April 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES H. WRIGHT, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1762.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 28, 2008
Before Judges Skillman and Grall.
Defendant James H. Wright, Jr., appeals from a final judgment of conviction. Tried to a jury, he was convicted of lewdness, N.J.S.A. 2C:14-4b(1), and endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court sentenced defendant to probation for a term of five years and imposed the required fines, penalties, assessments, the obligation to register in accordance with N.J.S.A. 2C:7-2, and community supervision pursuant to N.J.S.A. 2C:43-6.4.
Defendant's convictions are based on evidence that he exposed himself to R.P. in a Wal-Mart store in Old Bridge on February 3, 2004. R.P. was nine years old at the time of the incident, and defendant was seventy-three.
R.P. gave the jurors the following account. R.P., her mother, B.J.P., and R.P.'s younger sister were shopping for a gift. At B.J.P.'s direction, R.P. walked to a display rack about fifteen to twenty feet from her mother to put a CD she had selected back where she had found it. When R.P. reached the display, she heard a whistle and a stomp and turned to look. A man was standing about four feet from her, and she saw his "wiener." His slacks*fn1 had no zipper or flap, just a "big hole." The man's jacket was hanging down from his hands, and he lifted his shirt up over his face. To R.P., the man's penis looked like a pig's snout, light and dark pink. She was "startled" and "nervous" and went to her mother.
B.J.P. testified that she had not heard the whistle and stomp or seen the man expose himself or a hole in his pants.
But when R.P. returned to her, B.J.P. noticed that her daughter looked "startled" and "shocked" and asked R.P. what was wrong.
B.J.P. remembered R.P. responding by pointing "to her privates." R.P. recalled saying "he showed me his" while she pointed to her crotch.
B.J.P. saw a man walking away. She yelled to him and asked whether he had exposed himself to her daughter. He turned and said, "what," but offered no further response and went to another aisle. B.J.P. repeated her accusation and called the man a "pig." She followed the man but returned to her children because they were crying and calling for her. R.P. then told her mother the man had lifted up his shirt.
Skip Parker, a Wal-Mart employee working at the time of the incident, provided the information that led to defendant's arrest. Parker did not see what happened, but he heard B.J.P., stopped defendant and asked him to wait for the police. According to Parker, defendant appeared nervous and jittery. He told Parker he would not wait. Parker watched defendant as he left and re-entered the store several times and followed him when he walked into the parking lot. Although Parker lost sight of defendant when he went behind a SUV near the far-end of the lot, he later spotted defendant "crouched down" and running toward the front of the lot. He saw defendant jump into a car that was parked near the door, back out of the parking space and put the car in drive. Defendant "hit it so hard" that Parker thought "the transmission was going to drop out," but Parker was able to get the license plate number.
Detective Crocco of the Old Bridge police arrested defendant at his home the following day. The detective told defendant he was under arrest "for [an] incident that happened at the Wal-Mart." Defendant replied, "I didn't expose myself to that little girl or her mother in that store." Crocco asked defendant why the child would make something like that up. Defendant responded, "What I think happened was as I walked by her I was adjusting my crotch and maybe she saw something."
Defendant, a former police officer, asked the detective if he would make the charge a "DP," disorderly persons offense, if he told the truth. When the detective said he did not have that authority, defendant told him he had nothing else to say.
Officer Ford of the Old Bridge Police Department interviewed R.P. and her mother before they left Wal-Mart on February 3. At trial, Officer Ford testified that R.P. told him that she had heard a whistle and a stomp and saw a man with his penis out of his pants and had told her mother. R.P. used a child-like word for penis that the officer could not recall.
R.P. did not tell him about a hole in the man's pants.
Officer Ford also talked to B.J.P., who was present during his interview of R.P. He did not remember whether the child or her mother spoke first.
