(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 January 3, 1996 -- Decided July 24, 1996
HANDLER, J., writing for a unanimous Court.
In this case, G.S. was indicted in Sussex County for repeated acts of sexual molestation of his
stepdaughter, L.K., over a three-year period ending in 1987. Some of the evidence admitted at trial related
to acts of sexual molestation that allegedly occurred in Monmouth County over a period of time before the
offenses charged in the Sussex County indictment allegedly happened. In 1979, charges against G.S. of
endangering the welfare of a child were dismissed when G.S. was accepted into the Monmouth County
Pretrial Intervention Program (the Monmouth County evidence).
The trial court permitted the State to admit the Monmouth County evidence, under N.J.R.E. 404(b)
to: 1) illustrate that G.S. intended to engage in sexual contact with his stepdaughter for the purpose of his
own sexual gratification, an element of the charged offense; and 2) explain why L.K. did not confide in her
mother about the sexual abuse occurring in Sussex County.
The trial court instructed the jury that such other-crime evidence may not be considered as
demonstrating that G.S. had a predisposition to commit the offenses charged, but failed more specifically to
explain to the jury the relevance of that evidence to any issue in dispute and, further, to so restrict its
consideration of that evidence.
The jury convicted G.S. of the offenses charged. On appeal, a majority of the Appellate Division
reversed the convictions, finding that the trial court's instructions were insufficient because they failed
explicitly to state that the evidence was admitted to: 1) demonstrate why L.K. never informed her mother of
the Sussex County sexual abuse; and 2) establish G.S.'s intent. According to the majority, the failure to give
more specific instructions enabled the jury to use the other-crimes evidence as proof of G.S.'s culpability for
the Sussex County offense. One member of the panel dissented.
The State appeals as of right based on the dissent in the Appellate Division. The sole issue on
appeal is whether the failure of the trial court to give a limiting instruction restricting the use of other-crime
evidence constituted reversible error.
HELD: The trial court's instructions failed to indicate the specific purposes for which the other-crime
evidence could be considered. Nonetheless, an examination of all of the testimony and evidence,
defense counsel's use of the other-crime evidence, and the trial court's cautionary instruction
indicates that the jury was not misled into using the other-crime evidence as demonstrating G.S.'s
criminal propensity. As such, the trial court's instructions did not result in reversible error.
1. Evidence of other crimes is both probative and prejudicial. Other-crime evidence has a tendency to
demonstrate a criminal predisposition; therefore, it is prejudicial because it poses a distinct risk that it will
distract a jury from an independent consideration of the evidence that bears directly on guilt itself. Because
of the propensity for prejudice, the standards governing the admission of other-crime evidence seeks to
assure that its probative worth is more than marginal and is not outweighed by its prejudicial effect. The
admissibility and use of other-crime evidence is determined through the application of the New Jersey Rules
of Evidence to assure that such evidence functions properly and fairly to guide the jury in its determination
of criminal guilt. (pp. 10-11)
2. The Monmouth County evidence of sexual abuse was admissible as other-crime evidence under N.J.R.E.
404(b). When a trial court admits such evidence, the court must specifically instruct the jury about the
limited relevance of that evidence. The court must not only caution against a consideration of that evidence
for improper purposes, it must, through specific instruction, direct and focus the jury's attention on the
permissible purposes for which the evidence is to be considered. Here, the trial court, in all three sets of
instructions, failed to indicate the specific purposes for which the other crime evidence could be considered.
(pp. 11-16)
3. Whether the failure to issue a limiting instruction resulted in prejudice to G.S. is addressed under the
plain error rule, since G.S. did not object to the trial court's instruction on the grounds of lack of specificity.
