STATE OF NEW JERSEY IN THE INTEREST OF B.W. (FJ-19-0220-17, FJ-19-0221-17, AND FJ-19-0222-17, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-3782-18T4
STATE OF NEW JERSEY
IN THE INTEREST OF B.W.,
a Juvenile.
Submitted March 31, 2020 – Decided June 18, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket Nos. FJ-19-0220-17, FJ-19-0221-17, and FJ-
19-0222-17.
George T. Daggett, attorney for appellant.
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
B.W. was adjudicated delinquent for sexually assaulting his two younger
female cousins. The assaults occurred when B.W. was a juvenile and one cousin
was between the ages of five and thirteen and the other was between the ages of
seven and thirteen. Following a trial in family court, B.W. was adjudicated
delinquent based on conduct that, if committed as an adult, would have
constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (three
counts: two related to one cousin and one related to the other cousin); second-
degree sexual assault, N.J.S.A. 2C:14-2(b) (three counts: two related to one
cousin and one related to the other cousin); and third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a)(1) (three counts: two related to one
cousin and one related to the other cousin).
B.W. appeals his convictions arguing that a statement he gave should have
been suppressed, he was improperly precluded from offering evidence that one
of the victims may have been sexually assaulted by her father, and there was
insufficient evidence supporting his convictions. We reject these arguments and
affirm.
I.
B.W. is the cousin of L.W. (Lynne) and L.W. (Lucy). 1 B.W. was born in
April 1991, and he is seven and eight years older than his cousins Lynne and
Lucy. Lynne was born in April 1998, and Lucy was born in October 1999.
Between 2003 and 2015, the three cousins lived together in the home of their
1
We use initials and fictitious names to protect privacy interests and the
confidentiality of the record. R. 1:38-3(d)(5), (8).
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grandmother. In addition to the three cousins, there were two other children and
four adults living at that home.
In March 2017, when Lynne was eighteen years old and Lucy was
seventeen years old, they reported the assaults to the police. In separate
interviews, Lynne and Lucy explained that when they were between the ages of
five and thirteen and seven and thirteen respectively, B.W. separately, and
repeatedly, pulled their pants down and put his fingers into their vaginas and put
his mouth on their vaginas.
When Lynne and Lucy made their disclosures, B.W. was twenty-five years
old. He was contacted by detectives, one of whom was from the prosecutor's
office, and on March 6, 2017, he came to the Hopatcong Police Station to be
interviewed by the detectives. The interview was video recorded, and a
transcript was prepared. At the beginning of the interview, a detective read B.W.
his Miranda warnings.2 B.W. then waived his rights and agreed to speak to the
detectives. When asked if he had sexually assaulted his cousins, B.W. denied
those direct accusations. In response to other questions, B.W. stated he could
not recall such actions, but he did not deny what his cousins were alleging he
did. In still other responses, B.W. vaguely suggested that it was possible that
2
Miranda v. Arizona, 384 U.S. 436, 467-69 (1966).
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3
things may have happened. For example, he stated that he might have "play[ed]
doctor" with his cousins, during which they rubbed toys down his body. B.W.
also vaguely suggested that it was "likely" he might have done something with
his cousins as children "exploring" and "experimenting."
The detective then encouraged B.W. to write letters to Lynne and Lucy to
apologize. B.W. wrote two short handwritten letters. In those letters, he stated
that he was "sorry for anything that may have happened" and hoped that both
cousins would get "help and move on."
In June 2017, B.W. was charged with committing aggravated sexual
assaults on Lynne and Lucy when he was a juvenile. B.W. was also charged
with endangering the welfare of each child. 3 Thereafter, B.W. moved to
suppress the statement he had given on March 6, 2017.
The family judge conducted an evidentiary hearing and heard testimony
from one of the detectives who had interviewed B.W. B.W. also called Dr.
Michael Richardson, a psychologist, to testify concerning the treatment he had
given to B.W. after the accusations were made. After hearing the testimony and
reviewing the recorded interview, the judge denied the motion to suppress the
3
Initially, B.W. was charged with second-degree endangerment, but the State
later moved to reduce those charges to third-degree charges.
