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State of New Jersey v. Anthony Boyd

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY BOYD, A/K/A ANTHONY T. BOYD, ANTHONY BOYDTAYLOR, X NEW YORK BOYD, ANTHONY WILLIAMS, ANTONIO TAYLOR, ANTHONY T. BOYD-TAYLOR, ANTHONY T. TAYLOR, ANTHONEY T. BOYD, NEW YORK BOYD AND TERRELL BOYD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-11-0994.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued January 9, 2012 --

Before Judges Sapp-Peterson and Ostrer.

Defendant was convicted in absentia of first-degree robbery with a simulated deadly weapon, N.J.S.A. 2C:15-1. He was sentenced to a term of eighteen years, with a parole ineligibility term of eighty-five percent, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals, challenging the sufficiency of the evidence, and asserting the trial court erred in refusing to hold a Wade*fn1 hearing, and in admitting evidence that defendant previously committed thefts against similar victims. We reverse.

I.

According to the evidence presented at trial in April 2010, which was conducted in defendant's absence,*fn2 defendant was enlisted by a prostitute to rob her customer. The three trial witnesses were the prostitute Lauren O'Donnell, the victim Wanho Be,*fn3 and Elizabeth Police Officer Paulo Fidalgo.

The trial evidence reflected that Be stopped to hire O'Donnell as he was driving through Elizabeth on his way home on July 22, 2009. A salesman, Be said he had "roughly close" to $1700 in his pocket. He agreed to pay O'Donnell $30 for her services. Before checking into a nearby motel, Be returned to his car to secrete his wallet under the seat. O'Donnell accompanied him, and observed that Be was carrying a significant amount of cash.

At the conclusion of their interactions in the motel,*fn4

O'Donnell borrowed Be's cellphone, claiming she needed to call a child she had to pick up. She had actually called defendant, who directed her to a nearby location. After the phone call, O'Donnell asked Be to give her a ride to the specified location. He agreed and she directed him to a spot eight to ten blocks away, near a Wendy's restaurant.

As they approached a railroad overpass, O'Donnell threw the transmission into park and removed the ignition key. Then, a man in a tank-top, later identified as defendant, approached the driver's side as Be tried to retrieve the key from O'Donnell. Defendant attempted to enter the vehicle. A struggle ensued.

Soon, O'Donnell exited the car, and defendant took her place. Be was fearful defendant would harm him, although no weapon, real or simulated, was shown or mentioned at that point. Be exited the vehicle. Then defendant reached under the car seat, removed Be's wallet and exited the vehicle, too.

Standing a few feet away, Be then pleaded with defendant to return his money. Defendant removed the cash, placed it in his pocket, and tossed Be's wallet to him. As defendant walked twenty feet away, near the railroad overpass, Be followed and continued to plead for the return of his money.

"At that point," Be testified, "he showed me something covered with a towel and I didn't know what was in the towel but he motioned like this, like this, to - as if to - asking me to just - to just go in the car . . . ."*fn5 Be described the towel as larger than a hand towel, but thinner. He said defendant pulled the towel out of his pocket. Be testified the towel was on defendant's hand. He said, "The towel was - something like as if it was pointing at me." Be explained that defendant "motioned to me to - to be on my way . . . ." Apparently demonstrating for the jury, Be testified, "he kind of had it like this. On his right hand." Although he agreed the towel was "very thin," it "was definitely protruding." When asked to clarify, Be said "the towel was - something like as if it was pointing at me."

Be returned to his car and drove around the block in pursuit. He spotted defendant and O'Donnell on bicycles. In the meantime, Be had also called 911 to report the theft and his pursuit. Defendant and O'Donnell left the bicycles and disappeared around a house. Be continued to drive around the area. Then, defendant appeared again. "I was in the car and he again pull out the towel, the second time . . . . It was a white towel and then he kind of like this with the white towel."

According to a fair reading of the transcript, it appears Be was less certain what was under the towel when first displayed than when he saw it a second time. Indeed, Be's continued pursuit of defendant supported the notion that at that point, at least, he was not entirely convinced defendant was armed. But when defendant displayed the towel a second time after Be continued to pursue defendant, Be more firmly believed a weapon was concealed by the towel. That is when Be sped off.

The following exchange took place, referring to defendant's display of the towel the second time:

Q What did you think at that point?

