(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
interests of brevity, portions of any opinion may not have been summarized).
Argued September 14, 1999 -- Decided January 27, 2000
PER CURIAM
G.V. was convicted by a jury of the repeated sexual molestation of his young daughter (pseudonym- “Laura”)
during the five-year period between 1985 and 1990. Some of the evidence admitted at trial related to acts of sexual
molestation that G.V. had allegedly committed years before on an older sister of the victim (pseudonym - “Linda).
By the time Laura was six years old, her father, G.V. began molesting her by touching her genitalia or having
her touch his. By the time Laura was eight years old, G.V. began having sexual intercourse with her. On some
occasions, G.V. forced Laura to engage in sexual activities with her younger brother. G.V. committed these acts at
night while Laura's mother (pseudonym - “Nancy”) was at work. Laura did not tell anyone about the molestation
because G.V. had threatened to kill her, her family, and her pets if she revealed their “secret.” The sexual assaults
ended when Laura was ten years old.
By 1989, Linda had married and Nancy and G.V. had separated. In January 1992, while G.V. was visiting the
family with his girlfriend, an altercation ensued, resulting in Nancy obtaining a temporary restraining order (TRO)
against G.V. Two days later, Nancy agreed to vacate the TRO, believing that she and her husband would reconcile.
After Nancy vacated the restraining order, Laura experienced a deep depression. Laura was hospitalized and,
while attending a group therapy session, Laura revealed to another girl that she had been sexually molested by her
father. Upon this girl's advice, Laura reported the sexual abuse to a nurse. The Division of Youth and Family Services
was informed, which, in turn, notified Nancy of Laura's allegations. When Nancy questioned her older daughter, she
learned that Linda also had been sexually assaulted by her father from the age of four to eight; that when Linda was six
years old, G.V. began having sexual intercourse with her; and that the assaults occurred while Nancy was at work.
Linda was permitted to testify about these sexual assaults at G.V.'s trial.
A complaint was filed charging G.V. with the sexual abuse of Laura. G.V. was not charged with sexually
abusing Linda because the statute of limitations had expired. At trial, G.V. denied the charges. He asserted in his
defense that the charges had been fabricated because the family was angry that he had left Nancy for another woman.
At the conclusion of trial, the judge instructed the jury that the evidence regarding G.V.'s sexual assault of
Linda, the older sister, should not be considered as demonstrating that G.V. had a disposition to commit the offenses
charged, but failed, more specifically, to explain to the jury the relevance of that evidence to material issues that were
genuinely in dispute and, thus, to restrict the jury's consideration of that evidence to only those issues that were
genuinely in dispute. The jury convicted G.V. of aggravated sexual assault, sexual assault, endangering the welfare of
his child, and terroristic threats. He was sentenced to an aggregate term of fifteen years imprisonment.
In an unreported opinion, the Appellate Division reversed the convictions, finding that the older sister's
testimony was inadmissible because it constituted other-crime evidence that was not relevant to prove intent or to
disprove possible defenses of accident or mistake (the purposes for which the trial court had admitted the evidence),
and was more prejudicial than probative.
The Supreme Court granted the State's petition for certification.
HELD: The older sister's testimony was inadmissible because it constituted other-crimes evidence that was not
relevant to prove intent or to disprove possible defenses of accident or mistake, and was more prejudicial than
probative.
1. Other-crime evidence is admissible if: 1) the evidence of the other crime must be admissible as a 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. If other-crime evidence is admitted, the court must instruct the jury on the limited use of the
testimony. (pp. 5-8)
2. State v. Marrero provides guiding principles crucial to the decision in this case: 1)the other-crime evidence must be
relevant to an issue “genuinely in dispute;” 2)the other-crime evidence must be necessary for the disputed issue's
proof; and 3)the court must explain precisely to the jury the permitted and prohibited uses of the evidence. Those
controlling principles were not followed by the trial court, thus, the Appellate Division was constrained to reverse the
convictions. (pp. 8-9)
3. The principles in State v. Cusick were inapplicable to this case; neither mistake nor intent to obtain sexual
gratification was genuinely in dispute. Moreover, the prosecutor compounded the trial court's analytical errors by
misusing the testimony. The prosecutor's description of the other-crime evidence was too broad, in essence, urging the
jury to use G.V.'s character and past conduct as a basis for inferring that Laura's testimony was true. (pp. 9-12)
4. The dissent suggests that because the other-crime evidence might have been admissible for purposes other than to
establish the main charge of aggravated sexual assault by penetration. This is simply not possible; neither absence of
intent or accident or inadvertence or motive were genuinely at issue as to the main crime of sexual assault involving
penetration. (pp. 13-14)
5. Because G.V. objected to admission of the evidence, the error admitting the other-crime evidence cannot be
considered as plain error. Nor was the admission of Linda's testimony harmless error. There is nothing more
prejudicial than the erroneous admission of such testimony. Finally, even if the evidence had been admissible on the
subsidiary issues in the case, the jury charge did not guide the jury as to how to use the evidence for its limited
purposes. An erroneous jury charge will rarely stand on the ground that it was harmless error. Thus, the conviction
must be reversed and the matter remanded for a new trial. (pp. 14-17)
6. The other-crime evidence is relevant to the defense theory that Laura's story of sexual molestation was fabricated as
revenge for her father's having abandoned her mother and coming to their home with his girlfriend. On retrial, if the
defendant disclaims this “vendetta defense,” Linda's testimony would be inadmissible. If on the other hand, G.V.
renews the vendetta defense, then the trial court would have to complete the Marrero analysis, balancing the probative
worth of the evidence against its prejudicial effect. (pp. 17-20)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law Division for
further proceedings in accordance with this opinion.
JUSTICE LONG, concurring in part and dissenting in part, concurs with the Court's affirmance of the
Appellate Division's conclusion that Linda's testimony was improperly admitted at trial. She dissents from the
majority's determination that Linda's testimony may be relevant and, therefore, possibly admissible on another basis--
to refute the vendetta defense. Justice Long finds that Linda's testimony does not, in any legitimate way, address
Laura's bias or vendetta.
JUSTICE COLEMAN, concurring in part and dissenting in part, concurs with the determination in the
majority opinion that the other-crime evidence is admissible to rebut the vendetta defense; however, he finds that any
error related to the admissibility of and jury instructions concerning the other-crime evidence to be harmless and would
uphold the convictions.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN and LONG join in PARTS II and III of
the opinion; JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, and VERNIERO join in PART IV of the
opinion. JUSTICE LONG has filed a separate opinion, in which CHIEF JUSTICE PORITZ joins, concurring in
Parts II and III of the Court's opinion and dissenting from Part IV. JUSTICE COLEMAN has filed a separate
opinion, in which JUSTICES GARIBALDI and VERNIERO join, concurring in Part IV and dissenting from
Parts II and III.
SUPREME COURT OF NEW JERSEY
A-
59 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
G.V.,
Defendant-Respondent.
Argued September 14, 1999 -- Decided January 27, 2000
On certification to the Superior Court,
Appellate Division.
Teresa A. Blair, Deputy Attorney General,
argued the cause for appellant (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney).
Alan I. Smith, Designated Counsel, argued the
cause for respondent (Ivelisse Torres, Public
Defender, attorney).
PER CURIAM
A jury has convicted defendant of the repeated sexual
molestation of his young daughter during the five-year period
between 1985 and 1990. Some of the evidence admitted at trial
related to acts of sexual molestation that he had allegedly
committed on an older sister of the victim. Those offenses were
claimed to have occurred years before the offenses charged in the
indictment.
The trial court instructed the jury that the evidence should
not be considered as demonstrating that defendant had a disposition
to commit the offenses charged, but failed, more specifically, to
explain to the jury the relevance of that evidence to material
issues that were genuinely in dispute and, thus, to constrict the
jury's consideration of that evidence to such issues as were
genuinely in dispute.
The jury convicted defendant of aggravated sexual assault,
sexual assault, endangering the welfare of his child, and
terroristic threats. After merging the sexual assault conviction
into the aggravated sexual assault conviction, the court sentenced
the defendant to an aggregate term of 15 years imprisonment.
In an unreported opinion, the Appellate Division reversed the
convictions. The Appellate Division found that the older sister's
testimony was inadmissible because it constituted other-crime
evidence that was not relevant to prove intent or to disprove
possible defenses of accident or mistake (the purposes for which
the trial court had admitted the evidence), and was more
prejudicial than probative.
We granted the State's petition for certification.
157 N.J. 645 (1999).
A family friend described an occasion when visiting defendant's home. She was seated directly across from the couch where defendant and Laura were sitting. She saw Laura begin to rub defendant's shoulders. Defendant brought Laura on his lap and started “stroking” the outside of her thigh. The woman thought that was done in a “sexual way” but dismissed the thought. She and her husband never mentioned the incident to anyone.
Laura believed that what she and her father were doing was a secret. She never told anyone about it because she was afraid. Defendant had threatened her that if she told anyone, she, her family, and her pets would be killed. The conduct ended in 1990 when Laura was ten years old. About 1989, the family structure changed. Linda (the older sister) married and Laura's mother and father separated. In January of 1992, defendant was visiting at the family home when Linda and her husband, Walter, were present. There was an altercation between defendant and Walter because defendant brought his girlfriend to the house. Defendant threatened to kill Walter. Nancy called the police and later obtained a temporary restraining order against the defendant. Two days later, Nancy agreed to vacate the restraining order because she thought that they could reconcile.
After Nancy vacated the restraining order, Laura experienced deep depression. Relatives found Laura in the kitchen staring into space, unable to speak, with her body clenched. She was hospitalized for her disorder. While attending a group session at the hospital, Laura confided in another girl that she had been sexually assaulted by her father. The girl advised Laura to report the matter to one of the attendant doctors. Laura told a nurse. Hospital staff informed the Division of Youth and Family Services and Laura's mother about the sexual assaults. Laura had not been able to tell her mother because she was embarrassed and ashamed. When Nancy told her other daughter, Linda, about the sexual assaults on Laura, she asked Linda whether their father had ever sexually molested her. Linda revealed for the first time that she too had been sexually assaulted by her father. Linda said that defendant had sexually abused her from the age of four to eight. When Linda was six years old, defendant began having sexual intercourse with her. The assaults occurred at night while Nancy, was at work. A complaint was filed charging defendant with the sexual abuse of Laura. (Defendant was not charged with the attacks on Linda because the statute of limitations had expired.) At trial, defendant denied the charges, testified, and presented character witnesses. He asserted that the charges had been fabricated. He contended that the family was angry because he had left Nancy for another woman.
Linda's testimony that her father had sexually assaulted her is referred to as other-crime evidence. The principles that govern the admission of other-crime evidence were recently restated in State v. Marrero, 148 N.J. 469 (1997). At the time of Marrero's trial, the admissibility of other-crime evidence was controlled by Evidence Rule 55. Currently, the admissibility of other-crime evidence is governed by N.J.R.E. 404(b), which states:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he 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.
For convenience, we will conform the references in Marrero to the new rule.
Evidence Rule [404(b)] makes clear that other-crime evidence is only admissible if relevant to prove some other fact genuinely in issue. State v, Oliver, 133 N.J. 141, 151 (1993); State v. Stevens, 115 N.J. 289 (1989). Where the other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the “probativeness/prejudice” balancing under Evidence Rule 4, now N.J.R.E. 403.
In addition to being relevant to an
issue genuinely in dispute, the other-crime
evidence must “be necessary for [the disputed
issue's] proof.” Stevens, supra, 115 N.J. at
301. Because of its damaging nature, in
determining the probative worth of other
crime evidence, “a court should consider . .
. whether its proffered use in the case can
adequately be served by other evidence.” Id.
at 303; see also Oliver, supra, 133 N.J. at
151 (stating that “[a]n important factor in
weighing the probative value of other-crime
evidence is whether other, less-inflammatory
evidence can prove the same fact in issue”).
Once it is determined that the other
crime evidence is material to a fact
genuinely in issue and that the other-crime
evidence is necessary, “the probative value
of the proffered evidence [must] be carefully
balanced against the danger that it will
create undue prejudice against the
defendant.” Stevens, supra, 115 N.J. at 302.
Where the probative value is outweighed by
prejudice to the defendant, then it is
inadmissible. Evid. R. 4 (currently N.J.R.E.
403). Consequently, the primary focus of
Evidence Rule [404(b)], when examined in
conjunction with Evidence Rule [403], is to
view it as a rule of exclusion rather than a
rule of inclusion. State v. Cofield,
127 N.J. 328, 337-38 (1992).
After many years of decisional law
determining when other-crime evidence is
admissible, a four-part test has been
distilled. That test is designed “to avoid
the over-use of extrinsic evidence of other
crimes of wrongs.” Id. at 338. That rule is
as follows:
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. (quoting Abraham P. Ordover,
Balancing the Presumptions of Guilt and
Innocence: Rules 404(b), 608(b) and
609(a),
38 Ermory L.J. 135, 160
(1989)).]
When other-crime evidence is admitted,
“the court must instruct the jury on the
limited use of the evidence.” Cofield,
supra, 127 N.J. at 340-41; see also Stevens,
supra, 115 N.J. at 304. Because of the
inherently prejudicial nature of other-crime
evidence, the court's instruction “'should be
formulated carefully to explain precisely the
permitted and prohibited purposes of the
evidence, with sufficient reference to the
factual context of the case to enable the
jury to comprehend and appreciate the fine
distinction to which it is required to
adhere.'” Cofield, supra, 127 N.J. at 341
(quoting Stevens, supra, 115 N.J.. at 304).
[State v. Marrero, supra, 148 N.J. at 482-83,
495.]
From Marrero we distill the principles that are crucial to
the decision in this case:
* The other-crime evidence must be relevant to an issue
“genuinely in dispute.”
* The other-crime evidence must be “necessary for [the
disputed issue's] proof.”
* The court must “explain precisely” to the jury the
permitted and prohibited uses of the evidence.
Because those controlling principles were not followed by the
trial court, the Appellate Division was constrained to reverse
the conviction. Our opinion will review that judgment and seek
to correct the implication in the Appellate Division opinion that
the other-crime evidence in this case might be inadmissible for
any purpose.
Relying on State v. Cusick, 219 N.J. Super. 452 (App. Div.), certif. den., 109 N.J. 54 (1987), the trial court admitted the evidence of prior sexual abuse. In Cusick, the defendant was charged with sexually assaulting two victims. Cusick argued that he had intended only to swing and cradle one of the victims and that any sexual contact was inadvertent. The Cusick court admitted other-crime evidence to rebut the defendant's claim of mistake and to establish the defendant's intent. The Cusick court gave a limiting instruction directing the jury to consider the evidence “as it may bear on the issue of whether the alleged touching of [the victims] was accidental or it was a mistake. Likewise, it might also bear on the defendant's motive for allegedly touching the victims here. This is to obtain some sort of sexual gratification, or on the issue of his intention to touch the children, victims here.” Id. at 466.
The trial court reasoned that Cusick's principles would apply to this case. In its unreported opinion, the Appellate Division explained how in this case neither mistake nor intent to obtain sexual gratification was genuinely in dispute. The Appellate Division explained:
[T]he trial court adopted the prosecutor's view that earlier attacks on [Linda, the older sister] were relevant to intent in two respects. As summarized in [the State's] brief: the judge “reasoned that the prior sexual attacks were material because a possible defense by defendant of accident or mistake could be raised by defendant, claiming that he was merely being affectionate towards his daughter and showing her fatherly love. The judge also noted that the State was required to prove that defendant committed the acts for the purpose of sexual arousal or gratification. He thus found that the prior sexual assaults would bear on this issue as it showed defendant committed the sexual assaults on both victims when they were around the same age, between four and eight years old.”
The supposed “possible defense” was
never raised by the defendant. Moreover, to
do so in the context of this case would have
been absurd. If we were dealing with an
isolated incident, or even a few separate
occasions, of allegedly improper touching,
the “possible defense” might have been an
issue. But this case involves an horrendous
course of patent sexual depravity which
continued for years. No reasonable defense,
under these circumstances, would rely on the
theory that these atrocious acts were simply
misinterpreted expressions of fatherly
affection.
Nor can it be fairly said that if the
defendant committed the acts in question,
there was a material factual dispute with
regard to whether he was seeking sexual
gratification. As stated in State v.
Stevens,
115 N.J. 289, 301 (1989), a
“necessary corollary to the principle that
other-crime evidence can be admitted to prove
any fact in issue . . . is the requirement
that the “issue” be genuine, and that the
other-crime evidence be necessary for its
proof.” Neither of these requirements were
satisfied here.
As the prosecutor's summation plainly
demonstrates, the evidence of defendant's
sexual depravity with his first daughter was
offered for no reason other than to
demonstrate that defendant was predisposed to
engaging in sexual conduct with his daughters
in their prepubescent years. The evidence
was not admissible under N.J.R.E. 404(b),
supra. Therefore, the convictions must be
set aside and the matter remanded for a new
trial.
As the Appellate Division noted, the analytical errors were
compounded by the prosecutor's misuse of the testimony. During
summation, the prosecutor made no attempt to suggest to the jury
that the other-crime evidence should be considered only as
bearing on defendant's intent to obtain gratification or to rebut
a defense of mistaken physical contact. Instead, the prosecutor
described the other-crime events in broad terms that, in essence,
urged the jury to use defendant's character and past conduct as a
basis for inferring that Laura's testimony was true.
The Appellate Division opinion contains longer excerpts of
the prosecutor's summation. The following example will suffice
to make the point:
[Laura] said the defendant would say it was
our secret, don't tell anybody. And then as
[Linda] got older, sexual intercourse began.
Similar fact pattern with [Laura]. It is
just the way he operates. It is not two
girls getting together. That's what he was
interested in doing, having sex with younger
girls, pre-teen age girls.
[Emphasis added.]
If that is not an allusion to propensity, then we do not know
what would be.
Our dissenting members suggest that the defenses of accident
or mistake or absence of intent to seek sexual gratification were
genuinely disputed at least in respect of the charges of criminal
sexual contact (that is, sexual contact without penetration as in
the “leg-rubbing” incident). If that were the case, then the
trial court would have to have had “explain[ed] precisely” to the
jury that limited purpose. It did not do so. Moreover, we doubt
that the trial court would have found that so limited a purpose
would pass the “probativeness/prejudice” test required by
Marrero, supra, 148 N.J. at 482.
Because of the hardship that will be imposed by a retrial of
this case, we must consider whether the error may be viewed as
harmless. Our courts have on occasion found that inadequate (but
not incorrect) limiting instructions were not so prejudicial to a
defendant's fair-trial rights as to require the reversal of a
conviction. State v. G.S.,
145 N.J. 460, 476 (1996); State v.
Stevens, supra, 115 N.J. at 309; State v. Cusick, supra, 219 N.J.
Super. at 467. Our dissenting members suggest that because the
other-crime evidence might have been admissible for purposes
other than to establish the main charge of aggravated sexual
assault by penetration, we may view the case as though it were
like G.S., Stevens, or Cusick. It is simply not possible to do
so. In each of those cases the other-crime evidence was relevant
to an issue genuinely disputed in the trial of the charge that
led to conviction. In G.S., supra, the evidence of prior sexual
abuse of children in Monmouth County was relevant to establish
that the sexual contacts in Sussex County, for which he was
convicted, were not “inadvertent, accidental or unplanned.” 145
N.J. at 469. In Stevens, supra, the prior encounters by a law
enforcement officer with women exhibited a purpose to seek sexual
gratification, not to fight crime. 115 N.J. at 308. In Cusick,
supra, the prior sexual misconduct tended to prove that the
subject conduct was not an accident or mistake. 219 N.J. Super.
at 465. As the Appellate Division noted, the genuinely disputed
issues in this case were not that the intercourse with a child
was the result of a mistake because inadvertent or accidental, or
evidenced an absence of intent to seek sexual gratification.
Intellectual honesty compels the conclusion that there is no
genuine dispute that one who has sexual intercourse with an
eight-year-old daughter has made a “mistake” or is not seeking
sexual gratification. The analysis in G.S., Stevens and Cusick
simply does not apply when the evidence is admitted for the wrong
purpose. Neither absence of intent or accident or inadvertence
or motive were genuinely at issue as to the main crime of sexual
assault involving penetration.
Because defendant objected to admission of the evidence, the
error in admitting the other-crime evidence cannot be viewed
under the less demanding plain error standard of Rule 2:10-2.
Nor can the error be salvaged under the harmless error doctrine.
If the evidence could not have come in on the main charge, as it
did, the error cannot be viewed as harmless. Nothing could be
more prejudicial than the erroneous admission of such testimony.
The [harmless error] rule is essential
“to conserve judicial resources,” but it must
be applied with caution so as to assure “the
vitality of the rules and procedures designed
to assure a fair trial.”
There is enormous potential for
prejudice in the improper admission of a
defendant's prior convictions. Commentators
have suggested that such error should be
considered harmful per se. See The Riddle of
Harmless Error, where Chief Justice Traynor
wrote:
The erroneous admission of evidence of other
crimes also carries such a high risk of
prejudice as ordinarily to call for reversal.
[State v. Atkins,
151 N.J. Super. 555, 570
(App. Div. 1977), rev'd, primarily on issue
of intoxication charge and that evidence of
burglary was “undisputed,”
78 N.J. 454 (1979)
(internal citations omitted) (emphasis added
in original).]
“[T]he question whether an error is reason for reversal
depends finally upon some degree of possibility that it led to an
unjust verdict.” State v. Macon,
57 N.J. 325, 335 (1971).
“[U]pon that question the reviewing judge [is] inevitably
remitted to his [or her] own conscientious judgment.” Id. at
338. This Court has sought to prevent overuse of the “harmless
error” doctrine. In State v. Czachor,
82 N.J. 392, 404 (1980),
the Court explained that “errors which impact substantially and
directly on fundamental procedural safeguards . . . are not
amenable to harmless error rehabilitation.” As stated in State
v. Simon,
79 N.J. 191, 206 (1979): “Errors impacting directly
upon . . . sensitive areas of a criminal trial are poor
candidates for rehabilitation under the harmless error philosophy
. . . . For this reason, the rule of harmless error should be
summoned only with great caution in dealing with the breach of
fundamental procedural safeguards “designed to assure a fair
trial.” (Citations omitted). “There is widespread agreement
that other-crime evidence has a unique tendency to turn a jury
against the defendant. The likelihood of prejudice is acute when
the proffered evidence is proof of a defendant's uncharged
misconduct.” State v. Stevens, supra, 115 N.J. at 302.
Finally, even if the evidence had been admissible on the
subsidiary issues in the case, the charge in this case left the
jury wholly unguided as to how to use the evidence for such
limited purposes. An erroneous charge will rarely stand on the
ground that it was harmless error. State v. Weeks,
107 N.J. 396,
410 (1987). Although reviewing courts are ordinarily reluctant
to reverse on the ground of plain error when no objection to the
charge has been made, it has been “repeatedly emphasized that
incorrect instructions of law are poor candidates for
rehabilitation under the harmless error theory.” Ibid.
(citations omitted). These well-settled principles compel the
conclusion that defendant's conviction must be reversed and the
matter remanded for a new trial. In reversing the defendant's
conviction in Oliver, the Court distinguished the cases in which
instructional errors had been found to be harmless:
By contrast, the trial court in this
case did not explain the relationship between
the other-crime evidence and the issues and
facts on which it could be considered.
Although the court did clearly instruct the
jury that it was not to use the evidence to
determine that defendant was a bad person or
that he had been disposed to commit the
crimes charged in the indictment, it did not
clearly instruct the jury on how it could use
the other-crime evidence. Precisely that
situation prompted this Court to find
reversible error in Cofield.
Although, then, we agree with the Appellate Division that the other-crime evidence was irrelevant to the aggravated sexual assault charge and inadmissible on that count, the evidence does have relevance to one of the defenses raised by the defendant at trial. It was a theory of the defense that Laura's story of sexual molestation was fabricated by Laura as revenge for her father's having abandoned her mother and her anger over his having come to the home with a new girlfriend. 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. In determining whether evidence is relevant, the inquiry should focus on the “logical connection between the proffered evidence and a fact in issue.” State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990), and “whether the [evidence offered] 'renders the desired inference more probable than it would be without the evidence.'” State v. Davis, 96 N.J. 611, 619 (1984) (quoting State v. Deatore, 70 N.J. 100 (1976)).
If the evidence offered makes the inference to be drawn more probable, then the evidence should be admitted unless otherwise excludable by a rule of law. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 401 (1998-1999). The fact in issue is bias on the part of Laura. Does Linda's testimony make it more probable that Laura's testimony was not the product of bias? In some sense Linda's testimony is similar to that which was offered in Stevens, supra, 115 N.J. at 295-97. Recall that in Stevens a police officer was charged with official misconduct involving strip searches of arrested women that were motivated by the officer's desire for sexual gratification. The State presented evidence of previous incidents in which the officer induced other female arrestees to undress or provide sexual favors. If the testimony of the other women in Stevens had a tendency in reason to make more probable the inference that the strip searches had a purpose other than law enforcement, the testimony of another daughter in this case would appear to make it more probable that bias was not the motivation for Laura's testimony. Put another way, is it logical to conclude that two daughters would be less likely to trump up testimony than one? See also State v. G.S., supra, 145 N.J. at 475 (holding that evidence of uncharged prior sexual assaults on the same victim were admissible as bearing on the credibility of the victim).
The difficulty in using the other-crime evidence to assess bias on the part of the child-victim in this case is that bias of the witness because of a vendetta against the father is not, in the first instance, a material issue that is genuinely in dispute. It is only when defendant puts the bias of the witness (on account of a vendetta) into issue that the evidence would be admissible. If, at the hearing prior to trial under Evidence Rule 104, defendant disclaims the use of the vendetta defense, the State would have no basis for admitting the evidence. On the other hand, if the defendant renews the vendetta defense, it appears to us that the testimony of the older sister is relevant to show that the testimony of Laura is not the product of bias. Of course, the trial court would have to complete the Marrero analysis, balancing the probative worth of the evidence against its prejudicial effect. (Not all members concurring in Part IV would require the probative-prejudice analysis, Coleman, J., concurring, post at ___ (slip op., at 23), but we believe that the trial court should do the complete analysis in light of the revised purpose for which the evidence is to be offered.) The State also suggests that the other-crime evidence might be relevant to establish the disputed fact of access or the opportunity to have been alone with the child. See State v. Oliver, supra, 133 N.J. 141 (discussing relevance of prior sexual attacks on women in an upstairs apartment when defense of feasibility was asserted). The issue of feasibility, however, was not “genuinely in dispute,” Marrero, supra, 148 N.J. at 482, and, unless it is genuinely disputed on retrial, cannot provide a basis for admission of the other-crime evidence.