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4
statement in an order entered on February 26, 2018. On the record, the judge
explained the reasons for that ruling.
The judge found that B.W.'s statement to law enforcement personnel was
made knowingly, intelligently, and voluntarily. In that regard, the judge noted
that when B.W. was interviewed, he was an adult with a college degree. The
judge also rejected B.W.'s arguments that he was subjected to repeated or
prolonged questioning that had overwhelmed his will. In addition, the judge
rejected B.W.'s argument that he had psychological conditions that interfered
with his ability to provide a knowing, intelligent, and voluntary waiver.
Specifically, the family judge rejected the testimony of Dr. Richardson who had
testified that B.W. suffered from Asperger's Syndrome, anxiety, depression, and
post-traumatic stress disorder and that some of those conditions had precluded
him from providing a voluntary statement. In making that ruling, the judge
pointed out that Dr. Richardson was not a forensic psychologist, had not
reviewed the video of the interview, and was not familiar with B.W.'s academic
achievements.
B.W. filed a motion for reconsideration. The court denied that motion in
an order entered on July 3, 2018, and explained the reasons for that ruling in an
accompanying written statement of reasons.
A-3782-18T4
5
In June 2018, the court conducted a Rule 104 hearing to address the State's
application to exclude certain evidence. B.W. had informed the State that he
intended to introduce evidence that Lucy's father had allegedly sexually
assaulted her when she was approximately three years old. At that hearing, the
court heard testimony from the mother and grandmother of Lynne and Lucy and
a detective. The mother testified that when Lucy was approximately three years
old, she noticed a rash on and around Lucy's vagina. She then took Lucy to the
hospital emergency room and a doctor asked if the father had molested Lucy.
The mother initially stated that she believed the father had molested the child,
but later retracted that statement. The family was living in Pennsylvania at the
time and the Child Protective Services of Pennsylvania conducted an
investigation, but did not find any evidence to substantiate that the father had
molested Lucy. The father was not criminally charged and continued to live
with the family.
Based on that evidence, the family judge found that the allegations were
unsubstantiated and not supported by any evidence, including medical evidence.
Accordingly, the judge excluded any evidence of these allegations under
evidentiary Rules 403, 404(b), and 608(b).
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In July and August 2018, the family court conducted a three-day trial. The
State presented testimony from Lynne, Lucy, and a detective. B.W. also
testified and called his mother and grandmother to testify. At the time of the
trial, Lynne was twenty years old, Lucy was eighteen years old, and B.W. was
twenty-seven years old.
Lynne and Lucy both testified that from approximately 2003 to 2015, they
lived at their grandmother's home. At that time, there were nine people living
together at the grandmother's house: Lynne, Lucy, their parents, their sister,
their brother, B.W. (their cousin), B.W.'s mother (their aunt), and the
grandmother. The house had three bedrooms. The parents used one bedroom,
B.W. used another bedroom, and the aunt used the third bedroom. Lynne and
Lucy, together with their brother, sister, and grandmother, slept in the living
room. The grandmother slept on the couch, the brother slept on a chair and
ottoman, and the three girls slept on cushions or cots.
Lynne testified that B.W. began sexually assaulting her when she was five
and the assaults continued until she was thirteen. Lynne explained that the first
incident occurred when she and B.W. were in his room playing video games.
B.W. started taking off her shirt and pants, but the aunt entered the room and
took Lynne downstairs. Thereafter, when she was seven, B.W. began crawling
A-3782-18T4
7
into the living room at night when everyone was asleep, and he would pull her
pants down and use his hands and mouth to penetrate her vagina. She testified
that these assaults primarily occurred at night for approximately ten minutes.
She also explained that the assaults happened approximately four times a week.
Lynne first reported the assaults to her mother in 2016. She explained
that she did not come forward before then because she was afraid that her
siblings would be taken away and she would lose her family.