A Well, I - I just sped off. Just -

Q Why did you speed off?

A Because - but I sped - because - well, I was in the car. I mean I didn't want to be fired, you know, I mean didn't want to be fired upon.

Q Did you think he had a gun?

A Yeah. I mean that was the second time he - I mean he - he kind of - so I just sped off and then I told the police, please, the person is in this area. And then I went around the block and then I finally saw a cruiser on my way, and I stopped him . . . . [(emphasis added).]

The assistant prosecutor had asked Be what he thought was under the towel after he described how defendant first displayed it. Be initially said he did not know what was under the towel. Be had testified defendant used the towel as if "asking" him to return to his car, as opposed to threatening him with mortal harm. Although Be ultimately stated he believed a gun was under the towel, his interrupted response - particularly viewed in the context of the whole examination - did not clearly reflect whether Be actually formed the belief it was a gun at its first display, or formed the opinion after the towel was displayed a second time.

The following questioning occurred regarding the first display:

A Well, he motioned like this, like - like as if just go in the car, like -

Q Okay A - as I don't know what would be in that towel so I -

Q What did you think?

A - I - I was really fear at that moment if under - for me at that - it was like money and - and you know and then - and - and -

Q What - what did you believe was in the towel at that time?

A So at the same time I - I knew that my - that my car could be disabled, too.

Q Well, let's back up there.

A Yeah. Yeah.

Q What did you believe was in the towel, if anything? [(emphasis added).]

At this point, Be responded he believed it to be a gun, then began to explain the impact of the two displays of the towel, but was interrupted. Be stated: "I believe it to be gun. I mean you know he - he kind of motioned, that was the first time and then he motioned again at the later time so - "

The assistant prosecutor interrupted and summarized the answer, and then asked a different question. "So he makes this motion to you, you believe it might be a gun, what happens next?" On cross-examination regarding the first display of the towel, Be stated that he did retreat to his car. "It wasn't worth it for me at that point to - to go after the money. There was no gun maybe, or whatever is under there, and the money I would not go - I mean the money was important to me - " Be admitted that he then pursued defendant by car. (emphasis added).

The following exchange on re-direct supports the view that Be more firmly concluded the towel concealed a gun upon its second display:

Q Mr. Be, so we're clear, when the black male made that motion with the towel over his hand, did you believe that he had a gun?

A I - I - to be quite frank it could be - it could be anything. I mean at that point things went so quick as I figure the money wasn't worth it. I just figured I - I was hoping that I could get in my car and - which I did quickly into my car and - and tried to call the police because I had still my cell phone at that time.

Q Did you believe he had anything under that towel?

A Yes. But that was just the first time.

Q That second time?

A Sorry, the second time. Yes. Yes. The second time he really like - it was like around the corner and he like - like this.

[apparently Be demonstrated a movement again] That's when I sped off.

Q The second time what did you believe he had under that towel?

A The second time I really thought it was - it was a - a - how do you say - you know, the second time I - but I was in the car so I - I was a little safer at that time. The second time I mean.

Q The second time what did you believe was under the towel?

. . . . [objection and colloquy]

Q Mr. Be, the second time when you encountered the black male, and he makes the motion to you with something under the towel, did you believe there was a gun underneath the towel?

A Yes. Yes. I thought it was a gun. [(emphasis added).]

Be stopped a passing police vehicle and told the officer what had happened. He described O'Donnell as a white "chunky woman, kind of blonde," and described defendant as "a black person with shorts on and . . . tank top." Be was then directed to wait in his vehicle. In roughly five to seven minutes, the police returned and informed Be they had caught defendant and O'Donnell. "[T]hey pull back next to me saying they caught the person . . . ."

Police then drove Be in the police vehicle a few blocks away, where defendant and O'Donnell were seated in a taxicab.

After O'Donnell and defendant separately stepped out of the vehicle, Be positively identified them.

Before trial, defendant had moved to suppress the show-up identification because, he argued, it was impermissibly suggestive and unreliable, and because the police allegedly failed to adequately record the identification procedures, as required by State v. Delgado, 188 N.J. 48 (2006). The court denied the motion without an evidentiary hearing, based on briefing and oral argument. The court held that the showup was not so impermissibility suggestive as to require a hearing, or consideration of the identification's reliability. The court also found that the police complied with the dictates of Delgado, supra.

