"A court must A-0269-17T4 22 assess whether prejudice is present, and its judgment is reviewed for an abuse of discretion."
How later courts described this case
- "A court must A-0269-17T4 22 assess whether prejudice is present, and its judgment is reviewed for an abuse of discretion."
Written by the judges who cited it.
The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0269-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CREIGHTON P. WILLIAMS,
Defendant-Appellant.
Submitted February 27, 2019 – Decided June 12, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 13-07-
1274.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R. Juliano,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Creighton P. Williams was convicted of the lesser-included
offense of petty disorderly persons harassment (O.M.), N.J.S.A. 2C:33-4(b); two
counts of fourth-degree criminal sexual contact (I.N. and S.M.), N.J.S.A. 2C:14-
3(b); and third-degree child endangering (S.M.), N.J.S.A. 2C:24-4(a). After
merging counts three and four, on July 21, 2017, the judge sentenced defendant
to three years probation, conditioned upon 364 days county jail time. The
judgment of conviction states "probation may terminate upon release" from jail.
The judge also imposed the reporting and registration requirements of Megan's
Law and parole supervision for life. N.J.S.A. 2C:7-1; N.J.S.A. 2C:43-6.4.
Defendant appeals and we affirm.
Pretrial, defendant sought unsuccessfully to sever the counts of the
indictment for trial purposes as they relate to the three victims. The judge denied
the application based on his analysis of N.J.R.E. 404(b) and State v. Cofield,
127 N.J. 328 (1992).
The judge granted the State's motion in limine to exclude certain evidence,
including that the victims, S.M. and O.M., who had previously been friends with
defendant's daughter A.W., allegedly sent unsavory text messages, and engaged
in a verbal altercation with her. At the State's request, the judge also barred
testimony regarding specific instances of the victims' conduct, and the content
A-0269-17T4
2
of an audio recording from an August 4, 2012 meeting between defendant, his
wife, and O.M. and S.M.'s parents. The pretrial January 11, 2017 order, also
refers to "defendant's statement" being inadmissible. The matter initially
resulted in a mistrial.
During the jury selection in the trial that resulted in the conviction now
on appeal, the judge and a potential juror engaged in an on-the-record exchange
regarding that juror's belief that if criminal charges were brought against a
person, there must be strong evidence. The juror, when asked, said the belief
was not strongly held. We include the dialogue in the relevant section of this
opinion.
After the jury was sworn, the prosecutor was advised by I.N. that the date
in the indictment—mid-August—was not correct, based on August 1 and 2, 2012
messages she had just discovered on her Facebook page. The judge granted
defendant a thirteen-day continuance in which to investigate the change in dates,
but denied his motion for another mistrial. After the continuance, when the trial
resumed, the judge granted the State's motion amending the indictment counts
regarding S.M. to reflect the new date—on or about July 31, 2012—from mid-
August.
A-0269-17T4
3
The trial testimony established that defendant was the founder and pastor
of a small church that included as members the victims and their families and
conducted services in a hotel conference room. Defendant and his family
resided in a one-bedroom apartment, and the bedroom doubled as his pastoral
office.
O.M. testified that during a Sunday service on or about June 29, 2011,
while a slideshow of a congregant's birthday party was being shown, defendant
groped her buttocks and said "[y]ou shouldn't wear stuff like that. . . . [o]nly
your husband is supposed to see your butt." O.M., who was then sixteen,
understood defendant's reference to be to the outfit she wore at the party,
depicted on the slides. Afterwards, defendant proceeded to the front of the room
and finished the service. As everyone was leaving, defendant approached O.M.
again, while she was still seated, and grabbed her buttocks a second time through
the opening of the back of the chair. O.M. stood up and yelled "stop effing
touching me[,]" and defendant's wife told her she was being disrespectful. In
response O.M. said that maybe defendant's wife should tell defendant to stop
touching her, and she left the room.
Later on, O.M. told her then-boyfriend, defendant's nephew, about the
incident but asked him not to disclose the information to anyone else. He
A-0269-17T4
4
nonetheless called defendant and said he had heard some stuff and that "[i]f you
don't change your way, you're going to be . . . that sinner[,]" referring to a
particular passage in the Bible about an adulterer. Defendant responded by
saying "[o]kay, my brother, my son[,]" and the men then prayed together. By
the time of trial, defendant's nephew had married O.M. We more fully detail the
testimony in the relevant sections.