During the course of the interview, Officer Ford learned that R.P. was a student in his wife's third-grade class. Out of concern about how R.P. would behave in school the next day, Officer Ford stopped at home to tell his wife that R.P. had reported that a man exposed himself to her.
Later that night, B.J.P. spoke to R.P. as she put her to bed. Worried that the child would not sleep well, she asked R.P. to tell her about what she had seen. R.P. told her again about hearing the whistle and the stomp. She said the man lifted his shirt up, and she saw what looked to her like a "pig snout" hanging out. B.J.P. told R.P. that she was not the only one to whom something like this had happened and told her that a friend of hers had a similar experience and the man was arrested.
R.P. went to school the next day. The defense called her teacher, Mrs. Ford, to testify at trial. According to Mrs. Ford, R.P. was not her usual self that day. R.P. told Mrs. Ford that she had met her husband the night before, which Mrs. Ford knew because her husband had told her that R.P. was involved in an incident at Wal-Mart. Mrs. Ford said that she did not know R.P. was going to give the police a statement later that day and did not discuss the incident with R.P. She acknowledged that she told R.P. "to tell truth" and "just say what happened." Although Mrs. Ford could not remember everything she had said to the child, she did not believe it would be accurate to say that she helped R.P. prepare for her police interview.
After school, R.P. met with Detective Crocco of the Old Bridge Police Department. The interview was video-recorded, and it was shown to the jurors. At the outset of the interview, R.P. volunteered that she "prepared" in school with Mrs. Ford. She said, "we went over it a lot, so I remember a lot." Detective Crocco did not inquire about R.P.'s discussions with her teacher.
R.P. told the detective that the man had pulled his shirt up and she had not seen his face or hair, although she knew his hair was grey because her mother had told her that it was. She said she heard whistling and a "big" stomp and did not know if "his peesh was real or not." It was "hanging out" of a big hole, "not ripped," in his "jeans." Her eyes "started to blur," and it looked like a "pig's snout."
R.P. said, "I couldn't calm down. I had so much pressure and kept on thinking about it, thinking about it. Well, I am thinking about it a lot - I keep on seeing pictures in my head of what happened and stuff - all the same." At the conclusion of the interview, R.P. said, "Thank God I didn't lie. I hope I didn't."
The jurors also heard the testimony of A.R. When A.R. was seven years old, she had complained about defendant's conduct in 1994 and 1995. At that time, A.R.'s mother worked for defendant. A.R. went to the office with her mother when she did not go to school. On occasion, defendant took A.R. to his home. She either sat in the front seat of his car next to defendant or on his lap while they traveled to his house. When sitting next to defendant, A.R. saw his penis exposed. She remembered there being a "hole in his pants" but was not sure "if it was an actual hole or a rip." This happened more than once. In addition, at defendant's home, A.R. saw defendant lying on his bed with no pants on.
A.R.'s mother also testified about working for defendant and allowing A.R. to go with him to his home. She said she resigned from the job and denied ever having an argument with defendant. Defendant did not testify at trial.
Defendant raises the following issues on appeal.
I. THE COURT'S FAILURE TO PROPERLY QUESTION [A JUROR] DURING VOIR DIRE AND THE COURT'S FAILURE TO EXCUSE [A PROSPECTIVE JUROR] FOR CAUSE VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY.
II. DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION AND A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE OUT-OF-COURT STATEMENTS OF [R.P.].
A. The out-of-court statements could not have been deemed trustworthy.
B. The admission of multiple accounts of the complainant's story violated defendant's constitutional rights to confrontation and a fair trial.
C. None of the out-of-court statements were admissible because the charges at issue here are not "Sexual Misconduct" within the meaning of N.J.R.E. 803(c)(27).
