State of New Jersey v. Richard Willis

In this appeal, we address the admission of other-crime

evidence, pursuant to N.J.R.E. 404(b), of an attempted sexual

assault that occurred three years before the sexual assault that

was the subject of defendant Richard Willis’ trial. The State

contended, and the trial court held, that the evidence of the

earlier uncharged offense was relevant to defendant’s intent to

commit the alleged sexual assault.

The 2008 jury trial concerned an April 2006 sexual assault

against K.M. The victim was a twenty-two-year-old prostitute

who readily admitted that she had performed various sex acts

with men other than the defendant the day of the alleged sexual

assault, but denied that she had consensual sexual relations

with defendant. Defendant admitted that he had sexual

intercourse with the victim but insisted that K.M. had

consented. A jury found defendant guilty of third-degree

criminal restraint, in violation of N.J.S.A. 2C:13-2(b); second

degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1);

and the disorderly persons offense of simple assault, in

violation of N.J.S.A. 2C:12-1(a).

Although evidence of a defendant’s state of mind is

relevant in a sexual assault prosecution when the pivotal issue

is whether the sexual acts were consensual, great care must be

taken to assure that state-of-mind evidence does not become the

vehicle for communicating to the jury that the defendant has a

propensity to commit the type of offense for which he is being

tried. Here, the relevance of an alleged sexual assault three

years before defendant’s encounter with K.M. was so marginal

that it should have been excluded. Moreover, the erroneous

admission of this other-crime evidence cannot be considered



3

harmless. The quality and quantity of the other-crime evidence

of a May 2003 uncharged sexual assault, introduced to inform the

jury of defendant’s intent in April 2006, overwhelmed the case

in-chief. Evidence of the 2003 alleged sexual assault had the

clear capacity to suggest to the jury that defendant had a

propensity to commit sexual assaults on unwitting young women.

Moreover, the scope of the evidence of the 2003 assault had the

effect of bolstering a shaky identification of defendant by

K.M., an effect underscored by a reference by the trial court to

the 2003 victim’s identification of defendant as unequivocal in

the jury charge. In this case, other-crime evidence of an

earlier attempted sexual assault was not only irrelevant but

also had the clear capacity to cause manifest prejudice to

defendant and should not have been admitted.

I.

A grand jury issued a four-count indictment against

defendant Richard Willis in 2007. Defendant was charged with

kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1), (2) (Count One);

aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(3)

(Count Two); sexual assault, contrary to N.J.S.A. 2C:14-2(c)(1)

(Count Three); and aggravated assault, contrary to N.J.S.A.

2C:12-1(b)(7) (Count Four). The charges arose from the alleged

sexual assault of K.M. in April 2006.



4

Prior to trial, the State informed the trial court and

defense counsel that it would seek to introduce, pursuant to

N.J.R.E. 404(b), evidence of an attempted sexual assault against

another young woman, N.J., that had occurred three years before

the alleged sexual assault against K.M. The State proffered

that, in 2003, N.J. reported that defendant had offered her a

ride, drove her to a secluded location, choked her, groped her,

and attempted to sexually assault her. The State noted that the

central issue in its case was whether K.M. consented to sexual

relations with defendant because the forensic evidence clearly

established that they had engaged in sexual relations that

evening. The State maintained that N.J.’s experience provided

relevant and probative evidence of defendant’s intent when he

encountered K.M.

Over defendant’s objection, the trial court concluded that

the proposed testimony satisfied each prong of the Cofield1

analysis. The court found that N.J.’s testimony was relevant,

and that the acts alleged by N.J. were similar in kind and

reasonably close in time to the incident involving K.M. The

court found N.J. credible and that the probative value of her

testimony outweighed any prejudice to defendant. Brushing aside

defendant’s concern that the evidence would also bolster K.M.’s

1 State v. Cofield, 127 N.J. 328, 338 (1992).



5

shaky identification of defendant, the trial court noted that a

limiting instruction would restrict the jury’s consideration of

the evidence.

