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State v. Hasher

Decided: January 31, 1991.

STATE OF NEW JERSEY, PLAINTIFF,
v.
MICHAEL ERIC HASHER, DEFENDANT



Imbriani, P.J.Cr.

Imbriani

Defendant was charged with second-degree sexual assault in violation of N.J.S.A. 2C:14-2c for committing an act of sexual penetration upon an adult woman, B.S., by using physical force or coercion. The issue is whether evidence of a sexual assault committed by defendant upon another adult woman six years earlier is admissible under Evid.R. 55. There is no reported opinion on this issue in New Jersey. We conclude it is inadmissible.

Defendant and B.S. were engaged and lived together until they separated in 1987. However, they remained friends and when she asked him to make repairs to her automobile he agreed. On the morning of October 14, 1988, B.S. went to defendant's residence where the repairs were to be made and, as she had done in the past, she admitted herself into his home and went directly to the basement where defendant's bedroom was located. She found him undressed and in bed, so she left to permit him to dress. When she returned she alleges that defendant locked the door to his bedroom, pinned her down on his bed, removed her undergarments, and against her will forcibly had vaginal intercourse with his penis.

Defendant acknowledges being with B.S. on the morning of October 14, 1988 in his bedroom and admits that they had sexual intercourse. However, he contends B.S. consented.

The State seeks to introduce the testimony of a former girlfriend of defendant who would testify that in 1982 she was

in defendant's bedroom and, after she refused his sexual advances and terminated their relationship, he locked the door, pinned her down on his bed, removed her undergarments, and unsuccessfully attempted forcible vaginal intercourse. This incident was reported to the police and, for reasons not relevant here, the charge of attempted rape was dismissed and defendant pled guilty to a disorderly persons charge of simple assault.

Initially, it is important to recognize that Evid.R. 55 is a rule of limited admissibility with an underlying policy of excluding evidence of other crimes or civil wrongs to show a disposition on the part of the accused to commit the crime for which he is on trial. State v. Weeks, 107 N.J. 396, 407, 526 A.2d 1077 (1987). In other words, Evid.R. 55 seeks to avoid affixing a "bad man" label upon defendant as a result of the commission of a prior criminal offense or civil wrong. The application of Evid.R. 55 requires the court to undertake a two-part analysis. First, the court must ascertain whether the evidence presented is too remote to merit jury consideration. If so, the evidence is inadmissible and there is no need to examine the second part of the analysis. If the evidence is not too remote, the court must next determine the purported reasons for which the evidence is being proffered to ascertain if they justify admitting the evidence.

Although State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978) analyzed the issue of remoteness in a different context (i.e., the use of a prior conviction of crime to affect the credibility of a witness), the principles it enunciated are equally applicable here.

Remoteness cannot ordinarily be determined by the passage of time alone . . . The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. [at 144-145, 386 A.2d 378]

In this case we are dealing with a time lapse of only six years and prior conduct which bears a substantial similarity to the crime now charged against defendant. In our view the probative

value of the prior incident is not so diminished under a remoteness analysis as to require its exclusion for that reason alone. Accordingly, we are satisfied that the evidence ...


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