State v. J.M., Jr.(075317)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State of New Jersey v. J.M., Jr. (A-48-14) (075317)

Argued January 19, 2016 -- Decided May 26, 2016

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers whether the State may introduce in defendant’s trial for sexual assault
evidence of a prior sexual assault of which defendant was acquitted.

Defendant, a massage therapist, was charged with sexually assaulting a customer (E.S.) while giving her a
massage. E.S. alleged that after defendant massaged her back, he lifted the privacy cover as E.S. turned beneath it,
and began massaging her front side. While massaging E.S.’s right thigh, defendant asked if he could continue to
massage E.S. further up her leg. E.S. told him no. Defendant continued to massage the area, slightly higher than the
location E.S. had said was high enough. When massaging E.S.’s left leg, defendant did not wait for permission
before massaging her upper thigh. Instead, he asked aloud “can I get closer?” and immediately answered his own
question with “I’m [going to] get closer.” Moments later, defendant placed his hand underneath E.S.’s upper thigh
and digitally penetrated her vagina. Defendant repeated the action, at which point E.S. opened her eyes; defendant
had one hand on her head, one hand in her vagina, and was exposing himself to her. Defendant asked E.S. to
perform oral sex on him, which E.S. refused. E.S. later reported the sexual assault to a spa manager.

Defendant was arrested and taken to police headquarters to be interviewed. He denied any sexual contact
with E.S., stating that “nothing out of the ordinary happened during [the] massage.” A grand jury charged defendant
with one count of second-degree sexual assault and one count of fourth-degree criminal sexual contact.

Prior to defendant’s trial, the State moved under N.J.R.E. 404(b) to admit extrinsic evidence of a prior
incident in which defendant had been charged with, but ultimately acquitted of, sexually assaulting a female spa
customer in Florida. At the hearing on the State’s motion, A.W., the alleged victim, testified about the alleged prior
assault. A.W.’s description shared certain similarities with E.S.’s experience, including that defendant lifted the
sheet as A.W. turned from lying face down to lying on her back, just as defendant did with E.S. The trial court
found the evidence admissible under N.J.R.E. 404(b), even though defendant had been acquitted of the prior crime.

On leave granted, the Appellate Division reversed the trial court’s decision, finding the evidence
inadmissible. 438 N.J. Super. 215 (App. Div. 2014). The appellate panel held that the testimony was inadmissible
because A.W.’s proposed testimony failed to satisfy any of the four factors set forth in State v. Cofield, 127 N.J. 328
(1992). The appellate further held that, when a defendant has been acquitted of a prior crime, evidence pertaining to
that crime “should never be admitted pursuant to N.J.R.E. 404(b).” Id. at 230. In addition, the appellate panel held
that, when other-crime evidence plays a “pivotal role” in the State’s case against a defendant, the jury should be
instructed that it must find beyond a reasonable doubt that a defendant actually committed the prior offense before
that evidence may receive any weight. Id. at 237-38.

The Court granted the State’s motion for leave to appeal. 221 N.J. 216 (2015).

HELD: The evidence of defendant’s prior sexual assault in Florida is inadmissible under N.J.R.E. 404(b) because it
fails to satisfy the four-factor test established in State v. Cofield, 127 N.J. 328 (1992). The Court declines to adopt the
appellate panel’s bright-line rule that evidence of a prior crime for which a defendant was acquitted is always
inadmissible. The Court also declines the appellate panel’s reformulation of the instruction provided to jurors
governing the circumstances under which a jury may give any weight to acquitted-crime evidence.

1. This appeal focuses on the admission of other-crime evidence -- specifically, the testimony of a female spa
customer who alleged that she had been sexually assaulted by defendant, a crime for which defendant had been tried
and acquitted. In Cofield, supra, this Court established a four-prong test designed to avoid the over-use of extrinsic
evidence of other crimes or wrongs pursuant to N.J.R.E. 404(b). The Cofield test requires that (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. As the Court recently held in
State v. Willis, ___ N.J. ___ (2016), other-crime evidence may be admissible “in sexual assault cases in which the
victim’s consent is a genuine and material issue[,]” ___ N.J. at ___ (slip op. at 18), but such evidence should be
admitted with “restraint[,]” id. at ___ (slip op. at 25). (pp. 12-15)