Plain error is reversible if it is clearly capable of producing an unjust result. The Appellate Division failed to
engage in a sufficiently fact-oriented inquiry to sustain the conclusion that the error was harmless. An
examination of the record of the jury instructions reveals that the trial court's lack of specificity about the use
of other-crime evidence did not create the real possibility that the jury reached the wrong result or
significantly added to the likelihood that G.S. would be found guilty, thereby constituting an unjust result. In
addition, there was strong evidence outside the other-crime evidence demonstrating G.S.'s guilt. In the
context of the entire trial record, it does not appear that the failure of the trial court to adequately instruct
the jury regarding the proper use of other-crime evidence was clearly capable of producing an unjust result.
(pp. 16-21)
Judgment of the Appellate Division is REVERSED.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE
HANDLER's opinion, CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
G.S.,
Defendant-Respondent.
Argued January 3, 1996 -- Decided July 24, 1996
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 278
N.J. Super. 151 (1994).
Nancy A. Hulett, Deputy Attorney General,
argued the cause for appellant (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
Helen E. Szabo, Designated Counsel, argued
the cause for respondent (Susan L. Reisner,
Public Defender, attorney).
The opinion is the Court was delivered by
HANDLER, J.
In this case, the defendant was indicted and convicted for repeated acts of sexual molestation of his stepdaughter over a three-year period. Some of the evidence admitted at trial related to acts of sexual molestation that allegedly occurred
over a period of time before the offenses charged in the
indictment allegedly happened.
The trial court instructed the jury that such evidence may
not be considered as demonstrating that defendant had a
predisposition to commit the offenses charged, but failed more
specifically to explain to the jury the relevance of that
evidence to any issue in dispute and, further, to so restrict its
consideration of that evidence.
The jury convicted defendant of the offenses charged. In a
reported decision, the Appellate Division reversed the
convictions.
278 N.J. Super. 151 (1994). Because of a dissent,
the matter was appealed to this Court as of right. R. 2:2-1(a).
Based on the dissent, the sole question to be determined is
whether the failure of the trial court to give a limiting
instruction restricting the use of such other-crime evidence
constituted reversible error.
In 1979, when L.K. was eight years old, her mother married defendant G.S. The family resided in Monmouth County. 278 N.J. Super. at 159. In 1982, at age eleven, L.K. attended a school assembly in which an instructor discussed "good touching and bad touching." Id. at 159-60. A few weeks later, L.K. received a poor school grade and was told by her mother that she would be punished with a spanking from defendant. L.K. informed her mother that she did not want defendant to spank her because she
believed that he would spank her bare bottom in order to view her
genitalia. L.K. further informed her mother that defendant had
inappropriately touched her. Ibid. Also, L.K. told her mother
that defendant would fondle L.K.'s genitalia while bathing her,
and had ordered L.K. to lie naked on his bed so that he could
stare at her naked body. Id. at 160.
The Division of Youth and Family Services ("DYFS") became
involved with the family, and L.K. was placed first in her Aunt
Dee's home and then in foster care. Ibid. While L.K. was in
foster care, defendant was charged with endangering the welfare
of a child. Ibid. Those charges were dismissed when defendant
was accepted into the Monmouth County Pretrial Intervention
Program. Because her mother did not believe or support her, L.K.
eventually recanted her accusations against defendant. Ibid. In
1983, L.K. returned to the home of her mother and defendant in
Monmouth County. Ibid.
In November of 1983, L.K. and her family moved to Sussex
County. Ibid. Approximately six months later, defendant
allegedly resumed molesting L.K. and by 1987 was allegedly
engaging in sexual relations with L.K. three times each week.
Ibid. L.K.'s mother was frequently not home because she worked
at night and regularly attended Bible classes. Id. at 170. L.K.
testified that these sexual encounters were virtually never
interrupted because defendant always brought L.K. into
defendant's bathroom, defendant's bedroom, or L.K.'s bedroom, and
always locked the door.
L.K. testified about sexual activity with defendant that
began with genital fondling but escalated extensively over time.
Id. at 159. Also, L.K. alleged that when she was fourteen years
old, defendant required her to disrobe and exhibit herself to her
ten-year old brother, and allow him to fondle her as sex
education. Ibid.