III. THE ADMISSION OF EVIDENCE OF APPELLANT'S ALLEGED CONDUCT INVOLVING [A.R.] IN 1994 AND 1995 VIOLATED APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
A. The Prior Conduct Was Not Proven By Clear And Convincing Evidence.
B. The Proffered Evidence Was Not Similar In Kind And Reasonably Close in Time.
C. The Probative Value Of The Prior Evidence Was Clearly Outweighed By Its Prejudice To The Defendant.
D. The State's Reference To Appellant's Prior Conduct In Closing Constituted Prosecutorial Misconduct Requiring a New Trial.
IV. THE COURT'S RESTRICTIONS ON DEFENDANT'S CROSS-EXAMINATION OF [A.R.] VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AGAINST HIM AND HIS RIGHT TO PRESENT A COMPLETE DEFENSE.
V. THE JURY INSTRUCTION CONCERNING [N.J.R.E.] 404(b) EVIDENCE WAS CONFUSING AND CONTRADICTORY AND DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
VI. THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL.
Defendant asserts that he was deprived of the right to an impartial jury guaranteed by the federal and state constitutions. He contends that he was unable to use a peremptory challenge to strike a juror who was not "properly" questioned because he was compelled to use his final challenge to discharge a juror whom the court should have excused for cause. The record does not demonstrate that the juror who served was partial, and, for that reason, defendant is not entitled to relief.
Without more, loss "of a peremptory challenge does not violate the constitutional right to an impartial jury." State v. DiFrisco, 137 N.J. 434, 467 (1994); see Rivera v. Illinois, 77 U.S.L.W. 4232, 4234 (U.S. Mar. 31, 2009); Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed. 2d 80, 90 (1988). "[F]or the forced expenditure of a peremptory challenge to constitute reversible error under New Jersey law [or the federal constitution], a defendant must demonstrate that a juror who was partial sat as a result of the defendant's exhaustion of peremptories." DiFrisco, supra, 137 N.J. at 470; see Ross, supra, 487 U.S. at 86, 108 S.Ct. at 2277, 101 L.Ed. 2d at 88. A juror is partial when his or her "views would prevent or substantially impair the performance of that juror's duties in accordance with the court's instructions and the juror's oath." DiFrisco, supra, 137 N.J. at 469; see id. at 471 (noting that the reviewing court must decide "whether any juror who should have been removed for cause ultimately sat on defendant's jury").
In sum, to prove a constitutional deprivation based on forced exhaustion of a peremptory challenge the defendant must show:
(1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror [- a juror who should have been removed for cause]. [Ibid.]
Because a defendant must establish each of these three prerequisites to obtain relief, there is no need to consider whether the court erred by declining to dismiss a juror for cause unless defendant can establish that a juror who served was partial. See id. at 466.
Defendant questions the impartiality of juror number nine. That juror had been robbed at gunpoint fifteen years earlier, and he has a daughter. His father was a military judge, and the juror has a close friend who is a state trooper with whom he regularly plays poker. The juror did not initially disclose his father's work or his relationship with the state trooper. He volunteered that information after the judge posed a question to the entire panel. The colloquy was as follows.
THE COURT: . . . We want [a decision] to be based upon testimony you hear. Is there anyone here [who] for whatever reasons feels they will not be unable [sic] to do that[,] because if so, I want to know it now because if I swear you in you'll be taking an oath to sit on this case and judging this case on the evidence and testimony honestly, objectively[,] rationally, without any reference to outside influences or personal feelings that may involve any kind of prejudice, bias or, for that matter, sympathy[.] [S]o you've all sat here and heard me go through this . . . many, many times. Does anybody here feel they can't do it?
All right, [juror number nine], you do not feel you can do it, sir?
A: No that is not the reason I raised my hand. Did you ask every potential juror about their background if they have any relatives or friends in law enforcement?
A: I do. My father is a Military Judge.
A: And I have a close friend who's a state trooper, [and] we play poker games on a regular basis.
Q: I hope the pot -
A: I just want to mention that it is not that -
Q: That's perfectly fine. Texas -
A: That is the game.