2. The first Cofield factor requires that the evidence of the prior bad act, crime or wrong be relevant to a material
issue that is genuinely disputed. Here, the trial court erroneously found that A.W.’s testimony satisfied the first
Cofield factor as evidence of motive, intent, absence of mistake, or plan. Defendant does not argue that the alleged
sexual assault of E.S. was consensual or accidental; rather, he maintains that the sexual assault never occurred. As
such, A.W.’s testimony is inadmissible to establish motive, intent, or absence of mistake because defendant’s state
of mind is not a “genuinely contested” issue in this case. The testimony is also inadmissible for proof of plan,
because it is insufficient to establish the existence of a larger continuing plan of which the crime on trial is a part.
Because the proposed testimony does not serve any of the permitted purposes of other-crime evidence set forth in
N.J.R.E. 404(b), the testimony is inadmissible under the first Cofield requirement. (p. 16-17)

3. For similar reasons, the proposed testimony fails to satisfy the fourth Cofield requirement that “[t]he probative
value of the evidence must not be outweighed by its apparent prejudice.” Cofield, supra, 127 N.J. at 338. The Court
agrees with the Appellate Division that, even if probative value could be found in A.W.’s testimony, it is so greatly
outweighed by the prejudicial effect as to render it inadmissible. (pp. 17-18)

4. Having determined that evidence of the Florida sexual assault was not admissible under the Cofield factors, it
was not necessary for the appellate panel to discuss, much less impose, a bright-line rule prohibiting the admission
of acquitted-act evidence in other cases. A bright-line bar on acquitted-act evidence is inappropriate, and the Court
declines to adopt one here. In addition, the Court declines to adopt the panel’s reformulation of the instruction
provided to jurors governing the circumstances under which a jury may give any weight to acquitted-crime
evidence. Specifically, the panel directed that, in the event other-crime evidence is admitted, the defendant had been
acquitted of the charge, and the acquitted-act evidence is pivotal to the State’s case, the jury should be instructed that
it must be satisfied beyond a reasonable doubt that the defendant actually committed the prior offense. Having
determined that the other-crime evidence should not have been admitted, the appellate panel addressed an issue that
had no bearing on the disposition of the appeal, and effectively rendered an advisory opinion. (p. 18-22)

5. The Court emphasizes that N.J.R.E. 404(b) is a rule of exclusion and that the trial judge bears the burden of
scrutinizing the proffered evidence to determine if it satisfies the Cofield rule. In the end, assuming the trial court
finds that the proffered evidence is relevant, similar in kind, not remote in time, and does not cause undue prejudice,
the other-crime evidence cannot be admitted unless the judge finds that the State has presented clear and convincing
evidence that the defendant committed the offense.

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and
SOLOMON join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-48 September Term 2014
075317

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.M., JR.,

Defendant-Respondent.

Argued January 19, 2016 – Decided May 26, 2016

On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 438
N.J. Super. 215 (App. Div. 2014).

Laurie P. Cimino, Chief of Grand Jury
Section, argued the cause for appellant
(Sean F. Dalton, Gloucester County
Prosecutor, attorney).

Jennifer L. Gottschalk argued the cause for
respondent (Law Offices of Richard Sparaco,
attorney; Mr. Sparaco, on the brief).

Joseph A. Glyn, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).

Susan C. Green, First Assistant Deputy
Public Defender, argued the cause for amicus
curiae Office of the Public Defender (Joseph
E. Krakora, Public Defender, attorney; Ms.
Green and Tamar Y. Lerer, Assistant Deputy
Public Defender, of counsel and on the
brief).

1
 JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

The Court granted leave to appeal to consider whether the

State may introduce in defendant’s trial for sexual assault

evidence of a prior sexual assault of which defendant was

acquitted. Defendant, a massage therapist, was charged with

sexually assaulting a customer while giving her a massage.

Prior to defendant’s trial, the State moved to admit evidence

that defendant had committed a similar sexual assault while

working as a massage therapist in Florida. The trial court

found the evidence admissible under N.J.R.E. 404(b), even though

defendant had been acquitted of the prior crime.

On leave granted, the Appellate Division reversed the trial

court’s decision, finding the evidence inadmissible. State v.