Before O'Donnell testified, the court conducted a hearing pursuant to N.J.R.E. 104, to determine whether to permit her to testify, under N.J.R.E. 404(b), that she called defendant to assist her in robbing Be because defendant had a reputation for assisting prostitutes in robbing their customers.

[W]hen girls who made money on the streets by meaning - by ways of sex - he would, you know, maybe be waiting in the hotel room for the guy and when the girl brought him in, he would rob the guy. A lot of stories I've heard from a lot of different girls . . . .

She said his reputation did not include the use of weapons. She stated she spent time with defendant the day before Be was robbed, although they did not discuss defendant assisting her in a future robbery, and she had never used defendant in this capacity before. O'Donnell stated that when she borrowed Be's cell phone, she called defendant and told him, "I have a guy with me who has a lot of money and I want it. And I need you to help me get it. And he said, okay. And told me where to meet him."

The State argued O'Donnell should be permitted to describe defendant's reputation for assisting prostitutes in robbing their customers to explain why O'Donnell called defendant on that day. He stated the evidence also "goes to essentially his prior history of why he's known to do this and this is essentially what he did. And he's continuing with that prior history and action that he does."

The defense objected and urged the court to limit O'Donnell's testimony to a statement that "she called him because she thought he would help her and leave it at that[,]" excluding any mention of defendant's alleged past robberies or thefts.

The court ruled that O'Donnell would be permitted to testify that she had heard "on the street" that defendant was the person to call if she needed somebody to help her unlawfully obtain property from another. O'Donnell was directed not to use the word "robbery" or refer to the use of weapons. Without expressly applying the four factors identified in State v. Cofield, 127 N.J. 328, 338 (1992), the court stated:

I will allow her to testify to this under 404B as it goes to the evidence being admitted for other purposes to demonstrate what their motive was, what their plan was, what they did in preparation and what the intent was, what the opportunity was.

So, that's the limited purpose of why this testimony would be allowed insofar as her contacting Boyd and making the arrangements with Boyd.

During direct examination, O'Donnell confirmed that she called defendant - whom she knew by the name Muhammad - from the motel room to initiate the plan to steal Be's wallet. She was asked why she called him.

Q Why did you specifically call him?

A Because I had known that he had helped people - I don't know how to say it - get things from people before.

Q And by people, do you mean Johns?

A Yes.

Q And by - so, essentially, the girl would call Muhammad to help steal from the John?

A Yes, sir.

Q And you knew this about him?

A Yes, sir.

Q And that's why you called him?

A Yes, sir.

The court did not provide an instruction on the proper use of this 404(b) evidence immediately after it was introduced.

O'Donnell generally corroborated Be's version of events leading up to the theft of the wallet. O'Donnell did not see defendant possess a weapon, nor did she confirm Be's testimony that on two occasions, defendant displayed a towel over his right hand. She said after police pulled over the taxicab in which she and defendant attempted to flee, defendant threw the money onto her lap and asked her to hold it. She stuffed it in her pants.

Officer Fidalgo testified that O'Donnell was found in possession of $1616 in cash. A vial of cocaine was also found in the backseat of the taxi.*fn6 Fidalgo testified that when defendant was arrested, he possessed a "rag" about roughly a foot to a foot-and-a-half wide, but the police did not seize it. He clarified that the rag was not a "doo-rag" typically worn as a head covering.

After the State rested, the defense moved unsuccessfully for dismissal of the robbery charge, arguing there was insufficient evidence that defendant possessed a simulated deadly weapon. Defendant had still not appeared and the court determined he had waived his right to testify. The defense had conceded in its opening statement that a crime was committed, but argued it did not constitute a robbery. In summation, defense conceded again, "[T]he position has always been that a theft occurred . . . . Mr. Boyd, all he wanted was the money." The defense disputed that the additional elements of robbery were proved.

The court conducted an off-the-record charge conference in chambers for roughly two hours.*fn7 Without summarizing any requests and rulings during the two-hour meeting, the court, on the record outside the jury's presence, presented its charge in writing to counsel, who confirmed the charge was acceptable and they had no objections to the charge, which did not include the model charge on the proper use of other crimes and wrongs evidence. See Model Jury Charge (Criminal) "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (2007).

