NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2562-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. November 21, 2014
J.M., JR., APPELLATE DIVISION
Defendant-Appellant.
__________________________________________________________
Argued September 9, 2014 - Decided November 21, 2014
Before Judges Fisher, Nugent and Accurso.
On interlocutory appeal from Superior Court
of New Jersey, Law Division, Gloucester
County, Indictment No. 13-01-0072.
Jennifer L. Gottschalk argued the cause for
appellant (Law Offices of Richard Sparaco,
attorneys; Mr. Sparaco, on the brief).
Audrey M. Curwin, Senior Assistant Prosecutor,
argued the cause for respondent (Sean F.
Dalton, Gloucester County Prosecutor,
attorney; Ms. Curwin, of counsel and on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
We granted leave to appeal — and now reverse – an order
which authorized the State's use at trial of "other-crimes"
evidence regarding similar accusations made against defendant in
Florida six years earlier. What makes this different from most
other applications of N.J.R.E. 404(b) is that a jury acquitted
defendant of this alleged "other crime." We conclude that the
acquittal bars admission of this evidence and reverse.
I
Defendant is charged with one count of second-degree sexual
assault, N.J.S.A. 2C:14-2(c)(1), and one count of fourth-degree
criminal sexual contact, N.J.S.A. 2C:14-3(b). The State alleges
that defendant, a massage therapist, digitally penetrated a
female customer, E.S., at a Washington Township spa on July 5,
2012. In pretrial proceedings, the State made known its desire
to present evidence that defendant sexually molested A.W. while
providing her with a massage at a place of business in Florida
on August 26, 2006. The trial judge conducted a hearing during
which A.W. testified. After applying the Cofield factors,1 the
judge rendered an oral decision, during which he concluded that
A.W.'s testimony would be admissible as proof of defendant's
"motive, intent, plan and absence of mistake" in the commission
of the charged offenses.
We granted leave to appeal and reverse not only because, as
discussed in Section II, a proper Cofield analysis compels that
1
State v. Cofield, 127 N.J. 328, 338 (1992).
2 A-2562-13T2
result but also because, as discussed in Section III, acquittal-
evidence should never be admitted in a later prosecution when
offered to show that the prior offense actually occurred.
II
Cofield requires that the proponent of other crimes
evidence2 demonstrate:
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.
[Ibid.; see also State v. Carlucci, 217 N.J.
129, 141 (2014).]
All four of these factors must support the admission of the
evidence in question. State v. P.S., 202 N.J. 232, 255 (2010).3
In seeking reversal, defendant chiefly argues the first and
fourth factors militate against admission of A.W.'s testimony.
2
N.J.R.E. 404(b) refers not just to "other crimes" but also other
"wrongs or acts," thereby opening the door to evidence of
conduct that does not constitute a crime. See State v. Goodman,
415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied,
205 N.J. 78 (2011).
3
We are mindful the impact of the second factor has been
minimalized in more recent decisions of our Supreme Court that
are discussed later.
3 A-2562-13T2
We conclude that, in fact, none of the four factors supports use
of the testimony in question.4
A. Relevance
As to the first factor, we agree with defendant that A.W.'s
testimony about what allegedly occurred to her six years earlier
is not probative of defendant's alleged (1) "motive," or (2)
"intent," suggestive of (3) a "plan" to commit the offense for
which he has here been charged, or admissible to demonstrate (4)
"absence of a mistake." Although the trial judge permitted use
of the evidence by invoking all these purposes, the State has
failed to demonstrate or persuade how any apply here.
1. Motive
Motive evidence is that which suggests the accused
committed a specific offense. See, e.g., State v. Mazowski, 337
N.J. Super. 275, 283 (App. Div. 2001); M.C. Slough & J.W.
Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325, 328
(1956) (stating that "motive supplies the reason that nudges the
4
Although the parties did not demand oral argument, we scheduled
the matter for oral argument and requested supplemental briefs
addressing the impact of double jeopardy principles, as well as
Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L.
Ed. 2d 708 (1990), and our earlier decision in State v. Schlue,
129 N.J. Super. 351 (App. Div.), certif. denied, 66 N.J. 316
(1974), which had not been cited in the parties' earlier
submissions.
4 A-2562-13T2
will and prods the mind to indulge the criminal intent"). By
way of example, in State v. Marrero, 148 N.J. 469, 489 (1997),
the Court held that the defendant's knowledge that the victim
might file new charges against him evinced a motive for the
victim's murder. See also State v. Williams, 190 N.J. 114, 129-
30 (2007) (affirming admission of consciousness-of-guilt
evidence, including "lying to police, inducing others to lie,
and tampering with evidence"); State v. Baker, 400 N.J. Super.
28, 45-46 (App. Div. 2008), aff’d o.b., 198 N.J. 189 (2009)
(holding that the defendant's failed bank robbery was relevant
to show a motive for the charged store robbery the following
day).
A motive theory, however, will not be permitted "when the
'motive' is so common that the reasoning that establishes
relevance verges on ordinary propensity reasoning or when
'motive' is . . . just another word for propensity." 1
McCormick on Evidence § 190 (Broun ed., 7th ed., 2013). For
example, proof of a defendant's drug addiction to show motive
for committing a burglary or theft is inadmissible on the theory
that drug addicts are perpetually in need of money. Mazowski,
supra, 337 N.J. Super. at 282 (finding such a motive
"indistinguishable from a claim that defendant has a
5 A-2562-13T2
'disposition,' or general propensity to commit crimes, which is
precisely what N.J.R.E. 404(b) prohibits").
