STATE OF NEW JERSEY VS. S.D. (14-04-0258, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-3282-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
S.D.,1
Defendant-Appellant.
________________________
Argued January 22, 2020 – Decided March 2, 2020
Before Judges Yannotti, Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-04-0258.
Margaret Ruth McLane, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Margaret Ruth
McLane, of counsel and on the briefs).
1
We use initials for the defendant and others to protect the identity of a person
found to be a victim of sexual offenses. R. 1:38-(c)(12). All references to "S.D."
in the body of this opinion refer to defendant's son, who has the same initials as
his father.
Meredith L. Balo, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Lyndsay V. Ruotolo, Acting Union County
Prosecutor, attorney; Meredith L. Balo, of counsel and
on the brief).
PER CURIAM
A Union County grand jury charged defendant with first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree
sexual assault., N.J.S.A. 2C:14-2(b) (count two); second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1) (count three); second-degree sexual assault, N.J.S.A.
2C:14-2(c)(4) (count four); and third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (count five).
In July 2016, defendant was tried before a jury, which found defendant
not guilty on counts one and two, but guilty on counts three, four, and five. The
trial court sentenced defendant to a seven-year term of incarceration, with an
eighty-five percent period of parole ineligibility, pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the amended
judgment of conviction (JOC), dated April 28, 2017. We affirm defendant's
convictions but remand for resentencing on count four.
A-3282-16T4
2
I.
Here, the State charged that defendant committed the aforementioned
offenses on various dates between December 10, 2008, and December 10, 2013.
The alleged victim was S.B. At the time of the trial, S.B. was nineteen years
old. S.B. testified that when she was younger, she lived with her mother and her
siblings in a residence in Union County. S.B.'s father had been living with the
family, but he was deported to England several years earlier.
S.B. stated that defendant's wife is her father's cousin, and defendant lived
with his wife and children at a residence "around the corner" from S.B.'s home.
S.B. said that from the time she was twelve and until she was sixteen years old,
she visited defendant's house several times a week without her parents. She
would play with defendant's son S.D., watch television, and do her homework.
S.B. testified that when she was about twelve years old, she was at
defendant's house. She was going down the stairs when defendant "stuck his
hand in [her] pants and fingered [her]." She said defendant held her with one
hand while he used his other hand to touch her vagina. According to S.B.,
defendant did not say anything but "got aggressive" when she tried to move
away from him. She stated that thereafter, defendant touched her in a similar
manner about ten or fifteen times.
A-3282-16T4
3
S.B. further testified that in August 2013, she went to defendant's house
to ask defendant to give her a ride to the home of her friend, M.T. She stated
that while she was in the kitchen, defendant held her and put his hand in her
pants. As S.B. was trying to leave, defendant threw her onto a bed, which was
in a room near the door. She landed on her back. Defendant pulled her pants
down and threw her legs up so that she could not move. She said defendant put
"all his weight" upon her and inserted his penis in her buttocks.
S.B. attempted to push defendant off but she hurt herself by trying. She
stated the assault continued for "five, ten minutes" before defendant "just
stopped" and ejaculated on the floor. Afterwards, S.B. went to use the bathroom.
She saw blood in the toilet, which came from her buttocks. She left defendant's
house and never returned.
S.B. also testified that on one occasion, she spent the night at defendant's
house. She went to sleep on the couch wearing shorts and a shirt. When she
woke up, she saw that her shorts had been pulled down. She testified that
defendant had his tongue on her vagina and he was licking her clitoris. When
she attempted to push defendant off, he "used his head to be aggressive."
S.B. stated that about a month after the incident in August 2013, she told
S.D. about "things" that had been happening to her. She did so because that
A-3282-16T4
4
incident was "over the top," and she was concerned about her baby cousin, who
was living with defendant. She thought defendant also might be touching the
baby inappropriately. S.B. testified that on October 4, 2013, after speaking with
her friend, A.C., she wrote a letter to her mother, informing her of the abuse.
S.B.'s mother, D.B., testified that on October 4, 2013, S.B. contacted her
and said she had something important to tell her. When D.B. returned home,
S.B. handed her a note stating that defendant had been touching her. S.B. told
her the abuse had happened several months earlier. D.B. asked S.B. whether
defendant had been touching her with his penis or his hands. S.B. said he was
touching her with both. S.B. told D.B. defendant was touching her buttocks,
breasts, and "her body[.]"