During summation, the assistant prosecutor referred to defendant's alleged prior criminal activity. "She wants the cash. She calls Anthony Boyd. A guy she knows who does it, who can get that cash for her." The jury returned its guilty verdict the same day.

Defendant moved for a new trial, based on a claim defendant's absence was not knowing and intentional, and the evidence was insufficient. With defendant present, the court denied the motion, finding defendant was on notice of the trial date, and the evidence was sufficient.

At sentencing, the court rejected defendant's request that the court sentence defendant in the second-degree range, finding it would not be a manifest injustice to sentence him in the first-degree range. In imposing an eighteen-year NERA sentence, the court relied on: defendant's risk of reoffending, based on his lack of success on probation and intensive supervision, his prior substance abuse, and his prior crimes "of similar nature;" his prior criminal record, which the court reviewed; and the need to deter defendant, who was forty years old and had continued to reoffend.

Defendant raises the following points on appeal:

POINT ONE

THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF AS TO THE SIMULATED POSSESSION OF A DEADLY WEAPON BECAUSE IT DID NOT PROVE UNEQUIVOCAL CONDUCT OR EQUIVOCAL CONDUCT COUPLED WITH THREATENING STATEMENTS.

A. The State's Evidence Did Not Meet The Legal Standard For Simulated Possession Of A Weapon.

B. Boyd Cannot Be Re-Tried For First-Degree Robbery.

POINT TWO

THE LOWER COURT ERRED IN ADMITTING TESTIMONY THAT BOYD HAD PREVIOUSLY COMMITTED BAD ACTS SIMILAR TO THE ONE CHARGED IN THIS CASE.

A. Standard of Review.

B. The Testimony About Boyd's Other Bad Acts Was Not Relevant To A Material Issue In Dispute And Therefore Inadmissible Under Rule 404(b).

C. The State Offered No Evidence Of when Boyd's Prior Bad Acts Allegedly Occurred.

D. The State Did Not Prove Boyd's Prior Bad Acts By Clear And Convincing Evidence, But Instead Relied On Inadmissible Hearsay.

E. The Prejudicial Effect Of The Prior-Crimes Evidence Substantially Outweighed Its Probative Value.

F. The Lower Court Failed To Give Any Limiting Instruction Whatsoever As To The Permissible And Prohibited Uses Of The 404(b) Evidence.

G. Conclusion.

POINT THREE

BECAUSE THE STATE FAILED TO SATISFY THE REQUIREMENTS OF STATE V. DELGADO, THE RESULTS OF THE OUT-OF-COURT "SHOWUP" IDENTIFICATION SHOULD NOT HAVE BEEN ADMITTED. IN THE ALTERNATIVE, BOYD SHOULD HAVE BEEN GRANTED A HEARING PURSUANT TO UNITED STATES V. WADE.

A. The State Failed To Satisfy The Admissibility Requirements Of State v. Delgado.

B. The Court Should Have Granted A Wade Hearing On The Reliability Of The Showup Identification.

POINT FOUR

REMAND IS APPROPRIATE TO ALLOW THE TRIAL COURT TO RECONSIDER SENTENCING BOYD AS A SECOND-DEGREE OFFENDER IN LIGHT OF STATE V. MEGARGEL.

II.

We are unpersuaded by defendant's argument that the evidence was insufficient to establish robbery with a simulated deadly weapon. Also, although we agree the court erred in failing to conduct a Wade hearing, the error was harmless given the reliability of the identification under the circumstances. However, we conclude the court erred in permitting testimony that defendant was known for helping prostitutes steal from their customers. The error was exacerbated by the court's failure to provide any instruction as to the proper use of other crimes evidence. Notwithstanding the evident strength of the State's case, we are unable to view the error as harmless and are constrained to reverse.

A.

Before discussing the other crimes evidence, we address defendant's arguments regarding the sufficiency of evidence and the show-up identification.

Use of a deadly weapon, as an element of first-degree robbery under N.J.S.A. 2C:15-1, may be satisfied by proof a defendant used a simulated weapon, as well as an actual one. "Deadly weapon" is defined to include: any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.] [N.J.S.A. 2C:11-1c (emphasis added).]

