State v. Carl J. Garrison(076537)

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 v. Carl J. Garrison (A-38-15) (076537)

Argued October 27, 2016 -- Decided March 20, 2017

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, the Court considers whether the admission into evidence of an uncharged incident—a strip
poker game that took place in another state—constituted error.

A Gloucester County grand jury indicted defendant Carl Garrison on several counts of child sexual abuse.
The charges stemmed from allegations of abuse against his girlfriend’s daughter, Joan. (In order to protect the
confidentiality of the juvenile victim in this case, the Court uses fictitious names to refer to the minor and her
relatives.) Joan testified that defendant abused her throughout the summer of 2010, when she was eleven years old,
both in Alabama and New Jersey.

Prior to trial, defendant moved to exclude evidence of events that took place in Alabama, including a strip
poker game, as inadmissible other-crimes evidence under N.J.R.E. 404(b). The trial court found that the evidence of
what occurred in Alabama was admissible not as other-crimes evidence, but as intrinsic evidence of the charged
crimes under State v. Rose, 206 N.J. 141 (2011). The court provided limiting instructions to the jury at the time the
evidence was introduced and in the final charge to the jury.

During the trial, the State also presented an expert witness, Dr. Mary Theresa Baker, who testified with
regard to the physical characteristics child-abuse victims may exhibit. Dr. Baker examined Joan and found no
evidence of physical abuse. As part of her testimony, Dr. Baker stated that “[o]verall, 95 to 96 percent of children,
who give a credible disclosure of sexual contact, have a normal or non-specific exam.”

The jury subsequently convicted defendant of three counts of first-degree aggravated sexual assault, two
counts of second-degree sexual assault, and one count of third-degree endangering the welfare of a child. Defendant
received an aggregate sentence of fifty-two years in prison, with an eighty-five percent period of parole ineligibility.

Defendant appealed, arguing that evidence of the strip poker game was improperly admitted. Although not
raised below, defendant also contended that the admission of Dr. Baker’s statistics-based testimony was error. The
Appellate Division reversed defendant’s convictions and remanded for a new trial. The panel rejected the State’s
contention that evidence of the strip poker game was intrinsic to the crimes charged and determined that this
evidence should have been evaluated under N.J.R.E. 404(b). The Appellate Division then concluded that the strip
poker evidence failed to satisfy Rule 404(b) and that its admission was not harmless error. In a footnote, the panel
agreed that Dr. Baker’s testimony amounted to an improper opinion of Joan’s credibility and constituted plain error.

The Court granted the State’s petition for certification. 223 N.J. 558 (2015).

HELD: The evidence of the strip poker game meets the rigorous test set forth in State v. Cofield, 127 N.J. 328 (1992),
and therefore was admissible under Rule 404(b). The evidence was properly admitted at trial with an appropriate
limiting instruction.

1. In order to minimize the dangers presented by other-crimes evidence, the Court has insisted that evidence
proffered under Rule 404(b) must pass a rigorous test, set forth in State v. Cofield: (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. (pp. 12-13)
2. Under the first prong of the Cofield test, the strip poker game has direct relevance “to a material issue in dispute.”
A linchpin of the defense’s theory of the case was that any inappropriate actions originated with Joan. Defendant
repeatedly denied wrongdoing, and, at trial, portrayed Joan as “the aggressor.” The testimony that defendant
initiated the strip poker game enables the jury to better weigh defendant’s assertions. Thus, the testimonial evidence
of the strip poker game is relevant because it tends “to prove or disprove” whether any inappropriate action
originated with Joan. Moreover, the strip poker game is admissible against defendant under Rule 404(b) as evidence
of his plan to further desensitize Joan to sexual conduct so that he could continue to abuse her. (pp. 13-16)

3. The strip poker evidence satisfies the second prong of the Cofield test. Defendant is hard-pressed to contest the
close temporal relationship between the strip poker game and the sexual assaults with which he was charged. (p. 17)

4. Under the third prong of the Cofield framework, evidence of the other crime must be clear and convincing. Here,
it is undisputed that defendant played strip poker with Joan and her sister. Although the precise details of the
incident, including which articles of clothing were removed and who initiated the game, were subject to dispute, the
evidence that defendant played strip poker with the girls was beyond clear and convincing. (pp. 17-18)

5. Finally, the Court considers whether the probative value of the strip poker evidence is outweighed by its apparent
prejudice. The probative value of the evidence is high because it provided the jury with evidence of a continuous
course of conduct concerning defendant’s abuse of Joan throughout the summer. Moreover, evidence of the strip
poker game was just one of many incidents the jury heard about. The jury also heard detailed testimony regarding
numerous sexual acts, including Joan’s testimony that she had sex with defendant on several occasions in New
Jersey and in Alabama. In the context of the record as a whole, it is unlikely the strip poker evidence had “a
probable capacity to divert the minds of the jurors” when far more prejudicial evidence was presented. (pp. 18-21)