L.K. testified that she remained silent about the Sussex
County abuse as it occurred because defendant told her that if
she informed anyone, the government would put her and her
siblings in foster care. L.K. stated that because she believed
defendant's threats, she remained silent for several years about
the abuse.
On one occasion, however, L.K. briefly disclosed to her
close girlfriend, A.C., that defendant was sexually abusing her,
but implored A.C. to refrain from telling anyone. A.C. told her
guidance counselor, Mary Kronick, by saying it was someone at the
school L.K. attended. Mary Kronick contacted a guidance
counselor at L.K.'s school who, knowing of L.K.'s prior
accusations, asked L.K. if she was having problems at home. L.K.
vehemently denied any problems.
On February 4, 1987, L.K. informed her boyfriend that she
thought she was pregnant. Ibid. The boyfriend successfully
persuaded L.K. to disclose who had impregnated her, ibid., and
then told his mother. The boyfriend's mother contacted DYFS
authorities; L.K. told the DYFS authorities about much of the
alleged abuse, and defendant was arrested. Ibid. A few days
later a gynecological examination revealed that her pregnancy
symptoms were caused by a cyst on her ovary.
At trial, the State's primary witness was L.K. who recounted
the details of defendant's alleged abuse. The State's other
witnesses included L.K.'s former girlfriend A.C. and L.K.'s
former boyfriend, both of whom testified that L.K. had confided
in them about her stepfather's abuse. A.C. further testified
that she never heard anyone in her family or community say "bad
things" about L.K. Mary Kronick, A.C.'s guidance counselor,
corroborated the testimony of L.K. and A.C., stating that A.C.
had come to her seeking advice about an unidentified friend who
was being sexually abused by her stepfather. The State also
submitted various documents from DYFS containing L.K.'s
allegations. The testimony of these witnesses and the
documentation were consistent with L.K.'s trial testimony.
L.K.'s mother did not testify because she died before trial.
The crux of the defense's strategy was portraying L.K. as a
liar. Id. at 167. Defendant did not testify. The defense
relied on extensive cross-examination of L.K. concerning the
exact dates and details of the various alleged sexual activities
between L.K. and defendant, and L.K.'s failure to record the
abuse in her diary, which defendant produced at trial. The
defense sought to demonstrate that L.K.'s accusations were
fabricated and motivated by her bias against her stepfather.
Ibid. Defendant attempted to establish that L.K. disliked him
because defendant's strict discipline of her interfered with her
relationship with her boyfriend. Id. at 167-68.
The defense also elicited on cross-examination of L.K.'s
former boyfriend that L.K. had a reputation within her church
youth group for lying. The defense also called Aunt Dee, the
sister of L.K.'s mother with whom L.K. temporarily resided
following her removal from the Monmouth County home, who
testified that as a child L.K. frequently told "tall stories" to
gain attention. Finally, the defense called private investigator
Richard Childs, who testified that he interviewed A.C. and that
she indicated that L.K. had a reputation for lying.
Additionally, defendant's mother testified that, though she
frequently visited L.K.'s home during the years in which the
alleged abuse was occurring, L.K. never informed her of the
abuse.
In rebuttal, the State called Richard Devine, a nursing home
administrator who supervised L.K. when she volunteered at the
home around the time of the alleged abuse, and L.K.'s former
music teacher. They testified about L.K.'s exceptional honesty
and character.
The issue on appeal arose in the following manner. In his
opening statement, defense counsel depicted L.K. as being
untruthful. Counsel suggested that L.K.'s former accusations in
Monmouth County, which L.K. later recanted, illustrated L.K.'s
tendency to lie. At trial, the State sought to present evidence
of the sexual activity in Monmouth County, L.K.'s accusations and
following recantation, and defendant's admission into the
Monmouth County Pretrial Intervention Program. 278 N.J. Super.
at 160. The trial court permitted the State to admit the
Monmouth County evidence, under N.J.R.E. 404(b) (formerly Evid.