In State v. Chapland, 187 N.J. 275 (2006), the Court reviewed and synthesized the law on simulated deadly weapons used in first-degree robbery. The Court held that a defendant need not "actually show a victim some object that the victim reasonably perceives to be a weapon." Id. at 289. Instead, a defendant may cloak the item, as defendant did here by covering his hand with a towel. "The victim need not see a 'concealed item' to reasonably believe that a weapon was present; it was sufficient that whatever allegedly 'cloaked' the item could do so in a believable manner." Ibid.

In creating the reasonable belief that a defendant possesses a deadly weapon, the simulation of the weapon alone may be sufficient; in other cases, the defendant's action may be sufficient only when accompanied by a threatening statement. "An unequivocal or unambiguous simulation of a weapon possessed, as well as an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a sufficient factual basis for conviction of first-degree robbery." Id. at 292.

In Chapland, defendant testified that he reached behind his back, and made a threatening demand coupled with an epithet, to create the impression he was reaching back for a weapon. Notably, the demand did not expressly refer to the presence of a weapon; but was an angry demand for the victim's purse. Thus, his equivocal action - reaching behind his back - was sufficient, when coupled with his statement, to create the victim's reasonable belief that he possessed a deadly weapon.

Defendant argues that his towel-over-hand gestures were ambiguous or equivocal, and in the absence of threatening words, were insufficient to satisfy the deadly weapon element of the offense. We disagree. Although Be evidently harbored some uncertainty about what defendant possessed under the towel when defendant first confronted him with it, the jury could reasonably conclude the simulation was unequivocal or unambiguous when repeated a second time. When defendant confronted Be a second time, Be sped away because he did not want to be "fired on."

Unlike in Chapland, defendant's towel-covered-hand was front and center. The physical presentation lacked the ambiguity of Chapland's movement when viewed in isolation from Chapland's threatening statement. Moreover, defendant did not just display his towel-cloaked hand; he gestured with it. In that respect, the jury could have viewed defendant's actions as comparable to a person who demonstrably holds his hand in the shape of a gun in his pocket, and gestures silently to reinforce the impression he possesses a gun. The Court held that sufficient even under a prior version of the robbery statute. "'[T]here can be no doubt that a finger . . . when placed in the pocket in the shape of a gun and combined with threatening words or gestures . . . is capable of making a victim believe that [the] defendant was armed.'" State v. Hutson, 107 N.J. 222, 228 (1987) (emphasis added) (quoting State v. Cooper, 140 N.J. Super. 28, 34 (Law Div. 1976), rev'd on other grounds, 165 N.J. Super. 57 (App. Div.), certif. denied, 81 N.J. 56 (1979)).

Although the record omits any verbal memorialization of Be's in-court demonstration, it is clear that Be illustrated for the jury defendant's movements, and perhaps even the configuration of his hand. The evidence was sufficient for the jury to conclude that defendant purposefully cloaked his hand and gestured in order to lead Be "reasonably to believe" defendant possessed an item "capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1c.

Turning to the show-up identification, we agree that the court erred in refusing to conduct an evidentiary hearing on the admissibility of the identification. The court correctly observed that despite a showup's inherent suggestiveness, State v. Herrera, 187 N.J. 493, 504 (2006), a showup is a useful and necessary tool, State v. Henderson, 208 N.J. 208, 259 (2011), and standing alone does not require consideration, under the second prong of the Manson/Madison*fn8 test, whether the identification was reliable. Herrera, supra, 187 N.J. at 504. Although a defendant is not automatically entitled to an evidentiary hearing on the admissibility of a show-up identification, see, e.g., State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, denied 102 N.J. 335 (1985), "only a little more is required in a showup to tip the scale toward impermissibly suggestive." Herrera, supra, 187 N.J. at 504.

In Herrera, the police's comment to the victim that they located the victim's car "with somebody in it" and they wanted the victim to "identify the person," was enough to tip the scale, because the comments "may have influenced the victim to develop a firmer resolve" in his identification. Id. at 506. Here, as Be testified, the police officers were "saying they caught the person[.]" That was enough to require a hearing.