After S.B. reported the abuse, D.B. took her to a hospital but hospital staff
could not examine her to determine if she had been raped because too much time
had passed. D.B. stated that after she and S.B. left the hospital, they went to the
police station, where S.B. spoke with the investigators and reported the abuse.
The State presented testimony from Dr. Gladibel Medina, who was
qualified as an expert in child abuse pediatrics. Dr. Medina testified that she
met with S.B. and her mother for "diagnosis and treatment." S.B. told Dr.
Medina "an adult male" began touching her when she was twelve years old. S.B.
A-3282-16T4
5
said the person who did this to her was "the male [who] is the partner of [her]
cousin," and she mentioned her cousin's first name.
Dr. Susan Cohen Esquilin testified about Child Sexual Abuse
Accommodation Syndrome (CSAAS). Dr. Esquilin stated that CSAAS is a
theory, which identifies behaviors often exhibited by child victims of sexual
abuse. She explained that these behaviors are secrecy, helplessness, entrapment
and accommodation, delayed disclosure, and recantation.
In addition, M.T. testified that during the summer of 2013, S.B. told her
she was being "touched" around her vagina and buttocks, and that defendant was
the person who was doing this to her. Initially, S.B. did not want to talk about
the abuse, but this changed because S.B. was concerned about the safety of a
little girl in defendant's home. M.T. stated S.B. told her she also informed S.D.
of the abuse, and that S.D. encouraged her not to go to the police because it
would ruin his life.
Defendant denied he touched S.B. inappropriately or abused her. He
testified that he knew S.B. and her family very well, and they lived near his
home. He stated that after S.B.'s father was deported, S.B. spent time at his
home, but his relationship with her grew worse. According to defendant, S.B.
got annoyed with him because he would give her siblings rides, but he would
A-3282-16T4
6
not give her rides. He was shocked by the allegations that he sexually abused
S.B. He denied doing anything inappropriate to S.B.
The jury found defendant not guilty on count one, charging defendant with
committing one or more acts of sexual penetration upon S.B., when she was less
than thirteen years of age. N.J.S.A. 2C:14-2(a)(1). The jury also found
defendant not guilty on count two, which charged defendant with commission
of one or more acts of sexual contact upon S.B. when she was less than thirteen
years old. N.J.S.A. 2C:14-2(b).
However, the jury found defendant guilty on count three, which charged
defendant with committing one or more acts of sexual penetration upon S.B. by
using physical force, where the victim did not sustain severe personal injury.
N.J.S.A. 2C:14-2(c)(1). The jury also found defendant guilty on count four,
which charged defendant with committing one or more acts of sexual penetration
upon S.B., when she was at least thirteen years old, but less than sixteen years
of age, and defendant was at least four years older. N.J.S.A. 2C:14-2(c)(4).
In addition, the jury also found defendant guilty on count five, in which
defendant was charged with endangering the welfare of a child by engaging in
sexual conduct that would impair or debauch the morals of the child. N.J.S.A.
2C:24-4(a).
A-3282-16T4
7
The trial judge sentenced defendant on February 17, 2017, and entered a
JOC dated March 1, 2017. The judge filed an amended JOC on April 28, 2017.
This appeal followed. On appeal, defendant argues:
POINT I
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL AND DUE PROCESS OF LAW DUE TO
THE ERRONEOUS ADMISSION OF HEARSAY
AND CUMULATIVE FRESH COMPLAINT
EVIDENCE.
POINT II
DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THE JURY INSTRUCTIONS
INCORRECTLY FAILED TO SPECIFY THAT THE
JURY HAD TO UNANIMOUSLY AGREE ON
WHICH INSTANCES OF SEXUAL ASSAULT
OCCURRED.
POINT III
TESTIMONY ABOUT [CSAAS] WAS
IRRELEVANT, NOT BASED ON RELIABLE
SCIENCE, AND UNDULY PREJUDICIAL. ITS
ADMISSION REQUIRES REVERSAL OF
DEFENDANT'S CONVICTIONS.
POINT IV
DEFENDANT'S SENTENCE IS EXCESSIVE
BECAUSE THE COURT ERRONEOUSLY FAILED
TO FIND MITIGATING FACTOR [ELEVEN],
IMPROPERLY FOUND AGGRAVANTING
FACTORS [ONE] AND [NINE], AND FAILED TO
ADEQUATELY WEIGH THE AGGRAVATING AND
MITIGATING FACTORS.