R. 55), to: (1) illustrate that defendant intended to engage in
sexual contact with L.K. for the purpose of his own sexual
gratification, an element of the charged offense, N.J.S.A. 2C:24-4a; and (2) explain why L.K. did not confide in her mother about
the abuse occurring in Sussex County. 278 N.J. Super. at 160.
On direct examination, L.K. began to testify about the
Monmouth County incident. The court, however, interrupted L.K.'s
testimony and gave the following instruction:
Members of the jury, under our Rules of
Evidence in the State of New Jersey, where
evidence is presented that an individual
committed a -- crime or a civil wrong on a
specified occasion, it is inadmissible to
prove an individual's disposition to commit a
crime or civil wrong as the basis for an
inference that the individual committed a
crime or civil wrong on another specified
occasion.
However, such evidence is admissible to
prove another fact in issue. And, another
fact in issue includes a motive, an intent, a
plan, a knowledge, entity, [sic] or absence
of mistake or accident. And so this
evidence, which the State seeks to elicit
from [L.K.], the Court permits you to hear
this evidence with regard to these Monmouth
County -- this Monmouth County matter on that
basis. On the basis of the -- going to
issues of notice, intent, plan, knowledge,
entity [sic] or absence or mistake or
accident. But not to draw any inference that
because a crime or civil wrong may have been
committed on one occasion, as the basis for
inference to commit a crime or civil wrong on
another occasion.
Following that instruction, defense counsel objected to the
jury being told that the Monmouth County evidence was admissible
to prove motive, intent, and plan. Defense argued that defendant
was entitled to be "cloaked with confidentiality" because he
successfully completed a pretrial intervention program. The
trial court agreed to conduct an evidentiary hearing. At the
hearing, the trial court indicated that it would instruct the
jury that L.K.'s accusations in Monmouth County were mere
allegations, and that defendant was never convicted. Resuming
the trial, the court gave the jury the following instruction:
If you recall the other afternoon, one of
the last questions [the prosecutor] was
asking [L.K.] was about whatever
conversations she had with her mother. I
wish to go over that with you at this time
before [the prosecutor] continues to question
his client. And to give you some instruction
with regard to this potential testimony by
the witness.
As I indicated to you the other day, under
our Rules of Evidence, in the State of New
Jersey, the rule indicates that there is
evidence that a person committed a crime or a
civil wrong on specified occasion, that is
inadmissible to prove that a person has a
disposition to commit a crime or civil wrong
as a basis for drawing an inference the
person committed a crime or civil wrong on
another specified occasion. But, the rule
does permit such evidence to be admitted to
prove some other fact that may be in issue.
Fact -- a fact that would involve, for
instance, questions of motive, intent, plan,
knowledge, identity, or absence of mistake or
accident. Those types of issues.
Now, if there is evidence by this witness in which the witness makes allegations of conduct that may be criminal, then what I want you to understand is that the testimony by the witness is making -- is testimony that
is making allegations. There is no proof
before you. And, indeed, there is, and I can
represent to you as a matter of fact, that
the defendant has never been proven guilty;
nor, has he ever entered a plea of guilty
with regard to any such allegations that may
be made by this witness with regard to any
conduct that occurred while the family was
residing in Monmouth County.
But you are the fact finders, as I
previously instructed you. And you have the
right to judge, to assess rather, the
credibility of each and every witness who
appears during this trial to determine
believability. And, you should understand
then how you are to view this type of
evidence that may be presented at this time.
Not to indicate a disposition on the part of
the defendant to commit a crime on another
specified occasion, but to go to such issues
of motive, intent, plan, knowledge, entity
[sic], absence of mistake or accident. And,
to remember that this testimony may center
around allegations that this witness is
making with regard to the defendant. And,
you have the ultimate responsibility to make
ultimate judgments here.