Q: I know it. All right, it is not [a] problem as long as that stuff does not interfere with your ability to be fair, that is fine. So the question is can you with your background, whatever . . . . The question is can you judge this case fairly, regardless of what your background is? Can you put anything that would impact on this case out of your mind and judge this case on the facts [as] you find them to be in this case? If you can do that I'd like to you [sic] sit on this jury. That is the question can everybody do that? Anybody who cannot?
One juror responded. Without requiring that juror to explain her hesitancy to serve, the judge excused her from service. No other juror, including juror number nine, indicated an inability to be impartial.
Defense counsel did not ask the court to question juror number nine further. In fact, defense counsel's subsequent conduct indicated his satisfaction with that juror's impartiality. Defense counsel exercised another peremptory challenge to excuse a different juror and, after using that challenge, told the judge that he and his client were willing to proceed with the thirteen jurors who were seated. However, in the event that the judge did not proceed with the jurors then seated, the defense wanted additional peremptory challenges.
Jury selection continued the next day. The court awarded defendant one additional peremptory challenge, which defense counsel exercised to dismiss the juror whom he contends should have been dismissed for cause. The court denied defense counsel's request for an additional peremptory challenge, and juror number nine served.
There is nothing in the record to suggest that juror number nine held views based on his experiences or relationships that "would prevent or substantially impair the performance of [his] duties in accordance with the court's instructions and the juror's oath." When juror number nine raised his hand to inform the judge about his relationships, he promptly and unequivocally indicated that he had not raised his hand to indicate that he felt he was unable to decide the case without reference to outside influence or personal bias and defense counsel did not request further inquiry. In that circumstance, no further probing to ascertain whether juror number nine held "biases that would interfere with [his] ability to decide the case fairly and impartially" was warranted. State v. Erazo, 126 N.J. 112, 129 (1991). Accordingly, the judge did not abuse his "broad discretionary powers in conducting voir dire," State v. Fortin, 178 N.J. 540, 575 (2004). Moreover, defendant, who was willing to proceed with that juror on the panel after he volunteered additional information about his friend and his father, has not given us any reason to doubt juror number nine's impartiality.
"A hearsay statement by a child under the age of twelve, relating to sexual misconduct against that child, may be admitted at trial . . . when there has been notice . . . , a pre-trial judicial finding of trustworthiness, and [an] opportunity to cross-examine the child at trial . . . ." State v. R.B., 183 N.J. 308, 318 (2005). There is no violation of the right of confrontation when the child whose statements are admitted testifies and is available for cross-examination at trial. Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed. 2d 177, 197 n.9 (2004); State v. Burr, 392 N.J. Super. 538, 566-69 (App. Div. 2007), aff'd as modified, 195 N.J. 119 (2008).
This "tender years" exception to the hearsay rule, N.J.R.E. 803(c)(27), was adopted in recognition of the importance of the testimony of a child who is a victim of sexual misconduct, the potential reliability and credibility of the victim's spontaneous out-of-court statements and the impact of lapse of time and the stress of the courtroom setting on the child's ability to testify credibly before the jury. State v. D.R., 109 N.J. 348, 358-60 (1988); Burr, supra, 392 N.J. Super. at 565-66.
Defendant raises a threshold objection to application of the tender years exception. He contends that N.J.R.E. 803(c)(27), which is applicable to statements "relating to sexual misconduct," cannot be construed to include statements relating to acts of lewdness.
The ordinary meaning of the phrase "sexual misconduct" encompasses acts of exhibitionism by adults. Lewdness, a sexual offense of the fourth degree, is defined to include the conduct of an adult who "exposes his intimate parts for the purpose of" self-arousal or sexual gratification when the adult knows, or reasonably expects, that a child under the age of thirteen is likely to observe the display. N.J.S.A. 2C:14-4b(1). The broad scope of the tender years exception - statements "relating to sexual misconduct" - is not sensibly understood to exclude sexual conduct that the Legislature has designated as a crime.