A-3282-16T4
8
II.
As noted, defendant argues that the trial judge erred by allowing the State
to introduce inadmissible hearsay, which he claims improperly bolstered S.B.'s
testimony. In support of this argument, defendant cites Dr. Medina's testimony
about statements S.B. made to her implicating defendant, and S.B.'s testimony
that she disclosed the assaults to S.D. and her friend, A.C.
We review the trial court's evidentiary rulings for abuse of discretion.
State v. Green, 236 N.J. 71, 81 (2018) (citing State v. Rose, 206 N.J. 141, 157
(2011)). We will not set aside a trial court's evidentiary ruling "unless it appears
that 'there has been a clear error of judgment.'" State v. Prall, 231 N.J. 567, 580
(2018) (quoting State v. J.A.C. 210 N.J. 281, 295 (2012)).
Furthermore, if there was no objection to the admission of the evidence
and the trial court's ruling was erroneous, we must determine if the error was
"sufficient to raise a reasonable doubt as to whether [it] led the jury to a result
it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004)
(quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Here, defendant argues that the trial judge erred by allowing the State to
introduce inadmissible hearsay. Hearsay is "a statement, other than one made
by a declarant while testifying at trial, . . . offered in evidence to prove the truth
A-3282-16T4
9
of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible "except as
provided by [the rules of evidence] or by other law." N.J.R.E. 802.
A. Dr. Medina's Testimony.
Dr. Medina testified that she met with S.B. for a sexual-abuse evaluation.
According to Dr. Medina, S.B. discussed the incidents of abuse, which S.B. said
resulted in the manifestation of certain physical symptoms and emotional
struggles. S.B. told the doctor that an adult male began touching her around the
time she was twelve years old.
According to Dr. Medina, S.B. was mostly concerned that contact of the
man's penis with her anal area might have caused an infectious disease. The
assistant prosecutor asked Dr. Medina if S.B. told her "who did this to her?"
The doctor replied that S.B. said it was "the partner of her cousin[,]" and S.B.
mentioned her cousin's first name.
The judge ruled that Dr. Medina could testify about the statements made
to her during the evaluation because the statements were admissible under the
hearsay exception in Rule 803(c)(4). N.J.R.E. 803(c)(4). The rule allows the
admission of
[s]tatements made in good faith for purposes of medical
diagnosis or treatment which describe medical history,
or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external
A-3282-16T4
10
source thereof to the extent that the statements are
reasonably pertinent to diagnosis or treatment.
[Ibid.]
The judge did not err by admitting statements that S.B. made to the doctor
indicating that she had been sexually assaulted, the physical manifestations of
the assaults, and her emotional reaction to the abuse. Dr. Medina should not ,
however, have been permitted to repeat S.B.'s statement about the individual
who "did this to her" because that statement was not made "for purposes of
medical diagnosis or treatment." R.S. v. Knighton, 125 N.J. 79, 88 (1991); State
v. D.R., 109 N.J. 348, 351 (1988).
We note that in her testimony, Dr. Medina did not specifically name
defendant as the person whom S.B. said assaulted her. Even so, based on the
prior testimony in the case, which detailed S.B.'s relationship to defendant and
described his family, it was readily apparent that S.B. was referring to defendant
when she told Dr. Medina that the person who assaulted her was "the partner of
her cousin."
The State acknowledges that it would have been better if the assistant
prosecutor had not asked Dr. Medina if S.B. told her who had "done this to her?"
Nevertheless, defense counsel did not object to the question or seek to strike the
answer. Moreover, during cross-examination, defense counsel elicited
A-3282-16T4
11
testimony from Dr. Medina confirming that the medical records include a
statement by S.B., implicating defendant as the person who assaulted her
sexually. We therefore must presume that defense counsel did not believe Dr.
Medina's testimony was prejudicial.
Indeed, S.B. had already testified in detail about the sexual abuse and
identified defendant as the perpetrator. We are not convinced that Dr. Medina's
testimony about S.B.'s identification of the person who abused her was likely to
have a significant effect on the jury's assessment of S.B.'s credibility.
We therefore conclude that the admission of Dr. Medina's statement about
S.B.'s identification was erroneous. It was not, however, an error "sufficient to
raise a reasonable doubt as to whether [it] led the jury to a result it might not
otherwise have reached." Daniels, 182 N.J. at 95 (quoting Macon, 57 N.J. at
336).