Fifteen-year-old I.N. was friendly with O.M., S.M., and defendant's
daughter. Like the others, she spent time "almost every other day" with
defendant and his family. In November 2011, she visited defendant's daughter,
while defendant, the daughter's younger sister and brother, as well as defendant's
parents, were present. When I.N. arrived, she went into defendant's
bedroom/office to say hello, gave him a hug, and left the room. Defendant called
her back, directing her to close the door. She gave him another hug, and as she
did so, he touched her belly button over her clothes, which she thought was
"weird." She left the apartment briefly, and when she returned later, defendant
called her back into the bedroom. He again told her to close the door, and she
gave him a hug, except this time he converted it to a "hug that you would give
your spouse[.]" Defendant held onto her arm and began to rub her back. He
again touched her belly button, this time going underneath her shirt. Defendant
A-0269-17T4
5
unbuttoned I.N.'s jeans and inserted his hand. I.N. was wearing tights beneath
her jeans because it was winter, and defendant rubbed her vagina over her tights,
asking her if she shaved. She did not respond, and defendant stopped when his
youngest daughter entered the room. I.N. ran out of the house.
About a month after this incident, O.M. and I.N., who had a shared study
hall in school, talked about defendant. I.N. told O.M. he had touched her on her
vagina. I.N. told no one else.
Several months later, on or about July 31, 2012, thirteen-year-old S.M.,
O.M.'s younger sister, was invited by defendant's daughter to go to the park with
her family. When S.M. arrived at the apartment, defendant's younger daughter
and son were present. Defendant arrived not long thereafter.
Defendant walked into his bedroom and asked S.M. to close the door,
which she did, but not completely. While seated in his computer chair,
defendant asked S.M. to hug him, and as she did so, he placed his left hand on
her buttocks and his head between her breasts. He moved his head up and down,
making a humming noise. Defendant placed his right hand on her inner thigh,
moved his hand towards the inside of her shorts, and asked her if she shaved.
Over her underwear, he rubbed her vagina and asked her if she liked it.
Defendant did this for quite some time, eventually putting his hand under her
A-0269-17T4
6
underwear. He remained seated the entire time, with his left hand on S.M.'s
buttocks. Defendant stopped when the phone rang and one of his younger
children called out that "[m]om is on the phone." He asked S.M. to keep what
had happened a secret. She did not answer and left the room when one of
defendant's children entered with the phone.
After the incident, defendant and all the children, including S.M., went to
the park. The following day, August 1, 2012, S.M. called and disclosed to
defendant's daughter, crying as she spoke. Her older sister O.M. overheard the
conversation, O.M. asked S.M. to tell her what had occurred, and they told their
mother. O.M. then disclosed the church incident during which defendant had
touched her buttocks. That same day, O.M. reached out to I.N., who was in
Jamaica, on Facebook Messenger. O.M. told I.N. that if she remained silent
regarding the incident with defendant, O.M. would tell I.N.'s mother about it
herself. After the conversation, I.N. disclosed to her mother.
Defendant's daughter and wife testified on his behalf. They disputed the
versions of events given by the girls, and attempted to cast doubt on their
credibility. Defendant's daughter agreed that around July 31, 2012, S.M. called
her and complained that defendant had "touched her on her private parts in his
A-0269-17T4
7
bedroom the day before[,]" but said she never saw either S.M. or I.N. leave the
family's apartment in tears.
Defendant's wife testified that in addition to defendant and their three
children, her parents lived in the one-bedroom apartment. Defendant and she
slept in the bedroom office, her children slept in the living room, and her parents
slept in the dining room.
Defendant's wife said the victims had been close friends of her daughter,
and would refer to defendant as "[u]ncle" or "[d]addy," and call her "[a]untie"
or "[m]ommy." Defendant would often greet the girls with a hug and kiss them
on the forehead. It was not uncommon for them to go into the bedroom to say
hello to him. She did not recall either S.M. or I.N. leaving the apartment upset
or in tears.
Defendant's wife was present at a meeting with defendant, O.M., and
S.M.'s parents, during which they described instances of lying and disciplinary
problems with their daughters. The meeting was recorded. The recording was
poor in quality. In fact, according to the judge's description, the only clearly
audible portion was the prayers at the end of the tape.