Moreover, the interests served by the tender years exception are no less likely to be furthered by repetition of a child's statement reporting exhibitionism than by repetition of a child's statement reporting a prohibited touching. See D.R., supra, 109 N.J. at 358-60. Even where the exhibition is accomplished in a public place and by a stranger, physical evidence and adult witnesses to the conduct are not likely to be available. Id. at 358-59. And, a child victim under the age of twelve is no less likely to have difficulty testifying credibly about the incident at trial than a child of the same age who has been subjected to sexual contact. Id. at 359-60.
Defendant also argues that the trial court erred in concluding that R.P.'s out-of-court statements describing defendant's conduct were sufficiently trustworthy. N.J.R.E. 803(c)(27) permits admission only if the trial court determines that there is "a probability" of trustworthiness "on the basis of the time, content and circumstances of the statement." Factors relevant to trustworthiness include "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999). The ultimate question is "'whether the child declarant was particularly likely to be telling the truth when the statement was made.'" Ibid. (quoting Idaho v. Wright, 497 U.S. 805, 822-23, 110 S.Ct. 3139, 3152, 111 L.Ed. 2d 638, 657 (1990)).
"A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996). In considering a trial court's decision to admit evidence pursuant to N.J.R.E. 803(c)(27), the questions are whether the court has considered the relevant factors; whether the record of the hearing on admissibility includes sufficient credible evidence to support the trial court's findings on trustworthiness; and whether the court has abused its discretion by failing to exclude repetitive corroborative testimony, the probative value of which is substantially outweighed by the risk of undue prejudice, N.J.R.E. 403. See State v. Smith, 158 N.J. 376, 391 (1999); Burr, supra, 392 N.J. Super. at 572-73. A trial court's finding of reliability or trustworthiness adequate to permit admission of evidence is not disturbed unless, after consideration of the record and giving the deference owed to the court's findings on credibility, it is apparent that the finding is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." State v. Locurto, 157 N.J. 463, 471 (1999) (internal quotations omitted); see, e.g, State v. Adams, 194 N.J. 186, 203 (2008) (applying the Locurto standard in reviewing a trial court's finding on reliability prerequisite to admission of evidence); State v. Swint, 328 N.J. Super. 236, 254 (App. Div.) (same), certif. denied, 165 N.J. 492 (2000).
The trial court conducted the requisite hearing pursuant to N.J.R.E. 104 and considered factors relevant to admission of R.P.'s hearsay statement pursuant to N.J.R.E. 803(c)(27).
B.J.P., Officer Ford, Mrs. Ford and Detective Crocco testified at a pre-trial hearing on the trustworthiness of R.P.'s statements, and the trial court found their testimony credible. The court considered the timing and nature of R.P.'s initial statement and those she made during subsequent interviews and discussions with the adults who testified, the consistency of the child's statements and the details R.P. added to her account over the nearly twenty-four-hour period between the initial statement and the conclusion of her video-taped statement. The trial court concluded that all of R.P.'s out-of-court statements were sufficiently trustworthy.
The record developed at the pre-trial hearing was clearly sufficient to establish "a probability" that the statements R.P. made to her mother and Officer Ford in Wal-Mart were trustworthy. N.J.R.E. 803(c)(27). R.P. gave a spontaneous and childlike explanation - pointing to her genitals - when her mother noticed a change in her demeanor and asked what was wrong. Although B.J.P.'s initial and dramatic reaction to R.P.'s response upset her daughters, neither B.J.P.'s accusations nor Officer Ford's general questions about what happened were coercive, suggestive or capable of giving R.P. a motive to fabricate an account of her encounter with the stranger. We recognize that B.J.P. was present when Officer Ford spoke to R.P. and that Officer Ford did not remember whether B.J.P. or R.P. spoke first. Nonetheless, because B.J.P. consistently acknowledged that she did not hear the man whistle and stomp or see anything untoward about his clothing or conduct, R.P.'s account of what she heard and saw could not have been influenced by her mother's description of what she saw.
