STATE OF NEW JERSEY VS. R.J.M. (10-11-1174, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3084-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.J.M.,

Defendant-Appellant.
_________________________

Submitted November 9, 2020 – Decided December 15, 2020

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 10-11-1174.

Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 A Passaic County grand jury indicted defendant, R.J.M., for crimes that

allegedly occurred between August 2004 and September 2009, specifically,

first-degree aggravated sexual assault of E.V. (Eve), N.J.S.A. 2C:14-2(a)(1)

(count one); two counts of second-degree sexual assault of Eve, N.J.S.A. 2C:14-

2(b) and -2(c)(4) (counts two and three); fourth-degree criminal sexual contact

of Eve, 2C:14-3(b) (count four); second-degree endangering the welfare of Eve,

N.J.S.A. 2C:24-4(a) (count five); and, crimes allegedly occurring between May

2004 and September 2009, specifically, first-degree aggravated sexual assault

of Eve's sister, A.M. (Alice), N.J.S.A. 2C:14-2(a)(1) (count six); second-degree

sexual assault of Alice, N.J.S.A. 2C:14-2(b) (count seven); and second-degree

endangering the welfare of Alice, N.J.S.A. 2C:24-4(a) (count eight). 1 The jury

could not reach a verdict on counts one, two, four, six, and seven, acquitted

defendant of counts three and five, and found him guilty of the lesser-included

charge of third-degree endangering in count eight. 2

1
We use initials and pseudonyms for defendant and the children pursuant to
Rule 1:38-3(c)(9). Alice and Eve share the same mother but have different
fathers.
2
The jury acquitted defendant of the more serious charge of second-degree
endangering, concluding by its verdict that defendant did not "hav[e] a legal
duty for the care of [Alice]," nor had he "assumed responsibility for [her]
care[.]" N.J.S.A. 2C:24-4(a)(1).
A-3084-18T1
2
 The judge sentenced defendant to a three-year term of imprisonment, and

the State dismissed those counts on which the jury could not reach a verdict.

This appeal followed.

Defendant raises the following points for our consideration:

Point One

THE IMPROPER ADMISSION OF EXPERT
TESTIMONY AS TO CHILD SEXUAL [ABUSE]
ACCOMMODATION SYNDROME REQUIRES THE
VACATION OF DEFENDANT'S CONVICTION.
(Not raised below)

Point Two

THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S MOTION FOR A MISTRIAL
FOLLOWING THE REPEATED OUTBURSTS OF
WITNESS A.M., WITHOUT INQUIRING OF THE
INDIVIDUAL JURORS WHETHER THEY HAD
BEEN PREJUDICIED BY THE EPISODE.

Point Three

DEFENDANT'S SENTENCE OF THREE YEARS
IMPRISONMENT IS EXCESSIVE[] AND WAS THE
RESULT OF THE IMPROPER APPLICATION OF
THE APPLICABLE AGGRAVATING AND
MITIGATING FACTORS.

Defendant was tried before the Court issued its seminal opinion in State

v. J.L.G., 234 N.J. 265, 272 (2018), which held that Child Sexual Abuse

Accommodation Syndrome (CSAAS) evidence "no longer . . . has a sufficiently

A-3084-18T1
3
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."

Furthermore, the parties filed their briefs before the Court issued its

opinion in State v. G.E.P., 243 N.J. 362, 370 (2020), which accorded pipeline

retroactivity to the holding in J.L.G. Defendant's appeal was pending when

G.E.P. was decided, and, therefore, J.L.G.'s holding applies to the issue raised

in Point One. See id. at 386 (defining pipeline retroactivity as applying the rule

"in all future cases, the case in which the rule is announced, and any cases still

on direct appeal" (quoting State v. Knight, 145 N.J. 233, 249 (1996))). We must

consider whether the CSAAS expert testimony adduced by the State at trial

exceeded the now permissible bounds of such evidence, and, if so, whether

under the particular facts its admission resulted in harmful error requiring

reversal. Id. at 389–90.