Here, the prosecution's theory is that evidence of an
alleged sexual assault six years earlier demonstrates a motive
for committing the offense in question. This proffer does not
logically suggest a motive, only an alleged propensity, which
N.J.R.E. 404(b) emphatically prohibits.5
2. Intent
When offered as a means of proving intent, other-crimes
evidence is often indistinguishable from motive. It is
admissible in this context only when disclosing a mental
intention or purpose in committing a particular offense. See
State v. Mulero, 51 N.J. 224, 228 (1968). Accordingly, other-
crimes evidence may be probative "to evidence the intent with
which [the defendant] did the act or to negative the existence
of an innocent intent." Ibid. Examples recognized in our case
law reveal the extent of its application. In Mulero, evidence
of prior assaults upon the victim was found admissible to show
an intent to later inflict serious bodily injury to kill the
5
N.J.R.E. 404(b) is often referred to as a rule of exclusion, not
inclusion. See P.S., supra, 202 N.J. at 255. It has long been
recognized that other-crimes evidence cannot be used to show an
accused's propensity for committing offenses of the type
charged. See State v. Nance, 148 N.J. 376, 386 (1997); State v.
Gibbons, 105 N.J. 67, 77 (1987).
6 A-2562-13T2
victim in the charged matter. Ibid. In an arson prosecution,
we held that the defendant's prior threats to his landlord if he
raised the rent were admissible to show an intent to burn down
the landlord's building. State v. Schubert, 235 N.J. Super.
212, 224 (App. Div. 1989), certif. denied, 121 N.J. 597 (1990);
see also State v. Davidson, 225 N.J. Super. 1, 10-13 (App.
Div.), certif. denied, 111 N.J. 594 (1988).
These examples reveal that proof of intent in this context
requires a closer nexus between the prior crime and the charged
offense than may be fairly or logically asserted here. In each
of these examples, the victim was the same person. That, of
course, is not the case here. And, although other-crimes
evidence to show intent need not always relate to the same
victim, there must nevertheless be some other logical
relationship. See State v. Covell, 157 N.J. 554, 566-67 (1999)
(admitting the defendant's earlier statement that he was only
interested in young girls to show his intent to later lure a
child-victim into a car); Marrero, supra, 148 N.J. at 485
(admitting evidence of a sexual assault to rebut evidence that
sexual relations were consensual in a later aggravated sexual
assault and murder prosecution).
The State has not shown a sufficient nexus between the
alleged Florida offense and the matter at hand. The alleged
7 A-2562-13T2
victims are different and no logical relationship (other than
the suggestion of a propensity) has been revealed. As said in a
similar context in State v. Stevens, 115 N.J. 289, 307 (1989),
the invocation of "intent" as a ground for the admission of this
type of evidence requires "an enhanced degree of precision" not
present here.
3. Plan
With regard to "plan" – the third ground asserted by the
State and endorsed by the trial judge – the proponent must
demonstrate the evidence "proves the existence of an integrated
plan, of which the other crimes and the indicted offenses are
components." Id. at 305-06; see also State v. Louf, 64 N.J.
172, 178 (1973) (holding that other-crimes evidence must
"establish the existence of a larger continuing plan of which
the crime on trial is a part"); 1 McCormick on Evidence, supra,
§ 190 (recognizing that other-crimes evidence is admissible only
if "each crime [is] an integral part of an over-arching plan
explicitly conceived and executed by the defendant or his
confederates"). The evidence offered here of an alleged offense
committed against a different person a thousand miles away six
years earlier eliminates "plan" as a logical basis for admission
of this evidence. As our Supreme Court has emphasized, "the
'plan' example contemplates more than a strong factual
8 A-2562-13T2
similarity between the 'other crimes' and the indicted offense."
Stevens, supra, 115 N.J. at 305.6
Moreover, even if it could be said, as have some courts of
other states, that "plan" possesses a broader scope in sexual
abuse and domestic violence matters, 1 McCormick on Evidence,
supra, § 190, the lack of "sufficient common features" negates
the argument that the prior event and the charged offense "are
manifestations of a common design or plan." People v. Ewoldt,
867 P.2d 757, 771 (Cal. 1994); see also State v. DeJesus, 953
A.2d 45, 75-76 (Conn. 2008). The State argues similarities in
that in both matters defendant was engaged as a masseuse and his
alleged victims were female customers. No other similarity,
however, has been suggested; the State has not argued the
alleged victims have similar appearances, that defendant's
conduct was so similar as to constitute signature offenses,7 or
that there was a peculiarity about the two alleged offenses that
would provide a sufficient link and negate the potential that a
6
Stevens involved a prosecution of a police officer for official
misconduct. At trial, testimony was admitted regarding three
prior instances in which defendant used his official position to
force women to submit to strip searches and sexual acts. Id. at
295-98.
7
The State provided no evidence that defendant engaged in similar
peculiar conduct – such as, for example, playing the same music,
donning a particular article of clothing, or making in both
instances a specific statement – immediately before the sexual
contact in both matters.