Similarly, we cannot conclude that the trial court was clearly mistaken in finding that the additional details R.P. related to her mother at home were trustworthy. The trial court had the opportunity to hear B.J.P.'s description of her late-night conversation with R.P. and credited her testimony. B.J.P. admitted that she asked R.P. about what she saw, what the man was wearing and whether he had on underwear. Accepting the judge's credibility determinations, there is no basis for us to disturb the court's finding that B.J.P.'s questions amounted to no more than allowing the child to talk in a way that did not undermine the trustworthiness of R.P.'s statements describing the "hole" in the man's pants, the similarity between his pants and those worn by her grandfather or the similarity between what she saw and a pig's snout.
Defendant contends that R.P.'s reference to a pig's snout was suggested by B.J.P. when she called defendant a "pig."*fn2 That is possible but not sufficiently likely to compel the conclusion that R.P.'s description lacked probable trustworthiness.
B.J.P.'s name-calling in Wal-Mart is not reasonably equated with interrogation or suggestiveness raising a legitimate concern about whether a child's description is based on what the child saw or what an adult suggested the child should say. See, e.g., State v. Michaels, 136 N.J. 299, 308-12 (1992).*fn3
In considering the trustworthiness of R.P.'s video-taped statement, the trial court addressed the significance of R.P.'s admission that she had "prepared" with Mrs. Ford, gone over her statement "a lot" and remembered "a lot." The court also noted that the police should have taken R.P.'s statement before she spent a day in school with her teacher, who was the wife of Officer Ford and knew about the incident. And, the court weighed the impact of those circumstances on R.P., who would have been "reminded throughout the entire day . . . about what happened because she knew that Mrs. Ford knew about what had happened at the Wal-Mart." Nevertheless, crediting Mrs. Ford's testimony about her discussions with the child, the court determined that their conversation was "just a casual thing with . . . no real details discussed or anything like that." The trial court elaborated:
[T]he child did indicate that she went over this with Mrs. Ford, but I think that is explained, [by the fact] that Mrs. Ford was in front of her all day long, and this was going around in her head. . . . The child said she hoped that she was truthful and basically what she was saying was that she hoped she remembered everything that happened the previous day approximately [twenty-four] hours [before] - and I find that extremely trustworthy.
While others might draw inferences and conclusions different than those of the trial court, the trial court's finding of sufficient trustworthiness is not so lacking in support or inconsistent with the competent evidence as to permit us to conclude that the court was clearly mistaken. The court's assessment is supported by the fact that the video-taped statement does not include any detail or relevant information R.P. had not disclosed to her mother the night before beyond the child's candid admission about preparation and pressure and her concern about telling the truth.
Relying on N.J.R.E. 403, defendant also contends that even if R.P.'s statements were sufficiently trustworthy, the probative value of the repetitive statements was substantially outweighed by the risk of undue prejudice inherent in repetitive corroborative accounts of R.P.'s trial testimony. Courts should consider the prejudicial impact of repetitive corroborative statements and invoke N.J.R.E. 403 to limit the number of repetitions when their collective probative value is substantially outweighed by the risk of undue prejudice. Smith, supra, 158 N.J. at 391. The weighing, however, is left to the sound exercise of the trial court's discretion. State v. Nelson, 173 N.J. 417, 470 (2002).
There is no reason for this court to disturb the balance struck by the trial court here. The minor differences in R.P.'s statements and her own description of her conversation with her teacher provided fodder for cross-examination that diminished the risk of undue prejudice by supplying additional information relevant to the jurors' evaluation of R.P.'s credibility. Indeed, given the absence of new detail and R.P.'s reference to discussions with her teacher and pressure that were imbedded in R.P.'s video-taped statement, its probative value favored the defense. Viewed in the context of this trial, even if we were to conclude that admission of the repetitive corroborating evidence was error, we would have no doubt that the error was incapable of producing an unjust result. R. 2:10-2.