B. S.B.'s Statements to A.C. and S.D.
Defendant also argues that the judge erred by permitting S.B. to testify
about her conversations with S.D. and A.C. He contends S.B.'s testimony about
what she said to these individuals was inadmissible hearsay.
S.B. testified that she spoke with A.C. and, as a result of that conversation,
she wrote the note to her mother disclosing the abuse. In eliciting this testimony,
A-3282-16T4
12
the assistant prosecutor stated, "So now, without telling us anything that you
said to [A.C.] or [A.C.] said to you, did you have a conversation with [A.C.] on
October 4th, 2013?" S.B.'s response did not include inadmissible hearsay.
Furthermore, as we stated previously, S.B. testified that about a month
after defendant assaulted her in August 2013, she spoke with S.D. and she told
him about the assaults. S.B.'s statements regarding her conversation with S.D.
were not hearsay because they were admissible, not for their truth, but rather to
explain why S.B. delayed informing her mother and the police of the assaults.
III.
Defendant argues that the trial judge erred by admitting what he claims is
cumulative fresh complaint evidence. The fresh complaint doctrine allows the
State to admit "evidence of a victim's complaint of sexual abuse, [which is]
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) (citing State v. Hill, 121 N.J. 150, 163 (1990), State v. Balles,
47 N.J. 331, 338 (1966)). "In order to qualify as fresh-complaint evidence, the
victim's statement must have been made spontaneously and voluntarily, within
a reasonable time after the alleged assault, to a person the victim would
A-3282-16T4
13
ordinarily turn for support." Ibid. (citing State v. W.B., 205 N.J. 588, 616
(2011); Hill, 121 N.J. at 163).
"These requirements are relaxed when applied to juvenile victims." Ibid.
(citing State v. Bethune, 121 N.J. 137, 143-44 (1990)). "If the trial judge finds
that the fresh-complaint criteria has been met, then [the judge] may assess, in
light of the rule's narrow purpose of negating inferences that the victim had
failed to complain, whether repeated testimony would be irrelevant or
prejudicial." Id. at 456-57 (internal quotations omitted).
Here, the trial judge did not mistakenly exercise his discretion by allowing
both M.T. and D.B. to testify as fresh complaint witnesses. The testimony of
these witnesses met the criteria for admission. M.T. and D.B. testified that S.B.
regularly turned to them for support and that S.B. reported the abuse voluntarily.
Moreover, S.B. reported the assaults to both M.T. and D.B. within a reasonable
time after they occurred.
Furthermore, neither M.T. nor D.B. provided unnecessary facts about the
assaults. Each witness provided sufficient information to explain the context of
S.B.'s complaint, and neither witness's testimony was "excessively graphic" or
more detailed than S.B.'s own testimony. Id. at 459 (holding a fresh complaint
A-3282-16T4
14
witness's testimony inadmissible because it was "excessively graphic" and went
beyond the scope of the victim's testimony).
Defendant argues, however, that the trial judge erred by allowing both
M.T. and D.B. to testify as fresh complaint witnesses because not long after S.B.
disclosed the abuse to M.T. and D.B., S.B. reported the assaults to the police.
Defendant contends that since S.B.'s disclosures to M.T. and D.B. occurred
around the time she went to the police, the testimony about the disclosure to
M.T. and D.B. did not serve the purpose of fresh complaint evidence. We
disagree.
S.B.'s testimony was offered to negate the inference that she was not
sexually assaulted because she delayed in disclosing the assaults. The fact that
S.B. reported the abuse to the police shortly after reporting the abuse to M.T.
and D.B. does not preclude the admission of this evidence. S.B. explained why
she had not complained about the assaults earlier. Shortly after S.B. disclosed
the abuse to M.T. and D.B., she was taken to the police station, where she
reported the abuse. The admission of the fresh complaint evidence was not a
mistaken exercise of discretion.
Defendant further argues the trial judge should have only allowed one
fresh complaint witness because allowing two improperly bolstered S.B.'s
A-3282-16T4
15
testimony. The contention lacks sufficient merit to warrant discussion. R. 2:11-
3(e)(2). We note, however, that the judge limited the State to presenting two
fresh complaining witnesses. Allowing two fresh complaint witnesses did not
improperly bolster S.B.'s account. The judge's decision was not "so wide of the
mark" as to result in a "manifest denial of justice." State v. Carter, 91 N.J. 86,
106 (1982).
IV.