L.K. completed her direct testimony about the Monmouth
County incident. At defense counsel's request, a side-bar
conference was held, after which the court instructed the jury
that defendant was never indicted and never stood trial for
L.K.'s allegations. At the trial's conclusion, the court
additionally instructed the jury:
There was testimony presented to you, I
believe, by [L.K.], during the course of her
testimony, with regard to allegations that
she had made against [defendant] when the
family was residing in Monmouth County. The
evidence that she presented through her
testimony, let me go over the instruction
again with regard to your treatment of that
evidence.
First of all, let me indicate to you that
evidence or allegations by a witness that a
defendant committed -- or allegations of
criminal wrongdoing by another person is
inadmissible to prove a disposition of an
individual to commit a crime as the basis for
an inference that individual committed a
crime on another specified occasion.
However, such allegations can be admitted to
prove some other fact in issue; such as,
motive, intent, plan, knowledge, entity
[sic], or absence of mistake or accident, on
the part of the person who it's alleged
engaged in this activity.
So, with regard to this Monmouth County
situation, let me -- and the testimony that
was presented there, that is how you should
treat this particular evidence. You also, of
course, again, have the obligation to assess
the credibility of [L.K.] in presenting this
evidence concerning these allegations when
the family resided in Monmouth County.
Neither the State nor the defense requested more specific
jury instructions. During summation, defense counsel again used
the Monmouth County evidence as a method of attacking L.K.'s
credibility. Counsel suggested that L.K. made the Monmouth
County accusations in an attempt to avoid being spanked by
defendant after receiving a poor school grade.
There is an unavoidable tension inherent in other-crime evidence. The evidence of other crimes invariably is both probative and prejudicial. State v. Stevens, 115 N.J. 289, 300 (1989). The prejudice of other-crime evidence is its tendency to demonstrate a criminal predisposition; therefore, it poses a distinct risk that it will distract a jury from an independent
consideration of the evidence that bears directly on guilt
itself. Id. at 302 (citing Edward J. Imwinkelried, The Need to
Amend Federal Rule of Evidence 404(b): The Threat to the Future
of the Federal Rules of Evidence,
30 Vill. L. Rev. 1465, 1487
(1985) (observing that the effect of other-crime evidence is to
persuade the jury to believe that defendant is guilty because
"once a crook, always a crook")); see also State v. Gibbons,
105 N.J. 67, 77 (1987) (discussing the prejudicial dangers of other-crime evidence). Because of its prepotency for prejudice, the
standards governing the admission of other-crime evidence seek to
assure that its probative worth is more than marginal and is not
outweighed by its prejudicial effect. Thus, the admissibility
and use of other-crime evidence is determined through the
application of N.J.R.E. 105, 403, and 404(b) to assure that such
evidence functions properly and fairly to guide the jury in its
determination of criminal guilt. State v. Cofield,
127 N.J. 328,
334 (1992).
There was no disagreement within the lower courts that the
Monmouth County evidence of sexual abuse was admissible as other-crime evidence under N.J.R.E. 404(b). As noted by the majority
of the Appellate Division, that evidence was relevant to the
issue of defendant's motive for fondling L.K. in Sussex County.
278 N.J. Super. at 161-62. The court also found that the conduct
underlying the alleged offenses in Monmouth County was similar to
and occurred within one year of the commencement of the Sussex
County abuse, id. at 162, indicating that the conduct was not
inadvertent, accidental, or unplanned. Finally, the court found
that evidence of the Monmouth County offenses was sufficiently
reliable because it had been found adequate to institute a charge
against defendant for endangering the welfare of a child. Ibid.
In addition, the Appellate Division noted that the other-crime
evidence was also relevant to the issue of L.K.'s credibility, a
purpose that is not specifically enumerated in the rules of
evidence. N.J.R.E. 404(b). It concluded that the use of other-crime evidence for a purpose not specifically delineated in the
evidence rule was proper. 278 N.J. Super. at 163 (citing State
v. Oliver,
133 N.J. 141 (1993)).
The narrow issue, which divided the Appellate Division, is
whether, as a result of the trial court's instructions, the use
of that evidence by the jury was improper and prejudicial.