Defendant also claims that the trial court erred by allowing the State to present A.R.'s testimony about his lewd acts in 1994 and 1995. When the trial court has analyzed the question of admissibility of evidence of other crimes or wrongful acts in accordance with the controlling standards, the question for this court is whether the trial court abused its discretion. State v. Lykes, 192 N.J. 519, 534 (2007); see State v. Kemp, 195 N.J. 136, 149 (2008).
While evidence of other "crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith," such evidence may be admitted to prove "intent" and "absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b); State v. Barden, 195 N.J. 375, 388 (2008). Recognizing the danger that jurors exposed to other crimes evidence "may convict the defendant because he is a 'bad' person in general," State v. Cofield, 127 N.J. 328, 336 (1992) (internal quotations omitted), the Court has provided further direction to avoid "the over-use of" such evidence, id. at 338. It should be excluded unless it is: 1) "relevant to a material issue"; 2) "similar in kind and reasonably close in time to the offense charged"; 3) there is "clear and convincing" evidence of the prior crime; and 4) the "probative value of the evidence [is] not . . . outweighed by its apparent prejudice." Ibid. The second prong, which requires similarity and temporal proximity, has usefulness "limited to cases that replicate the circumstances in Cofield." State v. Williams, 190 N.J. 114, 131 (2007); see id. at 130-31 (finding no usefulness when the evidence of consciousness of guilt was relevant to intent).*fn4
A.R.'s testimony was "relevant to a material issue." In order to establish that defendant committed the crime of lewdness when he exposed himself to R.P., the State was required to prove, among other things, that defendant exposed his intimate parts "for the purpose of arousing or gratifying [his] sexual desire." N.J.S.A. 2C:14-4b(1). But at the time of arrest, defendant told Detective Crocco that he "was adjusting [his] crotch and maybe [the child] saw something," an explanation that tended to establish that the exposure was accidental and not done with the requisite purpose. Thus, absence of accidental or mistaken exposure and intent were material facts.
A.R.'s testimony, as the trial court found, was relevant to those material facts. Evidence is relevant when it has a "tendency in reason to prove or disprove" a fact of consequence. N.J.R.E. 401.
According to A.R., when she was seven years old defendant exposed his penis to her through a hole in his pants more than once and also removed his pants in her presence. This is not a case in which the evidence of the prior wrong had no purpose other than to show that the defendant had committed the same crime in the past and, for that reason, likely did it again.
See Kemp, supra, 195 N.J. at 149. Here, the evidence had a tendency to disprove defendant's assertion that his display was explained by inadvertence or accident and a tendency to establish that his conduct was motivated by the purpose to arouse or gratify his sexual desire. The evidence, in short, spoke to the statement defendant made at the time of his arrest. Cf. ibid. (finding error in a case in which the prior robbery, a forcible purse snatching, said nothing about defendant's role in a robbery that resulted in the death of the victim).
The trial court was clearly convinced that the evidence presented at the hearing on admissibility established that the defendant had committed the acts A.R. reported. At that hearing, the State established that in 1996 defendant entered a plea of guilty to two counts of lewdness, one with A.R. and one with her sister. Those charges were included in an indictment that alleged additional counts of sexual assault and endangering the welfare of a child.*fn5 A.R. and her mother also testified, and the trial court found their testimony credible.
We cannot conclude that the trial court erred in finding adequate evidence of defendant's commission of prior acts of lewdness. In addition to the guilty plea and the conduct and circumstances A.R. described at trial, A.R. and her mother provided additional details at the hearing on admissibility.
