around the same age as L.A.,

saw L.A. crying and asked her what happened. Although L.A. had seen J.M. in

the neighborhood, she explained the party was the first time she talked to him.

She told him, "[Y]our stepfather sexually violated me." J.M. testified that

knowing his stepfather, he did not believe L.A. He did not share with anyone

what L.A. told him until he was asked to speak with the Passaic County Police

Department a year later, in April 2014.

      For the remainder of the party, L.A. tried to avoid her mother because she

"felt embarrassed" and "couldn't look at her in the eyes." When asked at trial

why L.A. did not immediately tell her mother what happened, L.A. explained


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she worried about what would happen to her family's relationship with

defendant's family and did not want defendant's daughters to grow up without a

father. The night of the incident, L.A. tried to act as though nothing happened

so her parents would not find out. Her mother testified that while L.A. "seemed

. . . calm and at ease" the day of the party, the next day when L.A.'s family was

to return to defendant's home for another event, she had to "force" L.A. to come

with them.

      Although L.A. tried to forget what happened, in the months following the

party, she became aggressive, easily irritated and angry. She would complain

of stomachaches and did not eat well. She also began to cut herself.

      In January 2014, after L.A.'s parents confronted her about her behavior,

threatening to send her to see a psychiatrist, she revealed she was "sexually

violated." At that time, L.A. did not disclose any details. The next day when

L.A.'s parents insisted she tell them more, L.A. cut herself and her parents called

the police. L.A. was taken to the police station, but she did not say who had

sexually assaulted her. The officer noticed L.A. showed signs of self-harm so

she was taken to the hospital, where she stayed for about one week.

      The following month, L.A. visited her godmother and told her details

about how she was sexually violated. L.A. did not tell her the defendant's name


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but told her where the incident occurred and the assailant's relationship to her

family. The godmother called L.A.'s parents and an ambulance took L.A. to the

hospital, where she stayed one night. In March 2014, L.A. spoke with the

Passaic County Prosecutor's Office bilingual child interview specialist and

named defendant as the person who had sexually violated her.

      As allowed by the court, the State presented expert testimony from Dr.

Brett A. Biller, Psy.D., on CSAAS, and introduced L.A.'s statements to her

mother and godmother as fresh complaints. L.A.'s statement to J.M. was also

admitted as an excited utterance. In addition to L.A., who testified extensively

about the incident, her mother, godmother, and J.M. were among the seven

witnesses the State presented. Defendant did not testify.

      On appeal, defendant raises the following issues:

            I.   IT WAS ERROR TO ADMIT EXPERT
            TESTIMONY ON THE CHILD SEX ABUSE
            ACCOMMODATION SYNDROME BECAUSE IT IS
            JUNK SCIENCE, WAS NOT RELEVANT TO ANY
            ISSUE, AND IMPROPERLY BOLSTERED THE
            STATE'S CASE.

            A.   CSAAS WAS INADMISSIBLE BECAUSE IT
            IS JUNK SCIENCE.

            B.  CSAAS WAS INADMISSIBLE BECAUSE IT
            WAS NOT RELEVANT TO ANY ISSUE.



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            C.  EVEN IF CSAAS TESTIMONY WAS
            ADMISSIBLE TO EXPLAIN THE PURPORTED
            DELAYED DISCLOSURE, IT WAS NOT LIMITED
            TO EXPLAINING DELAYED DISCLOSURE.

            II. IT WAS ERROR TO ADMIT THE FRESH-
            COMPLAINT EVIDENCE BECAUSE THE VICTIM
            PROMPTLY REPORTED THE ALLEGED ABUSE.

            III.  THE CUMULATIVE EFFECT OF THE
            ERRONEOUSLY ADMITTED FRESH-COMPLAINT
            TESTIMONY   AND   THE   ERRONEOUSLY
            ADMITTED CSAAS TESTIMONY WARRANTS
            REVERSAL.

            IV. THE MATTER MUST BE REMANDED FOR A
            NEW SENTENCING HEARING BECAUSE THE
            CURRENT SENTENCE IS BASED ON THREE
            INAPPROPRIATE AGGRAVATING FACTORS.

            V. THE MATTER MUST BE REMANDED FOR A
            NEW SENTENCING HEARING BECAUSE THE
            SENTENCES ON COUNTS 3, 5, AND 7 ARE
            ILLEGALLY LONG.

      We review a trial court's evidentiary rulings under a deferential standard

and will "uphold [the trial court's] determinations 'absent a showing of an abuse

of discretion.'" State v. Scott,  229 N.J. 469, 479 (2017) (quoting State v. Perry,

 225 N.J. 222, 233 (2016)). Under that standard, "[a] reviewing court must not

'substitute its own judgment for that of the trial court' unless there was a 'clear

error in judgment'—a ruling 'so wide of the mark that a manifest denial of justice

resulted.'" Ibid. (quoting Perry,  225 N.J. at 233). If the trial court applies the

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incorrect standard, this court reviews the trial court's evidentiary ruling de novo.

State v. Garrison,  228 N.J. 182, 194 (2017).

                        I. CSAAS evidence inadmissible.

      Our Supreme Court recently held that "CSAAS does not satisfy a basic

standard of admissibility—reliability—because it is not generally accepted by

the scientific community . . . . [T]hefore [it] may no longer be presented to

juries," except as to delayed disclosure. State v. J.L.G.,  234 N.J. 265, 308

(2018). Thus, Dr. Biller should not have been allowed to testify about CSAAS,

unless the delayed disclosure exception applied.           We afforded pipeline

retroactivity to this holding. State v. G.E.P.,  458 N.J. Super. 436, 443 (App.