Defendant next argues that the trial judge should have given the jury a
specific unanimity charge. Defendant did not, however, seek that instruction at
trial. Therefore, we must determine whether the judge's failure to give the
charge was an error, and if so, whether the error "is of such a nature as to have
been clearly capable of producing an unjust result." R. 2:10-2.
Defendant notes that at trial, S.B. testified about three specific instances
of sexual assault, which occurred on different dates. After describing one
assault, she said defendant touched her in a similar manner ten to fifteen more
times. Defendant contends that because there were numerous instances of
sexual assault that could have formed the basis for the jury's verdicts on counts
three and four, the judge should have instructed the jury it had to agree
unanimously on the specific assaults that formed the basis for each conviction.
A-3282-16T4
16
The unanimity principle requires "jurors to be in substantial agreement as
to just what a defendant did before determining his guilt or innocence," and the
principle is "deeply ingrained in our jurisprudence." State v. Frisby, 174 N.J.
583, 596 (2002). A specific unanimity instruction is not, however, always
required. State v. Parker, 124 N.J. 628, 637 (1991).
"The 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." Id. at 638. "The reviewing court should 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." State v. Gandhi, 201 N.J. 161, 163 (1995) (internal
quotations omitted).
In Parker, the defendant was a teacher charged with three sexual assaults
and official misconduct, based on a series of incidents. Parker, 124 N.J. at 632.
The defendant was convicted of official misconduct but acquitted of the sexual
assault charges. Ibid. The Court held that a specific unanimity instruction was
not required because the alleged acts constituted a "continuing course of
conduct" which "formed a core of conceptually similar acts." Id. at 632, 639.
A-3282-16T4
17
The Court also noted there was no evidence of juror confusion. Id. at 639-
40. The Court found that the jury was "conscientious and sophisticated," and
noted that the jury "carefully sifted through all the evidence as shown by its
unanimous acquittal of defendant on some counts . . . and its unanimous verdict
of guilt . . ." on other counts. Id. at 640.
Parker supports the conclusion that a specific unanimity charge was not
required in this case. Here, S.B. testified that defendant engaged in a
"continuing course of conduct," which consisted of conceptually similar acts of
sexual abuse. The allegations were directly related to each other and not
contradictory.
Moreover, the jury did not show any signs of confusion. The jury found
defendant not guilty of the first two counts of the indictment, indicating that it
understood the differences between the offenses and the acts defendant was
charged with committing. As in Parker, the jury was "sophisticated and
conscientious" in reviewing all the evidence and returning its verdicts. Ibid.
V.
Defendant further argues that the admission of expert testimony regarding
CSAAS requires reversal of his convictions. We note that in State v. J.Q., 130
A-3282-16T4
18
N.J. 554, 556 (1993), the Court held that expert CSAAS testimony was
sufficiently reliable to be admitted into evidence.
However, while this appeal was pending, the Court decided State v.
J.L.G., 234 N.J. 265 (2018). The Court found that except for testimony about
delayed disclosure, "it is no longer possible to conclude that CSAAS has a
sufficiently reliable basis in science to be the subject of expert testimony." Id.
at 272. The Court held that
expert testimony about CSAAS in general, and its
component behaviors other than delayed disclosure,
may no longer be admitted in criminal trials. Evidence
about delayed disclosure can be presented if it satisfied
all parts of the applicable evidence rule. See N.J.R.E.
702. In particular, the State must show that the
evidence is beyond the understanding of the average
jury.
[Ibid. (Emphasis added).]
The Court stated that if testimony on delayed disclosure is admitted, the
trial judge must provide "appropriate limiting instructions to the jury – both
before an expert witness testifies and as part of the court's final charge." Ibid.
The Court requested "the Committee on Model Criminal Jury Charges to draft
appropriate instructions limited to delayed disclosure as soon as practicable."
Ibid.
A-3282-16T4
19
Thereafter, a panel of our court issued its opinion in State v. G.E.P., 458
N.J. Super. 436 (App. Div.), certif. granted, 239 N.J. 598 (2019). In G.E.P., the
panel held that that J.L.G. announced a new rule of law, which should be applied
retroactively to cases in the "pipeline" when J.L.G. was decided. Id. at 443. The
term "pipeline retroactivity" means that a new rule of law will be applied to "all
future cases, the case in which the rule is announced, and any cases still on direct
appeal." State v. Knight, 145 N.J. 233, 249 (1996).