Lucy testified that B.W. began sexually assaulting her when she was seven
and the assaults continued until she was thirteen. She explained that B.W. would
silently crawl into the living room, pull the covers off her, slide her pants down,
and would touch her vagina with his fingers and mouth. She stated that these
assaults occurred at night approximately three to four times a month. Lucy
testified that she informed her mother about the assaults in 2016 and decided to
report the assaults to the police in 2017 because she was haunted by flashbacks
and nightmares.
The detective who testified explained that he had interviewed Lynne and
Lucy and, thereafter, interviewed B.W. The statement B.W. gave to the
detective was then admitted into evidence and played during the trial.
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In his testimony, B.W. denied sexually assaulting either Lynne or Lucy.
Addressing his statement, B.W. testified that he was confused by many of the
detectives' questions and his vague statements were made because he felt
coerced by the detectives' repeated questions.
The grandmother and aunt both testified that they never saw or heard
about B.W. sexually assaulting Lynne or Lucy. In that regard, the grandmother
explained that despite sleeping right next to Lynne and Lucy, she never noticed
B.W. assaulting the girls. She also testified that she had a good relationship
with both Lynne and Lucy and would have expected them to have confided in
her had B.W. been assaulting them.
The aunt testified that she never suspected anything was going on between
B.W. and Lynne or Lucy. She also testified that she had good relationships with
Lynne and Lucy and neither of them ever mentioned anything about B.W.
assaulting them.
After hearing the testimony at trial, the family judge adjudicated B.W.
delinquent for aggravated sexual assault and endangering the welfare of
children. Specifically, the judge adjudicated B.W. delinquent on two counts of
first-degree aggravated sexual assault against Lynne and one count of first-
degree aggravated sexual assault against Lucy. The judge also adjudicated B.W.
A-3782-18T4
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delinquent on two counts of second-degree sexual assault against Lynne and one
count of second-degree sexual assault against Lucy. Finally, the judge
adjudicated B.W. delinquent on two counts of third-degree endangering the
welfare of Lynne and one count of third-degree endangering the welfare of Lucy.
Those adjudications were memorialized in an order issued on January 29, 2019.
Thereafter, B.W. was sentenced to three years of non-custodial probation
and ordered to register under Megan's Law, N.J.S.A. 2C:7-1 to -23. B.W. was
also directed to undergo a psychosexual evaluation and he was prohibited from
having any contact with the victims. B.W. moved for reconsideration. The court
denied that motion in an order entered on April 3, 2019, and issued an
accompanying statement of reasons. B.W. now appeals from his convictions.
II.
On appeal, B.W. makes three arguments which he articulates as follows:
POINT I - The [Trial Court] Erred in Failing to
Suppress Juvenile B.W.'s Statement Because it did Not
Consider the Totality of the Circumstances
POINT II - The Testimony of the Two Victims Gives
Rise to a Reasonable Doubt
POINT III - The Trial Judge Erred in Deciding the Rule
104 Hearing
A-3782-18T4
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We are not persuaded by any of these arguments and will address them in the
procedural order in which they arose.
1. B.W.'s Statement
B.W. first challenges the trial judge's decision to deny his motion to
suppress his statement. He argues that he did not knowingly waive his rights
because he suffered from Asperger's Syndrome and had a limited intellectual
capacity as demonstrated by his participation in the Special Olympics. He also
argues that the detectives asked repetitive questions and overwhelmed his will
by encouraging B.W. to "put" the situation behind him and to provide help to
his cousins.
Our review of a trial court's factual findings on a motion to suppress is
limited. State v. A.M., 237 N.J. 384, 395 (2019). The trial court's factual
findings will be upheld "when 'those findings are supported by sufficient
credible evidence in the record'" and should only be disturbed "if they are so
clearly mistaken 'that the interests of justice demand intervention and
correction.'" Id. at 395-96 (first quoting State v. S.S., 229 N.J. 360, 374 (2017);
then quoting State v. Elders, 192 N.J. 224, 244 (2007)). That same standard of
review applies to "factual findings based on a video recording or documentary
evidence." Id. at 396 (quoting S.S., 229 N.J. at 381). By contrast, we owe no
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11
deference to "conclusions of law" and we review such legal questions de novo.