Recognizing the special dangers posed by the conflicting impacts
of other-crime evidence, this Court has required that when a
trial court admits such evidence, the court must specifically
instruct the jury about that evidence's limited relevance. This
principle is illustrated by several cases.
In Stevens, supra,
115 N.J. 289, this Court addressed
whether instructions governing the use of other-crime evidence
lacked requisite specificity. Id. at 309. There, a police
officer was convicted of official misconduct and criminal
coercion involving searches of arrested women motivated by sexual
reasons. Id. at 293. The State presented evidence of similar
previous incidents in which the officer intimidated female
arrestees into undressing or providing sexual favors. Id. at
295-97. Its purpose was to show that the defendant conducted the
searches to gratify his sexual desire, an element of the offense
with which defendant was charged. Id. at 305.
This Court recounted the risks that other-crime evidence may
pose to a defendant and then stated,
the inherently prejudicial nature of such
evidence casts doubt on a jury's ability to
follow even the most precise limiting
instruction. Recognizing this dilemma, . . .
[a] trial court instructing a jury on its use
of other-crime evidence should state
specifically the purposes for which the
evidence may be considered and, to the extent
necessary for the jury's understanding, the
issues on which such evidence is not to be
considered.
The Court found that the trial court's instruction did not adequately distinguish the evidence's permissible use from its impermissible use. Ibid.
Another example of an other-crime evidence charge lacking specificity is in Cofield, supra, 127 N.J. 328. There, the defendant was tried for drug offenses that occurred in August 1985. Id. at 331. The trial court admitted evidence of the defendant's subsequent September 1985 drug activity to establish defendant's possession with intent to distribute in August 1985. Id. at 331-32. The trial court instructed the jury that the other-crime evidence could not be used to show a predisposition to commit the crimes for which he is now charged but for the limited purpose of proving some other fact in issue.
The Court determined that the instructions were
insufficient, finding that the instructions "merely restated the
general provisions of Evidence Rule 55 [now N.J.R.E. 404(b)]
without focusing the jury's attention on finding constructive
possession based on the evidence of the September 4th incident."
Id. at 341.
The instructions about the use of other-crime evidence were
also deficient in State v. Oliver, supra,
133 N.J. 141. There,
the defendant sexually assaulted two women in similar
circumstances. At a joint trial, the court admitted the
testimony of three other women who testified that defendant
similarly assaulted them. Id. at 148. The trial court admitted
the other-crime evidence, finding that it established a common
scheme or plan that was relevant to defendant's intent. Ibid.
At the close of the State's case, the trial court instructed the
jury only about how the evidence could not be used. This Court,
in a unanimous decision, upheld the Appellate Division's finding
that the limiting instruction was inadequate. Id. at 158-59.
The Court observed that, though the trial court's instruction was
not as plainly erroneous as that provided in Cofield, the
instruction was nevertheless deficient because it failed to state
in contextual detail the permissible use of the evidence. Id. at
158-59.
A sufficient limiting instruction was given in State v.
Cusick,
219 N.J. Super. 452, 467 (App. Div.), certif. denied,
109 N.J. 54 (1987). The defendant was charged with, among other
offenses, sexually assaulting two victims. 219 N.J. Super. at
464. Defendant argued that he had intended only to swing and
cradle one of the victims but that any sexual contact was
inadvertent. Id. at 464-65. The trial court admitted other-crime evidence to rebut defendant's claim of mistake and to
establish defendant's intent. Id. at 465. The court gave the
following limiting instruction concerning the testimony of one of
three victims from a previous unrelated sexual assault.