On appeal, defendant argues that we should follow G.E.P. and accord
pipeline retroactively to J.L.G. He notes that under J.L.G., the only permissible
CSAAS testimony is testimony pertaining to delayed disclosure, but he argues
that Dr. Esquilin's testimony in this regard did not meet the requirements of Rule
702. He asserts that the admission of testimony on all of the constituent
behaviors of CSAAS requires reversal of his convictions.
We note that in its recent decision in State v. Covil, the Court observed
that when it announces a new rule and uses the phrase "going forward," the rule
is only applied to the case in which the rule is announced and future cases. N.J.
at (slip op. at 27). In J.L.G., the Court did not use the phrase "going forward"
but stated that except for delayed disclosure, experts "may not present evidence"
A-3282-16T4
20
on CSAAS as a whole or the four other CSAAS behaviors. 234 N.J. at 303
(emphasis added).
The Court's discussion in J.L.G. of the new rule for admission of CSAAS
testimony looks to the future, not the past. Moreover, it appears that by asking
the Committee to draft new instructions promptly, the Court intended that its
decision would be applied in that case before it and to future cases. In any event,
we need not decide whether J.L.G. should be applied retroactively. We are
convinced that if J.L.G., is accorded pipeline retroactivity, reversal of
defendant's convictions is not warranted.
Here, Dr. Esquilin testified that children who have been sexually assaulted
may engage in the behaviors encompassed in CSAAS, specifically secrecy,
helplessness, entrapment and accommodation, delayed disclosure, as well as
recantation and false denials. On cross-examination, the doctor acknowledged,
however, that she did not evaluate S.B. or review the discovery in this case. Dr.
Esquilin also acknowledged that CSAAS is not a diagnostic tool and cannot be
used to determine if sexual abuse occurred.
In our view, Dr. Esquilin's testimony about delayed disclosure met the
criteria for admission under Rule 702. As noted, S.B. explained the reasons for
her delay in reporting the abuse. Dr. Esquilin testified that empirical research
A-3282-16T4
21
shows that sexually abused children often wait long periods, "sometimes
lifetimes," to disclose the abuse. The average juror would not be expected to
have any understanding of the such research. Thus, this testimony was "beyond
the ken of the average juror." J.L.G., 234 N.J. at 304 (citing State v. Kelly, 97
N.J. 178, 208 (1984)).
However, even if the admission of Dr. Esquilin's CSAAS testimony on
delayed disclosure and the other CSAAS behaviors was erroneous, the error was
not "'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 Macon,
57 N.J. at 335-36). S.B. testified at trial. The jury was able to assess her
credibility.
In doing so, the jury was able to consider S.B.'s demeanor, her description
of the abuse, her explanation for her delayed disclosure, her fresh complaints to
M.T. and A.C., the reasons she informed her mother of the abuse, and her
statements to Dr. Medina during the doctor's evaluation. The jury could also
consider the credibility of defendant's testimony, in which he denied committed
the charged offenses.
Moreover, and most important, the trial judge instructed the jury in
accordance with the model charge regarding CSAAS testimony, which strictly
A-3282-16T4
22
limits the jury's consideration of such testimony. Model Jury Charges
(Criminal), "Child Sexual Abuse Accommodation Syndrome" (rev. May 16,
2011). The judge told the jury it could not consider the CSAAS testimony as
proof that the sexual abuse occurred in this case. The judge stated that the
CSAAS testimony could only be considered to explain certain behaviors of
alleged victims of child sexual abuse.
The judge emphasized that the CSAAS testimony could not be considered
as in any way proving that defendant committed, or did not commit, any
particular act of abuse. We must presume the jury followed the judge's
instructions. State v. Morgan, 217 N.J. 1, 16 (2013) (citing State v. Burns, 192
N.J. 312, 335 (2007)).
We reject defendant's contention that the admission of the CSAAS
testimony improperly bolstered S.B.'s testimony or nullified any attempt by the
defense to challenge S.B.'s credibility. Dr. Esquilin did not offer an opinion as
to whether S.B. exhibited any of the behaviors associated with CSAAS, and she
never opined as to whether S.B. was truthful.
Defense counsel had the opportunity to cross-examine S.B. and the other
witnesses for the State. Defendant's attorney asked only five questions in cross-
examining Dr. Esquilin, which suggests that counsel did not view the testimony
A-3282-16T4
23
as consequential. In addition, neither the assistant prosecutor nor defense
counsel mentioned the CSAAS testimony in their summations.