9 A-2562-13T2
jury would view the prior alleged offense as revealing
defendant's propensity to commit such an offense.
4. The Absence of Mistake
The State argues that the evidence is admissible to prove
absence of a mistake in the conduct charged here. Defendant,
however, has asserted he will not assert mistake at trial,
negating absence of a mistake as a basis for admitting A.W.'s
testimony. See State v. Darby, 174 N.J. 509, 518 (2002)
(holding that other-crimes evidence must be relevant to prove a
fact genuinely in dispute).
To summarize our view of this first Cofield factor, the
allegation that defendant was motivated, intended or planned to
molest E.S. because he allegedly did something similar six years
earlier is simply another way of asserting propensity to engage
in such conduct – the very contention N.J.R.E. 404(b) strictly
prohibits. Carlucci, supra, 217 N.J. at 143; State v. Reddish,
181 N.J. 553, 608 (2004); State v. Koskovich, 168 N.J. 448, 482
(2001).
B. Similarity and Temporality
The second Cofield factor requires that other-crimes
evidence be "similar in kind and reasonably close in time to the
offense charged." 127 N.J. at 338. To be sure there are
10 A-2562-13T2
similarities. As we have mentioned, in both instances defendant
was working as a masseuse and the alleged victims were female
customers. But the similarities there end.
In comparing the two events, the State offered the
statement E.S. provided to police. She asserted that, during
the massage, defendant's hands kept "getting closer and closer"
to her vagina until defendant inserted a finger, causing her to
jump up. She observed defendant had exposed himself, and he
then requested she perform oral sex on him, causing her to
leave. On the other hand, A.W. testified to markedly different
circumstances during the N.J.R.E. 104 hearing. She testified
that defendant had completed the massage and asked whether A.W.
"want[ed] anything more." She responded "sure . . . [i]f
there's time left," and, according to A.W., defendant then
massaged her legs until she "had the sensation" of "a brush of
his fingertip up against [her] pubic area." She asserted that
defendant "massaged [her] clitoris area and then he inserted his
middle finger into my vagina." After "15, 30 seconds" she told
him he "need[ed] to stop before something happens," and he
immediately complied.
If we assume the truth of both E.S.'s statement and A.W.'s
testimony, nothing suggests such a similarity as to represent
signature crimes or a distinctive modus operandi. E.S. has
11 A-2562-13T2
asserted that, without warning, defendant digitally penetrated
her while he exposed himself; on the other hand, A.W. testified
that defendant asked whether she wanted to continue the massage,
touched her without objection for fifteen to thirty seconds, and
stopped upon her request.
Cofield also held that courts should consider whether the
two events were "reasonably close in time." 127 N.J. at 338.
Although the application or weight to be given to this factor
has since been limited, see State v. Rose, 206 N.J. 141, 163
(2011) (stating that "[t]he second prong of the Cofield test,
addressing the similarity and temporality of the evidence, is
not found in Rule 404(b), and is not universally required");
Williams, supra, 190 N.J. at 131 (recognizing the second
factor's "usefulness as a requirement is limited to cases that
replicate the circumstances in Cofield"), to complete our
analysis, we merely note that six years separated the two
events, a fact that does not strengthen the State's argument.
See, e.g., State v. Sheppard, 437 N.J. Super. 171, 200 (App.
Div. 2014) (observing that a prior offense related to "comments
made by defendant at least five years before the stabbing, and
possibly much longer").
To the extent applicable, this second factor does not
support admission of A.W.'s testimony.
12 A-2562-13T2
C. Clear and Convincing
Notwithstanding our obligation to generally defer to a
trial judge's exercise of discretion in such matters, State v.
Erazo, 126 N.J. 112, 131 (1991), the third factor – that the
other-crimes evidence be "clear and convincing" – does not favor
admission. We are mindful the trial judge found A.W. credible.
And, because he found her credible, the judge concluded the
evidence was clear and convincing. But we find this analysis of
the third factor to be inadequate because the judge gave no
weight to defendant's acquittal of the Florida charges based on
A.W.'s testimony.
The trial judge was aware of the acquittal but found the
Florida jury's verdict was not binding for these sole reasons:
I find her testimony to be very credible and
I find her to be very credible. And I do
find that her testimony, in spite of the
fact of the acquittal – I don't know what
happened at the State trial in Florida. I
don't know how the case was presented, what
the jury may or may not have thought. I
don't know.
And it, frankly, has no impact on me because
I heard the testimony of the witness. I find
her to be credible, and I find that evidence
of the conduct to be clear and convincing.
So the third prong has been met.
It is conceivable, and perhaps this is what the trial judge
meant, that the Florida jurors – assuming we could look into
13 A-2562-13T2
their minds or had access to their deliberations – found A.W.'s
testimony to be "clear and convincing" but not persuasive beyond
a reasonable doubt. The superficial logic of such an approach,
however, is not only based on speculation but largely misses the
point of the third factor.
The argument that acquittal-evidence may be admitted
because it satisfied a judge's application of the clear and
convincing standard even though a jury found it did not suggest
the defendant's guilt beyond a reasonable doubt is far too
expedient and all too conveniently discards the significance of
the acquittal. The third factor was intended as part of a
screening process,8 not a loophole for resurrecting evidence
found insufficient for a conviction. Cofield's screening
8
Previously, courts explained the gatekeeping role as ensuring
that other-crimes evidence not be "vague" or "uncertain," Baxter
v. State, 110 N.E. 456, 458 (Ohio 1914), but must instead be
"plain, clear, and conclusive," Paris v. United States, 260 F.