During closing argument, defense counsel told jurors:
At the outset I asked you to think about three
questions, to keep three questions in mind: First, does
A-0269-17T4
8
it make sense? Second, is it consistent? And the
ultimate question, is it true? Now having heard the
testimony in this case I would submit that we have the
answers to those questions. No, it isn't consistent. It
doesn't make sense. It's not true.
Additionally, defense counsel said:
The prosecutor may want you to ask yourselves
why? Why would these girls make this up? Why would
they go through this process, drag themselves to court,
put themselves at the mercy of this process? Why
would they do this? Why is not a question for the jury
to consider in this case. You are here to decide a much
more important question, if. If this happened. If these
things are true. If it makes sense. If the State has met
its burden of proving this case beyond a reasonable
doubt.
Don't ask yourselves why. You won't find an
answer to the question. I know this because [defendant]
has been looking for this answer for four years.
The prosecutor objected and as a result, when the judge gave the model jury
charge explaining defendant's election not to testify, he added language
instructing jurors not to consider the nature of defendant's feelings about the
charges.
During his closing, the prosecutor told jurors they had: "the unique ability
to force upon the defendant a responsibility that he does not want to accept. You
have the power and opportunity through your verdict to say to him: You are
responsible for what you did to these three girls[.]"
A-0269-17T4
9
On appeal, defendant raises the following points of error:
POINT I
IT WAS ERROR FOR THE COURT TO AMEND THE
INDICTMENT OVER DEFENDANT'S OBJECTION
AFTER THE FIRST TRIAL ENDED IN A MISTRIAL.
POINT II
THE DEFENDANT'S MOTION FOR A MISTRIAL
FOLLOWING LATE DISCLOSURE OF
DISCOVERY AFTER COMMENCEMENT OF THE
SECOND TRIAL SHOULD HAVE BEEN GRANTED.
POINT III
THE GRANTING OF THE STATE'S MOTION TO
EXCLUDE CERTAIN EVIDENCE PROFFERED BY
THE DEFENDANT IN THE DEFENSE OF THE
CHARGES WAS ERROR.
POINT IV
THE PRESENTATION OF EVIDENCE BY THE
STATE DISCLOSED TO DEFENDANT AFTER THE
TRIAL HAD COMMENCED DENIED THE
DEFENDANT A FAIR TRIAL.
POINT V
THE ADMISSION OF HEARSAY STATEMENTS
PURPORTEDLY MADE BY THE DEFENDANT
WAS AN ABUSE OF DISCRETION AND
DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT VI
THE DENIAL OF THE DEFENSE MOTION TO
EXCUSE A JUROR FOR CAUSE WHO VIEWED
THE INDICTMENT AS EVIDENCE OF GUILT WAS
ERROR.
A-0269-17T4
10
POINT VII
THE FAILURE TO GRANT THE DEFENDANT'S
PRE-TRIAL MOTION TO SEVER THE COUNTS OF
THE INDICTMENT WAS ERROR.
POINT VIII
GROSSLY PREJUDICIAL STATEMENTS MADE
BY THE PROSECUTOR DURING HER
SUMMATION DEPRIVED DEFENDANT OF A FAIR
TRIAL.
POINT IX
THE JURY INSTRUCTION GIVEN BY THE COURT
IN ITS FINAL CHARGE AT THE REQUEST OF THE
STATE OVER DEFENDANT'S OBJECTION WAS
ERROR.
POINT X
THE AGGREGATE OF ERRORS DENIED
DEFENDANT A FAIR TRIAL.
I.
Defendant's points of error I, II, and IV are so lacking in merit as to not
warrant much discussion in a written opinion. R. 2:11-3(e)(2). When S.M.
belatedly discovered her Facebook messages, the only effect was to change the
dates of the alleged assaults by approximately two weeks. To address this
change, the judge granted defendant a lengthy continuance, and thereafter
granted the State's motion to have counts three and four of the indictment
amended to read that the crimes occurred on or about July 31, 2012.
A-0269-17T4
11
Rule 3:7-4 authorizes the precise modification made in this case. It was
merely a correction, moving the date of the offense approximately two weeks
earlier than originally given. That the original indictment date was incorrect
had to be known to defendant—the meeting with the victims' parents to discuss
O.M. and S.M.'s disclosures took place before that date. Thus, defendant's
motion for a mistrial was properly denied, as no injustice resulted in the
modification.