However, the result would have been unchanged, given the compelling proof elicited at trial of the identification's reliability. A court must consider the "totality of the circumstances" and to weigh against the suggestive procedure five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. at 506-07, quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.*fn9

Here, Be had ample opportunity to view defendant and O'Donnell based on his intimate interactions with O'Donnell, and his confrontation with defendant, which continued when Be pleaded for his money and then pursued defendant; Be was attentive throughout; Be's description of defendant and O'Donnell was accurate; Be expressed no uncertainty in his identification; and defendant and O'Donnell were arrested together just minutes after the theft and attempting to flee. The fact that O'Donnell and defendant were arrested together in possession of defendant's cash, and O'Donnell confirmed that Be had accurately identified defendant as her cohort, virtually eliminated the possibility Be was mistaken.

Finally, we are unpersuaded by defendant's argument that the identification should have been excluded as a sanction for the police's alleged failure to make an appropriate report of its identification procedure. In exercising its supervisory powers under N.J. Const., Article VI, Section 2, Paragraph 3, the Supreme Court conditioned admissibility of out-of-court identifications on law enforcement's preparation of "a written record detailing the out-of-court procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." State v. Delgado, 188 N.J. 48, 63 (2006). If a verbatim recording is not feasible, "a detailed summary should be prepared." Ibid. Although a "contemporaneous record is the preferred method," the Court did not require it. Id. at 63, n.9 ("We suggest that law enforcement officers not delay in recording or summarizing the out-of-court identification procedure.").

Here, the combination of the police reports prepared the same evening as the identifications, and an August 5, 2009*fn10 report including an interview with Be, suffice to describe where the identification took place, what was said, and the results. Although defendant suggests that the delay in preparing the August report rendered it suspect as a self-serving report, the report recorded Be's statement, hardly self-serving from the police's perspective, "About 5-10 minutes later they came back and told me that they thought that they caught the people that robbed me." Although the August 2009 report was not contemporaneous, it described the dialogue between the officers and Be during his identification. The reports thus satisfied the purpose of the reporting requirement, which is "to ensure that parties, courts and juries can later assess the reliability of the identification." Henderson, supra, 208 N.J. at 252.

B.

The court permitted O'Donnell to testify that defendant was known - based on what others had told her - to help prostitutes steal from their customers, and that's why she called him to help her obtain Be's cash. There was no instruction that O'Donnell's recitation of what she heard people say about defendant was offered only to explain her state of mind, that is, regardless of whether defendant's reputation was true or not, O'Donnell believed it to be true and on the basis of that belief, chose to call defendant. Because the court failed to instruct the jury that use of this evidence would be so limited, the jury was free to accept the out-of-court statements of defendant's criminal activity for the truth of the matters asserted. The State concedes that if analyzed under N.J.R.E. 404b and the four-prong test under Cofield, supra, the statement should have been excluded. However, the State argues the Cofield test did not apply because the evidence was "intrinsic" to proof of the charged offense, citing State v. Rose, 206 N.J. 141 (2011), and in any event, its admission was harmless. We disagree on both points.

Before addressing the State's arguments, we briefly address the Cofield factors, which the trial court did not analyze. See State v. Darby, 174 N.J. 509, 518 (2002) (court's decision to admit 404(b) evidence not entitled to deference where court fails to apply four-prong test). First, the evidence of defendant's past criminal activity was decidedly not relevant to a material issue actually in dispute. Id. at 519-20 (issue must actually be disputed). The defense did not dispute that O'Donnell and defendant planned to steal Be's money. The defense focused instead on the additional elements to satisfy the robbery charge. See State v. Stevens, 115 N.J. 289, 301 (1989) (prong not satisfied "'when the accused concedes the issue to be proved'") (citation omitted).

Second, defendant's alleged past thefts with prostitutes were not similar in kind to the charged offense, which involved use of a deadly weapon, and there was no evidence regarding proximity in time. See Cofield, supra, 127 N.J. at 338 (defining second prong).*fn11 Third, the evidence was far from clear and convincing that defendant actually participated in past thefts of prostitutes' customers, as the sole proof was the hearsay statements of others to O'Donnell. Ibid. (defining third prong).

Finally, the probative value of the evidence was outweighed by the prejudice. Ibid. (defining fourth prong). Here, the probative value was at most cumulative, given O'Donnell's testimony that she called defendant and he assisted her, and the defense did not contest defendant's participation in the theft. Its prejudicial impact was significant, as we discuss below in greater detail, particularly in the complete absence of any limiting instruction.