We are therefore convinced that if the admission of the CSAAS testimony
in this case was erroneous, the error was harmless. We conclude that any such
error was not an error "of such a nature as to have been clearly capable of
producing an unjust result." R. 2:10-2.
VI.
Defendant further argues that his sentence is excessive. He contends the
judge erred by failing to find a mitigating factor, improperly found two
mitigating factors, and did not properly weigh the aggravating and mitigating
factors.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
(2018). In reviewing a sentence, the court must determine whether: "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were . . . 'based upon competent credible evidence in the
record;' [and] (3) 'the application of the guidelines to the facts' of the ca se
'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)
(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
A-3282-16T4
24
"An appellate court is bound to affirm a sentence, even if it would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)
(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).
Here, the judge found aggravating factors three and nine. N.J.S.A. 2C:44-
1(a)(3) (risk that defendant will commit another offense), (9) (need to deter
defendant and others from violating the law). The judge also found mitigating
factor seven, N.J.S.A. 2C:44-1(a)(7) (defendant has no prior history of
delinquency or criminal activity). The court found that the aggravating factors
outweighed the one mitigating factor.
The judge sentenced defendant on count three to seven years of
incarceration and required that defendant serve eighty-five percent of the
sentence before becoming eligible for parole, pursuant to NERA. The judge
merged count five with count four and sentenced defendant on count four to a
concurrent seven-year prison term, also with an eighty-five percent period of
parole ineligibility, pursuant to NERA. In addition, the judge sentenced
defendant to three years of parole supervision and imposed appropriate fees and
penalties.
A-3282-16T4
25
On appeal, defendant argues that the judge erred by finding aggravating
factor one. N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the offense
and the role of the actor herein, including whether or not it was committed in an
especially heinous, cruel or depraved manner"). At sentencing, the judge stated
he was finding aggravating factor one based on "the age of the victim at the time
of the first offense and the relationship between the victim and the defendant."
We note that the amended JOC does not state that the judge found aggravating
factor one.
Age was not an element of the offenses charged in count three, therefore
the judge's consideration of the victim's age for purposes of sentencing
defendant on count three was permissible. See State v. Pineda, 119 N.J. 621,
627 (1990) (holding that a court may not consider elements of an offense as an
aggravating factor); State v. Hodge, 207 N.J. Super. 363, 367 (App. Div. 1986)
(age of victim and finding that the victim's relationship to defendant cannot be
considered an aggravating factor if they are elements of the charged offense).
Furthermore, the judge did not err by considering defendant's family
relationship with S.B. for purposes of sentencing defendant on both counts three
and four because "[c]rime within the family is one of the most deeply troubling
aspects of contemporary life." State v. Hodge, 95 N.J. 369, 377 (1984).
A-3282-16T4
26
However, because age was an element of the offense charged in count
four, the judge erred by considering S.B.'s age in sentencing defendant on that
count. We remand the matter for resentencing on count four.
We reject defendant's contention that the judge erred by finding
aggravating factor nine because the judge stated that he finds specific deterrence
in every case. Defendant contends the judge violated the sentencing guidelines
because he is entitled to individualized consideration when sentenced. We are
convinced, however, that the record supports the judge's determination that there
is need to deter defendant and others from engaging in the sort of egregious
conduct for which he was found guilty.
We also find no merit in defendant's contention that the judge erred by
failing to find mitigating factor eleven. N.J.S.A. 2C:44-1(b)(11) (incarceration
of defendant "would entail excessive hardship to" defendant "or his
dependents"). Defendant argues the judge failed to explain why he refused to
find this factor. Defendant asserts that he has two children. At the time of
sentencing, one of defendant's children was about to graduate high school and
the other child was six years old.
However, at sentencing, defendant's counsel merely stated that defendant
is "a family man," who was married with two children. Defendant failed to
A-3282-16T4
27
establish that his incarceration would entail "excessive" hardship to his family.
He did not show the hardship his children would suffer would be greater than
the hardship suffered by the children of other incarcerated persons. State v.
Locane, 454 N.J. Super. 98, 129-30 (App. Div.), certif. denied, 235 N.J. 457
(2018).
Accordingly, we affirm defendant's convictions and the sentence on count
three, but remand for resentencing on count four. On remand, the judge also
should amend the JOC to reflect his findings of aggravating factors for the
sentence on count three. We do not retain jurisdiction.
A-3282-16T4
28