Similarly, the judge did not err by allowing the Facebook messages into
evidence because the State did not violate the discovery rules by producing them
immediately once located by the victim. The judge appropriately continued the
matter to allow defendant time in which to investigate. He granted the motion
to amend the date in the indictment only after the postponement. The State could
not be expected to produce discovery not in its possession, innocently
discovered at the eleventh hour. See R. 3:13-3(b) and (f).
II.
A trial court's evidentiary rulings are entitled to substantial deference.
State v. Kuropchak, 221 N.J. 368, 385 (2015). On appellate review, they are
reversed only where they constitute an abuse of discretion. Ibid. When a trial
court engages in a N.J.R.E. 403 weighing of the probative value of evidence
A-0269-17T4
12
against its prejudicial effect, the ruling should be overturned only if it constitutes
"a clear error of judgment," State v. Koedatich, 112 N.J. 225, 313 (1988), one
"so wide of the mark that a manifest denial of justice resulted." State v. Perry,
225 N.J. 222, 233 (2016) (quoting State v. Marrero, 148 N.J. 469, 484 (2016)).
Defendant contends that the judge erred in excluding from evidence the
following: defendant's daughter's testimony regarding letters and text messages
she claims she received from the victims; the daughter's testimony regarding a
confrontation with O.M. and S.M., during which they allegedly used foul
language; defendant's wife's testimony regarding the meeting that took place on
August 4, 2012, between defendant, O.M. and S.M.'s parents, and the audio
recording of the meeting.
Defendant's daughter claimed that the victims yelled and screamed
derogatory comments at her, that she received derogatory text messages
regarding her father and mother, and derogatory messages about herself , she
believed, from the victims. She could not recall any details regarding the
confrontation with the victims. She did not recall the cell phone number at
which she received these messages, however, since she no longer had the phone.
The text messages could not be retrieved, and when interviewed by defendant's
A-0269-17T4
13
investigator, defendant's daughter could not say with certainty when they were
sent or even from whom.
The judge ruled that the communications and the verbal confrontation
were inadmissible because they lacked any foundation, would invite speculation
by the jury, and would confuse them. Additionally, the altercation between the
girls was merely an individual instance of improper conduct, not admissible
under the evidence rules.
Given defendant's daughter's inability to produce the texts and to identify
the author, it would have been impossible to authenticate them as required by
N.J.R.E. 901. Although authentication need not be complex, the proponent of
the evidence must at least proffer either direct or circumstantial proof
establishing the identity of the author. See State v. Tormasi, 443 N.J. Super.
146, 156 (App. Div. 2015). The judge's decision to exclude them was thus far
from an abuse of discretion.
N.J.R.E. 405(a) states that a witness's character trait, including for
truthfulness, cannot be proven by specific instances of conduct other than prior
convictions. State v. Parker, 216 N.J. 408, 418 (2014) (citing State v. Spivey,
179 N.J. 229, 242-43 (2004)). In this case, the alleged verbal altercation fell
A-0269-17T4
14
into the category of a specific instance of conduct. Its exclusion was a proper
exercise of discretion.
The same rationale supports the exclusion of defendant's wife's testimony
regarding the pastoral meeting and the recording. Defendant's wife wanted to
testify that O.M. and S.M.'s parents during the meeting complained that O.M.
was not attending school, was rebelling, and had a big problem with anger
management for which she received instruction while at school. This evidence
was excluded not only as impermissible hearsay, it was also properly excluded
because it represented instances of specific conduct intended to cast doubt on
O.M.'s credibility. O.M. and S.M.'s parents' alleged statement to defendant and
his wife that their daughters were liars, because they had lied in the past, also
violated the precept that single instances of prior conduct could not be used to
attack credibility.
The judge found the recording of the meeting between defendant and the
victims' parents to be impossible to understand except for the end, when the
parties could be heard praying. The judge ruled the tape inadmissible based on
the cleric-penitent privilege. See N.J.R.E. 511. Regardless, it should not have
been admitted because it included hearsay statements involving single instances
A-0269-17T4
15
of conduct not admissible to attack credibility. See N.J.R.E. 405(a). Overall,
defendant's third point lacks merit.
III.
Defendant in his fifth point of error challenges the admission of
defendant's nephew's trial testimony describing the phone conversation he had
with defendant. The contention is reviewed employing the plain error standard
as defendant did not object during trial. The conviction will stand unless the
error was "clearly capable of producing an unjust result," that is, if it was
"sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336-
37 (1971); R. 2:10-2.
We quote the entirety of the objected-to testimony:
[PROSECUTOR]: Did you ever talk to the defendant
about what had happened with [O.M.]?
[NEPHEW]: No.
[PROSECUTOR]: Okay. Did you ever have a
conversation with him about the circumstances of the
information that you learned from [O.M.]?
DEFENSE COUNSEL: Objection; asked and
answered.
THE COURT: I'm going to permit the question. I'll
note your objection for the record.
A-0269-17T4
16
[NEPHEW]: I'm sorry, one more time?
[PROSECUTOR]: Sure. Did you ever have a
conversation with the defendant about the
circumstances that you learned about from [O.M.]?
[NEPHEW]: Yes.
[PROSECUTOR]: Okay. And how did that
conversation come about?
[NEPHEW]: I -- before I contact[ed] the defendant . .
. I searched the scripture of the Bible about adultery and
then I -- I called him over the phone and I was talking
and I told him of what I've heard. I didn't directly tell
him who told me, but I've told him I heard some stuff.
And at the end of the conversation, we -- he -- I said "If
you don't change your way, you're going to be . . . that
sinner." And he said "Okay, my brother, my son[]" and
we prayed and hung up and that was it.
The testimony was admissible pursuant to N.J.R.E. 803(b), the doctrine of
"adoptive admissions," statements by third parties that are adopted by the party
to whom the admission will be attributed. McDevitt v. Bill Good Builders, Inc.,
175 N.J. 519, 529 (2003). N.J.R.E. 803(b)(2) provides that statements "whose
content the party has adopted by word or conduct or in whose truth the party has
manifested belief" are admissible. The rule is applied "with caution" to avoid
"prejudice and injustice." McDevitt, 175 N.J. at 529 (quoting Greenberg v.
Stanley, 30 N.J. 485, 498 (1959)).
A-0269-17T4
17
"A hearsay statement qualifies as an adoptive admission if two criteria are
satisfied." Ibid. "First, the party to be charged must be aware of and understand
the content of the statement allegedly adopted." Ibid. (citing State v. Briggs,
279 N.J. Super. 555, 562 (App. Div. 1995)). In other words, the proponent of
the evidence must show that the party actually heard and understood what was
said. Id. at 529-30. "Second, it must be clear that the party to be charged with
the adoptive admission 'unambiguously assented' to the statement." Id. at 530
(quoting Briggs, 279 N.J. Super. at 563).
The nephew's brief description of his conversation with defendant
established that defendant understood and unambiguously assented to his
nephew's words—that he was becoming "that sinner," an adulterer in a Bible
verse, by virtue of his "[o]kay" and their mutual prayer. Defendant now asserts
his response was ambiguous and therefore did not meet the second prong of the
test for admission. Even if that were the case, the testimony did not have the
capacity to lead the jury to a result they would not have otherwise reached.
The nephew's testimony was presented to the jury as fresh complaint
evidence, not substantive evidence of guilt. And the judge instructed the jury it
was being proffered "to negate any inference that the victims failed to tell
A-0269-17T4
18
anyone about the sexual offense, and that, therefore, any assertion could not be
believed." Admission of the testimony was thus not error.
IV.
During jury selection, a potential juror said that the fact a person is
"arrested, indicted[,] to me means there must be some kind of substantial
evidence, otherwise we wouldn't be here today." When the judge asked if he
could set that notion aside, the juror said it would not be difficult to do so. He
added that he would be able to follow jury instructions and listen to the case
with an open mind. The juror repeated, when asked, that his opinion regarding
the nature of the evidence was not strongly held. Defense counsel requested that
the juror be removed for cause, and the application was denied. Counsel later
used a peremptory challenge in order to excuse the juror.
"Voir dire procedures and standards are traditionally within the broad
discretionary powers vested in the trial court and 'its exercise of discretion will
ordinarily not be disturbed on appeal.'" State v. Papasavvas, 163 N.J. 565, 595
(2000) (quoting State v. Jackson, 43 N.J. 148, 160 (1964)). In order for a forced
expenditure of a peremptory challenge to constitute reversible error, a defendant
must demonstrate that a partial juror participated in deliberations as a result of
A-0269-17T4
19
defendant's exhaustion of peremptories. State v. DiFrisco, 137 N.J. 434, 470
(1994).
We do not agree with the contention that the judge's refusal to excuse the
juror for cause was an abuse of discretion. Furthermore, defendant does not
even contend that one of the remaining jurors who deliberated was in fact a
partial juror. See DiFrisco, 137 N.J. at 471. This point is not a basis for reversal.
V.
Defendant contends that the judge's decision to deny severance of the first
and second counts regarding O.M. and I.N., which allegedly took place almost
a year earlier than the offenses relating to S.M., unfairly prejudiced the outcome.
Defendant argues that N.J.R.E. 404(b) would not have permitted introduction of
the evidence related to the first crimes as proof of the second or vice versa.
In denying defendant's motion for severance, the judge found, citing State
v. Cusick, 219 N.J. Super. 452 (App. Div. 1987), and State v. Stevens, 115 N.J.
289 (1989), that the evidence of each incident would be admissible to prove that
defendant's purpose in touching his victims was sexual gratification. The judge
further found that any apparent prejudice was outweighed by the probative value
of the evidence.
Rule 3:7-6 provides that:
A-0269-17T4
20
Two or more offenses may be charged in the
same indictment or accusation in a separate count for
each offense if the offenses charged are of the same or
similar character or are based on the same act or
transaction or on [two] or more acts or transactions
connected together or constituting parts of a common
scheme or plan.
"Although joinder is favored, economy and efficiency interests do not
override a defendant's right to a fair trial." State v. Sterling, 215 N.J. 65, 72-73
(2013) (citing State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v.
Coruzzi, 189 N.J. Super. 273, 298 (App. Div. 1983)). Rule 3:15-2(b) provides
that a trial judge has the discretion to "order separate trials on counts of an
indictment if a party is prejudiced by their joinder." State v. Oliver, 133 N.J.
141, 150 (1993).
"The test for assessing prejudice is 'whether, assuming the charges were
tried separately, evidence of the offenses sought to be severed would be
admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'"
Sterling, 215 N.J. at 73 (alteration in original) (quoting Chenique-Puey, 145 N.J.
at 341). "If the evidence would be admissible at both trials, then the trial court
may consolidate the charges because 'a defendant will not suffer any more
prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, 145
N.J. at 341 (quoting Coruzzi, 189 N.J. Super. at 299).
A-0269-17T4
21
N.J.R.E. 404(b) states:
[E]vidence 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 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.
To determine the admissibility of other-crimes evidence under N.J.R.E.
404(b), our Supreme Court, in State v. Cofield, 127 N.J. 328, 338 (1992), created
a four-prong test:
(1) [t]he evidence of the other crime must be admissible
as relevant to a material issue;
(2) [i]t must be similar in kind and reasonably close in
time to the offense charged;
(3) [t]he evidence of the other crime must be clear and
convincing; and
(4) [t]he probative value of the evidence must not be
outweighed by its apparent prejudice.
[Ibid. (citation omitted).]
"The decision whether to grant severance rests within the trial court's
sound discretion and is entitled to great deference on appeal." State v. Brown,
118 N.J. 595, 603 (1990). See also Sterling, 215 N.J. at 73 ("A court must
A-0269-17T4
22
assess whether prejudice is present, and its judgment is reviewed for an abuse
of discretion.").
Evidence of all the contacts were admissible at a single trial to prove
defendant's motive and opportunity. Defendant engaged in these acts for sexual
arousement or gratification. See Cusick, 219 N.J. Super. at 464-66. The other
crimes evidence was also important here because it was relevant to defendant's
argument that the size of his apartment, and the location of the bedroom, made
it impossible for him to have been able to commit the crimes charged. See
Oliver, 133 N.J. at 153. This is an independent basis for admission, in addition
to the judge's belief they established defendant's motive as sexual gratification.
Oliver remains the leading case of the admissibility after relevant N.J.R.E.