529, 531 (8th Cir. 1919). In more recent, pre-Cofield cases,
our courts required that proof of the other crime be
"substantial." State v. Garfole, 76 N.J. 445, 452 n.2 (1978)
(in which the Court also held that it must be shown "with
reasonable certainty" that the defendant committed the other
crime) (internal citations omitted). This progression toward
Cofield's codification – which relied on a law review article,
127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The
Presumptions Of Guilt And Innocence: Rules 404(b), 608(b) and
609(a), 38 Emory L.J. 135, 160 (1989)) – does not suggest the
Court deliberately chose the "clear and convincing" standard
simply because it fell between the preponderance and reasonable-
doubt standards but intended to place a heavy burden on the
proponent in order to eliminate the use of uncertain, un-
adjudicated allegations.
14 A-2562-13T2
process occurred when a Florida jury found that what the State
now claims was a prior criminal offense was not, in fact, a
criminal offense.9
D. The Weighing Process
The fourth Cofield factor requires a determination that
"[t]he probative value of the evidence must not be outweighed by
its apparent prejudice." Cofield, supra, 127 N.J. at 338.
Without repeating what has already been stated, we are satisfied
that even if probative value could be found in A.W.'s testimony,
it is so greatly outweighed by the prejudicial effect – namely,
9
Assuming arguendo acquittal-evidence is not entirely excluded by
the third factor, we would still conclude in this case that the
judge's dismissive view of the Florida proceedings warrants
reversal. In such a circumstance the State, as the proponent of
the other-crimes evidence, should have at least been required to
present a full record of the Florida proceedings. The judge
expressed that he did not know "what happened" in Florida that
led to defendant's acquittal. That is not good enough. When
answering in the negative whether a defendant could be tried for
the robbery of one of six victims when he had been acquitted in
an earlier prosecution of robbing one of the other victims, the
Supreme Court held that a court must examine "the record of
[the] prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter" before it may
determine "whether a rational jury could have grounded its
verdict upon an issue other than that which the defendant seeks
to foreclose from consideration"; the inquiry "must be set in a
practical frame and viewed with an eye to all the circumstances
of the proceedings." Ashe v. Swenson, 397 U.S. 436, 444, 90 S.
Ct. 1189, 1194, 25 L. Ed. 2d 469, 475-76 (1970) (internal
citations omitted). Answers to the judge's rhetorical question
about what happened in Florida should have been provided by the
State and – until provided – A.W.'s testimony should have been
excluded.
15 A-2562-13T2
the jury's inevitable assumption that defendant has a propensity
to engage in such conduct10 – as to render it inadmissible.
III
Although, as we have demonstrated, a routine Cofield
analysis leads to the exclusion of this other-crimes evidence,
we also conclude that in these and other similar circumstances
acquittal-evidence should never be admitted pursuant to N.J.R.E.
404(b).
A
We start by conceding that our view is not consistent with
some earlier decisions that have considered the State's use of
acquittal-evidence as other-crimes evidence. In fact, in State
v. Yormark, 117 N.J. Super. 315, 337 (App. Div. 1971), certif.
denied, 60 N.J. 138, cert. denied, 407 U.S. 925, 92 S. Ct. 2459,
32 L. Ed. 2d 812 (1972), a panel held that evidence offered,
pursuant to former Evidence Rule 55, against two of the
defendants in a prior prosecution – at which they were acquitted
– was properly admitted in a later prosecution because it
suggested "guilty knowledge, a corrupt intent, and involvement
by the defendants in a common scheme or plan to defraud the
10
Prejudice arises in other forms, as more fully explained in
Section III of this opinion.
16 A-2562-13T2
insurance company in this case." The court observed that the
admission of evidence of "other alleged offenses for which the
defendant had been previously acquitted, is upheld by the great
weight of authority throughout the country." Ibid. This
approach was soon after adopted by another panel in Schlue,
supra, 129 N.J. Super. at 355.11 In addition, Yormark correctly
11
The rule to which Yormark and Schlue adhered does appear to be
the majority rule in this country. See Dowling, supra, 493 U.S.
at 349, 110 S. Ct. at 672, 107 L. Ed. 2d at 718; Ex Parte Bayne,
375 So. 2d 1239, 1241 (Ala. 1979); Ladd v. State, 568 P.2d 960,
968 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498,
55 L. Ed. 2d 524 (1978); People v. Griffin, 426 P.2d 507, 510
(Cal. 1967); Kinney v. People, 187 P.3d 548, 554 (Colo. 2008);
Moore v. State, 333 S.E.2d 605, 608 (Ga. 1985); State v.
Paradis, 676 P.2d 31, 36 (Idaho 1983), cert. denied, 468 U.S.
1220, 104 S. Ct. 3592, 82 L. Ed. 2d 888 (1984); People v.
Kennedy, 377 N.E.2d 830, 835 (Ill. App. Ct. 1978); Underwood v.