6. Having determined that the evidence of the strip poker game satisfies each of the four prongs of the Cofield test,
the Court considers whether its admission was accompanied by a sufficient limiting instruction. Immediately after
Joan testified, the court instructed the jury that the evidence of conduct that occurred in Alabama was to be “used
only with regard to the charges that have been indicted in New Jersey” and that they were “not to speculate as to
whether this conduct resulted in any charges in Alabama.” In its final charge, the court also provided a limiting
instruction to the jury. Although that instruction did not specifically address the strip poker game or the sexual
assaults in Alabama, the court instructed the jury that it was not to use the testimony it heard about defendant’s other
criminal conduct for propensity purposes. When viewed as a whole, it cannot be said that the challenged instruction
is “of such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2. The essential
principle—that the jury could not use the strip poker game for propensity purposes—was adequately communicated
to the jury even if the trial court in its final charge did not refer specifically to the Alabama evidence. Therefore, the
404(b) evidence was properly admitted with an appropriate limiting instruction. Because the Court concludes that
evidence of the strip poker game is admissible under the rigorous standard of Rule 404(b), it does not address the
State’s arguments regarding intrinsic evidence. (pp. 21-24)

7. The Court notes the testimony of Dr. Baker—that “[o]verall, 95 to 96 percent of children, who give a credible
disclosure of sexual contact, have a normal or non-specific exam”—and finds the comment problematic. However,
the error does not mandate reversal. Because defendant did not object or raise the issue during trial, the Court
evaluates his arguments under a plain-error standard of review. Dr. Baker’s stray remark, to which defendant did
not object at trial, did not enable the jury to reach a result that it otherwise might not have reached. (pp. 24-27)

The judgment of the Appellate Division is REVERSED, and defendant’s convictions are REINSTATED.
The matter is REMANDED to the Appellate Division for consideration of the issue not addressed by that court
concerning defendant’s sentence.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON,
and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-38 September Term 2015
076537

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CARL J. GARRISON,

Defendant-Respondent.

Argued October 27, 2016 – Decided March 20, 2017

On certification to the Superior Court,
Appellate Division.

Sarah E. Ross, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General of New Jersey,
attorney).

Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this appeal, we consider whether the admission into

evidence of an uncharged incident constituted error. Prior to

his trial on several counts of child sexual abuse, defendant

Carl J. Garrison moved to exclude evidence of events, including

a strip poker game, that took place in another state as

inadmissible other-crimes evidence under N.J.R.E. 404(b). The

trial court found that the evidence of what occurred in the

1
other state was admissible not as other-crimes evidence, but as

intrinsic evidence of the charged crimes under State v. Rose,

206 N.J. 141 (2011). Defendant was subsequently convicted on

three counts of first-degree aggravated sexual assault, two

counts of second-degree sexual assault, and one count of third-

degree endangering the welfare of a child.

On appeal, the Appellate Division reversed defendant’s

convictions and remanded for a new trial. The panel concluded

that the evidence of the strip poker game was not admissible

under Rule 404(b) or as intrinsic evidence under Rose.

For the reasons set forth in this opinion, we hold that the

evidence was admissible under Rule 404(b). Accordingly, we

reverse the judgment of the Appellate Division and reinstate

defendant’s convictions without reaching the question of whether

the strip poker game is intrinsic to the crimes charged.

I.

A.

In the summer of 2010, defendant Carl J. Garrison, then

fifty-three years old, dated Harriet and often stayed at her

home in New Jersey, where she lived with her two daughters, Joan

and Nancy.1 That summer, defendant, Harriet, Joan, and Nancy

1 In order to protect the confidentiality of the juvenile victim
in this case, we use fictitious names to refer to the minor and
her relatives. In the interest of consistency, we use the same
fictitious names used by the Appellate Division.
2
also stayed in Alabama for several weeks. Joan, who was eleven

years old in Summer 2010, testified that defendant abused her

throughout the summer, both in Alabama and New Jersey.

Joan testified that the abuse started in June 2010, shortly

after she finished fifth grade. The first incident occurred

while she was watching a television show on defendant’s

computer. Defendant put his hands down Joan’s pants, digitally

penetrated her vagina, and touched her breasts with his hands

and mouth.

In the ensuing weeks, defendant exposed himself to Joan,

showed her pornography on his computer, and digitally penetrated

her anus. Defendant had oral and vaginal intercourse with Joan

multiple times in both New Jersey and Alabama. Joan stated

that, over the course of the summer, defendant had intercourse

with her “around eight or more times.” On one occasion, Nancy,

who was nine years old at the time, saw her sister washing

defendant’s penis with a washcloth after intercourse.