Having carefully considered the record, we conclude the expert CSAAS

testimony in this case exceeded the scope now permitted by J.L.G., and its

admission "raise[s] a reasonable doubt as to whether [it] led the jury to a result

it otherwise might not have reached." Id. at 390 (quoting State v. Jordan, 147

A-3084-18T1
4
N.J. 409, 422 (1997)). We therefore reverse, vacate defendant's conviction and

remand for a new trial.

I.

For reasons that are unrelated to the issues on appeal, the trial did not

commence until July 2017. We summarize some of the trial evidence to provide

context before turning to the critical CSAAS expert testimony.

A.

The children's mother, A.C. (Ava), worked during the day and in the

morning frequently dropped them off at the residence of Alice's father, L.M.

(Leon), who lived with his mother and other family members in his mother's

home. Leon would take Alice to school and make sure Eve, who "was classified"

and attended "special classes," would board the bus to school. Defendant is

Leon's uncle, and, for a period, lived in the basement of the house and thereafter

frequented it.

In April 2010, when Eve was fourteen-years old and Alice was nine, Ava

and her husband, P.C. (Paul), took the children to a restaurant following Alice's

violin recital. Alice told her mother that she and Eve had something to tell her

and asked Ava to accompany them to the restaurant's restroom. There, Alice

disclosed that defendant "had been touching her in places and making her put

A-3084-18T1
5
her mouth in places." Eve said that the same things happened to her. Ava and

Paul immediately drove with the girls to the local police department and reported

the disclosure. Ava testified that while in the car, Eve said defendant had "raped

her." The following day investigators from the Passaic County Prosecutor's

Office (PCPO) interviewed Ava and both girls.

During her testimony, Ava acknowledged that after the initial disclosures,

she never asked either girl to provide any details of the events, "for example,

where [the] incidents happened, when it happened, [or] how it happened[.]" The

jury viewed a video recording of PCPO Investigator Giselle Henriques's

interview of Alice.

Eve was twenty-one-years old when she testified at trial. Although

originally providing a statement that the abuse began when she was ten-years

old, Eve testified that defendant began touching her breasts and genitals, and

rubbing his penis against her genitals, when she was twelve or thirteen-years

old. She testified this happened twenty times after school in Leon's mother's

home, and, at least on some occasions, when other family members were in the

house.

On cross-examination, Eve said Alice was never present when defendant

touched her, and she never witnessed any similar incidents between Alice and

A-3084-18T1
6
defendant. Eve also acknowledged that when Dr. Paulett Diah, the State's expert

child abuse pediatrician who examined the children in November 2010, asked

what happened, Eve told the doctor, "If you want to know about this[,] talk to

my mother."3 Alice was seventeen-years old when she testified. She said

defendant began to touch her when she was four or five-years old, and the abuse

continued until she was between six or eight-years old. Alice said defendant

rubbed his penis against her genitals and touched her breasts and genitals. On

one occasion, while defendant placed his penis on Alice's vagina in the basement

of the house, Leon's mother started to come down the stairs, and defendant

stopped. After each incident, defendant told her not to tell anyone, especially

Leon, and gave her candy or money as a "bribe."

Alice said that she and Eve first discussed the abuse one or two months

before the April 2010 restaurant disclosure to their mother. She decided to make

the disclosure because Ava was about to marry Paul and move with the children.

Leon, however, wanted custody of Alice and her younger sister so they could

come live with him. Alice said, "the real reason I . . . told [my mother was]

because I didn't want the same thing to happen to my little sister." Alice never

3
Dr. Diah found no physical signs of sexual abuse on either child during her
examination, but this, she said, was to be expected given the passage of time
between the disclosure, in April, and the examination, in November.
A-3084-18T1
7
witnessed defendant molest Eve, and she did not believe Eve ever saw defendant

molest her.