State, 722 N.E.2d 828, 833 (Ind. 2000); State v. Thompson, 39
N.W.2d 637, 640 (Iowa 1949); State v. Searles, 793 P.2d 724, 732
(Kan. 1990); Hampton v. Commonwealth, 133 S.W.3d 438, 442 (Ky.
2004); State v. Cotton, 778 So. 2d 569, 575 (La. 2001); State v.
Dean, 589 A.2d 929, 932-33 (Me. 1991); Womble v. State, 258 A.2d
786, 789 (Md. Ct. Spec. App. 1969); Commonwealth v. Barboza, 921
N.E.2d 117, 119-20 (Mass. App. Ct.), certif. denied, 925 N.E.2d
546 (Mass. 2010); People v. Oliphant, 250 N.W.2d 443, 454 (Mich.
1976); State v. Millard, 242 S.W. 923, 926 (Mo. 1922);
Koenigstein v. State, 162 N.W. 879, 882-83 (Neb. 1917); People
v. Chang, 382 N.Y.S.2d 611, 616 (N.Y. Crim. Ct. 1976); State v.
Heaton, 217 N.W. 531, 536 (N.D. 1927); Patterson v. State, 117
N.E. 169, 172 (Ohio 1917); State v. Smith, 532 P.2d 9, 10 (Or.
1975); Commonwealth v. McCall, 786 A.2d 191, 195-96 (Pa. 2001);
State v. Bernier, 491 A.2d 1000, 1005 (R.I. 1985); Rhodes v.
Commonwealth, 292 S.E.2d 373, 376-77 (Va. 1982); State v.
Russell, 384 P.2d 334, 335 (Wash. 1963); State v. Mongold, 647
S.E.2d 539, 549-50 (W. Va. 2007). By no means, however, is this
approach universally accepted. See State v. Perkins, 349 So. 2d
161, 163-64 (Fla. 1977); State v. Wakefield, 278 N.W.2d 307, 309
(Minn. 1979); McMichael v. State, 638 P.2d 402, 403 (Nev. 1982);
(continued)
17 A-2562-13T2
recognized that an earlier decision, State v. Bartell, 15 N.J.
Super. 450, 459-60 (App. Div. 1951), suggested otherwise. And,
because the Supreme Court was evenly divided when reviewing that
decision, State v. Bartell, 10 N.J. 9 (1952),12 greater doubt is
engendered about the current status of our jurisprudence on this
point.13
The rationale underlying the decisions in Yormark and
Schlue – were we inclined to distinguish them and adopt a more
nuanced view of this issue – is that although a defendant must
not again be put to the burden of defending against the same
charge after having been acquitted, some evidence in the earlier
prosecution – not necessarily precluded by the prior jury's
verdict – may be admitted if it has relevance to the current
prosecution. In other words, evidence from an earlier acquittal
(continued)
State v. Scott, 413 S.E.2d 787, 788-89 (N.C. 1992); State v.
Holman, 611 S.W.2d 411, 413 (Tenn. 1981); Kerbyson v. State, 711
S.W.2d 289, 290 (Tex. Ct. App. 1986).
12
No member of the Court wrote an opinion in Bartell.
13
When the Supreme Court is evenly divided, its concurring and
dissenting opinions are not precedential, Mount Holly Twp. Bd.
of Educ. v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319, 332 n.2
(2009), and its judgment leaves in place our decision, Abbamont
v. Piscataway Twp. Bd. of Educ., 314 N.J. Super. 293, 300-01
(App. Div. 1998) (quoting Neil v. Biggers, 409 U.S. 188, 192, 93
S. Ct. 375, 378-79, 34 L. Ed. 2d 401, 407 (1972)), aff’d, 163
N.J. 14 (1999). As a result, the conflict between Yormark and
Schlue, on the one hand, and Bartell, on the other, persists.
18 A-2562-13T2
may be admissible in a later prosecution if offered not to
suggest defendant's guilt in the earlier matter but as evidence
of a particular event or transaction not necessarily rejected as
a fact by the earlier jury. Also, such evidence might be
admissible if the mere fact that the defendant was facing
prosecution in the earlier matter is relevant for some purpose
in the later prosecution. For example, in Schlue, we found no
error in the admission of evidence offered against the defendant
in an earlier bribery prosecution – at the conclusion of which
he was acquitted – to demonstrate a motive for obstructing
justice in that earlier investigation when so charged in a later
indictment. 129 N.J. Super. at 353-55. The difference between
those situations and the question presented here is that the
State in the earlier cases appears not to have been attempting
to prove motive by showing the defendant's guilt in the earlier
matter, only that motive was suggested by facts offered during
the earlier proceeding that may not have been rejected by the
prior jury.
The State's proffer is markedly different here. A.W.'s
testimony has been offered to show that defendant, on an earlier
occasion, engaged in unlawful sexual contact. Of course,
19 A-2562-13T2
defendant cannot now be convicted of sexually assaulting A.W.,14
but it is the State's desire to prove the very fact the State of
Florida was unable to prove as a means for convicting defendant
of the charges in question here. In short, unlike what appears
to have occurred in Yormark and Schlue, defendant is again being
put to the task of defending against A.W.'s allegations. Stated
another way, for the A.W. allegations to have any relevance in
this case, the jury would have to conclude that what A.W.
alleged had in fact occurred in the face of another jury's
contrary verdict. Accordingly, even if we were bound to Schlue
or Yormark – which, of course, we are not, see Brundage v.
