The opinion of the court was delivered by: Garibaldi, J.
On certification to the Superior Court, Appellate Division.
Defendant, Thomas Covell, was convicted of child luring in violation of N.J.S.A. 2C:13-6. That statute states:
"A person commits a crime of the third degree if he attempts to lure or entice a child into a motor vehicle, structure or isolated area with a purpose to commit a criminal offense with or against the child."
At issue is whether defendant's statement to police officers about an alleged prior act of lewdness that occurred sixteen months before the offense for which he was convicted was properly admitted in evidence. To resolve that question, we consider the admissibility of defendant's statement as evidence of "other crimes, wrongs or acts" under N.J.R.E. 404(b), and as a "statement by party-opponent" under N.J.R.E. 803(b). We also must determine whether that statement's probative value is outweighed by its prejudicial effect, pursuant to N.J.R.E. 403(a).
On October 8, 1994, A.P., an eight-year-old girl, was riding her bicycle alone on the sidewalk outside of her home in Perth Amboy, New Jersey. As she rode by a store several houses down from her home, a man pulled up in a blue car and beckoned her by motioning with his right index finger. A.P. shook her head "no" and continued to ride her bicycle. When A.P. rode past the man a second time, he made a "waving" gesture with his right hand. A.P. again shook her head "no" and continued to ride her bicycle. When A.P. rode past the man a third time, he motioned to her again and told her to "get in the car before somebody sees you." A.P. refused to get into the car and continued riding her bicycle until her mother called her to come inside the house.
A.P. identified Covell in court and testified that the man in the car was caucasian with balding blond hair, blue eyes, and looked like Hulk Hogan. Her initial description to the police included tattoos on the right hand and a beard. During her formal police statement, however, the beard became a mustache and the tattoos were on his arms. A.P. also testified that she had seen the man approximately two years earlier when she had been sitting on her bicycle and "[h]e did the same thing." She did not know the man and did not have any reason to speak to him. She did not make an in-court identification of defendant during her direct examination. However, after cross-examination and a break in the trial, the prosecutor requested that a hearing be held outside the presence of the jury. At that time A.P. said that she did recognize defendant. When recalled on redirect examination, A.P. made an in-court identification of defendant as the man in the blue car.
Ramon Taveras, a cousin of A.P.'s mother who lives next to the store, testified that he noticed a blue car with one occupant blocking the entrance to his driveway. Although he did not hear what was said he noticed the occupant, a caucasian man with blond hair and a bald spot, calling to A.P. and beckoning her with his right index finger. When Taveras approached the blue car to see what the man wanted with A.P., the car sped off. Taveras followed the car and wrote down the license plate number. He then returned home, spoke with A.P.'s mother, and called the police. In court, Taveras was not asked to identify defendant. The license plate number led the police to Thomas Covell, who was arrested for child luring, contrary to N.J.S.A. 2C:13-6.
The arrest report described defendant as a forty-four-year-old caucasian male, weighing two hundred and thirty pounds, and having balding blond hair, a mustache, blue eyes, and several tattoos on his arms. During the ride to the Middlesex County Correction Center, defendant told an officer that "now that I have time to think about it, I did see a girl on a bike in the area and I let her go across the street, waving her on."
To secure a conviction under N.J.S.A. 2C:13-6, for the State to establish that defendant was the man in the car is not sufficient. The State also must prove that Covell attempted to lure A.P. for the purpose of committing a criminal offense with or against her. To establish that point, the State sought to admit evidence related to an alleged prior incident of lewdness. Defendant was never charged and it was never established that defendant in fact committed that offense. The State presented evidence that on June 25, 1993, defendant was questioned at the Perth Amboy Police Department regarding an incident that allegedly took place on June 24, 1993, in a Shop Rite store in Perth Amboy, involving defendant and a young girl.
During the questioning on June 25, 1993, defendant told the officers that he had approached a young girl in the store and asked "if she knew what kind of Spanish fruit . . . was hanging in the store." Defendant then lowered two plastic plums that he had in his hand to the level of his groin area and told the girl that "she should eat fruit to grow big like me." Defendant then told the officers that he "felt himself starting to go off" and was about to leave when a man approached him. The man observed that defendant had an erection at the time, and defendant ran away. Defendant told the officers that "if it's a crime to talk to girls, then I'm guilty." He also said during that police interview:
"I have a problem with girls. I never was interested in older women just young girls and teenage girls. I never had a childhood and I'm trying to relive it . . . . I have this thing with young girls that I can't help."
After a pre-trial hearing, the trial court determined the above portion of defendant's police statement to be admissible. In addition to the statement itself, the investigating officer told the jury that defendant gave the statement while being questioned at police headquarters and that Miranda*fn1 warnings had been administered. He also stated, however, that no charges were brought against defendant because nothing defendant said had inculpated him in a crime. In addition, the trial court told the jury that the evidence was not to be used to show any preDisposition on the part of defendant to commit an offense.
In her closing arguments, however, the prosecutor hinted that Covell was brought in for questioning in connection with a prior sexual offense. She stated:
"[A.P.] testified that she lives across the street from a school. And if you are going to look for young girls -- ". . . "If you are going to look for young girls, the most likely place is across the street from the school. Even though it's a Saturday, ladies and gentlemen, kids play in the school yard, kids are around the school. "The defendant is a block from an elementary school. He is in a neighborhood -- although he is in a neighborhood that is not his own, he is not going to stay in his own neighborhood, people know him there. He is going to a different neighborhood of Fayette Street, a block away from a school. That brings us to what Thomas Covell told Detective Bielinski in June, on June 25th of 199 -- no, he wasn't charged with a crime at that point, but in the interview with Detective Bielinski he says, I have a problem with girls. I was never interested in older women, just young girls and teenage girls. I never had a childhood and I am trying to live it. I have this thing with young girls that I can't help."
Before the jury began to deliberate, the court provided limiting instructions with regard to defendant's June 25th statement. During its deliberation the jury asked for a readback of Detective Bielinski's testimony that explained the circumstances under which defendant gave that statement, and also asked for an explanation about why defendant had been brought in for questioning in 1993. With regard to the latter request, the court advised the jury that that question was not "germane."
The jury returned a verdict convicting defendant of third-degree child luring. A custodial term of five years with a two and one-half year parole disqualifier was imposed, along with fines and penalties. Defendant appealed his conviction, asserting that the trial court made the following errors: (1) it erred in admitting defendant's statement, which was made sixteen months before this offense and addressed an unrelated matter; (2) its instruction concerning the use of the other-bad-acts evidence was inadequate; (3) it improperly denied defendant's motion for a judgment of acquittal; and, finally (4) it imposed a sentence not warranted by an appropriate balancing of aggravating and mitigating factors.
In an unpublished opinion, the Appellate Division, citing the four-part test set forth in State v. Nance, 148 N.J. 376, 387 (1999), determined that defendant's statement was inadmissible as other-conduct evidence to prove intent under N.J.R.E. 404(b). Specifically, the court found that the evidence lacked relevance, was too prejudicial pursuant to N.J.R.E. 403, and did not admit to conduct. The panel also observed that the statement did not fit under N.J.R.E. 803(c)(25) as a statement against interest because it would be inadmissible under N.J.R.E. 403. Further, the court explained that because the admission of that statement was necessary for the State to convict defendant, it was not harmless.
Because the Appellate Division reversed defendant's conviction on the erroneous admission of his statement, it did not address his other contentions, and remanded the case for further proceedings consistent with its opinion.
We granted the State's petition for certification, 156 N.J. 409 ...