In July 2010, while in Alabama, defendant played strip

poker with Joan and Nancy. The girls testified that they were

playing together when defendant approached them and told them

about strip poker. Nancy was asked twice whose idea it was to

play strip poker and both times replied, “Carl Garrison’s.”

According to defendant, they were just playing cards and the

game moved to strip poker at Joan’s suggestion. Defendant

3
testified that he took off his shirt and pants and was in his

underwear. When asked whether Joan and Nancy stripped to their

underwear, defendant replied: “No. They stripped to their

bras. Yeah, their bras, underwear. They didn’t take –- I’m not

sure if they took their pants off or not. I don’t think they

did. So it was -– it wasn’t nothing major.” Nancy testified

that she and Joan took their pants and shirts off and only had

on panties at one point. She also stated that defendant took

off his underwear and was naked with his penis exposed.

Defendant’s abuse of Joan continued once they returned to

New Jersey. Joan testified that the abuse ceased in September,

before school started. During the course of the abuse,

defendant told Joan not to tell anyone about it because it would

ruin his relationship with her mother and he would go to prison.

In September 2010, the Division of Child Protection and

Permanency2 (Division) removed Joan and Nancy from their mother’s

custody due to defendant’s involvement in an unrelated assault.

The Division placed the girls with their father, Sam, in

December 2010. In Spring 2011, after several months of living

with Sam, Joan and Nancy approached their father to discuss

2 At the time of these events, the Division of Child Protection
and Permanency was named the Division of Youth and Family Services.
L. 2012, c. 16. For ease of reference, we refer to the agency by
its current name.
4
Garrison and the assaults he had committed on Joan. The girls

disclosed the abuse gradually, at the urging of Nancy.

Sam reported the abuse during a court appearance to settle

child support issues in May 2011, after which the police took

statements from Sam, Joan, and Nancy. The police then asked

defendant to come to the Monroe Township Police Department,

which he did voluntarily. There, he denied the sexual assaults

but admitted that he had played strip poker with the girls while

they were in Alabama.

B.

In November 2011, a Gloucester County grand jury indicted

defendant on four counts of first-degree aggravated sexual

assault of a victim less than thirteen, contrary to N.J.S.A.

2C:14-2(a)(1); two counts of second-degree sexual assault of a

victim less than thirteen, with the actor at least four years

older than the victim, contrary to N.J.S.A. 2C:14-2(b); four

counts of second-degree sexual assault by force or coercion,

contrary to N.J.S.A. 2C:14-2(c)(1); and one count of third-

degree endangering the welfare of a child, contrary to N.J.S.A.

2C:24-4(a).

Prior to trial, defendant moved to exclude evidence of the

events in Alabama, including the strip poker game, as

inadmissible other-crimes evidence. In denying defendant’s

motion, the trial court concluded that evidence of what occurred

5
in Alabama was admissible not as other-crimes evidence subject

to N.J.R.E. 404(b), but as intrinsic evidence of the charged

crimes under Rose, supra, 206 N.J. at 141. The trial court

found that the “strong probative value” of the evidence

outweighed its prejudicial effect because it was “part of the

entire story.”

The court provided the following instruction to the jury at

the time this evidence was introduced:

You are to consider this evidence, along with
all other evidence, in determining whether the
[d]efendant is guilty or not guilty of the
charges stated in the Indictment.

That is, you are to determine what weight, if
any, this evidence should be given, using the
instructions I will give you when this matter
is concluded.

You’re not to speculate as to whether this
conduct resulted in any charges in Alabama.
That has no relevance to this proceeding. It
is not to enter into your consideration in any
manner, at any time.

As stated previously, this evidence is to be
used only with regard to the charges that have
been indicted here in New Jersey and are
before you.

The court also provided a limiting instruction in its final

charge to the jury:

You have heard evidence that Carl Garrison has
previously been convicted of crimes. This
evidence may only be used in determining the
credibility or believability of the
[d]efendant’s testimony.

6
 You may not conclude that the defendant
committed the crime charged in this case, or
is more likely to have committed the crime
charged, simply because he committed a crime
on another occasion.

. . .

You are not, however, obligated to change your
opinion as to the credibility of the defendant
simply because of his prior convictions. You
may consider such evidence, along with all the
other factors we previously discussed, in
determining the credibility of the defendant.

At trial, defendant argued that Joan had pursued him.

Defendant testified that Joan would grab him and try to “nuzzle

[his] face into her breasts”; that she would run around the

house naked and “put her ass in [his] face”; that Joan touched

his penis while he was sleeping on a chair; and that, on one

occasion, Joan gave him a condom. In his videotaped statement

from the police department, which was played at trial, defendant

told the detectives, “[t]he girl walked over and handed me a

condom, she is definitely the aggressor.”

Defendant also told detectives in the taped interrogation

that Joan made passes at him and that “she was like, she was in

love with me.” He denied touching Joan’s vagina, and, when

asked by a detective why Joan would say that if it was not true,

defendant replied, “[m]aybe it was wishful thinking.” Defendant

also stated that Joan told him that she had “busted her cherry

playing with herself” and that “she’s that type of girl.”

7
 Defendant testified that he rejected Joan’s advances and

told her “there’s no way I could have a relationship with you.

It’s against the law. You have to find somebody your age.”

Harriet similarly testified that Joan had “com[e] on to” and

“had a crush on” defendant, whom Joan “thought somehow . . . was

her boyfriend,” which was “why she gave the condom.”

During the trial, the State presented an expert witness,

Dr. Mary Theresa Baker, who testified with regard to the

physical characteristics child-abuse victims may exhibit. Dr.

Baker examined Joan and found no evidence of physical abuse. As

part of her testimony, Dr. Baker stated that “[o]verall, 95 to

96 percent of children, who give a credible disclosure of sexual

contact, have a normal or non-specific exam.”

The jury subsequently convicted defendant on three counts

of first-degree aggravated sexual assault, three counts of

second-degree sexual assault, and one count of third-degree

endangering the welfare of a child. Defendant received an

aggregate sentence of fifty-two years in prison, with an eighty-

five percent period of parole ineligibility pursuant to the No

Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed, arguing that evidence of the strip

poker game was improperly admitted. Although not raised below,

defendant also contended that the admission of Dr. Baker’s

statistics-based testimony was error. In an unreported opinion,

8
the Appellate Division reversed defendant’s convictions. The

panel rejected the State’s contention that evidence of the strip

poker game was intrinsic to the crimes charged and determined

that this evidence should have been evaluated under N.J.R.E.

404(b). The Appellate Division then concluded that the strip

poker evidence failed to pass muster under the analytical

framework of Rule 404(b) and that its admission was not harmless

error. Additionally, in a footnote, the panel agreed that Dr.

Baker’s testimony amounted to an improper opinion of Joan’s

credibility and constituted plain error.

The Court granted the State’s petition for certification.

223 N.J. 558 (2015).

II.

Stressing that “evidence that is intrinsic to a charged

crime need only satisfy the evidence rules relating to

relevancy,” Rose, supra, 206 N.J. at 177, the State contends

that evidence of the strip poker game is admissible as intrinsic

to the charged offenses. The State maintains that the strip

poker game satisfies the definition of intrinsic evidence

adopted in Rose, supra, 206 N.J. at 180, because it is direct

evidence of defendant’s sexual relationship with Joan and

because the game occurred contemporaneously with, and

facilitated the commission of, the charged crimes. Considering

the strip poker game intrinsic evidence, the State asserts

9
that it is admissible because its probative value is not

substantially outweighed by its prejudicial effect.

The State also argues that, even if the strip poker game is

not intrinsic evidence, it is admissible under Rule 404(b). The

State claims that the strip poker game with the girls was

relevant to whether defendant acted for the purpose of sexual

arousal. That evidence, in the State’s view, supported an

inference that defendant was aroused by young girls, which, in

turn, was relevant to whether he had the motive and intent to

commit the charged offenses.

As for the limiting instruction that is required when

evidence is admitted under Rule 404(b), the State emphasizes

that the trial court instructed the jurors that they were not to

speculate whether defendant was charged with any offenses in

Alabama and that the court gave a limiting instruction

concerning evidence of defendant’s other criminal conduct in its

final charge. When the two instructions are taken together, the

State contends, the essential point of a Rule 404(b) instruction

–- that other-crimes evidence cannot be used to show a

defendant’s propensity to commit the charged offense –- was

conveyed to the jury.

Conversely, defendant argues that, under the definition set

out in Rose, the strip poker game is not intrinsic to the

charged offenses. In addition, defendant avers that the strip

10
poker evidence is not admissible under Rule 404(b) in light of

State v. J.M., 225 N.J. 146, 160 (2016), in which this Court

held that a witness’s testimony regarding a prior bad act was

“inadmissible to establish motive, intent, or absence of mistake

because [the] defendant’s state of mind [was] not a ‘genuinely

contested’ issue” when the defendant maintained that no sexual

assault occurred. Defendant argues that his state of mind is

not genuinely contested because he too has maintained that no

sexual assault occurred.

Turning to the limiting instruction, defendant asserts that

it was “completely inadequate” because it did nothing more than

tell the jury to consider the evidence “in determining whether

[d]efendant is guilty or not guilty of the charges stated in the

indictment.” Moreover, defendant contends that the trial

court’s limiting instruction in its final charge was inadequate

because it was limited to his prior convictions and did not

reference the strip poker game or any acts for which no criminal

conviction had been obtained.

Lastly, defendant urges this Court to uphold the Appellate

Division’s reversal of his convictions based on the alleged

improper testimony of the State’s expert witness, Dr. Baker.

Defendant highlights Dr. Baker’s statement that “[o]verall, 95

to 96 percent of children, who give a credible disclosure of

sexual contact, have a normal or non-specific exam.” He claims

11
this remark “went beyond the bounds of permissible expert

testimony” in that it inappropriately bolstered Joan’s

credibility.

III.

Under N.J.R.E. 404(b), uncharged extrinsic bad acts may not

be introduced to demonstrate a defendant’s criminal disposition

as a basis for proving guilt of the crimes charged. Rule 404(b)

provides that

evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person acted
in conformity therewith. Such evidence may be
admitted for other purposes, such as proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of
mistake or accident when such matters are
relevant to a material issue in dispute.

One of the well-recognized dangers inherent in the

admission of so-called “other-crimes evidence” is that a jury

may convict a defendant not for the offense charged, but for the

extrinsic offense. State v. Skinner, 218 N.J. 496, 514 (2014).

Courts therefore “cautiously examine any evidence that is in the

nature of prior bad acts, wrongs, or, worse, crimes by a

defendant” because such evidence has a tendency to prejudice a

jury. Ibid. “Put simply, a defendant must be convicted on the

basis of his acts in connection with the offense for which he is

charged. A defendant may not be convicted simply because the

jury believes that he is a bad person.” Ibid.

12
 In order to minimize the dangers presented by other-crimes

evidence, this Court has insisted that evidence proffered under

Rule 404(b) “must pass [a] rigorous test.” State v. Kemp, 195

N.J. 136, 159 (2008). In State v. Cofield we adopted the

following four-part test for analyzing the admissibility of

other-crimes evidence:

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.

[127 N.J. 328, 338 (1992).]

Against this evidentiary backdrop, we turn to the parties’

dispute over whether the evidence of the strip poker game

satisfies this analytical framework. Because the trial court

never performed that analysis, our review is de novo. Rose,

supra, 206 N.J. at 158 (citing State v. Lykes, 192 N.J. 519, 534

(2007)).

A.

1.

To satisfy the first prong of the Cofield test, the

“proffered evidence must be ‘relevant to a material issue

genuinely in dispute.’” State v. Gillispie, 208 N.J. 59, 86

13
(2011) (quoting State v. Darby, 174 N.J. 509, 519 (2002)).

Evidence is relevant if it tends “to prove or disprove any fact

of consequence to the determination of the action.” N.J.R.E.

401. The main focus “in determining the relevance of evidence

is whether there is a logical connection between the

proffered evidence and a fact in issue.” J.M., supra, 225 N.J.

at 160 (quoting State v. Willis, 225 N.J. 85, 98 (2016)). The

burden of establishing this connection is not onerous: “if the

evidence makes a desired inference more probable than it would

be if the evidence were not admitted, then the required logical

connection has been satisfied.” State v. Williams, 190 N.J.

114, 123 (2007) (describing standard for connection as

“generous”). “Moreover, the material fact sought to be proved

must be one that is actually in dispute[.]” J.M., supra, 225

N.J. at 160 (alteration in original) (quoting Willis, supra, 225

N.J. at 98).

In this case, defendant repeatedly denied wrongdoing, and

insisted that any inappropriate actions originated with Joan.

For example, defendant testified that Joan would grab him and

try to pull his face to her chest and that she touched his penis

while he was sleeping on a chair. Defendant told detectives in

his videotaped statement that was played at trial, “[t]he girl

walked over and handed me a condom, she is definitely the

aggressor.”

14
 Indeed, defendant repeatedly portrayed Joan as “the

aggressor” at trial. He testified that Joan was “big and

strong” and “not no, tiny petite thing.” Likewise, he told

detectives in his videotaped interrogation that Joan made passes

at him and that “she was like, she was in love with me.”

Harriet also testified to that effect when she stated that Joan

“thought somehow [defendant] was her boyfriend” and that “she

had a crush on him.” From this testimony and defendant’s

statements to detectives in his videotaped interrogation, it is

apparent that a linchpin of the defense’s theory of the case was

that any inappropriate actions originated with Joan.

Contrary to defendant’s arguments, the strip poker game has

direct relevance “to a material issue in dispute.” Gillispie,

supra, 208 N.J. at 86. The testimonial evidence of the strip

poker game is relevant because it tends “to prove or disprove”

whether any inappropriate action originated with Joan. N.J.R.E.

401. Multiple witnesses testified about whose idea it was to

play the game. Joan testified that she was playing with her

sister when defendant approached them and told them about strip

poker and the rules of the game. Nancy also testified that

defendant initiated the game. Conversely, defendant testified

that he and the girls played strip poker at Joan’s suggestion.

Because the testimonial evidence of the strip poker game sheds

light on whose idea it was to play the game, it is highly

15
relevant to the issue that any inappropriate actions originated

with Joan, an issue defendant himself raised in this case. Put

simply, Joan and Nancy’s testimony that defendant initiated the

strip poker game enables the jury to better weigh defendant’s

assertion that any inappropriate actions originated with Joan.

Although defendant relies on J.M., that case is inapposite.

In J.M., supra, we held that a witness’s testimony regarding a

prior bad act was “inadmissible to establish motive, intent, or

absence of mistake because [the] defendant’s state of mind [was]

not a ‘genuinely contested’ issue” where [the] defendant

maintained that no sexual assault occurred. 225 N.J. at 160.

Unlike the defendant in J.M., defendant in this case has not

merely denied that a sexual assault took place. Defendant has

repeatedly asserted that any inappropriate actions originated

with the victim. Defendant’s reliance on J.M. is therefore

unavailing as the circumstances of that case are readily

distinguishable.

Moreover, the strip poker game is admissible against

defendant under Rule 404(b) as evidence of his plan to further

desensitize Joan to sexual conduct so that he could continue to

abuse her. See, e.g., State v. DeVincentis, 47 P.3d 606, 610

(Wash. Ct. App. 2002) (“One reason the common scheme or plan

exception arises in prosecutions alleging sexual abuse of

children is that such crimes often occur only after the

16
perpetrator has successfully used techniques designed to obtain

the child’s cooperation.”), aff’d, 74 P.3d 119 (Wash. 2003).

2.

The second prong of the Cofield test requires that the

other-crimes evidence “be similar in kind and reasonably close

in time to the [alleged crime].” Skinner, supra, 218 N.J. at

515 (quoting Cofield, supra, 127 N.J. at 338). Defendant is

hard-pressed to contest the close temporal relationship between

the strip poker game and the sexual assaults with which he was

charged in New Jersey. The game took place in July 2010,

between the June and August sexual assaults. The strip poker

evidence therefore satisfies the second prong of the Cofield

test.

3.

Under the third prong of the Cofield framework, evidence of

the other crime must be clear and convincing. It is undisputed

that defendant played strip poker with Joan and Nancy.

Defendant acknowledged having played strip poker with the girls

in both the videotaped statement he provided to detectives and

in his testimony at trial. Harriet, Joan, and Nancy also stated

that the strip poker game occurred. We need not belabor this

point. Although the precise details of the incident, including

which articles of clothing were removed and who initiated the

game, were subject to dispute, the evidence that defendant

17
played strip poker with the girls was beyond “clear and

convincing.” Cofield, supra, 127 N.J. at 338.

4.

Finally, we consider whether the strip poker evidence meets

the fourth prong of the Cofield test -- whether the probative

value of the evidence is outweighed by its apparent prejudice --

“generally the most difficult part of the test.” State v.

Barden, 195 N.J. 375, 389 (2008). Some types of evidence,

however, “require a very strong showing of prejudice to justify

exclusion. One example is evidence of motive or intent.”

Skinner, supra, 218 N.J. at 516 (quoting State v. Covell, 157

N.J. 554, 570 (1999)). Furthermore, despite this Court’s

imposition of a stringent standard for the admission of other-

crimes evidence, “our courts have not frequently excluded highly

prejudicial evidence under the fourth prong of Cofield.” State

v. Long, 173 N.J. 138, 162 (2002).

Here, the probative value of the Alabama evidence and the

strip poker game is high because it provided the jury with

evidence of a continuous course of conduct concerning

defendant’s abuse of Joan throughout the summer. The abuse

began after Joan finished school in mid to late June and

continued until early September. To remove the period in July

when defendant abused Joan in Alabama from a time span of about

two and a half months would leave a significant gap in the time

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period of continuous conduct; see United States v. Gibson, 170

F.3d 673, 681 (7th Cir. 1999) (stating other-crimes evidence may

be necessary to avoid “a chronological or conceptual void in the

story of the crime” (quoting United States v. Ramirez, 45 F.3d

1096, 1102 (7th Cir. 1995))). In addition, the Alabama evidence

and the strip poker game are probative in that they enabled Joan

to provide a coherent explanation of defendant’s continuous

conduct, depicting her perception of what occurred because

“[y]oung children often ‘do not think in terms of dates or time

spans.’” State v. L.P., 338 N.J. Super. 227, 239 (App. Div.),

certif. denied, 170 N.J. 205 (2001) (quoting In re K.A.W., 104

N.J. 112, 118 (1986)).

Moreover, evidence of the strip poker game was not so

prejudicial that it had “‘a probable capacity to divert the

minds of the jurors from a reasonable and fair evaluation’ of

the issues in the case.” Long, supra, 173 N.J. at 163-64

(quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). In this

case, the strip poker game was just one of many incidents the

jury heard about. The jury also heard detailed testimony

regarding Joan’s performance of oral sex on defendant and how he

digitally penetrated her anus. In addition, the jurors listened

to Joan’s testimony on how she had sex with defendant in her

mother’s trailer in New Jersey, at defendant’s mother’s house in

New Jersey, and in Alabama. Moreover, they heard how Nancy, who

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was nine years old at the time, saw Joan washing defendant’s

penis with a washcloth. In the context of the record as a

whole, it is unlikely the strip poker evidence had “a probable

capacity to divert the minds of the jurors” when far more

prejudicial evidence was presented.

Defendant contends that the testimonial evidence of the

strip poker game had the capacity to divert the minds of the

jurors. He asserts that the State’s proof of the sexual

assaults hinged on testimony from Joan and, thus, evidence of

the strip poker game could have tipped the scales on whether the

jury found defendant or Joan more credible as to whether the

assaults occurred.

That argument is unpersuasive because the testimony

regarding the strip poker game also required the jury to make

credibility determinations. For example, the girls’ mother

Harriet testified that she witnessed the game, but Joan and

Nancy testified that their mother was not present.

Additionally, defendant testified that Joan initiated the game,

but the girls testified that defendant was the one who suggested

they play. Because the strip poker evidence also required the

jury to make credibility determinations, defendant’s argument

that the game could have influenced the credibility

determination that was central to whether the assaults occurred

is unconvincing.

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 Defendant also posits that the strip poker evidence

“permeated the trial” because it was addressed on direct and

cross-examination during the testimony of witnesses for the

State and defense. True, the strip poker incident was brought

up several times over the course of the trial, but other pieces

of evidence that had far greater potential effect were also

raised multiple times. For instance, both Joan and Nancy

testified regarding the incident in which Joan allegedly washed

defendant’s penis. The strip poker evidence was only one of

many incriminating pieces of evidence. Because far more

damaging evidence was presented at trial, it is unlikely that

the strip poker evidence had “a probable capacity to divert the

minds of the jurors.” Long, supra, 173 N.J. at 163-64.

In sum, we conclude that evidence of the strip poker game

satisfies each of the four prongs of the Cofield test and was

therefore admissible. We thus consider whether its admission

was accompanied by a sufficient limiting instruction.

B.

In order to reduce “the inherent prejudice in the admission

of other-crimes evidence, our courts require the trial court to

sanitize the evidence when appropriate.” Rose, supra, 206 N.J.

at 161 (quoting Barden, supra, 195 N.J. at 390). Thus, when

other-crimes evidence is deemed admissible under the Cofield

rubric, the court must provide a limiting instruction that

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“inform[s] the jury of the purposes for which it may, and for

which it may not, consider the evidence of defendant’s uncharged

misconduct, both when the evidence is first presented and again

as part of the final jury charge.” Ibid. (quoting Barden,

supra, 195 N.J. at 390). The limiting instruction is designed

to explain to the jury the “fine distinction to which it is

required to adhere.” Ibid. (quoting Barden, supra, 195 N.J. at

390).

In the instant case, immediately after Joan testified, the

court reminded the jury that “[t]he conduct . . . that is

alleged to have occurred in Alabama is that the [d]efendant

played strip poker with [Joan] and [Nancy] and engaged in sexual

conduct with [Joan].” The court then instructed the jury that

this evidence was to be “used only with regard to the charges

that have been indicted in New Jersey” and that they were “not

to speculate as to whether this conduct resulted in any charges

in Alabama.”

In its final charge, the court also provided a limiting

instruction to the jury. Although that instruction did not

specifically address the strip poker game or the sexual assaults

in Alabama, the court instructed the jury that it was not to use

the testimony it heard about defendant’s other criminal conduct

for propensity purposes. The court thus cautioned the jury

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against considering other-crimes evidence to prove defendant’s

disposition to commit the offenses with which he was charged.