Div. 2019), cert. granted,  239 N.J. 598 (2019).

      "Whether a victim's delayed disclosure is beyond the ken of the average

juror will depend on . . . [whether] a child witness can[] offer a rational

explanation for the delay . . . ."   J.L.G.,  234 N.J. at 305. In J.L.G, the Court

held that expert testimony was not necessary because the victim testified she

delayed reporting the abuse because defendant had threatened her, she was

embarrassed, and she feared her mother's reaction.         Ibid.   Similarly, L.A.

testified she delayed disclosure

            [b]ecause . . . all that came to my mind was the
            [defendant's] little girls. I didn't want them not to – not

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            – to live without a father. And . . . I knew if I talked
            . . . my family and their family, there is always [going]
            to be issues around since we live in the same town.

Like the victim in J.L.G., L.A. gave sound reasons for why she delayed

disclosure to her parents. Since the expert testimony was not required to "assist

the trier of fact," the trial court erred in admitting the expert testimony. See

N.J.R.E. 702.

                          II. Fresh complaint evidence.

      L.A. revealed to J.M. that defendant sexually violated her almost

immediately after the incident occurred. The court admitted this revelation as

an excited utterance. See N.J.R.E. 803(c)(2) (2019). The trial court abused its

discretion when admitting L.A.'s statements to her mother and godmother many

months later under the fresh complaint doctrine.

      The fresh complaint doctrine allows "evidence of a victim's complaint of

sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the

victim's initial silence or delay indicates that the charge is fabricated." State v.

R.K.,  220 N.J. 444, 455 (2015).       Here, the victim was not initially silent.

Instead, she revealed what happened to another child her own age.

      Also, "to qualify as fresh-complaint evidence, the victim's statement must

have been made spontaneously and voluntarily, within a reasonable time after


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the alleged assault, to a person the victim would ordinarily turn to for support."

R.K.  220 N.J. at 455. "[S]tatements that are procured by pointed, inquisitive,

coercive interrogation," fail to satisfy the spontaneity and voluntary

requirement. State v. Hill,  121 N.J. 150, 167 (1990). "The line, however,

between non-coercive questioning and coercive questioning depends on the

circumstances of the interrogation." Ibid. The trial judge should consider the

following factors when making this determination:

            [T]he age of the victim; the circumstances under which
            the interrogation takes place; the victim's relationship
            with the interrogator, i.e., relative, friend, professional
            counselor, or authoritarian figure; who initiated the
            discussion; the type of questions asked—whether they
            are leading and their specificity regarding the alleged
            abuser and the acts alleged.

            [Id. at 168.]

      In young children, more extensive questioning is allowed. Hill,  121 N.J.

at 167.   L.A. was fifteen years old, not a young child. The responses to her

parents' questioning came at least eight months after the incident and in response

to repeated questioning. They pressured her to in a loud voice to explain her

aggressive behavior. She told her godmother about the incident a month later.

The court abused its discretion in admitting this hearsay evidence from her

mother and godmother to support her testimony.


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                                III. Cumulative error.

      Both CSAAS and fresh-complaint testimony from the victim's mother and

godmother were improperly admitted. "An error is harmless unless, in light of

the record as a whole, there is a 'possibility that it led to an unjust verdict' . . . a

possibility 'sufficient to raise a reasonable doubt' that 'the error led the jury to a

result it otherwise might not have reached.'" J.L.G.,  234 N.J. at 306 (quoting

State v. Macon,  57 N.J. 325, 335-36 (1971)). Error that may be harmless in

itself, when combined with another error may have a "cumulative effect [that]

can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz,

 193 N.J. 440, 473 (2008).

      After relaying to the jury his extensive educational and experiential

credentials, Dr. Biller testified that CSAAS was designed by "advocates for

children." He said he worked with children who were victims of child abuse

and maltreatment, as did the author of the groundbreaking research that led to

CSAAS.      He then explained how CSAAS helps to explain how children's

behavior might lead someone to believe they were not victims, when in fact they

were. Dr. Biller explained in great detail and depth the various behaviors that

might mislead an adult into thinking no abuse occurred. Although the court

issued a then-applicable brief limiting instruction informing the jury to consider


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the testimony only as it relates to delayed disclosure, Model Jury Charges

(Criminal), "Child Sexual Abuse Accommodation Syndrome" (rev. May 16,

2011),2 we cannot discount the power of the expert's testimony. The evidence

was particularly unnecessary because the victim did disclose the abuse

immediately, albeit to a peer, and rationally explained the delay in reporting to

adult family members.

      The improper admission of hearsay evidence, erroneously categorized as

"fresh complaint" evidence from the victim's mother and godmother is difficult

to weigh. Certainly, where, as here, the case relies on the credibility of the

victim, supporting evidence from adult family members is hard to discount.

Without opining on whether either of these two significant errors would be

harmless in itself, together their weight raises a reasonable doubt as to whether

the improper admission of the evidence led to a verdict the jury would otherwise

not have rendered. 3




 2 In April 2019, a new jury charge titled "Delayed Disclosure of Child Sexual
Abuse (Where State Introduces Expert Testimony)" was approved.
3
  We need not review the sentencing issues, except to comment that the State
concedes the court mistakenly imposed illegal concurrent eight-year sentences
for the third-degree crimes in counts three, five, and seven.


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      Reversed and remanded for further proceedings.   We do not retain

jurisdiction.




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