Estate v. Carambio, 195 N.J. 575, 593-94 (2008); State v.
Peralta, __ N.J. Super. __, __ (App. Div. 2014) (slip op. at 4-
5) – we would find that the rule those cases announced has no
application in the far different circumstances presented here.
These troubling circumstances, and others to which we
shortly turn, further buttress our conclusion that acquittal-
evidence should not be permitted to show a defendant's guilt on
the earlier occasion. In short, we agree with the common-sense
conclusion reached by the Supreme Court of Tennessee when it
considered an attempt to prove that the defendant, who operated
14
For that reason, double jeopardy and collateral estoppel
principles are not directly implicated.
20 A-2562-13T2
a jewelry store, had failed to return a watch to its owner
(Jenkins) upon the promise to repair, by offering evidence that
he had done precisely the same thing to another customer
(Morgan) who brought her watch to the defendant to be repaired;
the defendant had been tried and acquitted of Morgan's
allegations. In these circumstances, the Tennessee Court held:
Having been acquitted of the alleged prior
crime, the defendant cannot be tried a
second time for that offense; yet, if
evidence of such alleged prior crime is
admitted in the case on trial, the defendant
is required to do just that; at the second
trial he must defend himself not only
against the charge at hand but also against
inferences that the jury might draw from the
evidence that he committed the prior crime
although he has been acquitted of it. . . .
[E]vidence that the defendant committed an
alleged crime other than that for which he
is on trial should not be admitted when he
has been acquitted of such alleged other
crime.
[Holman, supra, 611 S.W.2d at 413.]
This is the only approach that adequately respects the
presumption of innocence and the "particular significance" the
law attaches to an acquittal. United States v. DiFrancesco, 449
U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340-41
(1980); United States v. Scott, 437 U.S. 82, 91, 98 S. Ct. 2187,
2194, 57 L. Ed. 2d 65, 74 (1978). Although such an event does
not precisely generate a double jeopardy violation, see Dowling,
supra, 493 U.S. at 348-49, 110 S. Ct. at 672, 107 L. Ed. 2d at
21 A-2562-13T2
717-18, we do hold that the issue is so instinct with this
particular constitutional guarantee as to warrant the exclusion
of this evidence.
B
We also find the order under review troubling and
unsustainable because of a dangling question the trial judge did
not consider: if the evidence is admitted, should the jury be
told that defendant was acquitted of charges stemming from
A.W.'s allegations? In this regard, we again disagree with
Schlue, which held that a jury should not be informed of the
acquittal lest the door be opened "to a full collateral
investigation into what transpired at the former trial and why
the first jury found as it did." 129 N.J. Super. at 356.15
15
On this point, Schlue adhered to the minority view, since it is
understood that most jurisdictions would allow the accused to
respond to the other-crimes evidence with proof of the
acquittal. See Bayne, supra, 375 So. 2d at 1243; Hess v. State,
20 P.3d 1121, 1129-30 (Alaska 2001); State v. Davis, 619 P.2d
1062, 1063 (Ariz. Ct. App. 1980); Philmon v. State, 593 S.W.2d
504, 507 (Ark. Ct. App. 1980); Griffin, supra, 426 P.2d at 511;
Kinney, supra, 187 P.3d at 556; State v. Anonymous, 389 A.2d
1270, 1274 (Conn. Super. Ct. 1978); People v. Bedoya, 758 N.E.2d
366, 381 (Ill. App. Ct. 2001), appeal denied, 766 N.E.2d 241
(Ill. 2002); Hare v. State, 467 N.E.2d 7, 18 (Ind. 1984); State
v. Washington, 257 N.W.2d 890, 893 (Iowa 1977), cert. denied,
435 U.S. 1008, 98 S. Ct. 1881, 56 L. Ed. 2d 390 (1978); Nolan v.
State, 131 A.2d 851, 857-58 (Md. 1957); Millard, supra, 242 S.W.
at 927; State v. Hopkins, 219 P. 1106, 1109 (Mont. 1923);
Koenigstein, supra, 162 N.W. at 883; Walker v. State, 921 P.2d
923, 927 (Nev. 1996); State v. Calloway, 150 S.E.2d 517, 518
(continued)
22 A-2562-13T2
We agree the spectre of re-trying the Florida case within
the trial of this case is greatly disturbing. Unlike Schlue, we
think this complication is a reason for excluding the evidence,
not a reason for unfairly depriving a defendant of the
presumption of innocence and the benefit of an acquittal of
those very allegations.
C
Additional constitutional concerns counsel against the
admission of acquittal-evidence.
At the risk of complicating what a principled application
of Cofield compels, we believe the same result is warranted by a
practical analysis of the problem when played out further in the
(continued)
(N.C. 1966); Smith, supra, 532 P.2d at 11-12; Bernier, supra,
491 A.2d at 1005-06; State v. Kassahun, 900 P.2d 1109, 1110
(Wash. Ct. App. 1995). Only a few jurisdictions, consisting of
most of the federal courts of appeals, see, e.g., Prince v.
Lockhart, 971 F.2d 118, 122 (8th Cir. 1992) and cases cited
therein, and a few states, People v. Bolden, 296 N.W.2d 613, 617
(Mich. Ct. App. 1980); State v. Heaton, 217 N.W. 531, 536 (N.D.
1927), have held otherwise. We further note that while Schlue
was guided by concerns about confusion over a trial within a
trial, the principle on which the Michigan court barred evidence
of an acquittal of the prior offense springs from a
determination that seems foreign to the manner in which American
courts value the presumption of innocence. That is, in Borden,
the court held that once a prosecutor produces evidence
sufficient to show the defendant "probably committed the act,"
the jury "should not be confused by the additional information
of an acquittal which could mislead them into believing that the
defendant absolutely did not commit the prior similar acts."
296 N.W.2d at 617.
23 A-2562-13T2
prosecution. This is demonstrated by considering how a jury in
such a situation should be instructed.
Our Legislature has spoken about the burdens applicable to
various aspects of a criminal prosecution. In N.J.S.A. 2C:1-
13(a), the Legislature codified In re Winship, 397 U.S. 358,
361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368, 373-74 (1970),
declaring that "[n]o person may be convicted of an offense
unless each element of such offense is proved beyond a
reasonable doubt" and that, "[i]n the absence of such proof, the
innocence of the defendant is assumed." In addition, "[w]hen
the application of the code depends upon the finding of a fact
which is not an element of an offense" – arguably the
circumstance here – and "unless the code otherwise provides" –
it does not – "[t]he burden of proving the fact" is on the party
"whose interest or contention will be furthered if the finding
should be made." N.J.S.A. 2C:1-13(d). If A.W.'s testimony were
admissible, these statutes clearly saddle the State with the
burden of proving the truth of her testimony and defendant's
commission of this "other crime." In defining the rigor of the
burden of persuasion on that fine point, however, the statute
declares only that "[t]he fact must be proved to the
satisfaction of the court or jury, as the case may be."
N.J.S.A. 2C:1-13(d)(2).
24 A-2562-13T2
At first glance, it may be said that this statute begs the
question by failing to provide a precise response to the
following: to what degree of certainty must the State prove a
prior crime offered for a reason permitted by N.J.R.E. 404(b)?
But the Legislature may have understood the courts were better
positioned to fix a burden of persuasion depending on the
particular circumstances in a given case. That is, the
Legislature likely recognized that while the elements of the
offense, and not every fact relevant to a criminal prosecution,
must be proven beyond a reasonable doubt, see Patterson v. New
York, 432 U.S. 197, 207, 97 S. Ct. 2319, 2325, 53 L. Ed. 2d 281,
290 (1977); State v. Gross, 121 N.J. 1, 15 (1990), the
importance of a disputed fact may vary, and the defining of the
burden of proving that particular fact ought to be adjusted by
consideration of the fact's importance. In other words, where
the disputed fact has limited relevance a less strenuous
standard may be appropriate, while a heavy standard should be
imposed when the resolution of the disputed fact is highly
critical to the jury's determination of the defendant's guilt.
This subject has garnered little attention in our
decisions. Noteworthy is State v. Wilson, 158 N.J. Super. 1, 10
(App. Div.), certif. denied, 79 N.J. 473 (1978), where it was
held that an instruction that a jury find the prior offense to
25 A-2562-13T2
have occurred by clear and convincing evidence was a "higher
burden of proof than was necessary" and placed "an unnecessary
burden on the State's case."16 It would appear to us that Wilson
was essentially overruled by Cofield; that is, if other-crimes
evidence must be found by the gatekeeper to be "clear and
convincing" then the jury should, at the very least, be required
to find that the other crime occurred by clear and convincing
evidence. We find no logic in allowing a jury to find a fact on
a lesser standard than applied when its admission was sought.
We observe that the model jury charges utilized in our
criminal courts also beg the question, stating only that a jury
cannot give any weight to other-crimes evidence unless
"satisfied" of the other crime's commission. Model Jury Charge
(Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E.
404(b))" (2007). The model charge does not suggest whether the
jury has to be satisfied the other crime occurred by a
preponderance, by clear and convincing evidence or beyond a
reasonable doubt.
16
In Wilson, the defendant argued the trial judge erred in
instructing the jury not to consider evidence of prior alleged
episodes of child abuse by the defendant in the prosecution of
charges that he murdered the same child unless the jury
determined the State proved these earlier instances by "clear
and convincing evidence." Id. at 8-10.
26 A-2562-13T2
To be sure, not every piece of evidence offered by the
prosecution need be scrutinized by use of the reasonable-doubt
standard. See Patterson, supra, 432 U.S. at 207, 97 S. Ct. at
2325, 53 L. Ed. 2d at 290; Gross, supra, 121 N.J. at 15. We
would, however, suggest that consideration of the constitutional
ramifications of such instructions must be carefully weighed in
instances, such as this, where the State seeks to convict in
large measure because of the accused's alleged commission of a
prior offense.17 In many instances, and we believe this is one,
the admission of other-crimes evidence without an instruction to
the jury that the prior offense be proven beyond a reasonable
doubt would invite a conviction in violation of the principles
discussed in Winship, supra, 397 U.S. at 363-64, 90 S. Ct. at
1072-73, 25 L. Ed. 2d at 375, and State v. Hill, 199 N.J. 545,
558-59 (2009).