The judgment of the Appellate Division is affirmed. The matter is remanded to the Law Division for further proceedings in accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN and LONG join in PARTS II and III of the opinion; JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, and VERNIERO join in PART IV of the opinion. JUSTICE LONG has filed a separate opinion, in which CHIEF JUSTICE PORITZ joins, concurring in Parts II and III of the Court's opinion and dissenting from Part IV. JUSTICE COLEMAN has filed a separate opinion, in which JUSTICES GARIBALDI and VERNIERO join, concurring in Part IV and dissenting from Parts II and III.
SUPREME COURT OF NEW JERSEY
A- 59 September Term 1998
STATE OF NEW JERSEY
Plaintiff-Appellant,
v.
G.V.
Defendant-Respondent.
LONG, J., concurring in part and dissenting in part.
The Appellate Division concluded that Linda's testimony was
improperly admitted at defendant's trial and that a retrial is in
order. To the extent that the majority affirms that conclusion,
I concur.
Where I part company from my colleagues is in connection
with their separate determination that Linda's testimony may be
relevant, and therefore possibly admissible on another basis - to
refute the so-called “vendetta defense.” More particularly, the
majority reasons that Linda's testimony may be admissible because
it makes it “more probable” that Laura's testimony was not the
product of bias. I respectfully disagree.
Linda's testimony does not, in any legitimate way, address
Laura's bias or vendetta. The kind of evidence that would be
relevant on those issues would be testimony, for example, from
Linda, or some other person, that Laura expressed no animosity
against defendant, indicated her love for him or accepted her
parents' break up with equanimity. Linda's testimony could not
be further from that point.
Indeed, the only logical link between Linda's testimony and
Laura's possible bias is defendant's propensity to commit sex
crimes. The only way that Linda's testimony can be related to
Laura's bias is if a jury reaches the conclusion that because
defendant committed sexual acts against Linda, it is more likely
that he committed them against Laura and thus, it is more likely
that Laura is being truthful and unbiased when she reports them.
This is exactly what N.J.R.E. 404(b) was meant to prohibit.
Linda's testimony does not make it more likely that Laura is not
biased. It simply does not follow that two daughters, angry at
their father's treatment of their mother, would be less likely
than one to trump up a story. What is more likely is that the
jury will conclude that because defendant had sexual contact with
Linda he must have done so again with Laura.
The Federal Rules have recently cast off 200 years of
evidentiary practice in cases like this by allowing the use, for
any relevant purpose, of sexual assault or child molestation
evidence not charged in the indictment or information. Fed. R.
Evid. 413, 414, 415. See Jeffrey G. Pickett, The Presumption of
Innocence Imperilled: The New Federal Rules of Evidence 413-415
and the Use of Other Sexual Evidence in Washington,
70 Wash. L.
Rev. 883 (1995). Based on their prior opinions as to the
importance of N.J.R.E. 404(b), I do not believe that my
colleagues in the majority would subscribe to such a scheme.
It is therefore hard for me to understand why they are willing to
allow this most meager pretext to justify admission of what is
clear propensity evidence, when by doing so they are effectively
dismantling the Rule.
Chief Justice Poritz joins in this opinion.
SUPREME COURT OF NEW JERSEY
A-
59 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
G.V.,
Defendant-Respondent.
COLEMAN, J., dissenting from the judgment of the Court reversing
the convictions and concurring with Justice O'Hern's and
Justice Stein's view that the other-crime evidence is
admissible to rebut the vendetta defense.
The majority has concluded that defendant's convictions for
aggravated sexual assault, sexual assault, endangering the
welfare of a child, and terroristic threats must be reversed.
The basis for the reversal is the Court's conclusion that other
crime evidence presented by the victim's sister was too
prejudicial. Justices O'Hern and Stein nonetheless conclude that
the same evidence, relevant to rebut the vendetta defense in the
prior trial, may be reintroduced at a new trial if that defense
is asserted again. Because I find any error related to the
admissibility and jury instructions regarding that evidence to be
harmless, I would uphold the convictions. Hence, I dissent.
L.V., the victim, was born in 1979 and lived in the same house with her mother, N.V., and her father, the defendant. L.V.'s older sister, L.J.V., who was born in 1971, and their two younger brothers also lived in the same house with their parents. In 1985, when L.V. was six years old, defendant began frequently fondling her breasts and vagina. From time to time, defendant had L.V. touch defendant's penis. When L.V. was eight years old, defendant began having sexual intercourse with her. On some occasions, defendant forced L.V. to engage in sexual relations with one of her brothers, who is four years younger than L.V. Defendant usually assaulted his daughter at night while N.V. was at work. Defendant threatened L.V. that if she told anyone, he would kill her, her family, and her cats. Defendant ended the incest in 1990 when L.V. was ten years old.
In 1988 or 1989, Marilyn Peterson (Peterson) and her husband visited defendant and his family. Peterson testified that, while the Petersons, defendant, and L.V. were in the living room, she noticed L.V. rubbing defendant's shoulder. Defendant then placed L.V. on his lap and started “stroking” the outside of her thigh in what appeared to be a “sexual way.”
In January 1992, N.V. obtained a temporary restraining order (TRO) against defendant for reasons unrelated to the alleged sexual misconduct. When L.V. learned that her mother had applied to have the TRO dismissed, L.V. became extremely upset. Her mother found L.V. staring into space, unable to speak, with her body “clenched.” Shortly thereafter, L.V. was admitted for nine weeks to Riverview and Fair Oaks Hospitals, where she was treated for anorexia and bulimia. While hospitalized at Fair Oaks, another girl confided in L.V. that she had been raped. Later that evening, L.V. told the girl about defendant's sexual attacks upon her. At the girl's advice, L.V. informed a nurse that her father had sexually assaulted her. On or about February 14, 1992, the Division of Youth and Family Services (DYFS) was notified; it informed N.V. Defendant was arrested on February 20, 1992. When N.V. asked L.J.V. whether she also had been sexually assaulted by defendant, L.J.V. responded affirmatively.