J.M., 438 N.J. Super. 215, 240 (App. Div. 2014). The appellate

panel also held that, when a defendant has been acquitted of a

prior crime, evidence pertaining to that crime “should never be

admitted pursuant to N.J.R.E. 404(b).” Id. at 230. In

addition, the appellate panel held that, when other-crime

evidence plays a “pivotal role” in the State’s case against a

defendant, the jury should be instructed that it must find

beyond a reasonable doubt that a defendant actually committed

the prior offense before that evidence may receive any weight.

Id. at 237-38.

2
 We affirm the Appellate Division’s judgment insofar as it

held that the evidence of defendant’s prior sexual assault in

Florida is inadmissible under N.J.R.E. 404(b) because it fails

to satisfy the four-factor test established in State v. Cofield,

127 N.J. 328 (1992). We decline to adopt, however, the

appellate panel’s bright-line rule that evidence of a prior

crime for which a defendant was acquitted is always

inadmissible. We also decline to adopt the appellate panel’s

reformulation of the instruction provided to jurors governing

the circumstances under which it may give any weight to

acquitted-crime evidence. Accordingly, we affirm as modified

the judgment of the Appellate Division.

I.

Defendant J.M., Jr., was a massage therapist at a

Washington Township spa. On July 5, 2012, E.S. and her aunt

went to the spa for massage therapy. This was E.S.’s first

massage. When E.S. and her aunt entered the spa, they were

directed to the locker room and instructed to remove their

clothes, place their belongings in a locker, and don spa-

provided robes. E.S. then exited the locker room and was

escorted to a private massage room. The spa assigned defendant

to perform the massage. E.S.’s aunt received a massage from

another massage therapist in a separate room.

3
 Before E.S.’s massage, defendant informed her that he would

wait outside the massage room while she disrobed, got under a

privacy cover, and laid face down. A couple of minutes later,

defendant knocked and, with E.S.’s permission, entered the room.

Defendant massaged E.S.’s back. When he finished, defendant

asked E.S. to turn over and lay on her back, lifting the privacy

cover as E.S. turned beneath it. Defendant then began massaging

E.S.’s front side.

While massaging E.S.’s right thigh, defendant asked if he

could continue to massage E.S. further up her leg. E.S. became

uncomfortable and told him no. Defendant continued to massage

the area, rubbing slightly higher than the location E.S. had

told him was high enough. E.S. flinched and was “a little

freaked out” by defendant’s proximity to her vagina during that

portion of the massage, but attributed her discomfort to her own

inexperience with massages.

Defendant switched to E.S.’s left leg, and again worked his

way progressively from the calf muscles to the thigh muscles.

This time, however, defendant did not wait for permission before

massaging E.S.’s upper thigh. Instead, he asked aloud “can I

get closer?” and immediately answered his own question with “I’m

[going to] get closer.” Moments later, defendant placed his

hand underneath E.S.’s upper thigh and digitally penetrated her

vagina. Defendant repeated the action, at which point E.S.

4
opened her eyes. When E.S. opened her eyes, defendant had one

hand on her head, one hand in her vagina, and was exposing

himself to her. Defendant asked E.S. to perform oral sex on

him, which E.S. refused.

E.S. told investigators that defendant looked puzzled when

she refused his advances, and his demeanor indicated that he had

propositioned clients on other occasions. Defendant then

commenced the standard pleasantries of concluding a massage,

telling E.S. that he hoped she enjoyed the massage and would

revisit the spa. Defendant then handed E.S. her robe and left

the room.

When E.S. exited the massage room, defendant was waiting

right outside the door to provide her with a glass of water.

Defendant followed E.S. to the reception area, and, as they

walked, emphasized his personal relationship with her aunt, who

worked for the spa. Defendant then sat in the reception area,

preventing E.S. from immediately disclosing the assault to her

aunt. Defendant stayed with E.S. while her aunt left for

another treatment. At that point, E.S. fled to the women’s

locker room. While E.S. was in a dressing room within the

women’s locker room, a female spa employee entered and noticed

that E.S. had left personal effects unattended. The spa

employee asked E.S. if she was all right, and E.S. said no.

5
Soon thereafter, E.S. reported the sexual assault to a spa

manager.

After E.S. reported the sexual assault, her aunt took her

to the hospital, where a sexual assault nurse examiner examined

her for evidence of sexual assault. The nurse observed trauma

to E.S.’s vagina, which she concluded was caused by digital

penetration.

II.

Defendant was arrested and taken to the Washington Township

Police Headquarters to be interviewed. He denied any sexual

contact with E.S., stating that “nothing out of the ordinary

happened during [the] massage.”

A grand jury charged defendant 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).

Defendant pled not guilty.

Before trial, the State moved under N.J.R.E. 404(b) to

admit extrinsic evidence of a prior incident in which defendant

had been charged with, but ultimately acquitted of, sexually

assaulting a female spa customer. The trial court conducted a

hearing on this motion at which A.W., the alleged victim of the

prior assault, testified.

A.W. testified that she visited a spa in Orlando, Florida,

on August 26, 2006, where she received a massage from defendant.

6
A.W., an experienced spa patron, testified that, during the

massage, defendant moved his hand up her thigh higher than was

normal, massaged her clitoris, and digitally penetrated her

vagina without her consent. After A.W. told defendant to stop,

defendant removed his finger from A.W.’s vagina and stated that

“I just want to make sure the guests are happy.”

A.W.’s description of the alleged assault shared certain

similarities with E.S.’s experience. For example, A.W.

testified that defendant lifted the sheet as she turned from

lying face down to lying on her back, just as he did with E.S.

A.W. explained that this practice was effective but unique --

massage therapists usually “tell you to turn” and the customer

“just kind of flip[s] underneath the sheet.”

The trial court found A.W.’s testimony credible and ruled

it admissible, finding that the proposed testimony satisfied

each prong of the Cofield test. The court stated that the

proposed testimony was relevant to establish motive, intent,

plan, and/or absence of mistake; that the acts alleged by A.W.

were similar in kind and reasonably close in time to the acts

alleged by E.S.; and that, despite defendant’s acquittal, A.W.’s

testimony clearly and convincingly provided evidence that

defendant touched A.W. inappropriately. The court also

determined that the probative value of the proposed testimony

7
outweighed the potential for prejudice to defendant, given the

need for reliable evidence of defendant’s state of mind.

The Appellate Division granted defendant’s motion for leave

to appeal and reversed the trial court’s evidentiary ruling.

J.M., supra, 438 N.J. Super. at 240. The appellate panel held

that the testimony was inadmissible because A.W.’s proposed

testimony failed to satisfy any of the four Cofield factors.

Id. at 221-30. Moreover, the panel held that evidence of a

prior crime of which a defendant was acquitted “should never be

admitted in a later prosecution when offered to show that the

prior charged offense actually occurred.” Id. at 240. In so

holding, the Appellate Division explicitly limited the holdings

of two previous Appellate Division decisions, State v. Yormark,

117 N.J. Super. 315 (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), and State v. Schlue, 129 N.J. Super. 351 (App. Div.)

certif. denied, 66 N.J. 316 (1974), which permitted acquitted-

act evidence to be used in a subsequent proceeding in certain

circumstances. J.M., supra, 438 N.J. Super. at 230-33.

Finally, the panel held that, where “other-crimes evidence will

play a pivotal role in the adjudication of guilt[,]” the jury

should be instructed that it must find beyond a reasonable doubt

that the other crime actually occurred in order for the other-

crime evidence to receive any weight. Id. at 237-38.

8
 We granted the State’s motion for leave to appeal. State

v. J.M., 221 N.J. 216 (2015).

III.

A.

The State contends that the Appellate Division opinion

should be reversed, and the trial court’s ruling reinstated,

because the proposed testimony satisfies each of the four

Cofield requirements and is therefore admissible under N.J.R.E.

404(b). The State also argues that the appellate panel’s

conclusion that acquitted-act evidence is per se inadmissible

“runs far afield of established interpretations of N.J.R.E.

404(b)” because it usurps the third prong of the Cofield test --

that other-crime evidence be established clearly and

convincingly.

Defendant maintains that the Appellate Division properly

determined that the other-crime evidence offered by the State

constituted propensity evidence expressly barred by N.J.R.E.

404(b). In service of that argument, defendant encourages the

Court to take an exacting approach to the relevance and

materiality considerations of Cofield’s first prong, and he

contends that the trial court erred in finding that the proposed

testimony was admissible to prove motive, intent, plan, or

absence of mistake. Defendant maintains that the motive and

intent commensurate with the commission of sexual assault are

9
obvious, and that the jury does not need the benefit of the

contested evidence to determine the motivation and intent behind

the alleged crimes. Defendant also argues that, because he

flatly denied assaulting E.S. and did not offer mistake as a

defense, his state of mind is not a contested issue. Defendant

also argues that two similar instances of alleged conduct,

separated by six years and over one thousand miles, are

insufficient to serve as evidence of a plan for the purposes of

N.J.R.E. 404(b). Defendant urges affirmance of the Appellate

Division’s holding that acquitted-act evidence should never be

admissible.

B.

The Attorney General, as amicus curiae, focuses on two

portions of the Appellate Division opinion: exclusion of

acquitted-act evidence when offered to show that the prior

offense actually occurred; and, when other-crime evidence is

admitted, the need for a jury instruction that the jury must be

satisfied beyond a reasonable doubt that the other crime

actually occurred. The Attorney General argues that the

Appellate Division’s decision is “destructive and unsound,”

running afoul of well-established precedent regarding the

admissibility of evidence under N.J.R.E. 404(b).

The Attorney General contends that the appellate panel’s

ruling deprives the jury of its traditional truth-seeking

10
function. The Attorney General also argues that the panel’s

decision to impose new jury instructions when other-crime

evidence will play a pivotal role in the adjudication of guilt

represents “an improper advisory opinion” because the panel was

only asked to consider whether the 404(b) evidence at issue was

admissible. The Attorney General argues that this holding is

harmful because it will force trial judges to make the

subjective determination of which evidence is “pivotal,” induce

the State to introduce voluminous proof of other-crime evidence,

and create fertile ground for appeals and reversals.

The Office of the Public Defender, as amicus curiae,

contends that the proposed testimony fails to satisfy the

Cofield factors and argues that acquitted-act evidence should

never be admitted in a later prosecution if it is being offered

to show that the prior offense actually occurred. Reviewing the

approaches of other states, the Public Defender identifies

“three schools of thought” about the admissibility of acquitted-

act evidence: (1) nine states completely bar the admission of

acquitted-act evidence; (2) twenty-one states follow the federal

rule set forth in Dowling v. United States, 493 U.S. 342, 349-

50, 110 S. Ct. 668, 672, 107 L. Ed. 2d 708, 718-19 (1990), which

held that acquitted-act evidence may be admissible due to the

lower standard of proof required under Fed. R. Evid. 404(b); and

(3) ten states follow a fact-sensitive approach which allows the

11
admission of acquitted-act evidence in some instances, but bars

the admission of evidence that was “conclusively rejected by a

jury in the previous trial.” The Public Defender urges the

Court to adopt the first approach, because a more fact-sensitive

approach would be “hyper-technical” and “unworkable,” and would

fail to recognize the force of an acquittal.

IV.

The admission or exclusion of evidence at trial rests in

the sound discretion of the trial court. State v. Gillispie,

208 N.J. 59, 84 (2011). “That discretion is not unbounded.

Rather, it is guided by legal principles governing the

admissibility of evidence which have been crafted to assure that

jurors receive relevant and reliable evidence to permit them to

perform their fact-finding function and that all parties receive

a fair trial.” State v. Willis, ___ N.J. ___, ___ (2016) (slip

op. at 15-16).

This appeal focuses on the admission of other-crime

evidence -- specifically, the testimony of a female spa customer

who alleged that she had been sexually assaulted by defendant, a

crime for which defendant had been tried and ultimately

acquitted. N.J.R.E. 404(b) governs the admissibility of such

evidence, and provides:

[E]vidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person acted

12
 in conformity therewith. Such evidence may be
admitted for other purposes, such as proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of
mistake or accident when such matters are
relevant to a material issue in dispute.

“Because evidence of a defendant’s previous misconduct ‘has a

unique tendency’ to prejudice a jury, it must be admitted with

caution.” Willis, supra, ___ N.J. at ___ (slip op. at 16)

(quoting State v. Reddish, 181 N.J. 553, 608 (2004)). “Prior-

conduct evidence has the effect of suggesting to a jury that a

defendant has a propensity to commit crimes, and, therefore,

that it is ‘more probable that he committed the crime for which

he is on trial.’” Id. at ___ (slip op. at 17) (quoting State v.