Ibid. (quoting State v. Boone, 232 N.J. 417, 426 (2017)).
The "right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this [S]tate's common law,
now embodied in . . . N.J.S.A. 2A:84A-19, and . . . N.J.R.E. 503." Ibid. (quoting
S.S., 229 N.J. at 381-82). Before a defendant gives a statement, he must be
advised of his Miranda rights.4 Accordingly, "a defendant must be informed that
he has the right to remain silent, that anything he says can and will be used
against [him] in court, and that he has the right to have counsel present at the
interrogation." Id. at 396-97 (alteration in original) (citations omitted).
The State must "prove beyond a reasonable doubt that the suspect's waiver
was knowing, intelligent, and voluntary in light of all the circumstances." Id. at
397 (quoting State v. Presha, 163 N.J. 304, 313 (2000)). Accordingly, the
question is "whether the suspect understood that he did not have to speak, the
consequences of speaking, and that he had the right to counsel before doing so
if he wished." Ibid. (quoting State v. Nyhammer, 197 N.J. 383, 402 (2009)).
That inquiry is "determined by the totality of the circumstances surrounding the
custodial interrogation based on the fact-based assessment of the trial court."
4
384 U.S. at 467-69.
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Id. at 398 (citation omitted). Relevant factors include "the suspect's age,
education and intelligence, advice as to constitutional rights, length of detention,
whether the questioning was repeated and prolonged in nature and whether
physical punishment or mental exhaustion was involved." Ibid. (quoting State
v. Miller, 76 N.J. 392, 402 (1978)).
"[L]aw enforcement officers may employ deception or trickery in an
interrogation of a suspect unless such deception or trickery was calculated to
produce an untruthful confession or was offensive to due process." State v.
Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011) (citing State v. Manning,
165 N.J. Super. 19, 30-31 (App. Div. 1978)). A confession that is "the product
of . . . psychological coercion must be" suppressed. State v. L.H., 239 N.J. 22,
43 (2019) (citations omitted). Nevertheless, psychological interrogation is "not
inherently coercive" and a confession can only be deemed involuntary if
"derived from 'very substantial' psychological pressures that overbear the
suspect's will." State v. Cook, 133 N.J. 631, 562-63 (2004) (quoting State v.
Galloway, 179 N.J. 533, 654, 656 (1993)).
The trial court here found that B.W. was given his Miranda rights, he
voluntarily, knowingly, and intelligently waived those rights, and agreed to
speak with the detectives. Having reviewed the video recording of the
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interrogation, the trial court also found that B.W.'s will was not overborne nor
were any of his statements "coerced as a result of improper interrogation
tactics." The trial court also rejected B.W.'s arguments that his ability to give a
voluntary, knowing, and intelligent waiver was affected by his Asperger's
Syndrome, anxiety, PTSD, or limited intellectual capacities. In that regard, the
trial court expressly rejected the testimony of Dr. Richardson.
In finding that B.W.'s statement was admissible, the trial court identified
eight factors, including that B.W. was twenty-six years old,5 a college graduate,
and was questioned for approximately an hour. The court went on to find that
the detectives' questioning was not unduly repetitive and B.W. was never
threatened.
All the trial court's factual findings are supported by substantial credible
evidence in the record and we discern no basis for rejecting them. Moreover,
the trial court correctly summarized the governing law and applied that law to
the facts.
B.W. relies on our Supreme Court's opinion in L.H. and argues that his
statement should be suppressed just as the statement in L.H. was suppressed.
5
B.W. was twenty-five when he was interviewed but twenty-six when the trial
court made its decision.
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We disagree because the facts in L.H. are distinguishable. In L.H., the defendant
was interrogated for approximately three hours and the detectives who
interrogated him falsely promised counseling "as a substitute for jail," and told
the defendant that "the truth would set him free." 239 N.J. at 52. Here, by
contrast, the detectives made no false promises for counseling and the
questioning was not as prolonged or coercive in nature.