Before L.J.V. testified, the trial court conducted a hearing pursuant to N.J.R.E. 104(a) to determine the admissibility of other crimes or uncharged misconduct evidence to be presented by L.J.V. The trial court concluded that L.J.V.'s testimony was admissible on the issues of intent and the absence of accident or mistake. The trial court concluded that although the sexual misconduct against L.J.V. occurred when she was very young and six years prior to the alleged acts against L.V., the behavior was similar to that which defendant was alleged to have done to L.V. The trial court found the proffered testimony by L.J.V. more probative than prejudicial.
L.J.V. was twenty-five years old when she testified at trial in April 1996. She testified that defendant sexually abused her from the age of four to the age of eight, which was between 1975 and 1979. When she was six years old, defendant began having sexual intercourse with her daily. The assaults occurred at night while N.V. was at work or otherwise out of the house. Defendant told L.J.V. not to tell and warned her that if she did, he would hurt N.V.
Defendant testified and denied the charges, asserting that they had been fabricated. He testified that he “got in a scuffle about my girlfriend” with L.J.V. and N.V. on January 14, 1992, and a TRO was obtained as a result. He claimed that L.V. made up the charges against him because she was jealous and hurt that he had left the family for a girlfriend. He stated that the incident witnessed by Peterson was simply an attempt by him to apply rubbing alcohol to a scratch on L.V.'s leg. Finally, defendant testified that N.V. was at home and not working during the time when L.V. alleged that he sexually assaulted her. As noted previously, the jury convicted defendant on all charges.
The Appellate Division, however, found that the other-crime evidence was more prejudicial than probative, that insufficient grounds existed for the trial court to hold otherwise, and that the trial court had erred in relying on State v. Oliver, 133 N.J. 141 (1993), to admit the other-crime evidence. The Appellate Division concluded that the other-crime evidence was not admissible to show the absence of accident or mistake because defendant did not “claim[] that he was merely being affectionate towards his daughter and showing her fatherly love.” The panel also found that the other-crime evidence was not admissible to show intent because there was no “material factual dispute with regard to whether [defendant] was seeking sexual gratification.” The panel determined that the prosecution offered L.J.V.'s testimony “for no reason other than to demonstrate that defendant was predisposed to engaging in sexual conduct with his daughters in their prepubescent years.”
The Court granted the State's petition for certification. 157 N.J. 645 (1999).
The State argues that the trial court applied the correct standard when it decided to admit the other-crime evidence and that the Appellate Division exceeded the proper scope of appellate review of the trial court's determination. The State also argues that the Appellate Division unfairly imposed on it “the burden to accurately anticipate a defendant's defense before use of other crimes evidence under N.J.R.E. 404(b) may be permitted.” Finally, the State contends that even if the other crime evidence was inadmissible, that error was harmless given the quantity and quality of the other evidence establishing defendant's guilt.
First, I focus on the charges for which defendant was on trial to determine what evidence was relevant to establish the elements of the offenses. Generally, relevant evidence “means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Here, circumstantial evidence was presented by L.J.V. to prove the absence of accident or mistake and to infer that the alleged touchings of L.V.'s intimate parts were for defendant's gratification. Circumstantial evidence, if relevant, will be admissible. Circumstantial evidence, however, may be “'so unrevealing as to be irrelevant.'” State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985) (citation omitted).
Defendant was tried for first-degree aggravated sexual assault upon L.V., occurring on various dates between January 12, 1985 and January 12, 1990, by having vaginal intercourse with her while she was less than thirteen years old. “An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person [and] . . . [t]he victim is less than 13 years old.” N.J.S.A. 2C:14-2a(1). The mental culpability for this offense requires the actor to act knowingly. N.J.S.A. 2C:2-2c(3); State v. Zeidell, 154 N.J. 417, 428 (1998), see also State v. Rovito, 99 N.J. 581, 586 (1985). A person acts knowingly if he or she is aware of the nature of his or her conduct. N.J.S.A. 2C:2-2b(2). Defendant never asserted that the alleged vaginal intercourse with L.V. was either accidental or mistaken. Rather, he contended that he did not engage in the conduct.
Defendant also was tried for committing sexual assault upon L.V. on various dates between January 12, 1985 and January 12, 1990 while the victim was less than thirteen years old. “An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.” N.J.S.A. 2C:14 2b. Here, “'[s]exual contact' means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S.A. 2C:14-1d. “'Intimate parts' means . . . sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.” N.J.S.A. 2C:14-1e. To prove sexual assault, the State was obligated to demonstrate that L.V. was less than thirteen years old and that defendant touched her with the purpose or intent to degrade or humiliate L.V. or to sexually arouse or gratify himself.
Defendant was also charged with endangering the welfare of L.V. by engaging in the same sexual misconduct with her that formed the basis of the other counts. The other-crime evidence was not offered to sustain the charges of endangerment or terroristic threats. Consequently, I will restrict my analysis to whether other-crime evidence should have been introduced to establish a relevant disputed fact under the charges of aggravated sexual assault and sexual assault.
At the time of defendant's trial in April 1996, the admissibility of other-crime evidence was governed by N.J.R.E. 404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he 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.
[N.J.R.E. 404(b)].