Regarding the State's contention that the evidence of defendant's past thefts was "intrinsic" evidence, the State misreads the Supreme Court's recent decision in Rose, supra. Declaring the res gestae doctrine dead as a basis to admit evidence of other crimes or wrongs, the Supreme Court held that a narrow class of evidence of uncharged crimes or wrongs, dubbed "intrinsic" evidence, could be admitted without compliance with N.J.R.E. 404(b) and the four-prong Cofield test. "The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403." Rose, supra, 206 N.J. at 179. However, the evidence presented here does not fall within that narrow class of "intrinsic" evidence.

We quote the Court's definition of such "intrinsic" evidence:

To aid courts and litigants in making the threshold determination of whether the evidence relates to "other crimes" or is intrinsic to the charged crime, we look to the Third Circuit's statement of the test in United States v. Green, 617 F.3d 233 (3d Cir. 2010). Green provides a workable, narrow description of what makes uncharged acts intrinsic evidence of the charged crime, and therefore not subject to Rule 404(b)'s directed purpose requirements. As the Court of Appeals explained, we . . . reserve the "intrinsic" label for two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts."

If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime."

But all else must be analyzed under Rule 404(b). [Id. at 180 (quoting Green, supra, 617 F.3d at 248-49, emphasis in original and internal citations omitted).]

Applying the Rose-Green test, the evidence of defendant's alleged past thefts is not "intrinsic." First, it does not "directly prove[] the charged offense." Whether defendant previously committed a theft does not tend to prove that he committed the charged one. Second, the past alleged thefts were not "performed contemporaneously" with the charged offense, nor did they "facilitate commission" of it.

The State cannot avoid the Rose definition of intrinsic evidence by simply denominating the evidence of defendant's alleged past thefts as "background evidence." The Rose court did not authorize admission of evidence separately classified as "background." Rather, the Court held that what has previously been considered "background" would be subject to the "intrinsic evidence"-versus-404(b) evidence dichotomy, and the Court predicted that little background evidence would ultimately be excluded upon application of the criteria set forth in the Court's decision. See Id. at 180 ("'As a practical matter, it is unlikely that our holding will exclude much, if any, evidence that is currently admissible as background or "completes the story" evidence[.]'") (quoting Green, supra, 617 F.3d at 249).

Nor can we label as harmless the admission of evidence that defendant had assisted other prostitutes in stealing from their customers. The issue is whether the evidence was "clearly capable of producing an unjust result." R. 2:10-2. See State v. Kemp, 195 N.J. 136, 149 (2008) ("[W]e focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]'") (quoting State v. Macon, 57 N.J. 325, 338 (1971)); State v. Marrero, 148 N.J. 469, 492-93 (1997) (under harmless error analysis, court considers whether "any prejudice to defendant was not such that created a real possibility that the jury arrived at a result it otherwise might not have reached.").

Our Supreme Court has emphasized the inherently prejudicial nature of other crimes evidence and concluded that the wrongful admission of such evidence rarely if ever can be excused as harmless error. "If the evidence could not have come in on the main charge, as it did, the error cannot be viewed as harmless. Nothing could be more prejudicial than the erroneous admission of such testimony." State v. G.V., 162 N.J. 252, 261 (2000). The Supreme Court quoted with approval our statement in State v. Atkins, 151 N.J. Super. 555, (App. Div. 1977), rev'd on other grounds, 78 N.J. 454 (1979):

The [harmless error] rule is essential "to conserve judicial resources," but it must be applied with caution so as to assure "the vitality of the rules and procedures designed to assure a fair trial."

There is enormous potential for prejudice in the improper admission of a defendant's prior convictions. Commentators have suggested that such error should be considered harmful per se. See The Riddle of Harmless Error, where Chief Justice Traynor wrote:

The erroneous admission of evidence of other crimes also carries such a high risk of prejudice as ordinarily to call for reversal. [G.V., supra, 162 N.J. at 261-62 (quoting Atkins, supra, 151 N.J. Super. at 570, (internal citations omitted) (emphasis added in original).]

The Court cautioned against the overuse of the "harmless error" doctrine, particularly as applied to the wrongful admission of other crimes evidence, given its inherently prejudicial nature.