Defendant produced three family members as witnesses. Both Alice and

Eve said all the incidents occurred while defendant resided in Leon's mother's

home. The defense witnesses testified that defendant only lived there for

approximately twelve months, during 2003-04, before the dates alleged in the

indictment. Defendant's niece, Leon's sister, described incidents when Alice

would come to the family home for visitation with her father. Alice would not

want to leave because of the physical discipline Ava imposed at home. She

testified to seeing Ava strike Alice.

B.

During the State's case, clinical psychologist Dr. Brett Biller testified

without objection as an expert in "sexual abuse and [CSAAS]." Dr. Biller

explained in detail the "five factors" comprising the theory behind CSAAS.

The first factor, secrecy, is a "necessary part of child sexual abuse."

Secrecy is a "source of fear[,]" where the abuser may directly tell the victim in

a threatening manner to not tell anyone or promise safety if they keep it a secret.

The second factor, helplessness, describes the difference in power between the

victim and the abuser, not only physically but within the relationship, for

A-3084-18T1
8
example, with gift-giving. Third, entrapment accommodation, is the child's

sense that he or she cannot say anything out of fear or due to financial

implications if the abuse is disclosed. This causes the child to adapt his or her

behaviors and think of accepting the abuse. Fourth, delayed disclosure, is a

process that happens over time and reflects disorganized and missing

information, because the child is "still testing the water." Finally, recantation

occurs when the child does not feel supported after his or her disclosure and

takes back the report of abuse.

In her summation, the prosecutor referenced Dr. Biller's testimony as

"information" the jurors could put "in [their] toolbox" and use during their

deliberations. She reminded them of Dr. Biller's discussion of delayed

reporting, saying it explained Alice's failure to immediately tell anyone of the

abuse, particularly since defendant told the child, "Don't tell anyone." The

prosecutor cited the "age differential" between defendant, who was seventy-

three-years old at the time of trial, and the two girls, and the "power differential"

between them and defendant. The prosecutor suggested the jury should consider

the "five factors . . . and . . . sift through the facts here and . . . see if you believe

that this girl[,]" referencing Alice, "was sexually abused by her uncle."

A-3084-18T1
9
 C.

After J.L.G., Dr. Biller's testimony clearly exceeded the bounds of

permissible CSAAS opinion testimony 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).4 The only close question on appeal is whether the now

inadmissible 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 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.

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

4
As already noted, because the briefs were filed before the Court decided
G.E.P., we need not address the State's separate argument that J.L.G. should not
be applied retroactively to this appeal.
A-3084-18T1
10
defendant's "self-incriminating comments[.]" Id. at 419–20. The court

concluded the expert's "brief venture beyond the bounds of proper 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)).

"Whether a victim's delayed disclosure is beyond the ken of the aver age 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).

A-3084-18T1
11
 The Court, however, 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[.]"

Ibid. 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 phone 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

A-3084-18T1
12
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).

The evidence presented in this case closely resembles the evidence

presented by the State in R.P., C.P., and C.K. Eve and Alice testified, but both

admitted never witnessing any sexual incidents defendant allegedly performed

on the other. To some extent, they corroborated the circumstances of the

disclosure they made to their mother, but Ava testified that neither supplied her

with any details. The only other evidence was Ava's testimony about the girls'

disclosure and the video interview of Alice.

Dr. Biller, however, testified in detail about the five factors that comprise

the theory of CSAAS. In her summation, the prosecutor highlighted two of those

factors in urging the jurors to find Alice and Eve credible, only one of which —

delayed disclosure — is now permissible expert testimony. As noted, the jury

found defendant guilty of only one of the eight counts, third-degree endangering,

which alleged that defendant had "engage[d] in sexual conduct that would impair

A-3084-18T1
13
or debauch the morals of [Alice]." Even though the jury could not reach a

verdict on some of the counts, and clearly rejected the State's evidence on others,

the admission of improper CSAAS testimony in this case had the capacity to

lead the jury to a result it otherwise would not have reached on the child

endangering count.

We therefore reverse defendant's conviction and remand to the Law

Division for a new trial.

II.