404(b) analysis of other-crimes evidence to establish opportunity. Ibid.
In Oliver, the defendant moved to sever the counts of an indictment related
to the sexual assaults of different women. Id. at 145. The Supreme Court held
that the "defendant would not be prejudiced by joinder because . . . evidence of
the severed offenses would be admissible under [N.J.R.E. 404(b)] on the
questions of the feasibility of committing the assaults, defendant's use of pretext,
and defendant's intent[.]" Id. at 151. The same holds true here.
A-0269-17T4
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The distance in time was not so great between incidents as to preclude
their admission in a single trial. In State v. Krivacska, 341 N.J. Super. 1, 41
(App. Div. 2001), we found that similar sexual assaults some two years apart,
approximately twice the time in this case, were nonetheless admissible.
The probative value of the evidence outweighed any undue prejudice.
Joining the charges in one indictment and one trial would not have "divert[ed]
the minds of the jurors from a reasonable and fair evaluation of the issues in the
case." State v. Long, 173 N.J. 138, 163-64 (2002) (quoting State v. Koskovich,
168 N.J. 448, 486 (2001)).
VI.
The objected-to language during the prosecutor's summation is as follows:
Now, you have the unique ability to force upon
the defendant a responsibility that he does not want to
accept. You have the power and opportunity through
your verdict to say to him: You are responsible for
what you did to these three girls, these three girls who
came to you for advice, these three girls who looked up
to you, trusted you, respected you. You alone are
responsible for your actions. I am going to ask that you
go in to that jury room and bring back a verdict that the
facts dictate and justice demands, a verdict of guilty.
Defendant did not object. The issue is thus subject to review under the plain
error standard. See State v. Pressley, 232 N.J. 587, 593 (2018). Defendant
simply has not demonstrated that the comments substantially affected his rights.
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The prosecutor exhorted the jury to return a verdict ultimately based on the
evidence. It did not deprive defendant of a jury that could fairly evaluate the
merits of his defense. See id. at 593-94.
Defense counsel had argued in summation: "Don't ask yourselves why.
You won't find an answer to the question. I know this because [defendant] has
been looking for this answer for four years." As a result, the judge, who had
sustained the objection read to the jury a curative instruction. It incorporated
the model jury charge on defendant's election not to testify as well as the
additional language related to defense counsel's comments:
As you know, the defendant in this case has
elected not to testify. It is his constitutional right to
remain silent. You may not consider for any purpose
or in any manner in arriving at your verdict the fact that
the defendant did not testify. That fact should not enter
into your deliberations or discussions in any manner or
at any time. The defendant is entitled to have the jury
consider all the evidence presented at trial. He is
presumed innocent whether or not he chooses to
testify.[1]
Any reference as to what the defendant is
thinking, any reference as to his feelings regarding this
case and the charges against him, any suggestion as to
what the defendant would have said had he testified, or
what would happen after your verdict is returned shall
not be considered by you during your deliberations.
1
Model Jury Charges (Criminal), "Defendant's Election Not to Testify" (rev.
May 4, 2009).
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Those comments are beyond the scope of the
evidence, and none of the information has been
presented to you by way of testimony or other evidence.
Any suggestion by either party as to the information
that has not been presented and testified to or about the
consequences of this trial are to be disregarded and not
-- by you and not be a part of your deliberations.
When a defendant "attempts to inject his unsworn comments into a trial
by word, gesture, display of emotion, or other demeanor," it may justify an
instruction from the judge for the jury to ignore it. State v. Rivera, 253 N.J.
Super. 598, 604 (App. Div. 1992). Curative instructions are left to the discretion
of the trial judge "who has the feel of the case and is best equipped to gauge the
effect of a prejudicial comment on the jury in the overall setting." State v.
Loftin, 146 N.J. 295, 365-66 (1996) (quoting State v. Winter, 96 N.J. 640, 647
(1984)).
Although a quick instruction to the jury after the comment may have
sufficed, that the judge elected to give a longer curative instruction, following
the election not to testify charge was not an abuse of discretion that prejudiced
the outcome. The jurors, ultimately, were told that they had to consider only the
evidence presented in the case.
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VII.
Finally, defendant argues that the errors in combination deprived him of
a fair trial. Since no errors occurred, defendant was not deprived of his right to
a fair trial.
Affirmed.
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