This Court has sought to prevent overuse of the "harmless error" doctrine . . . . For this reason, the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards "designed to assure a fair trial." (Citations omitted). "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant. The likelihood of prejudice is acute when the proffered evidence is proof of a defendant's uncharged misconduct." State v. Stevens, supra, 115 N.J. at 302. [G.V., supra, 162 N.J. at 262.]

Even where the 404(b) evidence is admissible, harmful error is likely committed when the trial court fails to adequately charge the jury as to the appropriate and limited use of such evidence. Ibid. ("[E]ven if the evidence had been admissible on the subsidiary issues in the case, the charge in this case left the jury wholly unguided as to how to use the evidence for such limited purposes."). Cf. Marrero, supra, 148 N.J. at 496 (harmless error where there was an inadequate instruction on other crimes evidence, but some instruction delivered, the evidence was properly admitted and there was overwhelming evidence of guilt).

In State v. Gillispie, 208 N.J. 59, 93 (2011), the Court held that the wrongful admission of other crimes evidence was harmless, but a description of the case is instructive. Defendants participated in a robbery and a shooting in a Bronx, New York barbershop shortly before they participated in a murder in Barnegat Township. The Court held that evidence of the barbershop shooting was admissible to establish that the weapon in that other crime to which defendants were connected, was used in the New Jersey crime. However, the Court held that the trial court erred in admitting unnecessary and prejudicial details of the Bronx shooting. Id. at 91. Also, although the trial court did deliver an instruction on the proper use of the other crimes evidence, the Court found it wanting in detail. Id. at 93. Nonetheless, the Court found the errors harmless, given the overwhelming proof of the New Jersey murder. In the case against Gillispie, the proof included his own confession and multiple witnesses to the planning and commission of the crime. As to Gillispie's cohort, Buttler, the Court concluded the evidence of his participation as an accomplice was "undeniable" despite questions about the credibility of the State's witnesses. Id. at 94.

Applying these principles, we are constrained to reverse. Although the defense ultimately did not contest defendant's participation in the theft, the issue was whether he used a "deadly weapon" and did so purposefully. The fact that the defense did not contest the theft did not render the evidence of previous thefts superfluous, because the other crimes could have led the jury to conclude defendant was a bad man, with a propensity to commit crimes. The jury might have surmised - particularly in the absence of a jury instruction - that if defendant repeatedly stole from prostitutes' customers, he must have used force or the threat of force at some point or another, or was more likely to have used it in this case.

The State's proof depended solely on Be's testimony. Although, as we have discussed above, there was sufficient evidence for the jury to conclude that defendant wielded a simulated deadly weapon and did so purposefully, the result was not a foregone conclusion. Particularly given Be's statements that at various points he was unsure what defendant was holding, and his characterization of defendant's movements as benignly "asking" him to return to his car, the jury could have harbored reasonable doubt that the "deadly weapon" element of the offense was satisfied, or the jury could have had reasonable doubt that defendant satisfied the required mens rea when he displayed it.

Gillispie, supra, does not compel a different result. In that case, the error was that too much other crimes evidence was admitted; in this case, none of the other crimes evidence was admissible. Also, the trial court in Gillispie provided the jury with some guidance, albeit inadequate, as to the use of the other crimes evidence; in this case the court provided no guidance whatsoever. Finally, although the proofs in this case are strong, they are nonetheless not as overwhelming as the evidence appeared to be in Gillispie, particularly as to Gillispie, who confessed.

In short, alerting the jury to defendant's reputation of having previously stolen from prostitutes' customers sealed his fate, and led to a result the jury possibly "otherwise might not have reached." Marrero, supra, 148 N.J. at 493.

C.

Although we need not address in detail defendant's challenge to his sentence, we find there to be no merit to his argument that the court erred in declining to downgrade defendant's sentence. See N.J.S.A. 2C:44-1f(2); State v. Megargel, 143 N.J. 484, 494-95 (1996) (describing demanding showing required for downgrade). Defendant apparently was subject to an extended term as a persistent offender under N.J.S.A. 2C:44-3a had the State filed the appropriate motion. This conviction was defendant's fourth indictable conviction in New Jersey; he had multiple convictions out of state; and he was released within ten years of the instant conviction. The court found no mitigating factors. N.J.S.A. 2C:44-1b. Were we not compelled to reverse, we would find defendant's eighteen-year term justified, within the judge's sentencing discretion, and not shocking to the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Reversed.


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