                                   RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3782-18T4

STATE OF NEW JERSEY
IN THE INTEREST OF B.W.,
a Juvenile.


                Submitted March 31, 2020 – Decided June 18, 2020

                Before Judges Gilson and Rose.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Family Part, Sussex County,
                Docket Nos. FJ-19-0220-17, FJ-19-0221-17, and FJ-
                19-0222-17.

                George T. Daggett, attorney for appellant.

                Francis A. Koch, Sussex County Prosecutor, attorney
                for respondent (Shaina Brenner, Assistant Prosecutor,
                of counsel and on the brief).

PER CURIAM

       B.W. was adjudicated delinquent for sexually assaulting his two younger

female cousins. The assaults occurred when B.W. was a juvenile and one cousin

was between the ages of five and thirteen and the other was between the ages of

seven and thirteen. Following a trial in family court, B.W. was adjudicated
delinquent based on conduct that, if committed as an adult, would have

constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (three

counts: two related to one cousin and one related to the other cousin); second-

degree sexual assault, N.J.S.A. 2C:14-2(b) (three counts: two related to one

cousin and one related to the other cousin); and third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a)(1) (three counts: two related to one

cousin and one related to the other cousin).

      B.W. appeals his convictions arguing that a statement he gave should have

been suppressed, he was improperly precluded from offering evidence that one

of the victims may have been sexually assaulted by her father, and there was

insufficient evidence supporting his convictions. We reject these arguments and

affirm.

                                       I.

      B.W. is the cousin of L.W. (Lynne) and L.W. (Lucy). 1 B.W. was born in

April 1991, and he is seven and eight years older than his cousins Lynne and

Lucy. Lynne was born in April 1998, and Lucy was born in October 1999.

Between 2003 and 2015, the three cousins lived together in the home of their



1
   We use initials and fictitious names to protect privacy interests and the
confidentiality of the record. R. 1:38-3(d)(5), (8).
                                                                         A-3782-18T4
                                       2
grandmother. In addition to the three cousins, there were two other children and

four adults living at that home.

       In March 2017, when Lynne was eighteen years old and Lucy was

seventeen years old, they reported the assaults to the police.        In separate

interviews, Lynne and Lucy explained that when they were between the ages of

five and thirteen and seven and thirteen respectively, B.W. separately, and

repeatedly, pulled their pants down and put his fingers into their vaginas and put

his mouth on their vaginas.

       When Lynne and Lucy made their disclosures, B.W. was twenty-five years

old. He was contacted by detectives, one of whom was from the prosecutor's

office, and on March 6, 2017, he came to the Hopatcong Police Station to be

interviewed by the detectives.     The interview was video recorded, and a

transcript was prepared. At the beginning of the interview, a detective read B.W.

his Miranda warnings.2 B.W. then waived his rights and agreed to speak to the

detectives. When asked if he had sexually assaulted his cousins, B.W. denied

those direct accusations. In response to other questions, B.W. stated he could

not recall such actions, but he did not deny what his cousins were alleging he

did. In still other responses, B.W. vaguely suggested that it was possible that


2
    Miranda v. Arizona, 384 U.S. 436, 467-69 (1966).
                                                                          A-3782-18T4
                                        3
things may have happened. For example, he stated that he might have "play[ed]

doctor" with his cousins, during which they rubbed toys down his body. B.W.

also vaguely suggested that it was "likely" he might have done something with

his cousins as children "exploring" and "experimenting."

      The detective then encouraged B.W. to write letters to Lynne and Lucy to

apologize. B.W. wrote two short handwritten letters. In those letters, he stated

that he was "sorry for anything that may have happened" and hoped that both

cousins would get "help and move on."

      In June 2017, B.W. was charged with committing aggravated sexual

assaults on Lynne and Lucy when he was a juvenile. B.W. was also charged

with endangering the welfare of each child. 3      Thereafter, B.W. moved to

suppress the statement he had given on March 6, 2017.

      The family judge conducted an evidentiary hearing and heard testimony

from one of the detectives who had interviewed B.W. B.W. also called Dr.

Michael Richardson, a psychologist, to testify concerning the treatment he had

given to B.W. after the accusations were made. After hearing the testimony and

reviewing the recorded interview, the judge denied the motion to suppress the



3
   Initially, B.W. was charged with second-degree endangerment, but the State
later moved to reduce those charges to third-degree charges.
                                                                        A-3782-18T4
                                        4
statement in an order entered on February 26, 2018. On the record, the judge

explained the reasons for that ruling.

      The judge found that B.W.'s statement to law enforcement personnel was

made knowingly, intelligently, and voluntarily. In that regard, the judge noted

that when B.W. was interviewed, he was an adult with a college degree. The

judge also rejected B.W.'s arguments that he was subjected to repeated or

prolonged questioning that had overwhelmed his will. In addition, the judge

rejected B.W.'s argument that he had psychological conditions that interfered

with his ability to provide a knowing, intelligent, and voluntary waiver.

Specifically, the family judge rejected the testimony of Dr. Richardson who had

testified that B.W. suffered from Asperger's Syndrome, anxiety, depression, and

post-traumatic stress disorder and that some of those conditions had precluded

him from providing a voluntary statement. In making that ruling, the judge

pointed out that Dr. Richardson was not a forensic psychologist, had not

reviewed the video of the interview, and was not familiar with B.W.'s academic

achievements.

      B.W. filed a motion for reconsideration. The court denied that motion in

an order entered on July 3, 2018, and explained the reasons for that ruling in an

accompanying written statement of reasons.


                                                                         A-3782-18T4
                                         5
      In June 2018, the court conducted a Rule 104 hearing to address the State's

application to exclude certain evidence. B.W. had informed the State that he

intended to introduce evidence that Lucy's father had allegedly sexually

assaulted her when she was approximately three years old. At that hearing, the

court heard testimony from the mother and grandmother of Lynne and Lucy and

a detective. The mother testified that when Lucy was approximately three years

old, she noticed a rash on and around Lucy's vagina. She then took Lucy to the

hospital emergency room and a doctor asked if the father had molested Lucy.

The mother initially stated that she believed the father had molested the child,

but later retracted that statement. The family was living in Pennsylvania at the

time and the Child Protective Services of Pennsylvania conducted an

investigation, but did not find any evidence to substantiate that the father had

molested Lucy. The father was not criminally charged and continued to live

with the family.

      Based on that evidence, the family judge found that the allegations were

unsubstantiated and not supported by any evidence, including medical evidence.

Accordingly, the judge excluded any evidence of these allegations under

evidentiary Rules 403, 404(b), and 608(b).




                                                                         A-3782-18T4
                                       6
      In July and August 2018, the family court conducted a three-day trial. The

State presented testimony from Lynne, Lucy, and a detective.          B.W. also

testified and called his mother and grandmother to testify. At the time of the

trial, Lynne was twenty years old, Lucy was eighteen years old, and B.W. was

twenty-seven years old.

      Lynne and Lucy both testified that from approximately 2003 to 2015, they

lived at their grandmother's home. At that time, there were nine people living

together at the grandmother's house: Lynne, Lucy, their parents, their sister,

their brother, B.W. (their cousin), B.W.'s mother (their aunt), and the

grandmother. The house had three bedrooms. The parents used one bedroom,

B.W. used another bedroom, and the aunt used the third bedroom. Lynne and

Lucy, together with their brother, sister, and grandmother, slept in the living

room. The grandmother slept on the couch, the brother slept on a chair and

ottoman, and the three girls slept on cushions or cots.

      Lynne testified that B.W. began sexually assaulting her when she was five

and the assaults continued until she was thirteen. Lynne explained that the first

incident occurred when she and B.W. were in his room playing video games.

B.W. started taking off her shirt and pants, but the aunt entered the room and

took Lynne downstairs. Thereafter, when she was seven, B.W. began crawling


                                                                         A-3782-18T4
                                        7
into the living room at night when everyone was asleep, and he would pull her

pants down and use his hands and mouth to penetrate her vagina. She testified

that these assaults primarily occurred at night for approximately ten minutes.

She also explained that the assaults happened approximately four times a week.

      Lynne first reported the assaults to her mother in 2016. She explained

that she did not come forward before then because she was afraid that her

siblings would be taken away and she would lose her family.

      Lucy testified that B.W. began sexually assaulting her when she was seven

and the assaults continued until she was thirteen. She explained that B.W. would

silently crawl into the living room, pull the covers off her, slide her pants down,

and would touch her vagina with his fingers and mouth. She stated that these

assaults occurred at night approximately three to four times a month. Lucy

testified that she informed her mother about the assaults in 2016 and decided to

report the assaults to the police in 2017 because she was haunted by flashbacks

and nightmares.

      The detective who testified explained that he had interviewed Lynne and

Lucy and, thereafter, interviewed B.W.        The statement B.W. gave to the

detective was then admitted into evidence and played during the trial.




                                                                           A-3782-18T4
                                        8
      In his testimony, B.W. denied sexually assaulting either Lynne or Lucy.

Addressing his statement, B.W. testified that he was confused by many of the

detectives' questions and his vague statements were made because he felt

coerced by the detectives' repeated questions.

      The grandmother and aunt both testified that they never saw or heard

about B.W. sexually assaulting Lynne or Lucy. In that regard, the grandmother

explained that despite sleeping right next to Lynne and Lucy, she never noticed

B.W. assaulting the girls. She also testified that she had a good relationship

with both Lynne and Lucy and would have expected them to have confided in

her had B.W. been assaulting them.

      The aunt testified that she never suspected anything was going on between

B.W. and Lynne or Lucy. She also testified that she had good relationships with

Lynne and Lucy and neither of them ever mentioned anything about B.W.

assaulting them.

      After hearing the testimony at trial, the family judge adjudicated B.W.

delinquent for aggravated sexual assault and endangering the welfare of

children. Specifically, the judge adjudicated B.W. delinquent on two counts of

first-degree aggravated sexual assault against Lynne and one count of first-

degree aggravated sexual assault against Lucy. The judge also adjudicated B.W.


                                                                       A-3782-18T4
                                       9
delinquent on two counts of second-degree sexual assault against Lynne and one

count of second-degree sexual assault against Lucy.        Finally, the judge

adjudicated B.W. delinquent on two counts of third-degree endangering the

welfare of Lynne and one count of third-degree endangering the welfare of Lucy.

Those adjudications were memorialized in an order issued on January 29, 2019.

      Thereafter, B.W. was sentenced to three years of non-custodial probation

and ordered to register under Megan's Law, N.J.S.A. 2C:7-1 to -23. B.W. was

also directed to undergo a psychosexual evaluation and he was prohibited from

having any contact with the victims. B.W. moved for reconsideration. The court

denied that motion in an order entered on April 3, 2019, and issued an

accompanying statement of reasons. B.W. now appeals from his convictions.

                                      II.

      On appeal, B.W. makes three arguments which he articulates as follows:

            POINT I - The [Trial Court] Erred in Failing to
            Suppress Juvenile B.W.'s Statement Because it did Not
            Consider the Totality of the Circumstances

            POINT II - The Testimony of the Two Victims Gives
            Rise to a Reasonable Doubt

            POINT III - The Trial Judge Erred in Deciding the Rule
            104 Hearing




                                                                       A-3782-18T4
                                     10
We are not persuaded by any of these arguments and will address them in the

procedural order in which they arose.

      1.       B.W.'s Statement

      B.W. first challenges the trial judge's decision to deny his motion to

suppress his statement. He argues that he did not knowingly waive his rights

because he suffered from Asperger's Syndrome and had a limited intellectual

capacity as demonstrated by his participation in the Special Olympics. He also

argues that the detectives asked repetitive questions and overwhelmed his will

by encouraging B.W. to "put" the situation behind him and to provide help to

his cousins.

      Our review of a trial court's factual findings on a motion to suppress is

limited. State v. A.M., 237 N.J. 384, 395 (2019). The trial court's factual

findings will be upheld "when 'those findings are supported by sufficient

credible evidence in the record'" and should only be disturbed "if they are so

clearly mistaken 'that the interests of justice demand intervention and

correction.'" Id. at 395-96 (first quoting State v. S.S., 229 N.J. 360, 374 (2017);

then quoting State v. Elders, 192 N.J. 224, 244 (2007)). That same standard of

review applies to "factual findings based on a video recording or documentary

evidence." Id. at 396 (quoting S.S., 229 N.J. at 381). By contrast, we owe no


                                                                           A-3782-18T4
                                        11
deference to "conclusions of law" and we review such legal questions de novo.

Ibid. (quoting State v. Boone, 232 N.J. 417, 426 (2017)).

       The "right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and this [S]tate's common law,

now embodied in . . . N.J.S.A. 2A:84A-19, and . . . N.J.R.E. 503." Ibid. (quoting

S.S., 229 N.J. at 381-82). Before a defendant gives a statement, he must be

advised of his Miranda rights.4 Accordingly, "a defendant must be informed that

he has the right to remain silent, that anything he says can and will be used

against [him] in court, and that he has the right to have counsel present at the

interrogation." Id. at 396-97 (alteration in original) (citations omitted).

       The State must "prove beyond a reasonable doubt that the suspect's waiver

was knowing, intelligent, and voluntary in light of all the circumstances." Id. at

397 (quoting State v. Presha, 163 N.J. 304, 313 (2000)). Accordingly, the

question is "whether the suspect understood that he did not have to speak, the

consequences of speaking, and that he had the right to counsel before doing so

if he wished." Ibid. (quoting State v. Nyhammer, 197 N.J. 383, 402 (2009)).

That inquiry is "determined by the totality of the circumstances surrounding the

custodial interrogation based on the fact-based assessment of the trial court."


4
    384 U.S. at 467-69.
                                                                              A-3782-18T4
                                       12
Id. at 398 (citation omitted).     Relevant factors include "the suspect's age,

education and intelligence, advice as to constitutional rights, length of detention,

whether the questioning was repeated and prolonged in nature and whether

physical punishment or mental exhaustion was involved." Ibid. (quoting State

v. Miller, 76 N.J. 392, 402 (1978)).

      "[L]aw enforcement officers may employ deception or trickery in an

interrogation of a suspect unless such deception or trickery was calculated to

produce an untruthful confession or was offensive to due process." State v.

Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011) (citing State v. Manning,

165 N.J. Super. 19, 30-31 (App. Div. 1978)). A confession that is "the product

of . . . psychological coercion must be" suppressed. State v. L.H., 239 N.J. 22,

43 (2019) (citations omitted). Nevertheless, psychological interrogation is "not

inherently coercive" and a confession can only be deemed involuntary if

"derived from 'very substantial' psychological pressures that overbear the

suspect's will." State v. Cook, 133 N.J. 631, 562-63 (2004) (quoting State v.

Galloway, 179 N.J. 533, 654, 656 (1993)).

      The trial court here found that B.W. was given his Miranda rights, he

voluntarily, knowingly, and intelligently waived those rights, and agreed to

speak with the detectives.       Having reviewed the video recording of the


                                                                            A-3782-18T4
                                        13
interrogation, the trial court also found that B.W.'s will was not overborne nor

were any of his statements "coerced as a result of improper interrogation

tactics." The trial court also rejected B.W.'s arguments that his ability to give a

voluntary, knowing, and intelligent waiver was affected by his Asperger's

Syndrome, anxiety, PTSD, or limited intellectual capacities. In that regard, the

trial court expressly rejected the testimony of Dr. Richardson.

      In finding that B.W.'s statement was admissible, the trial court identified

eight factors, including that B.W. was twenty-six years old,5 a college graduate,

and was questioned for approximately an hour. The court went on to find that

the detectives' questioning was not unduly repetitive and B.W. was never

threatened.

      All the trial court's factual findings are supported by substantial credible

evidence in the record and we discern no basis for rejecting them. Moreover,

the trial court correctly summarized the governing law and applied that law to

the facts.

      B.W. relies on our Supreme Court's opinion in L.H. and argues that his

statement should be suppressed just as the statement in L.H. was suppressed.



5
  B.W. was twenty-five when he was interviewed but twenty-six when the trial
court made its decision.
                                                                           A-3782-18T4
                                       14
We disagree because the facts in L.H. are distinguishable. In L.H., the defendant

was interrogated for approximately three hours and the detectives who

interrogated him falsely promised counseling "as a substitute for jail," and told

the defendant that "the truth would set him free." 239 N.J. at 52. Here, by

contrast, the detectives made no false promises for counseling and the

questioning was not as prolonged or coercive in nature.

      In short, the trial court considered the totality of the circumstances and its

factual findings are supported by the evidence in the record. Thus, we discern

no grounds for reversing the court's decision to deny the motion to suppress

B.W.'s statement. We note in that regard, that B.W. was tried as a juvenile, thus

it was the trial judge who made the ultimate factual findings and considered the

weight to be accorded to the statements made by B.W. when he was questioned

by the detectives.

      2.    The Allegations of Sexual Assault Against the Father of the Victims

      Prior to trial, counsel for B.W. apparently informed the State that B.W.

would seek to offer evidence that Lucy's father had sexually assaulted her when

she was approximately three years old. B.W. apparently intended to argue that

the father's alleged prior sexual assault of Lucy undercut the credibility of

Lynne's and Lucy's testimony that B.W. sexually assaulted them. The State


                                                                            A-3782-18T4
                                       15
objected to that evidence and the court conducted an evidentiary hearing under

Rule 104.

       After hearing testimony concerning the alleged assault by the father, the

trial court ruled that the evidence was unreliable and, therefore, could not be

admitted under evidence Rules 403, 404(b), and 608(b). Having reviewed the

record, we agree with the trial judge that the allegations concerning the sexual

assault by the father were unreliable and were properly excluded under Rule

403.

       We review a trial court's ruling "on the admissibility of evidence" for

abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v.

Demello, 191 N.J. 18, 31 (2007)). Rule 403 provides that "relevant evidence

may be excluded if its probative value is substantially outweighed by the risk of

(a) undue prejudice, confusion of issues, or misleading the jury or (b) undue

delay, waste of time, or needless presentation of cumulative evidence."

       Here, the trial court determined that the allegations against the father

could confuse the issues by suggesting that Lucy was unsure of who sexually

assaulted her. We discern no basis to disturb that decision. The evidence at the

Rule 104 hearing established that the allegations against the father were made

in 2003, and while the mother had initially suggested that the father might have


                                                                          A-3782-18T4
                                      16
sexually abused Lucy, she thereafter retracted that statement. There was an

investigation, but no substantiation and no criminal charges.

      3.    The Sufficiency of the Evidence

      B.W. argues that the testimony of Lynne and Lucy gave rise to reasonable

doubt and the trial court erred in finding that he had sexually assaulted his

cousins and had endangered their welfare. In making that argument, B.W.

focuses on the sleeping arrangements and contends that it is incredible to believe

that he could have assaulted each of the victims on hundreds of occasions

without the grandmother noticing. He also argues that the victims' credibility

was undercut by their delayed reporting of the assaults and implies they had a

motive to lie because the grandmother had asked the family to leave her home

in 2015.

      After hearing all the evidence, the trial judge made detailed factual and

credibility findings. He found that the testimony by Lynne and Lucy was

credible and consistent. He noted the sleeping arrangements, but relied on the

consistent testimony by Lynne and Lucy concerning how B.W. would crawl into

the room at night and assault them.

      The trial judge expressly found B.W.'s testimony incredible. Similarly,

the trial judge found the testimony of the grandmother and aunt to be incredible.


                                                                          A-3782-18T4
                                       17
He rejected the notion that Lynne and Lucy had a motive to lie because the

grandmother had asked the family to move out of her home in 2015.

      Our review of a juvenile delinquency adjudication is limited. State ex rel.

D.M., 238 N.J. 2, 15 (2019) (citing State ex rel. J.P.F., 368 N.J. Super. 24, 31

(App. Div. 2004)). We will accept the trial judge's factual findings if they are

supported by substantial credible evidence in the record. Ibid. Moreover, we

accept the trial judge's credibility findings, recognizing that the judge is in a

better position to assess the credibility of witnesses who have appeared before

the judge. See State v. J.R., 227 N.J. 393, 410 (2017) (citation omitted); State

ex rel. D.M., 451 N.J. Super. 415, 424 (App. Div. 2017) (citations omitted), aff'd

on other grounds, 238 N.J. 2 (2019).

      The arguments presented by B.W. on this appeal do not go to the

sufficiency of the evidence; but rather, they challenge the weight of the

evidence. Those are issues properly considered by the fact finder. The trial

judge here considered, but rejected, B.W.'s arguments and we discern no

grounds for reversing the trial judge.

      Affirmed.




                                                                          A-3782-18T4
                                         18