A.R.'s younger sister sometimes accompanied A.R. when she left the office with defendant while he ran errands or went home to let his dogs out. Defendant watched pornographic movies and masturbated while lying on his bed when A.R. was in his bedroom. Cross-examination highlighted inconsistencies in testimony concerning the circumstances under which defendant's conduct was brought to the attention of A.R.'s mother and suggested a motive for filing a false complaint in 1995 - that defendant alleged A.R.'s mother took money from his business around the same time that she left his employ and reported his conduct to the police. But, the trial court was persuaded that A.R.'s mother left work and filed the complaint because of the conduct that A.R. credibly described at the hearing.
The record also supports the trial court's finding that the conduct A.R. and R.P. described was sufficiently similar in kind and proximate in time to permit admission of her testimony.
A.R. was seven years old and R.P. was nine and both reported a hole in defendant's pants that allowed him to expose himself. The court recognized the time that had elapsed between the incidents and differences in the circumstances - a car on a public street and a private home versus an aisle in a Wal-Mart and a child removed from her mother's care as opposed to a child shopping with her mother. But the court concluded that the differences did not undermine the relevance of the similar acts of exposure to disprove mistake or accident, and the importance of the similarity and proximity is not great when the prior conduct is relevant to intent. Williams, supra 190 N.J. at 130-31. We cannot say that the court's determination is clearly mistaken.
Finally, the trial court did not abuse its discretion in weighing the probative and prejudicial value of A.R.'s testimony. The court acknowledged its obvious prejudicial import but concluded that it did not outweigh the probative value.
In striking that balance, the court considered the State's need to meet defendant's explanation for R.P.'s observation of his penis. Defendant argues that A.R.'s testimony was not necessary because evidence of defendant's stomping and whistling and his peculiar behavior in the parking lot tended to negate his defense. The additional evidence to which defendant points was not so convincing on the question of accident as to compel the trial court to conclude that the probative value of A.R.'s testimony was outweighed by its potential prejudicial impact. See Barden, supra, 195 N.J. at 389. A juror could as reasonably attribute defendant's furtive conduct and flight to a desire to avoid further embarrassment in connection with his "accident" as to his consciousness of guilt.
In sum, the trial court analyzed the admissibility of A.R.'s testimony in accordance with the governing standards and its findings are not "so wide of the mark that a manifest denial of justice" warrants intervention. Lykes, supra, 192 N.J. at 534 (internal quotations and alterations omitted).
The arguments raised in Points IV, V and VI of defendant's brief lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We provide only a brief statement of our reasons for rejecting the claims raised in Points IV and V.
The jury instruction on the use of A.R.'s testimony, read as whole, was "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." Cofield, supra, 127 N.J. at 341 (internal quotations omitted).*fn6 As defendant argues, the transcript clearly reflects a mistaken substitution of the word "similar" for the word "dissimilar" in the court's description of defendant's position, but, read without placing undue emphasis on this single error of speech or transcription, the jury charge was adequate and neither misleading nor confusing. See State v. Wilbely, 63 N.J. 420, 422 (1973).
The condition the court placed on defense counsel's cross-examination of A.R.'s mother was well within the court's discretion. N.J.R.E. 403, 611. Defendant sought leave to inquire at trial about inconsistencies in A.R.'s various descriptions of the circumstances under which A.R. gained sufficient familiarity with adult sexual conduct to include a graphic description of oral intercourse in a conversation with a friend of her mother and inconsistencies in the accounts of the adults about what A.R. said when she first referred to defendant's conduct. None of the inconsistencies related to the conduct A.R. described in her testimony at trial and no adult testified about what A.R. said about defendant's conduct. The court determined that if defense counsel questioned A.R.'s mother on these collateral matters, then the State would be permitted to present additional testimony from A.R. about defendant's pornographic films and conduct beyond self-exposure. Moreover, because the court's conditional ruling concerned the credibility of out-of-court statements that were not admitted at trial and that involved subjects not covered by A.R.'s testimony at trial, it could not have had any impact on the verdict. R. 2:10-2.