"The interests of economy and efficiency may require that similar or related offenses be joined for a single trial, so long as the defendant's right to a fair trial remains unprejudiced."
How later courts described this case
- "The interests of economy and efficiency may require that similar or related offenses be joined for a single trial, so long as the defendant's right to a fair trial remains unprejudiced."
- declining to apply the second prong of the Cofield test
Written by the judges who cited it.
The opinion
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NOT FOR PUBLICATION WITHOUT THE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-4422-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAELITO PALAO, a/k/a
RAEL PALAO,
Defendant-Appellant.
__________________________
Argued January 23, 2020 – Decided October 27, 2020
Before Judges Fuentes, Mayer, and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 14-03-0185.
Rochelle Watson, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Rochelle Watson, of counsel
and on the briefs).
Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Robert J. Wisse, of counsel and
on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
A Passaic County Grand Jury returned a six-count indictment charging
defendant Raelito Palao with second degree sexual assault of A.E. (Abigail), a
child under the age of thirteen, N.J.S.A. 2C:14-2b (Count 1); third degree
endangering the welfare of a child - Abigail and V.M. (Valerie), N.J.S.A. 2C:24-
4a, (Counts 2 and 6); fourth degree criminal sexual contact of K.D. (Kenzie) and
Valerie, N.J.S.A. 2C:14-3b, (Counts 3 and 5); and second degree endangering
the welfare of a child - Kenzie, N.J.S.A. 2C:24-4a (Count 4).1
Defendant was tried before a jury over four days. The jury found
defendant guilty of all the charges listed in the indictment. At the sentencing
hearing, the trial judge merged Counts 1 with Count 2 and sentenced defendant
to a term of seven years, subject to an eighty-five percent period of parole
ineligibility and three years of parole supervision, as mandated by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. On the two convictions for third
degree endangering the welfare of a child, the judge sentenced defendant to a
term of five years, to run consecutive to the sentenced imposed on Count 1. The
1
Pursuant to Rule 1:38-3(c)(12), the three children allegedly sexually molested
by defendant are identified only by their initials. The names following their
initials are pseudonyms used here in the interest of clarity.
A-4422-16T4
2
judge also merged Count 5 with Count 6 and sentenced defendant to a term of
three years, to run concurrent with Count 4, but consecutive to Count 1.
In this appeal, defendant argues he was denied a fair trial because the trial
judge: (1) denied his motion to sever the charges involved in the three separate
alleged incidents with three different victims; (2) granted the State's motion to
admit prejudicial evidence under N.J.R.E. 404(b); (3) allowed the State to call
an expert witness to testify and opine on the reasons why the children did not
disclose the alleged sexual molestation sooner based on the now discredited
Child Sexual Abuse Accommodation Syndrome (CSAAS); and (4) imposed an
unwarranted and legally excessive sentence.
The Supreme Court held in State v. J.L.G. that "CSAAS does not satisfy
a basic standard of admissibility -- reliability -- because it is not generally
accepted by the scientific community. Expert testimony about CSAAS therefore
may no longer be presented to juries." 234 N.J. 265, 308 (2018). It is now also
definitively settled that the Court's holding in J.L.G. must be given pipeline
retroactivity. State v. G.E.P., ____ N.J. ____ (2020) (slip op. at 4). Based on
the record developed before the jury here, we conclude defendant was denied a
fair trial by the admission of expert testimony on the applicability of CSAAS.
We are thus bound to reverse defendant's conviction and remand this matter for
A-4422-16T4
3
a new trial.
I
THE CASE INVOLVING ABIGIAL
In her opening statement to the jury, the prosecutor proffered that
defendant began sexually molesting Abigail in the Spring of 2013, when she was
eleven years old. The abuse was discovered when Abigail, while hiding in the
bathroom of her home, texted to a friend: "There's a perv in my house. He's my
father's friend. I'm scared." Although this electronic message was meant to be
read only by another child, Abigail's father inadvertently discovered it.
According to the prosecutor, this
disclosure would spread through a very tightknit church
community that both [Abigail] and her family and . . .
defendant belonged to, and it was her disclosure that
ultimately was passed down to two other girls by the
names of [Kenzie] and [Valerie], who were at the time
young adults when they heard about [Abigail].
Abigail was the first witness to testify at trial. At the time she testified,
Abigail was fifteen years old and attending the tenth grade of high school. She
resided with her parents, her younger brother and sister, and her grandmother.
Her family are members of the Bible Church International (BCI). She has been
a member of BCI since she was five years old and attends services on weekends.
Abigail testified that she knew Valerie and Kenzie as youth leaders at BCI. She
A-4422-16T4
4
was particularly close to Valerie.
Abigail first met defendant when she was approximately six years old.
She characterized her family's relationship with him as a "casual friendship."
Her initial interactions with him were during family children's parties. As she
grew up, defendant became more of a close family friend. She thus called him
by a Filipino word which she explained meant "uncle in Filipino, but usually it's
a sign of respect for anyone older than me." Although defendant left BCI at one
point, he continued his association with Abigail and her family.
Abigail testified she was about eleven years old the first time defendant
sexually molested her in the basement of her own home.
PROSECUTOR: Okay, and what was it that happened
between you and Mr. Palao?
ABIGAIL: There was an incident where he went to our
house to -- we had just moved in, and he went to our
house to visit or to look around, because a lot of people
were doing that since we had just gotten it, so I assumed
that it was just another person that wanted to see it. And
we were in the basement of my house and, while I was
playing a video game on my laptop desk downstairs,
and he came downstairs and I assumed that he was just
going to look around to see the basement and he came
up behind me and touched my breast under my shirt,
under my bra.
Abigail testified that defendant did not say anything or even acknowledge
when she said "no" and told him to stop. She said the incident lasted "maybe a
A-4422-16T4
5
few seconds" and he finally stopped when she pushed him away. She thereafter
took refuge in the bathroom, where she remained for approximately thirty to
forty minutes. Defendant had left the house by the time she came out of the
bathroom. Abigail testified she did not say anything to her parents about
defendant's behavior at that time because she was "scared or embarrassed of
what they would say."