[Y]ou may not take this evidence from [the
witness] and conclude from it that the
defendant . . . is a bad person, and thus has
a disposition which shows that he is likely
to have done the act which he is charged
with, or to show a general predisposition of
the defendant to commit bad acts. . . .
The rules of evidence do, however, permit
such testimony where such evidence . . .
relates to some other fact in issue here,
including motive . . . . Here the evidence
was admitted 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.
The Appellate Division held that the jury instruction was sufficiently detailed and limited.
In this case, the Appellate Division noted that "[a] mere recitation of the generalities of the rule is insufficient. . . . The court must narrowly focus the jury's attention on the specific use of the other-crime evidence as illustrative of a
proper charge." 278 N.J. Super. at 163-64 (quoting Stevens,
supra, 115 N.J. at 309). Accordingly, it ruled that the trial
court's instructions were insufficient because they failed
explicitly to state that the evidence was admitted to: (1)
demonstrate why L.K. never informed her mother of the Sussex
County sexual abuse; and (2) establish the defendant's intent.
Id. at 165-66. The trial court's failure to give more specific
instructions left the jury free to use the Monmouth County
evidence as proof of defendant's culpability for the Sussex
County offenses. Id. at 166.
We concur in that analysis and conclusion. As we stated in
Cofield, supra, "`more is required to sustain a ruling admitting
such evidence than the incantation of the illustrative exceptions
contained in the Rule.'" 127 N.J. at 337 (quoting Stevens,
supra, 115 N.J. at 305). On admission of other-crime evidence,
the court must not only caution against a consideration of that
evidence for improper purposes, it must through specific
instruction direct and focus the jury's attention on the
permissible purposes for which the evidence is to be considered.
In this case, the trial court, in all three sets of instructions,
failed to indicate the specific purposes for which the other-crime evidence could be considered.
The Court must next determine whether this failure to issue limiting instruction resulted in prejudice to defendant. The
issue arises as one of plain error because defendant did not
object to the trial court's instruction on the grounds of lack of
specificity. R. 2:10-2. Plain error is reversible if it is
"clearly capable of producing an unjust result." R. 1:7-2; R.
2:10-2. Accordingly, the test to apply is whether the
possibility of injustice is "sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it
otherwise might not have reached." State v. Macon,
57 N.J. 325,
336 (1971).
Our decisions underscore the fact-specific inquiry that must
be made to determine whether prejudice has resulted from the
failure to give a sufficiently limiting instruction governing the
use of other-crime evidence.
The Court in Stevens held that the deficiencies in the
charge did not warrant reversal of defendant's convictions
because the trial court had twice cautioned the jury against
considering the other-crime evidence to prove defendant's
disposition to commit the offenses with which he was charged.
115 N.J. at 309. The Court stressed that this cautionary
instruction constituted the "essential point to be made in the
limiting instruction." Ibid. Also, the Court found other ample
evidence of defendant's guilt. Ibid. Accordingly, it determined
that any error arising from a lack of clarity in the limiting
instruction was harmless and not clearly capable of producing an
unjust result under Rule 2:10-2. Ibid.
Similarly, the Appellate Division in Cusick found that the
omission from the trial court's instruction was not prejudicial
and did not require a reversal of defendant's conviction. 219
N.J. Super. at 467. The court reasoned that the omitted limiting
instruction "had no such real possibility for prejudice as to
warrant a conclusion that, by reason thereof, the jury arrived at
the wrong result." Ibid. (quoting State v. Hummel,
132 N.J.
Super. 412, 425 (App. Div.), certif. denied,
67 N.J. 102 (1975)).
However, in Cofield, observing that the codefendant used the
other-crime evidence "to point the finger" at the defendant, the
Court held that the trial court's instruction failed to cure the
prejudicial impact of the other-crime evidence. Id. at 342. It
concluded that this error was clearly capable of producing an
unjust result, reversed the defendant's conviction, and remanded
for a new trial. Ibid.
