The opinion of the court was delivered by: Per Curiam
Argued September 14, 1999
On certification to the Superior Court, Appellate Division.
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).
Because the victim and her older sister have the same first initial, we shall refer to them by pseudonyms. We shall also refer to their mother by a pseudonym. The victim, Laura, was born in 1979. She lived in Monmouth County with her mother, Nancy, her older sister, Linda, two younger brothers, and her father, defendant G.V. In 1985, when Laura was six years old, her father began to molest her, frequently touching her intimate parts or having her touch his. When Laura was eight years old, defendant began having sexual intercourse with her. On some occasions, defendant forced Laura to engage in sexual activities with her younger brother. Defendant committed these acts at night while Laura's mother was at work.
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 , 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), ...