Weeks, 107 N.J. 396, 406 (1987)).

In Cofield, supra, this Court established a four-prong test

designed “to avoid the over-use of extrinsic evidence of other

crimes or wrongs” pursuant to a 404(b) exception. 127 N.J. at

338. The Cofield test requires that:

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. (citation omitted).]

13
 “[T]he party seeking to admit other-crimes evidence bears

the burden of establishing that the probative value of the

evidence is not outweighed by its apparent prejudice.” Reddish,

supra, 181 N.J. at 608-09. Ultimately, if the party seeking to

admit the evidence “demonstrate[s] the necessity of the other-

crime evidence to prove a genuine fact in issue and the court

has carefully balanced the probative value of the evidence

against the possible undue prejudice it may create, the court

must instruct the jury on the limited use of the evidence.”

Cofield, supra, 127 N.J. at 340-41 (citation omitted).

As we recently held in Willis, supra, other-crime evidence

may be admissible “in sexual assault cases in which the victim’s

consent is a genuine and material issue[,]” ___ N.J. at ___

(slip op. at 18), but such evidence should be admitted with

“restraint[,]” id. at ___ (slip op. at 25). In many cases, “the

unrestrained use of evidence of another marginally relevant and

arguably remote-in-time sexual assault [will have] so clear a

capacity to distract the jury from the evidence in support of

the State’s case-in-chief that it should [be] excluded.” Ibid.

Importantly, “other-crime evidence must be relevant to a

genuinely contested fact and . . . the probative value of the

proffered evidence must be critically evaluated in order to

properly balance the relevance of the evidence and the prejudice

14
its admission will cause[.]” Id. at ___ (slip op. at 19)

(citing State v. Stevens, 115 N.J. 289, 302 (1989)).

In a case in which a defendant contends the alleged assault

did not occur, intent and absence of mistake are not at issue.

In the absence of a genuinely contested fact, other-crime

evidence is irrelevant and the first Cofield prong cannot be

satisfied.1

When other-crime evidence, including acquitted-act

evidence, is admitted at trial, and before the trial court

instructs the jury on the limited and specific purpose for which

the evidence has been admitted, the court must advise the jury

as follows:

Normally, such evidence is not permitted
under our rules of evidence. Our rules
specifically exclude evidence that a defendant
has committed other crimes, wrongs or acts
when it is offered only to show that he/she
has a disposition or tendency to do wrong and
therefore must be guilty of the charged
offenses. Before you can give any weight to
this evidence, you must be satisfied that the
defendant committed the other [crime, wrong,
or act]. If you are not so satisfied, you may
not consider it for any purpose.

1 We can envision certain circumstances in which motive evidence
may be admissible in the face of a denial by the defendant that
the charged act did not occur. A fact-sensitive evaluation of
the proffered evidence would be required to determine if the
defendant’s motive is a genuine issue in the case. See State v.
Rose, 206 N.J. 141, 162-63 (2011) (permitting evidence of
earlier attempt to kill victim as evidence of motive in
defendant’s trial for purposeful murder as accomplice and felony
murder of same victim).
15
 [Model Jury Charges (Criminal), “Proof of
Other Crimes, Wrongs, or Acts (N.J.R.E.
404(b))” (June 4, 2007) (emphasis added).]

V.

A.

We affirm the Appellate Division’s determination that

A.W.’s testimony is inadmissible under N.J.R.E. 404(b)

substantially for the reasons asserted in its opinion. J.M.,

supra, 438 N.J. Super. at 221-30. We add the following

comments.

The first Cofield factor requires that “the evidence of the

prior bad act, crime or wrong . . . be relevant to a material

issue that is genuinely disputed.” State v. Covell, 157 N.J.