At oral argument in this court, the State insisted upon the
importance of A.W.'s testimony, referring to the case without it
as a classic "he said/she said" circumstance; we interpret this
to mean that the State questions its ability to prove
defendant's guilt beyond a reasonable doubt without this other-
17
We base this conclusion not on our own view of what is revealed
by the limited record in this interlocutory appeal but on the
State's own strenuous insistence upon the importance of this
evidence.
27 A-2562-13T2
crimes evidence. Considering the crucial role A.W.'s testimony
would play in this prosecution if permitted, we would be hard-
pressed, in light of Winship and Hill, to approve of any jury
instruction that would permit the jury to find that what A.W.
asserts actually occurred by anything less than proof beyond a
reasonable doubt. Cf. State v. Yough, 49 N.J. 587, 601 (1967)
(requiring that trial judges apply the reasonable-doubt standard
in determining the voluntariness and admissibility of a
confession "in the overall [] sound administration of justice").
To be clear, we do not suggest all other-crimes evidence
must be proven beyond a reasonable doubt. Our comments are
limited to the present case, and cases like it, where there is
little question that other-crimes evidence will play a pivotal
role in the adjudication of guilt.18
D
The reasonable-doubt standard, which breathes life into the
presumption of innocence, is vital to our criminal justice
system. Standing as a bulwark against criminal convictions
based on factual error, the reasonable-doubt standard prevents
18
This conclusion brings us full circle. If, as we have
determined, this other-crimes evidence, if admissible, must be
proven beyond a reasonable doubt, then defendant's acquittal of
the alleged prior crime would end the inquiry because the jury
here would be asked to decide the exact question conclusively
decided by the Florida jury.
28 A-2562-13T2
"the moral force of the criminal law" from being "diluted" by a
standard "that leaves people in doubt whether innocent men are
being condemned," and contributes to "our free society" the
confidence that "every individual going about his ordinary
affairs" may possess that the government "cannot adjudge him
guilty of a criminal offense without convincing a proper
factfinder of his guilt with utmost certainty." Winship, supra,
397 U.S. at 363-64, 90 S. Ct. at 1072-73, 25 L. Ed. 2d at 375;
see also Hill, supra, 199 N.J. at 558-59. These principles
inform our conclusion that acquittal-evidence, in a setting like
this, could never be admitted in a subsequent prosecution. When
such evidence cuts so close to the heart of the adjudication of
guilt, the jury would have to be instructed to find that the
prior alleged crime occurred beyond a reasonable doubt. And,
because in that circumstance another jury would have found the
prior offense did not occur beyond a reasonable doubt, a
subsequent jury would be foreclosed from reaching a different
result.
Ultimately, acquittal evidence should not be admitted in
the present circumstances because the process envisioned by the
order under review gives insufficient weight to the particular
significance assigned to an acquittal, DiFrancesco, supra, 449
U.S. at 129, 101 S. Ct. at 433, 66 L. Ed. 2d at 340-41, and
29 A-2562-13T2
because of the many dangers inherent in its use. In this
regard, we agree with Justice Brennan's cataloging of these
inherent vices in his dissenting opinion in Dowling. Among
others, Justice Brennan emphasized these two chief concerns:
First, "[o]ne of the dangers inherent in the
admission of extrinsic offense evidence is
that the jury may convict the defendant not
for the offense charged but for the
extrinsic offense. This danger is
particularly great where . . . the extrinsic
activity was not the subject of a
conviction; the jury may feel the defendant
should be punished for that activity even if
he is not guilty of the offense charged."
Alternatively, there is the danger that the
evidence "may lead [the jury] to conclude
that, having committed a crime of the type
charged, [the defendant] is likely to repeat
it." Thus, the fact that the defendant is
forced to relitigate his participation in a
prior criminal offense under a low standard
of proof combined with the inherently
prejudicial nature of such evidence
increases the risk that the jury erroneously
will convict the defendant of the presently
charged offense.
[Dowling, supra, 493 U.S. at 361-62, 110 S.
Ct. at 679, 107 L. Ed. 2d at 726 (citations
omitted).]
And, in this same context, we lastly recognize the applicability
of the concept of fundamental fairness, which "require[s]
procedures to protect the rights of defendants at various stages
of the criminal justice process even when such procedures [are]
not constitutionally compelled." Doe v. Poritz, 142 N.J. 1, 108
(1995). Even if N.J.R.E. 404(b) could be expansively
30 A-2562-13T2
interpreted as authorizing the order under review, we conclude
that admitting the evidence in question is nevertheless
tantamount to having one jury render a verdict at odds with the
verdict of another – a consequence odious to the presumption of
innocence and the fair administration of our criminal justice
system.
IV
To summarize, we conclude that a principled Cofield
analysis bars admission of this evidence, and the trial judge's
contrary ruling constituted an abuse of discretion. We also
conclude that acquittal-evidence should never be admitted in a
later prosecution when offered to show that the prior charged
offense actually occurred.
The order permitting the admission of A.W.'s testimony is
reversed, and the matter remanded for further proceedings. We
do not retain jurisdiction.
31 A-2562-13T2
State of New Jersey v. J.M., Jr.
Court: New Jersey Superior Court Appellate Division
Date filed: 2014-11-21
Citations: 438 N.J. Super. 215, 102 A.3d 1233
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