That rule makes it clear that other-crime evidence is admissible
only if relevant to prove some other disputed fact genuinely at
issue in the case. See generally State v. Marrero,
148 N.J. 469,
482 (1997); State v. Oliver,
133 N.J. 151, 141 (1993); State v.
Stevens,
115 N.J. 289, 300 (1989). “Where the other-crime
evidence tends to make the existence of a material fact
reasonably likely, [the other-crime evidence] is admissible
subject to the 'probativeness/prejudice' balancing under . . .
N.J.R.E. 403.” Marrero, supra, 148 N.J. at 482. In other words,
relevant evidence may be excluded pursuant to N.J.R.E. 403, which
provides:
Except as otherwise provided by these rules
or other law, relevant evidence may be
excluded if its probative value is
substantially outweighed by the risk of (a)
undue prejudice, confusion of issues, or
misleading the jury or (b) undue delay, waste
of time, or needless presentation of
cumulative evidence.
[N.J.R.E. 403].
Over the years, a four-part test has evolved for making the
determinations required by N.J.R.E. 403(a) and 404(b). The test
is as follows:
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.
(internal citations omitted)].
Relevancy is the hallmark of admissibility of evidence. In
determining whether evidence is relevant, the inquiry should
focus on “the logical connection between the proffered evidence
and a fact in issue.” State v. Hutchins,
241 N.J. Super. 353,
358 (App. Div. 1990). “If the evidence offered makes the
inference to be drawn more logical, then the evidence should be
admitted unless otherwise excludable by a rule of law.” State v.
Covell,
157 N.J. 554, 565 (1999). Relevant evidence can be both
direct and circumstantial. Here, L.J.V. offered only
circumstantial evidence. Consequently, “[r]elevance is the
screen which permits the admission of evidence of similar
identifiably associated conduct while screening out evidence of
misconduct which has no relationship with the conduct on trial.”
State v. Gookins,
263 N.J. Super. 58, 63 (App. Div. 1993), rev'd
on other grounds,
135 N.J. 42 (1994).
Under the first part of the Cofield test, I disagree with the trial court that L.J.V.'s testimony was relevant to whether defendant had vaginal intercourse with L.V., or what his motive or intention was, given that the child was between eight and ten years old. Indeed, the proffered defense to the charge of aggravated sexual assault was a general denial and not that he accidentally or mistakenly raped his daughter. Furthermore, the first-degree aggravated sexual assault based upon defendant having sexual intercourse with his eight to ten year old daughter did not require the State to prove sexual gratification. N.J.S.A. 2C:14-2a. Yet, the jury was instructed that it could consider L.J.V.'s testimony as bearing “on defendant's motive for allegedly touching or performing sexual intercourse upon [L.V.], that is, to obtain some sort of sexual gratification. Or on the issue of his intention to touch her or to have intercourse with her.” Thus, the first prong of the Cofield test, requiring the other-crime evidence to be relevant, was not satisfied regarding the aggravated sexual assault. None of L.J.V.'s testimony was relevant to establish an element of that charge. However, as will be discussed later, L.J.V.'s testimony was relevant to the vendetta defense raised as part of defendant's general denial to all of the charges.
Defendant also presented a general denial defense to the charge of sexual assault. The one possible exception was the single incident in 1988 or 1989 in which Peterson testified that she saw defendant stroking L.V.'s outer thigh in a “sexual way.” Defendant's justification for that touching was that he was using rubbing alcohol to tend to a scratch of L.V.'s thigh. Although the defense to that event was neither accident nor mistake, but that the touching was for medicinal purposes, L.J.V.'s testimony was not relevant to any material issue related to the Peterson episode because that touching did not involve an intimate part of the body. N.J.S.A. 2C:14-1e. Because the Peterson episode did not involve an intimate part, defendant's intent or motive for that touching was not relevant.
Nonetheless, L.J.V.'s testimony was relevant to the other episodes of alleged sexual assault because one of the statutory elements of that offense required the State to prove the touching of L.V.'s intimate parts was for the purpose of degrading or humiliating the victim or for defendant's sexual arousal or sexual gratification. N.J.S.A. 2C:14-1d. Despite defendant's denial that he touched L.V.'s intimate parts, the State was required to prove both their occurrence and the unlawfulness of the touchings. Stevens, supra, 115 N.J. at 307. The jury was instructed that L.J.V.'s testimony could be used to draw an inference that the touching of L.V.'s intimate parts was unlawful as required by N.J.S.A. 2C:14-1d.
The second prong of the Cofield test, requiring the other crime evidence be similar in kind and reasonably close in time to the indicted offense of sexual assault, is satisfied. The incidents involving the two children are similar. L.J.V. testified that her father sexually assaulted her between the ages of four and ten and that he had sexual intercourse with her daily after she became six. The incidents with L.V. are alleged to have occurred at about the same age. I am also satisfied that the temporal requirement is met. The incidents with L.J.V. were about six years before the alleged sexual misconduct started with L.V. See State v. Hasher, 246 N.J. Super. 495, 498-99 (Law Div. 1991) (finding six year difference between incidents not too remote). The temporal requirement is intended to enhance credibility. However, the nature of the crime is as important as the passage of time in evaluating credibility. State v. Sand, 76 N.J. 127, 144-45 (1978); see also Covell, supra, 157 N.J. at 569. The second prong of the Cofield test, will of necessity, make the other-crime evidence similar to proof of propensity. Hence, the Court has recognized that because of this admissibility requirement, other-crime evidence is almost always prejudicial. State v. G.S., 145 N.J. 460, 486 (1996).
Part three of the Cofield test requires that the other-crime evidence be clear and convincing. This factor requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong. Burbridge v. Paschal, 239 N.J.