554, 564-65 (1999). Under N.J.R.E. 401, evidence is relevant if

it “[has] a tendency in reason to prove or disprove any fact of

consequence to the determination of the action.” “[T]he primary

focus in determining the relevance of evidence is whether there

is a ‘logical connection between the proffered evidence and a

fact in issue.’” Willis, supra, ___ N.J. at ___ (slip op. at

18) (quoting Covell, supra, 157 N.J. at 565). “Moreover, the

material fact sought to be proved must be one that is actually

in dispute[.]” Ibid. (citing Cofield, supra, 127 N.J. at 338).

Here, the trial court erroneously found that A.W.’s

testimony satisfied the first Cofield factor as evidence of

motive, intent, absence of mistake, or plan. Defendant does not

16
argue that the alleged sexual assault of E.S. was consensual or

accidental; rather, he maintains that the sexual assault never

occurred. As such, A.W.’s testimony is inadmissible to

establish motive, intent, or absence of mistake because

defendant’s state of mind is not a “genuinely contested” issue

in this case. Id. at ___ (slip op. at 19) (citing Stevens,

supra, 115 N.J. at 302). The testimony is also inadmissible for

proof of plan, because it is insufficient to “establish the

existence of a larger continuing plan of which the crime on

trial is a part[.]” Stevens, supra, 115 N.J. at 306 (quoting

State v. Louf, 64 N.J. 172, 178 (1973)). A “strong factual

similarity” between the two sexual assaults is not enough to

reveal a plan. Id. at 305. Because the proposed testimony does

not serve any of the permitted purposes of other-crime evidence

set forth in N.J.R.E. 404(b), the testimony is inadmissible

under the first Cofield requirement.

For similar reasons, the proposed testimony fails to

satisfy the fourth Cofield requirement that “[t]he probative

value of the evidence must not be outweighed by its apparent

prejudice.” Cofield, supra, 127 N.J. at 338. As we explained

in Willis, supra, N.J.R.E. 404(b) is “a rule of exclusion rather

than a rule of inclusion.” ___ N.J. at ___ (slip op. at 20)

(quoting State v. Marrero, 148 N.J. 469, 483 (1997)). Given the

“inflammatory characteristic of other-crime evidence[,]” the

17
trial court must conduct a “careful and pragmatic

evaluation . . . to determine whether the probative worth of the

[other-crime] evidence outweighs its potential for undue

prejudice.” Ibid. (quoting Stevens, supra, 115 N.J. at 303).

We agree with the Appellate Division that, “even if probative

value could be found in A.W.’s testimony, it is so greatly

outweighed by the prejudicial effect -- namely, the jury’s

inevitable assumption that defendant has a propensity to engage

in such conduct -- as to render it inadmissible.” J.M., supra,

438 N.J. Super. at 229-30.

B.

Having determined that evidence of the Florida sexual

assault was not admissible under the Cofield factors, it was not

necessary to discuss, much less impose, a bright-line rule

prohibiting the admission of acquitted-act evidence in other

cases. A bright-line bar on acquitted-act evidence is

inappropriate, and we decline to adopt it here. As illustrated

by the Appellate Division’s decisions in Schlue, supra, 129 N.J.

Super. 351, and Yormark, supra, 117 N.J. Super. 315, there are

certain limited circumstances in which such evidence should be

admitted.

In Schlue, supra, the defendant was charged with

obstruction of justice for attempting to induce a member of an

alleged bribery scheme to conceal the scheme from police. 129

18
N.J. Super. at 352-53. In an earlier proceeding, the defendant

had been acquitted of the underlying bribery charge, but the

State sought to admit evidence of the alleged bribery in order

to prove the defendant’s motive for obstruction. Id. at 353.

The Appellate Division held that the evidence of the alleged

bribery was admissible, even though the defendant had been

acquitted of that crime, because “none of the issues of ultimate

fact in the prosecution for obstruction of justice were involved

or decided in the trial on the bribery charge[.]” Id. at 355.

Therefore, the acquitted-act evidence could be admitted as

evidence of the defendant’s motive for obstruction without

raising collateral estoppel or double jeopardy concerns. Ibid.

In Yormark, supra, four defendants were convicted of a

conspiracy to obtain money under false pretenses. 117 N.J.