The second incident occurred one year later in the bedroom Abigail shared
with her younger sister, who was about five years old at the time. Abigail
testified that defendant came into the bedroom and "started like playing with me
. . . tickling me around my stomach, on like the sides, he was poking my sides,
and then all of a sudden he put his hand on my vagina." The second incident
also lasted "a few seconds[.]" She again told him "no . . . stop" and pushed him
away. When the prosecutor asked her how it ended, she stated: "When I was
pushing him away and telling him to stop, all of a sudden he did and he just left
the room."
In response to defense counsel's questions on cross-examination, Abigail
admitted that the guidance counselor in her school accused her of hacking into
another person's social media account and "posting nasty information about
another person in [her] class." Abigail also confirmed that the guidance
A-4422-16T4
6
counselor told her she was facing suspension from school. When her father
found out about this incident in school, he became very angry. This prompted
him to go through Abigail's electronic device and discover the message she sent
to her friend purportedly documenting the first time defendant sexually molested
her.
The following exchange illustrates defense counsel's line of questioning
concerning this issue:
Q. In that text message, you refer to someone as a
pervert.
A. Yes.
Q. Your father asked you who you were referring to as
a pervert.
A. Yes.
Q. From that moment on, the focus was no longer on
the Instagram issue and your suspension in school; it
was on the pervert text message.
A. Yes.
Q. You didn't mention the name, "Raelito Palao," in that
text message.
A. No.
Q. Your father in fact suggested that [defendant] was
the pervert.
A-4422-16T4
7
A. He didn't suggest it. He was -- I was -- I was the one
that told him who it was, but he didn't suggest that it
was him.
Abigail's father, N.E., also testified as a witness for the State. He
identified himself as a "born-again Christian" and a congregant of BCI since
about 2005. He has known defendant since 2006. Prior to this incident, N.E.
considered defendant a friend "close enough that I took him as one of my
godfather [sic] for my daughter." N.E. testified that defendant visited his home
"unannounced" on two separate occasions; the first time was in the summer of
2012 and the second in the spring of 2013. N.E. provided the following account
of what transpired during defendant's second visit.
I went to the basement to get the air condition, because
before we went for dinnertime I was putting . . . air
condition to every room, and that's why I went to the
basement to get that air conditioner.
....
I went to [Abigail's] bedroom with the air condition.
....
I was holding onto the air condition, went to . . .
[Abigail's] room.
....
A-4422-16T4
8
I saw [defendant] in . . . [Abigail's] room and he was
playing [with] [Abigail], you know, touching her, and I
said, "What are you doing?"
....
I put down the . . . air condition[er] and I told him to
get out of her room.
THE CASE INVOLVING VALERIE
Valerie was twenty-four years old when she testified before the jury in
this case. Her family consists of her parents and three brothers. At the time of
trial, she resided with her parents and two younger brothers. Her father is a
coworker of Abigail's father and a Deacon of the BCI church. Her family has
belonged to BCI since she was two years old. Valerie testified that BCI was a
central part of her family's social and spiritual life. She described BCI members
"as a close-knit community . . . we know all the members, so it's like a family."
Her parents considered defendant as a friend of the family. "They would
talk to each other at church and also he was always invited to our house through
my parents. So it was very mutual. They were very close with him." Valerie
testified that during childhood, defendant was known as "The Tickle Monster."
But he was also called "Pastor." According to Valerie, although defendant was
not "technically" a pastor, "he received that title because, when our church first
A-4422-16T4
9
started, our pastor -- our head pastor spoke in Tagalog 2 in our language through
messages, and he would translate into English."
As a child, Valerie respected defendant and viewed him as an "uncle."
Her relationship with him changed when she experienced certain encounters that
made her feel "uncomfortable." Valerie testified that defendant would "touch
[her] in places where [she] felt uncomfortable and inappropriate." She provided
the following account in response to the prosecutor's request for specificity:
For example, he would come to my house and he would
embrace me from behind, and I couldn't let go, and then
he would reach his . . . hand underneath my shirt and
underneath my bra and would try to fondle my breast.
And then I would try to let go, tell him to stop, and then
he would try to put his hands underneath my pants. But
he would be unsuccessful, because I would -- with all
my might I would scream and say, "Stop," or call my -
- whoever's in the house and try to let go of him.
According to Valerie, defendant began to sexually molest her in this
fashion when she was "about in 8th grade to freshman year in high school." She
testified that defendant sexually molested her in this fashion "about nine [to] ten
times." The abuse would occur when she was at home alone or when "certain
2
Tagalog is the native language of the people of the Philippines.
A-4422-16T4
10
members of my family would be home[.]"3 When the prosecutor asked Valerie
why she did not disclose defendant's misconduct earlier to her parents, she
provided the following explanation:
Since I was that young, I was scared, because growing
up I kind of didn't want to disrupt what my parents built
for us, because they came from the Philippines, so they
wanted to essentially give us a better life here in
America, and things like this we don't speak about in
our household. So when this happened I kind -- I didn't
want to tell them. And so when . . . [Abigail's] case
came up, I knew I just had to tell them.
She testified that her father told her about Abigail's allegations in June
2013, when she was twenty-one years old. On cross-examination, the defense
established that as a "youth leader" at BCI, Valerie led discussions in groups
made up of young people. As Valerie explained:
[W]e have youth nights every Friday night, and . . . the
youth pastor, he says a short message in the evening,
and then the youth leader breaks off into different
smaller groups of . . . kids. So the youth group is from
middle school to high schoolers, so youth leader, their
role is to counsel or to guide the conversation after the
message that the youth pastor gave that night.
3
Valerie described a particular incident in which the only family members who
were home when defendant sexually molested her were her younger brothers,
who were six and eight years old at the time. She did not recall whether her
parents were home during any other incident.