In short, the trial court considered the totality of the circumstances and its
factual findings are supported by the evidence in the record. Thus, we discern
no grounds for reversing the court's decision to deny the motion to suppress
B.W.'s statement. We note in that regard, that B.W. was tried as a juvenile, thus
it was the trial judge who made the ultimate factual findings and considered the
weight to be accorded to the statements made by B.W. when he was questioned
by the detectives.
2. The Allegations of Sexual Assault Against the Father of the Victims
Prior to trial, counsel for B.W. apparently informed the State that B.W.
would seek to offer evidence that Lucy's father had sexually assaulted her when
she was approximately three years old. B.W. apparently intended to argue that
the father's alleged prior sexual assault of Lucy undercut the credibility of
Lynne's and Lucy's testimony that B.W. sexually assaulted them. The State
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objected to that evidence and the court conducted an evidentiary hearing under
Rule 104.
After hearing testimony concerning the alleged assault by the father, the
trial court ruled that the evidence was unreliable and, therefore, could not be
admitted under evidence Rules 403, 404(b), and 608(b). Having reviewed the
record, we agree with the trial judge that the allegations concerning the sexual
assault by the father were unreliable and were properly excluded under Rule
403.
We review a trial court's ruling "on the admissibility of evidence" for
abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v.
Demello, 191 N.J. 18, 31 (2007)). Rule 403 provides that "relevant evidence
may be excluded if its probative value is substantially outweighed by the risk of
(a) undue prejudice, confusion of issues, or misleading the jury or (b) undue
delay, waste of time, or needless presentation of cumulative evidence."
Here, the trial court determined that the allegations against the father
could confuse the issues by suggesting that Lucy was unsure of who sexually
assaulted her. We discern no basis to disturb that decision. The evidence at the
Rule 104 hearing established that the allegations against the father were made
in 2003, and while the mother had initially suggested that the father might have
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sexually abused Lucy, she thereafter retracted that statement. There was an
investigation, but no substantiation and no criminal charges.
3. The Sufficiency of the Evidence
B.W. argues that the testimony of Lynne and Lucy gave rise to reasonable
doubt and the trial court erred in finding that he had sexually assaulted his
cousins and had endangered their welfare. In making that argument, B.W.
focuses on the sleeping arrangements and contends that it is incredible to believe
that he could have assaulted each of the victims on hundreds of occasions
without the grandmother noticing. He also argues that the victims' credibility
was undercut by their delayed reporting of the assaults and implies they had a
motive to lie because the grandmother had asked the family to leave her home
in 2015.
After hearing all the evidence, the trial judge made detailed factual and
credibility findings. He found that the testimony by Lynne and Lucy was
credible and consistent. He noted the sleeping arrangements, but relied on the
consistent testimony by Lynne and Lucy concerning how B.W. would crawl into
the room at night and assault them.
The trial judge expressly found B.W.'s testimony incredible. Similarly,
the trial judge found the testimony of the grandmother and aunt to be incredible.
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He rejected the notion that Lynne and Lucy had a motive to lie because the
grandmother had asked the family to move out of her home in 2015.
Our review of a juvenile delinquency adjudication is limited. State ex rel.
D.M., 238 N.J. 2, 15 (2019) (citing State ex rel. J.P.F., 368 N.J. Super. 24, 31
(App. Div. 2004)). We will accept the trial judge's factual findings if they are
supported by substantial credible evidence in the record. Ibid. Moreover, we
accept the trial judge's credibility findings, recognizing that the judge is in a
better position to assess the credibility of witnesses who have appeared before
the judge. See State v. J.R., 227 N.J. 393, 410 (2017) (citation omitted); State
ex rel. D.M., 451 N.J. Super. 415, 424 (App. Div. 2017) (citations omitted), aff'd
on other grounds, 238 N.J. 2 (2019).
The arguments presented by B.W. on this appeal do not go to the
sufficiency of the evidence; but rather, they challenge the weight of the
evidence. Those are issues properly considered by the fact finder. The trial
judge here considered, but rejected, B.W.'s arguments and we discern no
grounds for reversing the trial judge.
Affirmed.
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