Argued September 9, 2014
Approved for Publication November 21, 2014.
[Copyrighted Material Omitted]
On interlocutory appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-01-0072.
Jennifer L. Gottschalk argued the cause for appellant ( Law Offices of Richard Sparaco, attorneys; Mr. Sparaco, on the brief).
Audrey M. Curwin, Senior Assistant Prosecutor, argued the cause for respondent ( Sean F. Dalton, Gloucester County Prosecutor, attorney; Ms. Curwin, of counsel and on the brief).
Before Judges FISHER, NUGENT and ACCURSO. The opinion of the court was delivered by FISHER, P.J.A.D.
[438 N.J.Super. 220] OPINION
We granted leave to appeal -- and now reverse - an order which authorized the State's use at trial of " other-crimes" evidence regarding similar accusations made against defendant in Florida six years earlier. What makes this different from most other applications of N.J.R.E. 404(b) is that a jury acquitted defendant of this alleged " other crime." We conclude that the acquittal bars admission of this evidence and reverse.
Defendant is charged with one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The State alleges that defendant, a massage therapist, digitally penetrated a female customer, E.S., at a Washington Township spa on July 5, 2012. In pretrial proceedings, the State made known its desire to present evidence that defendant sexually molested A.W. while providing her with a massage at a place of business in Florida on August 26, 2006. The trial judge conducted a hearing during which A.W. testified. After applying the Cofield factors, the judge rendered [438 N.J.Super. 221] an oral decision, during which he concluded that A.W.'s testimony would be admissible as proof of defendant's " motive, intent, plan and absence of mistake" in the commission of the charged offenses.
We granted leave to appeal and reverse not only because, as discussed in Section II, a proper Cofield analysis compels that result but also because, as discussed in Section III, acquittal-evidence should never be admitted in a later prosecution when offered to show that the prior offense actually occurred.
Cofield requires that the proponent of other crimes evidence demonstrate:
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. ; see also State v. Carlucci, 217 N.J. 129, 141, 85 A.3d 965 (2014).]
All four of these factors must support the admission of the evidence in question. State v. P.S., 202 N.J. 232, 255, 997 A.2d 163 (2010).
In seeking reversal, defendant chiefly argues the first and fourth factors militate against admission of A.W.'s testimony. We conclude that, in fact, none of the four factors supports use of the testimony in question.
[438 N.J.Super. 222] A. Relevance
As to the first factor, we agree with defendant that A.W.'s testimony about what allegedly occurred to her six years earlier is not probative of defendant's alleged (1) " motive," or (2) " intent," suggestive of (3) a " plan" to commit the offense for which he has here been charged, or admissible to demonstrate (4) " absence of a mistake." Although the trial judge permitted use of the evidence by invoking all these purposes, the State has failed to demonstrate or persuade how any apply here.
Motive evidence is that which suggests the accused committed a specific offense. See, e.g., State v. Mazowski, 337 N.J.Super. 275, 283, 766 A.2d 1176 (App.Div. 2001); M.C. Slough & J.W. Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325, 328 (1956) (stating that " motive supplies the reason that nudges the will and prods the mind to indulge the criminal intent" ). By way of example, in State v. Marrero, 148 N.J. 469, 489, 691 A.2d 293 (1997), the Court held that the defendant's knowledge that the victim might file new charges against him evinced a motive for the victim's murder. See also State v. Williams, 190 N.J. 114, 129-30, 919 A.2d 90 (2007) (affirming admission of consciousness-of-guilt evidence, including " lying to police, inducing others to lie, and tampering with evidence" ); State v. Baker, 400 N.J.Super. 28, 45-46, 945 A.2d 723 (App.Div. 2008), aff'd o.b., 198 N.J. 189, 966 A.2d 488 (2009) (holding that the defendant's failed bank robbery was relevant to show a motive for the charged store robbery the following day).
A motive theory, however, will not be permitted " when the 'motive' is so common that the reasoning that establishes relevance verges on ordinary propensity reasoning or when 'motive' is . . . [438 N.J.Super. 223] just another word for propensity." 1 McCormick on Evidence § 190 (Broun ed., 7th ed., 2013). For example, proof of a defendant's drug addiction to show motive for committing a burglary or theft is inadmissible on the theory that drug addicts are perpetually in need of money. Mazowski, supra, 337 N.J.Super. at 282, 766 A.2d 1176 (finding such a motive " indistinguishable from a claim that defendant has a 'disposition,' or general propensity to commit crimes, which is precisely what N.J.R.E. 404(b) prohibits" ).
Here, the prosecution's theory is that evidence of an alleged sexual assault six years earlier demonstrates a motive for committing the offense in question. This proffer does not logically suggest a motive, only an alleged ...