A-4422-16T4
11
The BCI youth groups Valerie described consisted of three to seven
adolescents and met almost every Friday, depending on what "the youth pastor
decides in terms of the curriculum for the month." Abigail participated in youth
groups since she was in sixth or seventh grade, although not directly under
Valerie's supervision. Valerie acknowledged, however, that she had "a big
sister-little sister relationship" with Abigail within the church. Against this
backdrop, defense counsel pursued the following line of inquiry:
Q. Now, your father told you that [Abigail] had accused
[defendant] of touching her inappropriately?
A. Yes.
Q. And your father told you that [Abigail] said
[defendant] lifted up her shirt.
A. Correct.
Q. And your father then said, "Did [defendant] do
anything like that to you?"
A. Correct.
Q. And, when you heard [Abigail's] allegation, you
were angry.
A. Yes.
Q. And one of the words that you used was, "Shocked."
A. Mmm-hmm.
A-4422-16T4
12
Q. Now, you decided that you wanted to help
[Abigail][?]
A. Uh --
In the course of this line of inquiry by defense counsel, Valerie reaffirmed
that she provided the Clifton Police detectives who interviewed her complete
and accurate details of her own sexual molestation by defendant, which
included: (1) where these incidents occurred: (2) when they occurred; and (3)
who was around when they occurred. Valerie also maintained that she was
equally candid and truthful when she was interviewed by detectives from the
Passaic County Prosecutor's Office (PCPO). However, she admitted that she did
not tell the PCPO detectives that defendant had come to her house "claiming he
was hungry or thirsty" at a time her parents were not home.
Valerie also testified that she referred to defendant as "The Tickle
Monster" when she was a prepubescent girl between the ages of two to twelve
years old. During this time period, Valerie testified that all of the children in
BCI called defendant "The Tickle Monster" because he would run around to
tickle them, and they would scream. Valerie admitted "this was a common
occurrence." Defense counsel then asked Valerie the following questions:
Q. At some point you got older; you weren't two
anymore; you became a teenager; you became 13 years
old, right?
A-4422-16T4
13
A. Correct.
Q. And [defendant] would still try to tickle you, right?
A. Yes.
Q. And you would tell him to stop?
A. Yes.
Q. And he would still try to tickle you.
A. Mmm-hmm.
Q. He would tickle you on your stomach?
A. It was usually underneath my armpits.
Q. And -- so on the side of your body he would tickle
you?
A. Yes.
Q. And he would tickle you on your ribs too?
A. Um --
Q. Like underneath your armpit?
A. Yeah, underneath my armpit.
Q. And, when he started to do that when you were 13
or 14 years old, you didn't refer to him as, "The Tickle
Monster," anymore, right?
A. Right.
A-4422-16T4
14
Q. You referred to him as a creep.
A. Correct.
In an effort to impeach Valerie's credibility, defense counsel noted that
from 2007 to 2012, she did not tell anyone about defendant's sexual molestation.
In his closing argument to the jury, defense counsel emphasized that if Valerie's
testimony was true, she knowingly permitted a sexual predator to remain an
active member of the BCI community for over five years.
THE CASE INVOLVING KENZIE
Kenzie was twenty-four years old at the time she testified in this trial on
October 11, 2016. The State presented her testimony to prove defendant
sexually molested her between September 1, 2005 and August 31, 2007. Her
family were active members of BCI and she attended religious services with her
family as a child every Sunday. Her participation in BCI activities also included
"youth camp, church camping events, [and] Bible studies." However, Kenzie
stopped attending BCI religious services "around 2011, 2012."
Kenzie is the same age as Valerie; the two grew up together as "best
friends." When asked to elaborate, Kenzie testified: "I would see her every
week, like, at church and we'd hang out on the weekends or we'd have, like, play
dates growing up." Their families were also close friends and members of the
A-4422-16T4
15
BCI community. Kenzie testified that her family was "acquainted" with
Abigail's family as part of the BCI community. Kenzie first met defendant and
his family when she was "around" six or seven years old. She referred to
defendant as Pastor [R.] because she "believed he was, like, a pastor in the
Philippines and we respected our elders, so . . . he was known as a pastor, but
not a pastor of Bible Church International."
Kenzie testified that she "looked up" to defendant and saw him as an
"uncle figure." The prosecutor followed up on this line of questioning:
Q. Okay. And what was it about him that led you to
look up to him?
A. Well, he was, like, nice to me. He . . . would take
me around, get me Dunkin' Donuts and buy me, like,
treats and gifts.
Q. What sort of things would he buy for you?
A. Well, like, at Dunkin' Donuts . . . drinks, he'd get
me, like, games, toys . . . Nintendo DS, he got me a cell
phone, and he would give me money sometimes.
Q. And how did you feel when he gave you these
things?
A. I was happy. I liked getting free things as a child.
Q. Do you remember when -- how old you were when
he first started to give you things?
A. Around 13-14 [years old].
A-4422-16T4
16
According to Kenzie, defendant began spending more time with her when
she reached the age of fourteen. He offered to drive her to Bible study classes
at the church. Because her parents were working, they "were okay with it."
Kenzie testified defendant drove a black Ford "SUV type" vehicle. She always
sat in the front passenger seat. Kenzie testified that defendant worked for
Cablevision at the time; he told her he could probably get her a summer job
there. She enjoyed driving around with defendant because he would give her
"food, money, [and] gifts."
However, something happened one day that fundamentally changed the
tenor of their relationship.
During these car rides, when he'd be either bringing me
to church or driving me around for work, he -- while he
was driving, I'd be in the front seat and he'd out of
nowhere use his, like, right hand forcefully put his hand
by my vagina area and my breast area and he'd be
touching me, like, with his hands, moving it all around
with his fingers and he'd, like, go -- like, touch my skin
at the -- with -- under the waistband. And he would
also, like, be pinching and grabbing my breasts.
Q. Okay. And now did this -- did the incident happen
one time or was this more than one time?
A. It happened more than one time.
Q. Do you remember approximately how many times
something like this happened with [defendant]?
A-4422-16T4
17
A. Approximately 40 times.
Although she could not remember "a specific date," Kenzie testified that
whenever it happened, she would ask him to stop. She also claimed that
defendant commented on her then teenaged body by saying: "your boobs are
tiny," or "you have no . . . ass." She would typically tell him "stop it . . . stop
it[.]" According to Kenzie, he would just smile and keep doing it, "then
eventually he would . . . just stop." Despite these repeated incidents of sexual
abuse by defendant, Kenzie testified that she continued to spend time with
defendant because:
I really liked when he gave me, like, gifts, like the cell
phone, money, and he would treat me out. And I didn't
know as a child that him touching me and tickling me
in those areas [was] wrong. I didn't know what
molesting was at that age and I – I knew it felt
uncomfortable, but I didn't know it was a crime of any
sort.
Kenzie also described a particular incident in which she and K.H., a friend
from school, went to the Garden State Plaza Mall with defendant. Kenzie
testified she asked defendant for a ride to the mall because
[K.H.] was one of my best friends 4 and . . . we had
wanted to hang out and, like, go to the mall and, like,
4
In response to the prosecutor's question, Kenzie clarified that K.H. was also
fourteen years old when defendant took her and Kenzie to the mall.
A-4422-16T4
18
buy stuff, and so I knew, like, [defendant] would
provide a ride for us, and so I invited her to come along
to go to the mall.
During the trip, Kenzie sat in the passenger seat and K.H. sat in the
backseat. Kenzie testified defendant purchased bracelets from the Hot Topic
store for her and K.H. They then went to Victoria Secret. According to Kenzie,
while in Victoria Secret, defendant offered to buy the girls underwear. K.H.
accepted the offer and allowed defendant to buy her "[s]everal pairs of
underwear." Kenzie declined defendant's offer.
Kenzie testified the sexual abuse eventually stopped because she
"eventually . . . grew tired of him tickling and touching me, so . . . I stopped
seeing him[.]" Defendant also stopped giving her gifts. Although they never
directly discussed the topic, Kenzie claimed that her and Valerie had a mutual
unspoken understanding of what defendant did to them. After Valerie told her
what happened to Abigail, Kenzie testified that she finally spoke openly with
Valerie about what happened to them when they were children. They decided
to jointly disclose what they knew to the police.
PCPO Detectives Sergeant James M. Stolz and Sabrina C. McKoy
investigated the allegations of sexual abuse made by the three complaining
witnesses, Abigail, Kenzie, and Valerie. On June 13, 2013, Kenzie and Valerie
A-4422-16T4
19
gave sworn statements that described in detail defendant's alleged sexual
molestation. However, because the sworn statements provided by these two
complaining witnesses are not part of the appellate record, we have opted to rely
exclusively on their trial testimony.
II
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME
Over defendant's objection, the State called Dr. Anthony Vincent D'Urso,
a licensed clinical psychologist, as an expert witness. During voir dire direct
examination, the prosecutor inquired into Dr. D'Urso's educational background
to establish the witness' specialized knowledge under N.J.R.E. 702. Dr. D'Urso
testified that he received his doctorate degree in psychology from the Graduate
School of Applied and Professional Psychology at Rutgers University. He
received his bachelor's and master's degrees in psychology and counseling from
Seton Hall University.
At the time he testified in this case, Dr. D'Urso was the section chief and
supervising psychologist at the Audrey Hepburn Children's House, and had been
practicing clinical psychology for a total of twenty-six years. He holds a similar
position at the Metropolitan Regional Diagnostic Center. Dr. D'Urso described
A-4422-16T4
20
this institution "as a state-mandated regional diagnostic center" where cases of
alleged child sexual abuse are referred for psychological and medical services.
Focusing on the "diagnostic" aspect of the facility, the prosecutor asked the
witness "to explain a little bit more" about this part of its function. According
to Dr. D'Urso:
[T]he four centers, we are supposed to provide medical
and psychological services for kids and families where
abuse has occurred or alleged to have occurred. That
includes the -- anything from physical examinations to
post-physical treatments. We also have mental health
services . . . [and] evaluations to establish what kids
need, what kids and their families need, and we provide
the therapy that is sometimes required.
[(Emphasis added)].
He co-authored the State of New Jersey's guidelines on how to conduct
clinical assessments of children who had suffered sexual abuse. Dr. D'Urso
testified that he has been involved in the clinical and research area of child
sexual abuse since 1982. Against this backdrop, the prosecutor asked Dr.
D'Urso if he was familiar "with something called the Child Sexual Abuse
Accommodation Syndrome?" He answered "yes." This opened the door for the
following exchange:
Q. And approximately how many times have you
testified as an expert in this field?
A-4422-16T4
21
A. In Child Sexual Abuse Accommodation Syndrome?
Q. Yes.
A. Over the last 30 years, probably 250 times.
At this point, the State moved to admit Dr. D'Urso as an expert witness
"in the area of Child Sexual Abuse Accommodation Syndrome." This prompted
the following line of inquiry from defense counsel:
Q. Doctor, what courses have you taken in the area of
Child Sexual Abuse Accommodation Syndrome?
....
A. If you're referring to a, like, a -- when you say
course, rather than a workshop or training, there are no
such courses.
....
Q. So, there are no courses in the area in which you're
being offered as an expert for?
A. Well, again I'm not trying to quibble with the word
course. We -- I run a grant on forensic interviewing and
we teach prosecutors, caseworkers, detectives to
interview kids forensically, and I teach the segment of
the class on Child Sexual Abuse Accommodation
Syndrome. So, it's not [a] course -- it's a training
program for a week, it's not a course.
[(Emphasis added)].
A-4422-16T4
22
Through a series of questions, defense counsel adroitly identified the
scientific frailties and legal concerns the Supreme Court recognized in J.L.G.
Defense counsel objected to the admission of Dr. D'Urso as an expert witness in
CSAAS. The trial judge overruled defense counsel's objection and provided the
following explanation to the jury in support of his decision:
Okay. I am going to accept the doctor as an expert in
the area of Child Sexual Abuse Accommodation
Syndrome. The evaluation of the testimony is going to
be entirely up to you.
And I am now going to give you some legal instructions
before the doctor begins his testimony.
All right. Ladies and gentlemen, again, I am going to
give you a legal instruction regarding both expert
testimony in general and then as to the specific topic of
Child Sex [sic] Abuse Accommodation Syndrome.
Now, first, it's going to address just general expert
testimony.
[At this point, the trial judge gives the jury the model
charge on how to evaluate the testimony of an expert
witness.]
I'll now, ladies and gentlemen, instruct you as to how
to evaluate testimony regarding the Child Sexual Abuse
Accommodation Syndrome. Our law recognizes that
stereotypes about sexual assault complaints may lead
some of you to question an alleged victim's credibility
based solely on the fact that she did not complain about
the alleged abuse earlier.
A-4422-16T4
23
I note, ladies and gentlemen, that there are three alleged
victims in this case and you consider the counts as to
each alleged victim separately. You may or may not
conclude that her testimony -- again, you consider this
testimony as to each of the three alleged victims here –
is untruthful based only on her silence slash delayed
disclosure. You may consider the silence slash delayed
disclosure, along with all other evidence, including her
explanation for her silence slash delayed disclosure, in
deciding how much weight, if any, to afford to
complainant's testimony. You may also consider the
expert testimony that will explain that silence slash
delay is one of the many ways in which a child may
respond to sexual abuse.
Accordingly, your deliberations in this regard should
be informed by the testimony which will be presented
regarding the Child Sexual Abuse Accommodation
Syndrome.
I note, ladies and gentlemen, that the expert does not
testify specifically about the case before you, nor does
he offer any opinion about it. The expert testifies about
the Child Sexual Abuse Accommodation Syndrome.
Now, you may recall evidence that each of the three
alleged victims explained why she did not report the
alleged abuse earlier. In this respect, Dr. D'Urso will
testify on behalf of the [S]tate. Again, this witness has
been qualified as an expert as to the Child Sexual Abuse
Accommodation Syndrome. You may only consider
the testimony of this expert for a limited purpose, as I
will now explain.
You may not consider Dr. D'Urso's testimony as
offering proof that child sexual abuse occurred in this
case. The Child Sexual Abuse Accommodation
Syndrome is not a diagnostic device and cannot
determine whether or not abuse occurred. It relates only
A-4422-16T4
24
to a pattern of behavior of a victim which may be
present in some child sexual abuse cases. You may not
consider expert testimony about the Accommodation
Syndrome as proving whether abuse occurred or did not
occur. Similarly, you may not consider that testimony
as proving, in and of itself, that an alleged victim in this
case was or was not truthful.
Dr. D'Urso's testimony may be considered as
explaining certain behavior of the alleged victim of
child sexual abuse. As I just stated that testimony may
not be considered as proof that abuse did or did not
occur. The Accommodation Syndrome, if proven, may
help explain why a sexually abused child may delay
reporting.
Now, to illustrate, in a burglary or theft case involving
an adult property owner, if the owner did not report the
crime for several years, your common sense might tell
you that the delay reflected a lack of truthfulness on the
part of the owner. In that case, no expert would be
offered to explain the conduct of the victim, because
that conduct is within the common experience and
knowledge of most jurors. Here, again, as I've
indicated, Dr. D'Urso will testify as to this syndrome.
This testimony is being admitted only to explain that
the behavior of the alleged victims was not necessarily
inconsistent with sexual abuse.
Now, the weight to be given to Dr. D'Urso's testimony
as to this syndrome is entirely up to you. You may give
it great weight, slight weight, or any weight in between,
or you may in your discretion reject it entirely.
Ladies and gentlemen, again, you may not consider the
expert testimony as in any way proving that the
defendant committed or did not commit any particular
act of abuse. Testimony as to the Accommodation
A-4422-16T4
25
Syndrome is offered only to explain certain behavior of
an alleged victim of child sexual abuse.
And again, ladies and gentlemen, as I have explained to
you in the past and will again explain to you, the burden
of proof is always upon the [S]tate. The defendant in a
criminal case has no burden of proof.
[(Emphasis added).]
With these instructions as backdrop, the prosecutor proceeded to question
Dr. D'Urso about CSAAS and how to detect the "clinical findings or clinical
symptoms that tend to occur" when a child does not disclose sexual abuse in a
timely fashion.
PROSECUTOR: And so, if you have no knowledge of
this case, what is the purpose of your testimony here
today?
DR. D'URSO: The purpose of Child Sexual Abuse
Accommodation Syndrome testimony is to provide
information about how kids disclose abuse and why
there -- what there are, if any, differences between adult
and child sexual assault, because it may seem illogical
or not consistent that a child victim may act in a
different way. So, the idea is to talk about the
landscape of child dynamics and how that would differ
to assist the jury in understanding about child sexual
assault.
When asked how the "syndrome" is characterized, Dr. D'Urso identified
"five sequences that occur in the disclosure process." According to Dr. D'Uro,
the first factor is secrecy. Without citing to any authoritative study, Dr. D 'Urso
A-4422-16T4
26
affirmed: "There is no credible study in the world that says kids typically tell
after the first time they're engaged in sexualized behavior. It is one of the few
findings that is unchallenged in all of child abuse."
Dr. D'Urso testified that the second factor of this syndrome is
"helplessness," which he defined as: "the things that occur within the child that
inhibit them from telling . . . there are things inside the child which cause them
not to tell and then there things outside the child that cause them not to tell." He
identified the "outside things" as the "third area, which is coercion, entrapment
or accommodation." Dr. D'Urso referred to incomplete disclosure as a
"piecemeal process . . . because kids are not likely and typically don't tell
everything that happened to them in their first interview . . . they're going to tell
more as time goes on." Finally, the fifth factor or "area" of the syndrome is
"retraction or recantation."
The prosecutor relied on Dr. D'Urso's expert testimony in her closing
argument to provide the jurors a scientifically valid basis to dispel any lingering
doubts they may have had related to: (1) the time it took for these three alleged
victims to disclose the sexual molestation; and (2) defendant's status within the
BCI community.
Now you also had the opportunity to hear from Dr.
Anthony D'Urso in this case. And as he mentioned, he
A-4422-16T4
27
wasn't here to prove to you whether or not any of these
girls were sexually assaulted. He was simply here to
explain to you why there is a delay in disclosure and
how cultural factors, how the relationship of the abuser
to the victim can have a role in how that person
perceives the abuse and why they may or may not feel
comfortable in coming forward. So when you consider
their testimony, you can either accept or reject Dr.
D'Urso's explanations of the ways in which victims
internalize and react to abuse.
[(Emphasis added).]
III
Against this factual backdrop, defendant raises the following arguments
in this appeal.
POINT I
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
MOTION FOR SEVERANCE IS REVERSIBLE
ERROR BECAUSE THERE WAS NO VALID
REASON FOR JOINING CHARGES OF
INAPPROPRIATE SEXUAL TOUCHING FROM
THREE VICTIMS IN ONE TRIAL, AND THERE
WAS NO LIMITING INSTRUCTION PROHIBITING
THE JURY FROM USING THE JOINED OFFENSES
AS EVIDENCE OF DEFENDANT'S PROPENSITY
TO COMMIT SEXUAL OFFENSES OR TO
IMPROPERLY BOLSTER THE TESTIMONY OF
EACH VICTIM.
POINT II
OTHER-BAD-ACT EVIDENCE THAT DEFENDANT
HAD PURCHASED UNDERWEAR FOR A
A-4422-16T4
28
FOURTEEN-YEAR-OLD GIRL, WHO IS NOT ONE
OF THE VICTIMS IN THIS CASE, WAS
INADMISSABLE PROPENSITY EVIDENCE. THE
ADMISSION INTO EVIDENCE OF THE PAIRS OF
UNDERWEAR AND THE STATE'S
ENCOURAGEMENT TO THE JURY TO EXAMINE
THEM DURING DELIBERATION, COMPOUNDED
THE PREJUDICE TO DEFENDANT.
POINT III
EXPERT TESTIMONY ABOUT CHILD SEXUAL
ABUSE ACCOMMODATION SYNDROME WAS
NOT BASED ON RELIABLE SCIENCE, WAS
IRRELEVANT, AND WAS UNDULY
PREJUDICIAL. ITS ADMISSION NECESSITATES
REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT IV
A RESENTENCING IS WARRANTED BECAUSE
THE TRIAL JUDGE'S QUALITATIVE
ASSESSMENT OF AGGRAVATING FACTORS 3
AND 9 AND MITIGATING FACTOR 11 WAS
FLAWED.
As we made clear at the start of this opinion, the Supreme Court's holding
in J.L.G. unequivocally rejected the scientific validity of CSAAS. In G.E.P.,
the Court declared its holding in J.L.G. has pipeline retroactivity. Thus, the
presentation of expert testimony to the jury based on the now discredited
CSAAS constituted reversible error. J.L.G., 234 N.J. at 308.
In G.E.P., the Supreme Court carefully analyzed the four consolidated
A-4422-16T4
29
cases addressed by the opinion and concluded the convictions of the defendants
R.P., C.P., and C.K. could not stand. Writing for the Court, Justice Solomon
noted:
Aside from the CSAAS evidence presented, these cases
were based largely upon the testimony . . . [of the]
alleged victims. 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," State v.
Jordan, 147 N.J. 409, 422 (1997) (quoting State v.
Macon, 57 N.J. 325, 336 (1971))[,] and therefore was
clearly capable of producing an unjust result as to R.P.,
C.P., and C.K. Their convictions were thus properly
reversed by the Appellate Division.5
[G.E.P., ____ N.J. at ____, (slip op at 36) (emphasis
added).]
We reach the same conclusion in this case. Dr. D'Urso testified that in the
past thirty years, he had been admitted as an expert witness in CSAAS in over
250 judicial proceedings involving child sexual abuse. The introduction of
CSAAS evidence through Dr. D'Urso's expert testimony had the capacity of
bolstering the credibility of the three complaining witnesses. This alone is
sufficient to raise a reasonable doubt about the reliability of the jury's verdict.
5
State v. G.E.P., 458 N.J. Super. 436 (App. Div. 2019).
A-4422-16T4
30
We are thus compelled to reverse defendant's convictions and remand this matter
for a new trial.
In this light, we must also address defendant's argument that the trial court
erred by denying his motion to sever the charges related to the three complaining
witnesses and admitting the testimony of Kenzie's friend K.H., regarding
defendant's decision to buy her underwear at Victoria Secret. Defendant argues
that these decisions were highly prejudicial and constituted reversal error. The
State argues that both of these decisions constituted a proper exercise of the
judge's discretionary authority. We agree with the State.
Pursuant to Rule 3:7-6
[t]wo or more offenses may be charged in the same
indictment or accusation in a separate count for each
offense if the offenses charged are of the same or
similar character or are based on the same act or
transaction or on 2 or more acts or transactions
connected together or constituting parts of a common
scheme or plan. Relief from prejudicial joinder shall be
afforded as provided by R. 3:15-2.
[(Emphasis added).]