Super. at 323. At trial, the State produced evidence of a

previous conspiracy with many similar characteristics, even

though two of the defendants had been acquitted of the prior

conspiracy. Id. at 334-35. The Appellate Division held that

the evidence of the prior conspiracy was admissible,

notwithstanding the acquittals, as evidence of the defendants’

plan, motive, prior course of dealing with each other, and

knowledge relevant to committing the conspiracy with which they

were presently charged. Id. at 336-37. The panel also found

that the acquitted-act evidence did not implicate double

19
jeopardy or collateral estoppel because the underlying

conspiracies arose from separate operative facts. Id. at 333-

34.

As Schlue and Yormark reflect, there are limited

circumstances in which acquitted-act evidence is both highly

probative and not unduly prejudicial to a defendant, and

therefore may be admissible. As with all other-crime evidence,

acquitted-act evidence may only be admitted after a vigorous

Cofield analysis. With respect to the third prong of the

Cofield test -- the “clear and convincing evidence” requirement

-- the fact that a defendant was acquitted of the prior crime

will often weigh heavily against a finding that the evidence of

that crime is “clear and convincing.” See Cofield, supra, 127

N.J. at 338. On the other hand, an acquittal will not always

vitiate the “clear and convincing evidence” requirement,

especially when the State is not seeking to prove that a

defendant actually committed the prior crime. For example, when

the State seeks to prove that a prior criminal trial of a

defendant provides a motive for subsequent criminal conduct,

whether the defendant committed the prior act has no bearing on

his motive. The mere fact that he was subject to a criminal

charge suffices.2

2 In the limited circumstances in which acquitted-act evidence
is admissible, a defendant should have the option to request
20
 C.

In the third section of its opinion, the appellate panel

directed that, in the event other-crime evidence is admitted,

the defendant had been acquitted of that charge, and the

acquitted-act evidence is pivotal to the State’s case, the jury

should be instructed that it must be satisfied beyond a

reasonable doubt that the defendant actually committed the prior

offense. We do not adopt this portion of the opinion. Having

determined that the six-year-old other-crime evidence should not

have been admitted, the appellate panel addressed an issue that

had no bearing on the disposition of the appeal. It effectively

rendered an advisory opinion. See G.H. v. Twp. of Galloway, 199

N.J. 135, 136 (2009) (declining to reach question of limits of

statutory preemption of municipal action in context of challenge

to viability of existing ordinances).

Furthermore, as illustrated in Willis, supra, were we to

require a jury to determine whether the State established beyond

a reasonable doubt that a defendant committed the other alleged

crime, we would effectively require a trial-within-a-trial, with

its attendant capacity to distract the jury from the case-in-

chief and to inject the prohibited inference of the defendant’s

propensity to commit similar offenses. ___ N.J. at ___ (slip

that the trial court inform the jury that a jury had acquitted
the defendant of that charge.
21
op. at 23-24). Such an instruction also minimizes the role of

the trial judge, who is charged in the first instance with

determining whether such evidence should be admitted. See

Gillispie, supra, 208 N.J. at 84 (holding that admission or

exclusion of other-crime evidence “is left to the sound

discretion of the trial court”).3

We emphasize once again that N.J.R.E. 404(b) is a rule of

exclusion and that the trial judge bears the burden of

scrutinizing the proffered evidence to determine if it satisfies

the Cofield rule. In the end, assuming the trial court finds

that the proffered evidence is relevant, similar in kind, not

remote in time, and does not cause undue prejudice, the other-

crime evidence cannot be admitted unless the judge finds that

the State has presented clear and convincing evidence that the

defendant committed the offense. State v. Koskovich, 168 N.J.

448, 483-85 (2001).

VI.

For the foregoing reasons, the judgment of the Appellate

Division is affirmed as modified.

3 In addition, conditioning the text of a jury instruction on
whether acquitted-act evidence is “pivotal” to the State’s case
introduces an unacceptable measure of unpredictability into the
task of formulating a jury instruction that must contain a
correct statement of the law. We anticipate many instances in
which the parties and/or the trial court will disagree on the
significance of the proffered evidence to the State’s case.
22
 CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUDGE CUFF’s opinion. JUSTICE
FERNANDEZ-VINA did not participate.

23
 SUPREME COURT OF NEW JERSEY

NO. A-48 SEPTEMBER TERM 2014
ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.M., JR.,

Defendant-Respondent.

DECIDED May 26, 2016
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY

AFFIRMED AS
CHECKLIST
MODIFIED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6