For the sake of completeness, we address the argument raised by

defendant in Point Two.

During cross-examination, defense counsel repeatedly asked Alice about

accepting money from defendant, and, whether she and Eve used the money to

buy snacks. The following colloquy occurred:

Alice: Are you going to keep asking —

....

— the same question? Does that make the matter any
better?

Defense Counsel: Judge, please?

Alice: Accepting money to —

The Court: Okay, —

A-3084-18T1
14
 Alice: No.

....

The Court: All right. Ladies and gentlemen, if you can
just go in the room, please? Just for a few seconds.

The transcript reflects the jury exited the courtroom, but Alice continued:

Alice: Doesn't make it okay. Just because you accept
something, —

....

— doesn’t make it okay.

....

The Court: When I ask you to say stop, you're going to
stop.

Alice: I'm not, sorry. Not today. It doesn't make it
okay. I don't see the point (indiscernible).

Defendant moved for a mistrial. The judge denied defendant's motion,

noting he had quickly excused the jurors before they were able to hear Alice's

full statement, and it was not uncommon for the witness to get frustrated during

cross-examination, especially considering Alice's age. The judge concluded, "I

do not find anything that this witness said would . . . rise to the level of such an

egregious outburst that would taint the entire trial . . . . [P]roper relief . . . would

be a curative instruction[.]"

A-3084-18T1
15
 When the jury returned to the courtroom, the judge said:

As you were proceeding, . . . I believe there were one
or two jurors who were still by . . . the jury room door,
and [Alice] continued with her statement. Because I
had asked you to leave, some of you were in there . . .
maybe one or two were still by the door. That statement
is not part of the record because at that point we have
determined that I needed to address an issue. So I’m
going to ask you that statement that you may have heard
shouldn’t play no [sic] role whatsoever in your
determination or deliberation. Because that was not
part of the record when that occurred, and as such, I’m
going to ask you that should play no role whatsoever in
your deliberations.

Defendant contends the judge erred by denying his motion for a mistrial

without first questioning the individual jurors whether they heard Alice's

outburst and whether it affected their continued ability to decide the case. He

also argues the judge's curative instruction was insufficient to cure any taint.

We disagree.

"Trials are not perfectly orchestrated productions." State v. Yough, 208

N.J. 385, 388 (2011). The grant of a mistrial is an extraordinary remedy to be

exercised only when necessary to "prevent an obvious failure of justice." State

v. Harvey, 151 N.J. 117, 205 (1997) (citing State v. Rechtschaffer, 70 N.J. 395,

406 (1976)). We will not reverse a trial court’s denial of a mistrial motion absent

a "clear showing" that "the defendant suffered actual harm[,]" or that the court

A-3084-18T1
16
otherwise "abused its discretion[,]" resulting in "manifest injustice[.]" State v.

LaBrutto, 114 N.J. 187, 207 (1989). "[W]hether a prejudicial remark can be

neutralized through a curative instruction or undermines the fairness of a trial

are matters 'peculiarly within the competence of the trial judge.'" Yough, 208

N.J. at 397 (quoting State v. Winter, 96 N.J. 640, 646–47 (1984)).

Here, the judge reacted quickly, excusing the jurors. According to the

judge, most of the jurors were already in the jury room as Alice completed her

outburst. The judge's curative instruction should have said more than simply

telling the jurors that Alice's comments were "not part of the record[.]" In

addition to telling the jurors as he properly did that the outburst "should play no

role whatsoever in [their] deliberations," the judge should have made it clear

that the statements were argumentative and improper. However, any

shortcoming in this regard did not amount to reversible error. See State v.

Vallejo, 198 N.J. 122, 139 (2009) ("The adequacy of a curative instruction

necessarily focuses on the capacity of the offending evidence to lead to a verdict

that could not otherwise be justly reached." (citing Winter, 96 N.J. at 647)).

Reversed. We vacate defendant's conviction and remand the matter for a

new trial. In light of our decision, we need not address defendant's sentencing

arguments.

A-3084-18T1
17