Defendant contends that the trial court’s limiting

instruction in its final charge “was completely inadequate”

because it was limited to his prior convictions and did not

reference the strip poker game or any acts for which no criminal

conviction had been obtained. We must, however, view the charge

as a whole. State v. Baum, 224 N.J. 147, 159-60 (2016). “The

Court must not look at portions of the charge alleged to be

erroneous in isolation . . . .” State v. McKinney, 223 N.J.

475, 494 (2015).

When viewed as a whole, in light of the evidence and the

court’s instructions, it cannot be said that the challenged

instruction is “of such a nature as to have been clearly capable

of producing an unjust result.” R. 2:10-2; see State v.

Galicia, 210 N.J. 364, 388 (2012) (“For an error to require

reversal, there must be ‘some degree of possibility that [the

error] led to an unjust result. The possibility must be real,

one sufficient to raise a reasonable doubt as to whether [it]

led the jury to a verdict that it otherwise might not have

reached.’” (quoting State v. Lazo, 209 N.J. 9, 26 (2012)

(alterations in original))). We are satisfied that the

essential principle -- that the jury could not use the strip

poker game for propensity purposes -- was adequately

23
communicated to the jury even if the trial court in its final

charge did not refer specifically to the Alabama evidence. We

therefore conclude that the 404(b) evidence was properly

admitted with an appropriate limiting instruction.

Because we conclude that evidence of the strip poker game

is admissible under the rigorous standard of Rule 404(b), we

need not address the State’s arguments regarding intrinsic

evidence. See Rose, supra, 206 N.J. at 178 (“It is therefore

more likely that evidence of uncharged misconduct will be

admitted into evidence if it is considered intrinsic to the

charged crime and subject only to Rule 403 than if it is not

considered intrinsic evidence and subject to both Rule 404(b)

and Rule 403.”).

IV.

Defendant also urges this Court to affirm the Appellate

Division’s determination that the improper testimony of the

State’s expert witness, Dr. Baker, warranted reversal of his

convictions. Defendant highlights Dr. Baker’s statement that

“[o]verall, 95 to 96 percent of children, who give a credible

disclosure of sexual contact, have a normal or non-specific

exam.”

We agree that this aspect of Dr. Baker’s testimony is

troubling. In State v. W.B., we explained that expert testimony

concerning the statistical credibility of victim-witnesses

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“deprives the jury of its right and duty to decide the question

of credibility of the victim based on evidence relating to the

particular victim and the particular facts of the case.” 205

N.J. 588, 614 (2011). Consequently, we find Dr. Baker’s comment

regarding the percentage of children who have non-specific exams

problematic.

But this error does not mandate reversal. See ibid.

(“Convictions after a fair trial, based on strong evidence

proving guilt beyond a reasonable doubt, should not be reversed

because of a technical or evidentiary error that cannot have

truly prejudiced the defendant or affected the end result.”).

Defendant did not object or raise this issue during trial, so we

evaluate his arguments under a plain-error standard of review.

R. 2:10-2. Under this standard, a conviction will stand and

“the error will be disregarded unless a reasonable doubt has

been raised whether the jury came to a result that it otherwise

might not have reached.” State v. R.K., 220 N.J. 444, 456

(2015).

The purpose of Dr. Baker’s testimony was to explain to the

jury the physical characteristics child abuse victims may

exhibit and that the absence of physical injuries is not an

indication that abuse did not occur. Dr. Baker testified that

physical injuries generally heal quickly for girls who have

reached a certain point in their development. It is in this

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context that Dr. Baker commented about the percentage of

credible disclosures. In addition, Dr. Baker explicitly stated

that she could not reach a conclusion either way as to whether

Joan was abused.

In W.B., supra, the defendant objected to an expert’s

estimate regarding the percentage of children that lie about

sexual abuse. 205 N.J. at 612. This Court deemed the testimony

harmless, relying on the expert’s assertions that he never

evaluated the witness and the strength of the trial court’s jury

charge. Id. at 615. Here, Dr. Baker made clear that she only

physically examined Joan and that she never interviewed Joan or

“ask[ed] questions about the allegations.” The trial court also

provided an appropriate limiting instruction on the use of

expert testimony. After careful consideration, we do not

believe that Dr. Baker’s stray remark, to which defendant did

not object at trial, enabled the jury to reach “a result that it

otherwise might not have reached.” R.K., supra, 220 N.J. at

456. We therefore find this comment to be harmless error that

does not warrant a reversal of defendant’s conviction.

V.

Evidence of the strip poker game meets the Cofield test and

was therefore properly admitted at trial. The remark by Dr.

Baker is harmless error. We therefore reverse the judgment of

the Appellate Division and reinstate defendant’s convictions.

26
The matter is remanded to the Appellate Division for

consideration of the issue not addressed by that court

concerning defendant’s sentence.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s
opinion.

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