Here, the offenses charged in the indictment are of "similar character," and
therefore, joinder was proper under Rule 3:7-6. The issue that remains is
whether the trial court should have granted defendant's severance motion based
on Rule 3:15-2(b), which provides
A-4422-16T4
31
[i]f for any other reason it appears that a defendant or
the State is prejudiced by a permissible or mandatory
joinder of offenses or of defendants in an indictment or
accusation the court may order an election or separate
trials of counts, grant a severance of defendants, or
direct other appropriate relief.
Generally, "[a]lthough joinder is favored, economy and efficiency
interests do not override a defendant's right to a fair trial." State v. Sterling, 215
N.J. 65, 72 (2013) (citing State v. Coruzzi, 189 N.J. Super. 273, 298 (App. Div.
1983) ("The interests of economy and efficiency may require that similar or
related offenses be joined for a single trial, so long as the defendant's right to a
fair trial remains unprejudiced.")). Therefore,
[t]he relief afforded by Rule 3:15-2(b) addresses the
inherent "danger[,] when several crimes are tried
together, that the jury may use the evidence
cumulatively; that is, that, although so much as would
be admissible upon any one of the charges might not
have persuaded them of the accused's guilt, the sum of
it will convince them as to all."
[Ibid. at 73 (quoting State v. Pitts, 116 N.J. 580, 601
(1988)).]
In assessing the prejudice, the trial court must determine whether the
separate crimes charged in the indictment have a sufficient nexus to each other
such that they would be otherwise admissible in separate trials pursuant to
N.J.R.E. 404(b). Ibid. "If the evidence would be admissible at both trials, then
A-4422-16T4
32
the trial court may consolidate the charges because 'a defendant will not suffer
any more prejudice in a joint trial than he would in separate trials.'" State v.
Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting Coruzzi, 189 N.J. Super. at
299).
When a trial court engages in a N.J.R.E. 404(b) analysis, "[e]vidence
relating to other crimes is handled with particular caution." State v. Reddish,
181 N.J. 553, 608 (2004). As our Supreme Court noted in Reddish:
"other crime evidence has a unique tendency to turn a
jury against the defendant," State v. Stevens, 115 N.J.
289, 302 (1989), and poses a "distinct risk" of
distracting the jury from "an independent consideration
of the evidence that bears directly on guilt itself.," State
v. G.S., 145 N.J. 460, 468 (1996) (citing Stevens, 115
N.J. at 302).
[Ibid.]
N.J.R.E. 404(b) is a rule of exclusion. State v. Marrero, 148 N.J. 469,
482-83 (1997). As such, it provides that:
evidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.
[N.J.R.E. 404(b) (Emphasis added).]
A-4422-16T4
33
In an effort to "avoid the overuse of extrinsic evidence," the Supreme
Court established the following four-part test in State v. Cofield, 127 N.J. 328,
338 (1992) to determine whether the evidence should be admitted under N.J.R.E.
404(b):
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
If the evidence passes the scrutiny of the Cofield test, the trial court must
give the jury limiting instructions to ensure the proper application of the bad
conduct evidence. State v. Garrison, 228 N.J. 182, 200-201 (2017). The trial
court "should state specifically the purposes for which the evidence may be
considered and, to what extent necessary for the jury's understanding, the issues
on which such evidence is not to be considered." Stevens, 115 N.J. at 309.
Here, neither the second nor third prong are at issue. The Court has also
emphasized that the second prong of the Cofield test should not have universal
application. State v. Williams, 190 N.J. 114, 131-34 (2007); see also State v.
A-4422-16T4
34
Skinner, 218 N.J. 496, 515 (2014) (declining to apply the second prong of the
Cofield test).6 Furthermore, the third prong requires clear and convincing
competent evidence, which by definition excludes reliance on incompetent
hearsay. State v. Ingenito, 87 N.J. 204, 220 (1981) (Schreiber, J., concurring).
"To satisfy the first prong of the Cofield test, the 'proffered evidence must
be relevant to a material issue genuinely in dispute.'" Garrison, 228 N.J. at 194
(quoting State v. Gillispie, 208 N.J. 59, 86 (2011)). Relevant evidence is defined
as "evidence having the tendency in reason to prove or disprove any fact of
consequence to the determination of the action." N.J.R.E. 401. "In determining
whether [N.J.R.E.] 404(b) evidence bears on a material issue, the [c]ourt should
consider whether the matter was projected by the defense as arguable before
trial, raised by the defense at trial, or was one that the defense refused to
concede." State v. P.S., 202 N.J. 232, 256 (2010).
This type of evidence is especially important if it is "critical to the
establishment of the truth as to a disputed issue . . . where the prosecution's
6
In Cofield, the issue was whether subsequent incidents of drug dealing were
admissible to establish defendant's possession of illegal drugs in the charged
offense. 127 N.J. at 330. The Court reasoned that the second prong of the Cofield
was important there because of the generic nature of drug transactions. 127 N.J.
at 337.
A-4422-16T4
35
access to significant information is limited." State v. Krivacska, 341 N.J. Super.
1, 39 (App. Div. 2001). Additionally, our Supreme Court has noted:
[i]n criminal prosecutions, New Jersey courts
generally admit a wide range of evidence when the
motive and intent of the accused is material. State v.
Roger, 19 N.J. 218, 228 (1955). That includes
evidentiary circumstances that "tend to shed light" on
defendant's motive and intent or which "tend fairly to
explain his actions," even though they may have
occurred before the commission of the offense. Ibid.
[State v. Covell, 157 N.J. 554, 565 (1999).]
The fourth prong of the Cofield test is considered the most difficult to
overcome. State v. Rose, 206 N.J. 141, 160. N.J.R.E. 404(b) "'seeks to strike a
balance between the prejudice to a defendant that is inherent in other-crime
evidence and the recognition that the evidence may be highly relevant to prove
a defendant's guilt of the crime charged.'" Id. at 159 (quoting State v. Barden,
195 N.J. 375, 388 (2008)). Therefore,
evidence of uncharged misconduct would be
inadmissible if offered solely to prove the defendant's
criminal disposition, but if that misconduct evidence is
material to a non-propensity purpose such as those
listed in [N.J.R.E.] 404(b), it may be admissible if its
probative value is not outweighed by the risk of
prejudice.
[Ibid.]
A-4422-16T4
36
This inquiry "necessitates a more searching inquiry than that required by
N.J.R.E. 403." Reddish, 181 N.J. at 608. Under N.J.R.E. 403(a), "relevant
evidence will be precluded only if the risk of undue prejudice substantially
outweighs its probative value." Ibid. However, "[w]ith respect to other crimes
evidence . . . the potential for undue prejudice need only outweigh probative
value to warrant exclusion." Ibid.
Thus, due to its potential for misuse, "in determining the probative worth
of other-crime evidence, 'a court should consider . . . whether its proffered use
in the case can adequately be served by other evidence.'" Marrero, 148 N.J. at
482 (quoting Stevens, 115 N.J. at 303). Stated differently, "[a]n important factor
in weighing the probative value of other-crime evidence is whether other, less-
inflammatory evidence can prove the same fact in issue." State v. Oliver, 133
N.J. 141, 151 (1993).
Other bad act evidence is admissible as evidence of intent if the conduct
of a defendant can be viewed as either culpable or benign. State v. Mulero, 51
N.J. 224, 228 (1968). Here, defendant's intent when he "tickled" or "touched"
the three complaining witnesses is at issue to negate the claim of an innocent
intent. The court reasoned that this testimony was not admitted to show the
defendant had a propensity to sexually molest girls. It was admitted to provide
A-4422-16T4
37
the jury with evidence of intent and absence of mistake. See State v. Cusick,
219 N.J. Super. 452, 464-65 (App. Div. 1987).
In Stevens, 115 N.J. at 293, a police officer was charged with official
misconduct and criminal coercion after he conducted sexually motivated
searches of two women in custody. The trial court admitted evidence of three
separate incidents where the defendant used his position as a police officer to
intimidate female suspects into undressing and performing sexual favors as
evidence of plan and intent. Ibid. at 295-97.
Here, the trial court properly applied the Cofield test to allow the joinder
of offenses involving three separate complaining witnesses. The first Cofield
prong was satisfied because the testimony of each witness was relevant to a
material issue in dispute. In both in his opening statement and closing argument,
defense counsel maintained that any touching of these girls was nothing more
than innocent tickling. The State had the burden to prove, beyond a reasonable
doubt, that defendant had a sexual motive and a purpose of sexual gratification
as elements of the offenses charged. Finally, the trial court properly found the
complaining witnesses' testimony constituted relevant evidence of intent and
absence of mistake, and was thus admissible under the fourth Cofield prong.
A-4422-16T4
38
The trial judge also properly exercised his discretionary authority to admit
K.H.'s testimony concerning defendant's decision to purchase underwear for her
from Victoria Secret and to admit the actual item as evidence in the trial. This
young woman was a minor at the time this occurred. Although she is not a
complaining witness in this case, the salacious nature of this garment reveals
defendant's state of mind with respect to teenaged girls. Defendant's intent was
a critically important part of both the State's case and defendant's defense.
As the trial judge explained in his decision to admit the evidence:
With respect to the testimony regarding the alleged
offer to buy underwear for [Kenzie] and allegedly
actually buying it for [K.H.] . . . I believe this evidence
is admissible under [N.J.R.E.] 404(b)[.]
....
Again, I'll explain again why I'm admitting it. First, it
is relevant in this [c]ourt's view as to a material issue in
dispute. The primary issue in dispute is the defendant's
intent [or] state of mind when he allegedly engaged in
touching the alleged victims. There are three alleged
victims in the case. I am limiting the jury's
consideration of this evidence to his state of mind or
intent when allegedly touching or making other
remarks to [Kenzie]
....
As previously noted, it is very clear that a . . .
substantial aspect of the defense in this case is that any
touching/tickling while possibly inappropriate was not
A-4422-16T4
39
sexual; hence, this [c]ourt concludes that the alleged act
of attempting to purchase underwear for [Kenzie],
allegedly purchasing it for the second girl, . . . , is
relevant in this case regarding his alleged state of mind
and intent.
Second, the evidence proffered is certainly close in
time, if not actually during the general time period
when [Kenzie] alleges the actual touching was
occurring. I would note also that the case law has
indicated that this second prong is not even required.
It's relevant if it's present, but the close in time is not
even required, although I do believe it was close in
time.
Third, this [c]ourt finds that the evidence presented as
to this alleged incident is clear and convincing. I found
[Kenzie] to be credible. And any judge has to make
credibility findings during a pretrial hearing. I do my
utmost to give both sides a fair trial. When [defendant]
may have had concern that I make credibility findings,
that's present in every case. It's completely up to the
jury to make the ultimate determination.
Fourth, as to this evidence, I do conclude that the
probative value, which I believe is significant,
outweighs the prejudice of its admission. Any
inculpatory evidence is prejudicial. The issue is, as the
case law has defined it, would the [jurors] be so
inflamed by its admission that they could not fairly
consider all of the evidence in the case. I do not
consider that in any way to be a consequence of
admitting this evidence. So I will admit it for purposes
only as to [Kenzie] and for purposes of evaluating his
state of mind and intent when allegedly touching her or
making other -- and/or making other remarks to her.
A-4422-16T4
40
The trial court also gave detailed limiting instructions both before these
witnesses testified and as a part of the general jury instructions.
Summary
The now discredited CSAAS testimony provided by the State's expert
witness had the capacity to bolster the complaining witnesses' credibility. We
therefore reverse and remand this matter for a new trial. We reject de fendant's
remaining arguments related to the trial. Our decision obviates the need to
reach defendant's argument related to the sentence imposed by the court.
Reversed and remanded. We do not retain jurisdiction.
A-4422-16T4
41