The Appellate Division majority here found that the
erroneous jury charge did not constitute harmless error,
concluding that defendant was denied his right to a fair trial.
278 N.J. Super. at 166. It did not, in our estimation, engage in
a sufficiently fact-oriented inquiry to sustain that conclusion.
In this case, the other-crime evidence primarily posed two
risks of harm to defendant. First, the danger of criminal
disposition is identical to the danger addressed by the Court in
Stevens, Cofield and Oliver. Here, the trial court, in all three
sets of instructions, delivered a cautionary instruction,
explaining to the jury that the evidence could not be used to
show criminal disposition. Under Stevens, that instruction -
there stated twice, here stated three times -- successfully
delivered the "essential point." Furthermore, in the third set
of instructions, the trial court clearly identified the other-crime evidence for the jury, referring to it as "the Monmouth
County situation."
The second danger is that had the trial court specifically
delineated the two purposes for which the other-crime evidence
had been admitted, the jury might have more readily concluded
that defendant was not guilty. An examination of the record and
jury instructions in this case reveals that the trial court's
lack of specificity about the use of other-crime evidence did not
create the real possibility that the jury reached the wrong
result or significantly add to the likelihood that defendant
would be found guilty, thereby constituting an unjust result.
Defense counsel referred to this evidence in both opening
and closing statements as a basis for attacking L.K.'s
credibility and focused specifically on proper use of the
evidence. Even though the prosecutor, not the defense, initially
sought to admit the Monmouth County evidence, the defendant's
main defense was that his stepdaughter manufactured stories of
molestation in an effort to have him removed from the house,
thereby improving her social life. Defendant sought to use the
Monmouth County evidence in this case to bolster that defense and
in fact did so. Moreover, the defense was able to challenge
L.K.'s credibility on cross-examination and through the cross-examination and affirmative testimony of other witnesses.
In addition, the trial court also clearly pointed out that
defendant was neither convicted of nor plead guilty to the
Monmouth County accusations, thus, indirectly, indicating to the
jury a factor bearing on the relevance of the other-crime
evidence to the general issue of credibility and specifically on
L.K.'s motive and tendency to make false accusations of sexual
abuse.
In addition, there was strong evidence outside the other-crime evidence showing defendant's guilt. L.K.'s accounts of the
various sexual acts were consistent on both direct and cross-examination. Furthermore, her testimony was corroborated by the
contents of the DYFS records and the testimony of A.C., A.C.'s
guidance counselor, and L.K.'s former boyfriend. Further, the
record contains a plausible explanation for why L.K. tried to
conceal the abuse. Additionally, the record indicates that the
defense's depiction of L.K. as a liar was not very strong. Much
of this characterization of L.K. was derived from isolated
witness statements about L.K.'s reputation for lying. The State,
however, presented character witnesses who testified to L.K.'s
honesty. Moreover, the defense's strongest witness was
defendant's mother who testified that she neither observed nor
sensed that L.K. was being abused. The jury might have doubted
the truth of defendant's mother because of her deep personal
interest in the outcome of the trial, which the State highlighted
at trial.
In the context of the entire trial record, it does not
appear that the omitted instruction to limit the use of other-crime evidence to assessing L.K.'s credibility and defendant's
sexual motivation would have tipped the jury's deliberations in
favor of a non-guilty verdict. This is especially so with the
strong, repeated admonitions not to use the other-crime evidence
to establish a criminal predisposition. An examination of all
the testimony and evidence, defense counsel's use of the Monmouth
County evidence, and the trial court's cautionary instructions
indicates that the jury was not misled in this case into using
the other-crime evidence as demonstrating criminal propensity.
The trial court's instructions did not result in reversible error. The judgment of the Appellate Division is reversed.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE HANDLER's opinion, CHIEF JUSTICE WILENTZ did not participate.
NO. A-46 SEPTEMBER TERM 1995
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
G.S.,
Defendant-Respondent.
DECIDED July 24, 1996
Justice Handler PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY