STATE OF NEW JERSEY VS. C.E.L. (11-03-0672, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-5783-13
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
C.E.L.,
Defendant-Appellant.
_______________________
Argued October 19, 2017 – Decided August 31, 2018
Remanded by Supreme Court November 6, 2020
Reargued February 9, 2021 – Decided March 2, 2021
Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 11-03-0672.
Louis H. Miron, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Louis H. Miron, on the briefs).
Catherine A. Foddai, Legal Assistant, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, Assistant
Prosecutor, of counsel; Catherine A. Foddai, on the
brief).
PER CURIAM
Following a jury trial, defendant C.E.L. was convicted of first-degree
aggravated sexual assault of a victim less than thirteen years old (his four -year-
old daughter, C.L.), N.J.S.A. 2C:14-2(a)(1) (count one); three counts of second-
degree sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14-
2(b) (counts two, three, and four); second-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a) (count five); and third-degree hindering prosecution
by preventing or obstructing the child victim from providing testimony or
information that might aid in his discovery or apprehension or in the lodging of
a charge against him, N.J.S.A. 2C:29-3(b)(3) (count six). State v. C.E.L., No.
A-5783-13 (App. Div. Aug. 31, 2018) (slip op. at 1-2). In this opinion, we will
refer to these six counts as the "sexual abuse charges."
The jury also convicted defendant of fourth-degree endangering the
welfare of a child by possessing or viewing child pornography, N.J.S.A. 2C:24 -
4(b)(5)(b) (count seven); and fourth-degree tampering with evidence by
attempting to delete images of child pornography from a computer, with the
purpose of impairing its verity or availability in an official proceeding or
investigation, N.J.S.A. 2C:28-6(1) (count eight). Id. at 2. We refer to these two
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counts as the "child pornography charges." Defendant thereafter filed an appeal
to this court.
Thirty days before we issued our opinion on appeal on August 31, 2018,
our Supreme Court held that Child Sexual Abuse Accommodation Syndrome
(CSAAS) evidence "no longer . . . has a sufficiently reliable basis in science to
be the subject of expert testimony[,]" and limited such testimony to "only one
aspect of the theory -- delayed disclosure -- because scientists generally accept
that a significant percentage of children delay reporting sexual abuse." State v.
J.L.G., 234 N.J. 265, 272 (2018). Although the State introduced CSAAS
evidence at the trial, we did not address J.L.G. in our decision because defendant
did not raise the issue of the admissibility of this evidence on appeal. Defendant
subsequently filed a motion for reconsideration raising the CSAAS issue for the
first time, and we denied this motion on December 7, 2018. Defendant then
filed a petition for certification and challenged the admissibility of the State's
CSAAS evidence.
On August 5, 2020, the Court rendered its decision on J.L.G.'s pipeline
retroactivity and deemed its determination applicable to any cases on direct
appeal at the time of its ruling. State v. G.E.P., 243 N.J. 362, 386-89 (2020).
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Defendant's petition was still pending at that time and, therefore, J.L.G. applied
to the CSAAS issue he raised.
On November 6, 2020, the Court granted defendant's petition and
summarily remanded to this court "to reconsider in light of State v. G.E.P." State
v. C.E.L., 244 N.J. 352 (2020). As we perceive our task, we must consider
whether the CSAAS testimony adduced by the State at trial exceeded the now
permissible bounds of such evidence and, if so, whether under the particular
facts of this case, its admission resulted in harmful error requiring the reversal
of any or all of the eight charges of which defendant was convicted. G.E.P., 243
N.J. at 389-90. We provided the parties with the opportunity to file
supplemental briefs and to have oral argument on these issues.
After reviewing the evidence presented during defendant's trial as
governed by the principles of law set forth in J.L.G. and G.E.P., we conclude
the expert CSAAS testimony presented in this case exceeded the scope now
permitted by J.L.G. With regard to the sexual abuse charges, we further
conclude that the admission of this evidence "raise[s] a reasonable doubt as to
whether [it] led the jury to a result it otherwise might not have reached" on these
six charges. Id. at 390 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). We
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are therefore constrained to reverse defendant's convictions on counts one
through six of the indictment.
However, because there was strong, independent evidence presented by
the State's computer forensic expert concerning his discovery of pornographic
images of children on defendant's computers and defendant's attempts to delete
that material from his devices, we find that the admission of the CSAAS
evidence did not deny defendant "a fair decision on the merits" on counts seven
and eight of the indictment. Ibid. (quoting State v. Mohammed, 226 N.J. 71, 87
(2016)). Therefore, we affirm defendant's convictions on the child pornography
charges.
I.
The parties are familiar with the facts set forth in our prior decision, which
we incorporate by reference. C.E.L., (slip op. at 1-40). Therefore, we need only
recite the most salient points here.
A.
Concerning the six sexual abuse charges, the State primarily relied upon
the videotaped statements of C.L., defendant's four-year-old daughter. Id. at 5-
22. C.L. told the police during her interview that defendant had sexually
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assaulted her on numerous occasions prior to October 6, 2010, the date she
disclosed the abuse for the first time to her nanny, W.K. Ibid.W.K. testified at the trial, but she did not witness any of the alleged
assaults. Id. at 5-9. W.K. stated "that C.L. frequently urinated and defecated in
her underpants[,]" and had done so on the day she reported her allegations to
W.K. Id. at 5. However, the State presented the testimony of Dr. Julia De Bellis,
who examined the child after she spoke to the police. Id. at 22. At that time,
the doctor found "[a] small amount of fecal matter . . . around C.L.'s anus, and
she had some mild redness in her genital area." Ibid. However, Dr. De Bellis
"opined that the presence of fecal matter was merely indicative of poor hygiene,
which was common in young children, and the genital redness was a nonspecific
finding, meaning there could be many explanations for it." Ibid. Dr. De Bellis
found "[n]o injuries or evidence of trauma" during her physical examination, but
this finding "neither confirmed nor denied the validity of C.L.'s allegations of
abuse." Ibid.
Dr. De Bellis's opinions were echoed by the testimony of Dr. Kimberly
Kinney, who was one of the child's pediatricians. Dr. Kinney, who was called
as a defense witness, testified that C.L. had some redness around her genitals
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during a 2010 examination, and experienced enuresis and encopresis 1 for a
number of months prior to that examination. However, Dr. Kinney stated that
both conditions are common among young children like C.L. Dr. Kinney
explained that enuresis and encopresis could be caused by any number of factors,
including constipation, poor hygiene practices, behavioral issues, failing to
schedule regular bathroom breaks, and stress. Dr. Kinney testified that C.L. was
"a very friendly, upbeat young lady." Dr. Kinney reviewed the child's medical
records and "found no evidence she suffered any trauma from sexual abuse." Id.
at 34.
On November 30, 2010, less than two months after C.L. reported the abuse
to W.K. and the police, the child recanted her allegations during an interview
with a private investigator. Id. at 29-30. She denied that her father ever touched
her in an inappropriate manner. Ibid. At trial, C.L., who was then eight years
old, "denied she told W.K. about things that happened between her and her
father" and testified that she also told the police officer who interviewed her that
defendant "didn't do anything." Id. at 30. C.L. testified that W.K. persuaded
1
The term "enuresis" refers to loss of bladder control and accidental urination,
and "encopresis" encompasses stooling accidents.
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her to make false allegations against defendant and the child complied because
she was afraid W.K. would hurt her and her brother. Id. at 31.
During her interview with the police on October 7, 2010, C.L. stated that
defendant put a "white" ointment on his penis during his assaults and also forced
the child to use it on him. At trial, she denied this occurred. When asked
whether she ever told the police about the ointment, the child stated that
she walked into her parents' bedroom in the middle of
the night, [and found] her father . . . lying on his side
on his bed, wearing only a t-shirt and watching a movie
on his laptop computer, and she saw him putting
ointment on his [penis], which she described as
appearing "like silk and gooey kind of."
[Id. at 31-32.]
However, the child "immediately contradicted herself by saying she never saw
[defendant] put the ointment on his body and that the ointment container was
merely lying behind him on the bed." Id. at 32.
The prosecution presented testimony from Dr. Lynn Suzanne Taska, an
expert in psychology, and specifically CSAAS. She testified that CSAAS is
"not a diagnosis," but instead "a list of behaviors that are frequently seen in
children who have been sexually abused." Those behaviors fall into five
categories: secrecy; helplessness; entrapment and accommodation; delayed and
unconvincing disclosure; and retraction or recantation.
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Reviewing all five of these behaviors, Dr. Taska explained that secrecy is
a precondition for the abuse to occur, that is, abuse typically happens when the
child and perpetrator are alone. "The other quality about secrecy has to do with
how secrecy is maintained." In order to maintain secrecy, Dr. Taska testified
that abusers may offer the child a bribe, or a reward, for keeping the abuse secret,
or they may threaten the child, or tell the child that something bad will happen
if they disclose the abuse.
Turning to the second behavior, helplessness, Dr. Taska testified that
children are dependent upon the adults around them. They do not have the same
power as adults, and they are routinely told to obey the adults in their lives.
Describing the third category, entrapment and accommodation, Dr. Taska
testified that because sexual abuse is generally not a one-time experience,
abused children "find a way to accommodate or adapt to that experience."
Dr. Taska next explained the fourth factor, delayed and unconvincing
disclosure. She testified that children often do not disclose abuse immediately
after it occurs. If they disclose, their disclosure tends to be delayed, and "[i]t's
not the kind of statement that law enforcement would really like, where it's clear,
labeling everything. It tends to be waffling. It tends to be unclear."
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Finally, Dr. Taska stated that recantation, the fifth behavior, "refers to the
child trying to take it back. The child basically says I lied or I made it up, it
didn't happen." Dr. Taska explained:
[W]hat happens is the kid will sometimes accidental[ly]
blurt this out or this comes out, and then all the stuff
that the child feared happens. The child is charged with
secrecy with keeping the family together. They tell.
And then all this stuff happens, Child Protective
Service[s], this process, . . . therapists get involved, the
kid doesn't want that. And so they try to make that all
go away. And sometimes there are forces in the family
pushing kids to take it back.
In response to Dr. Taska's testimony, defendant presented the testimony
of Dr. Phillip W. Esplin, an expert in forensic psychology. Dr. Esplin primarily
criticized the manner in which the police conducted their October 7, 2010
interview with C.L. C.E.L., (slip op. at 34-37). However, he also discussed all
five of the CSAAS behaviors during his testimony.
Defendant testified on his own behalf and "denied committing the acts
alleged in the indictment and any of the acts alleged in C.L.'s statement to" the
police. Id. at 33. He also presented several character witnesses.
In his summation, the prosecutor referenced Dr. Taska's CSAAS
testimony during the portion of his argument where he addressed C.L.'s trial
testimony. The prosecutor stated that the jury had heard "testimony about . . .
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how might a child victim of sexual abuse act[,]" and asserted that this testimony
"explains a lot about [C.L.'s] . . . testimony." Referring to three of the five
behaviors discussed by Dr. Taska, the prosecutor argued that the expert's
testimony
helps us to understand [C.L.'s trial testimony] because
we . . . heard it testified to that a child victim of sexual
abuse may feel helpless to stop it. We heard that a child
victim of sexual abuse may keep it a secret. And we
heard that a child victim of sexual abuse may recant the
true disclosure.
The prosecutor then went on to describe these three behaviors in greater
detail by referring to Dr. Taska's testimony and ended this discussion by
focusing on how the CSAAS evidence could help explain C.L.'s recantation of
her prior allegations. The prosecutor stated:
[A]s we understand from the research and the
[CSAAS], recantations happen. As we heard in the
testimony, in family cases, all the things that the child
fears happen after disclosure. Okay? In this case,
[C.L.] feared not having a regular family with her dad
there even more. Recantations happen because forces
in the family start pushing at the child to take it back.
Continuing to drive this point home, the prosecutor continued:
You recall that Dr. Taska talked about a study . . . Dr.
Esplin confirmed it, as well, that recantations most
likely occur where a parent figure was the perpetrator,
the younger the child victim, non-offending parent is
not supportive and the child is left in the home. And in
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that study, the recantations were occurring in . . .
substantiated cases, so cases in which it was truly
believed that the abuse had happened, not that it was
questioned but when they did, it was substantiated,
there were still recantations. And, as I said, Dr. Esplin
agreed with these when he testified.
Following its deliberations, the jury convicted defendant of the sexual
abuse charges set forth in counts one through six of the indictment.
B.
Turning to the two child pornography charges set forth in counts seven
and eight of the indictment, the State presented the testimony of Yanal Bachok,
a computer forensic analyst with the county prosecutor's office. Bachok
examined the hard drives of a desktop computer and a laptop computer the police
seized from defendant's home. Id. at 24. Bachok found that someone had
attempted to delete all of the information on the hard drives of both devices, but
had not been completely successful. Id. at 24-28.2
Thus, Bachok found "numerous images of suspected child pornography"
on the laptop's hard drive, together with a number of "hits" for suspicious
2
In this regard, Bachok testified that a "system restore" procedure was initiated
on defendant's laptop on October 7, 2010 to delete files, just ten minutes after
defendant placed a telephone call to his wife, who was with C.L. at the police
station. Ibid. Shortly thereafter, the police arrived at defendant's home, brought
him to the station, and arrested him. Id. at 25-26.
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"keywords" like "Underage," "Little Virgins," "Nymphets," and "Teenburg." Id.
at 26-27. He also found evidence that the computer had been used to access
"Limewire," which he explained was "'a peer-to-peer program for file sharing
between computers,' that is often used for sharing illegal content, such as child
pornography." Id. at 27.
On the desktop hard drive, Bachok found hundreds of "hits" for
"keywords" similar to those found on the laptop, including "Limewire," "Index
Lolita," and "preteens." Id. at 27-28. In addition, Bachok "found the program
'Cyberscrub' installed on the desktop computer, and explained that Cyberscrub
is advertised as a program that deletes your internet history." Id. at 28. Bachok
also discovered evidence that the Cyberscrub program had been installed on
defendant's laptop. Ibid.
During his testimony, "[d]efendant blamed his father-in-law, K.W. for the
child pornography found on his laptop computer." Id. at 37-38. Defendant
admitted he had used Cyberscrub on his desktop computer "in order to eliminate
unwanted material while retaining everything else." Id. at 38. Testifying on
defendant's behalf, K.W. claimed "he used defendant's computers to view child
pornography and claimed he had 'a sickness, an addiction,' to child
pornography." Id. at 39.
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As noted above, the jury convicted defendant of possessing child
pornography and tampering with evidence by attempting to delete these illegal
images form his computers as charged in counts seven and eight, respectively,
of the indictment.
II.
We now turn to the two issues presented by the Supreme Court's direction
that we reconsider our prior decision through the prism of J.L.G. First, we are
satisfied that the CSAAS testimony presented by the State's expert exceeded the
permissible bounds of such evidence and, to the extent the State argues
otherwise, the contention lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). As summarized above, Dr. Taska addressed all five
of the behaviors comprising the theory behind CSAAS. As the Court held in
J.L.G., experts may not provide testimony on four of these five topics. 234 N.J.
at 303. Therefore, the trial court erred in admitting testimony about CSAAS.
Id. at 306.
We next determine whether the admission of the CSAAS testimony was
plain error. See G.E.P., 243 N.J. at 389 (noting "[p]lain errors are those 'clearly
capable of producing an unjust result'" (quoting R. 2:10-2)). In order to properly
answer the question, "[t]he error[s] must be evaluated 'in light of the overall
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strength of the State's case.'" State v. Prall, 231 N.J. 567, 588 (2018) (alterations
in original) (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).
Indeed, the Court has repeatedly engaged in such an evaluation in cases
involving CSAAS testimony.
For example, in State v. J.R., a case that predated J.L.G., the Court
concluded the CSAAS expert testimony "exceeded the parameters imposed" by
prior precedent. 227 N.J. 393, 417 (2017). However, the Court considered the
other trial evidence, including the victim's testimony, the testimony of "four
family members" that was consistent with the victim's account, and defendant's
"self-incriminating comments." Id. at 419-20. The Court concluded the expert's
"brief venture beyond the proper bounds of CSAAS testimony [did not] change[]
the result of defendant's trial." Id. at 420.
Similarly, in J.L.G. and in each of the four consolidated cases in G.E.P.,
the Court evaluated whether the inadmissible CSAAS testimony was harmful
error in light of the strength of the State's evidence. In J.L.G., the Court
concluded that the admissibility of CSAAS delayed disclosure testimony, like
other expert testimony, "is not appropriate to explain what a jury can understand
by itself." 234 N.J. at 305 (citing State v. Cain, 224 N.J. 410, 427 (2016)).
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"Whether a victim's delayed disclosure is beyond the ken of the average juror
will depend on the facts of the case." Ibid.Thus, if a child victim offers no "rational explanation for the delay in
disclosing abuse[,]" expert testimony may be appropriate; conversely, the
victim's "explanation from the witness stand may fall within the ken of the
average juror and might be assessed without expert testimony." Ibid. The Court
concluded that because the victim "gave sound reasons for the delay" during her
testimony, even the permissible CSAAS testimony regarding delayed disclosure
was "not called for to 'assist the trier of fact.'" Ibid. (citing N.J.R.E. 702).
However, the Court found the admission of CSAAS expert testimony was
"harmless in light of the overwhelming evidence of [the] defendant's guilt." Id.
at 306. That evidence included the victim's detailed testimony, an audio
recording she made of one of the sexual assaults, including defendant's
"[e]xplicit and disturbing language" that confirmed the victim's account, phone
conversations law enforcement monitored between the victim and the defendant
in which "he offered her money and other items after asking her to retract her
accusations[,]" and eyewitness testimony from a friend of the victim's mother
who witnessed the defendant in an aroused state "lying on top of the victim[.]"
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Ibid. Under these circumstances, the Court concluded "admission of the CSAAS
evidence . . . was harmless." Id. at 307.
In G.E.P., the Court reviewed the evidence in each of the four consolidated
cases and affirmed only G.E.P.'s conviction. 243 N.J. at 393. There, in addition
to the victim's testimony, the State introduced a recorded telephone call between
the victim and G.E.P. providing "damning, compelling evidence of guilt[,]" and
a bag of straps, rubber bands and clothespins seized from the defendant's office
that corroborated the victim's testimony of sexual abuse. Id. at 390.
However, the Court agreed that we properly reversed the convictions of
the other three defendants, R.P., C.P., and C.K., because the evidence in each of
those cases was based largely on the testimony of the alleged victims, and in
two cases, "witnesses that repeated [the victims'] allegations." Id. at 392. In
those cases, "CSAAS testimony bolstering the alleged victims' testimony was
'sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached,' . . . and therefore was clearly capable
of producing an unjust result. . . ." Ibid. (quoting Jordan, 147 N.J. at 422).
A.
Applying these principles to defendant's convictions on the sexual assault
charges set forth in counts one through six of the indictment, we conclude that
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the evidence presented by the State in this part of its case closely resembled the
evidence it introduced in R.P., C.P., and C.K. The State relied upon the video -
taped interview the police conducted with C.L. to support the six charges. None
of the other individuals who testified, including W.K., witnessed any of the
alleged assaults.
Notably, C.L. recanted her allegations two months after she made them
and testified at trial that W.K. had persuaded her to fabricate her claims. Under
these circumstances, the CSAAS testimony presented by Dr. Taska was critical
to the State's case. Indeed, the prosecutor highlighted three of the five CSAAS
behaviors in his summation, including recantation, in an attempt to demonstrate
that C.L.'s retraction of her charges was not credible, while her initial interview
with the police was trustworthy. Although defendant offered rebuttal CSAAS
testimony through Dr. Esplin, we cannot presume it cured the error. See G.E.P.,
243 N.J. at 392 (reaching a similar conclusion in the C.P. case, wher e "[t]he
State's evidence consisted of [the child's] testimony, CSAAS expert testimony,
and witnesses that repeated [the child's] allegations"). Therefore, we conclude
that the admission of the improper CSAAS testimony concerning the sexual
abuse charges clearly had the capacity to lead the jury to a result it otherwise
would not have reached on counts one through six.
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In so ruling, we have considered, but rejected, the State's argument that
there were two items of evidence that "strongly" corroborated C.L.'s initial
allegations. First, the State argues the child was able to describe the ointment
that she alleged defendant put on his penis during the assaults and, therefore,
this corroborated her account. However, the child also testified that she saw
what the ointment looked like when she walked in on her father while he was
using it while masturbating in his bedroom.
Thus, the question of how C.L. learned what the ointment looked like
could only be answered by the jury making a determination of the child's
credibility. Because the CSAAS testimony clearly affected the jurors' ability to
resolve that issue, we are unable to conclude that the child's conflicting accounts
provided the type of strong corroborating evidence needed to overcome the
erroneous admission of the expert's opinions on this subject.
The only other piece of corroborating evidence that the State cites
concerns the fact that C.L. suffered from enuresis and encopresis prior to her
disclosure of the assaults. The State points out that Dr. Kinney testified that
these conditions can be caused by stress. The State asserts that the child had
these issues prior to defendant's arrest in 2010, and they cleared up thereafter.
Therefore, the State posits that this timeline "supported [its] argument that these
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conditions were brought on by the stress of defendant's assaults[,]" which ended
after he was arrested.
This argument lacks merit. As noted above, Dr. Kinney testified that a
number of different non-medical factors other than stress could have caused
C.L.'s condition, including constipation, poor hygiene, and behavioral issues.
Dr. Kinney never opined that C.L. suffered from stress and instead testified that
the child was "very friendly" and "upbeat." Thus, Dr. Kinney's limited
testimony in this case did not provide the type of corroborative evidence needed
to overcome the error in permitting the introduction of the CSAAS testimony.
Because the admission of this evidence was not harmless error, we are
constrained to reverse defendant's convictions on counts one through six of the
indictment.
B.
We do not reach the same conclusion with regard to defendant's
convictions on the child pornography charges set forth in counts seven and eight
of the indictment. The CSAAS testimony was not relevant to those charges,
which the State was able to establish without referring to C.L.'s interview with
the police or Dr. Taska's testimony.
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Instead, the State relied upon Bachok's testimony concerning the forensic
analysis of defendant's two computers. On defendant's laptop, Bachok found
"numerous images of suspected child pornography," C.E.L., (slip op. at 27),
which was more than sufficient to sustain a conviction under count seven for
possession of child pornography.
With regard to the charge of tampering with evidence by attempting to
delete these images under count eight, Bachok discovered evidence on both
computers that they had been "wiped" using the "system restore" feature and the
Cyberscrub program. In addition, Bachok found that an attempt was mad e to
delete materials from defendant's laptop only ten minutes after he spoke on the
telephone to his wife, who had just learned of C.L.'s allegations. While
defendant blamed K.W. for the illegal material Bachok found on the computers,
and K.W. claimed he was responsible, the jury was able to resolve these
credibility questions against defendant without reference to the CSAAS
testimony. Therefore, there was ample evidence in the record to support
defendant's conviction of this offense.
Under these circumstances, we discern no reason to disturb defendant's
convictions on the child pornography charges set forth in counts seven and eight.
Therefore, we affirm both of these convictions.
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III.
In sum, we reverse defendant's convictions on counts one through six of
the indictment because of the admission of the improper CSAAS testimony, and
we remand for further proceedings consistent with this opinion. We affirm
defendant's convictions on counts seven and eight. The remainder of defendant's
assertions on the original appeal remain without merit, as discussed in our first
opinion. C.E.L., (slip op. at 40-89).
Affirmed in part; reversed in part; and remanded. We do not retain
jurisdiction.
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