The following evidence was adduced at the trial that

commenced on May 13, 2008.

In April 2006, K.M. was twenty-two years old. She lived

with her family in North Plainfield. She attended a methadone

clinic but still used heroin occasionally and crack cocaine

regularly. K.M. earned the money to support her drug habit as a

prostitute.

K.M. testified that on April 25, 2006, around 3:30 p.m.,

she walked from her home in North Plainfield to Plainfield to

buy crack. She paid for the drugs with money she had earned by

performing sexual services for several men that day. She could

not recall the particular services she provided or the number of

men with whom she had sex, but K.M. testified that she was sure

the number of customers was “between one and five.” K.M.

purchased crack, smoked “[a] little” of it, and also ingested

some methadone and Xanax that day.

At approximately 10:00 p.m. that evening, K.M. was walking

home alone from Plainfield to North Plainfield, when a passing

vehicle that looked “like a black Navigator” pulled over next to

her. K.M. approached the vehicle thinking that the driver was

her friend “Pookie,” whom she knew from the methadone clinic she



6

attended. As K.M. approached the open car window, the driver

asked her if she was working. K.M. replied that she was not,

but inquired if the driver was Pookie. When the driver replied,

“Yeah. Don’t I know you?” and asked, “Do you want a ride

home?”, K.M. entered the vehicle in order “to buy some heroin

off of [the driver].”

According to K.M., she realized as she entered the front

seat that the driver was not Pookie, but she remained in the car

after the driver informed her that his name was Terrance and

reiterated his offer to drive her home. K.M. agreed, and

directed the driver to turn left. The driver, however, turned

right.

K.M. recalled the driver saying that he was just going to

talk and take her home. The driver asked K.M. if she did any

drugs, and K.M. told him that she smoked crack. He then asked

K.M. for sexual favors in exchange for crack. K.M. refused.

K.M. recounted that the driver continued to drive around, and at

that point, K.M. “had a feeling that something bad was going to

happen.”

The driver drove to a poorly lit residential area, made a

u-turn, parked, and turned off the engine. He grabbed K.M.’s

hand, took her cigarette out of her mouth, and burned her wrist

with it. K.M. started to scream and pull away, but the driver

took her head and put it into his lap. K.M. testified that the



7

driver’s penis was out of his pants, although she did not see

him take it out. She could see that he was not wearing a

condom.2 When the driver shoved K.M.’s head into his lap, she

kept her mouth closed and grabbed his testicles and twisted

them, hoping the driver would release her. The driver let go of

K.M. and she sat up. The driver hit K.M.’s face with an open

hand, causing her to hit her head against the front passenger

window.

K.M. testified that she then realized that she was about to

be raped. The driver climbed on top of her and pulled her pants

and underwear down in spite of her resistance. K.M. tried to

fight the driver off, but he put his penis inside her, causing

her to cry. The driver also lifted K.M.’s shirt and kissed her

breasts. When he rolled off her and pulled his pants up, K.M.

adjusted her clothing and left the car as quickly as possible,

leaving her purse in the car. As the driver drove away, K.M.

screamed “rape,” and yelled towards the driver, “Hey, asshole,

you got my pocketbook, you are going to get caught.”

K.M.’s screams attracted the attention of a nearby

resident, who called the police. Before the police arrived,

K.M. threw away about $20 worth of crack. The police arrived

within three to five minutes after K.M. left the driver’s car.

2 K.M. testified that she insisted her customers use condoms and carried a supply of condoms with her at all times.



8

Officer Craig Kennovin of the Plainfield Police Department

testified that he found K.M. alone at the intersection of

Johnson Avenue and George Street. K.M. was crying and appeared

to be “pretty upset.” Officer Kennovin took her to Muhlenberg

Hospital, but the hospital could not conduct a rape kit

examination on K.M. that evening because she was too high from

the drugs she had taken to give consent to the examination.

While they were at the hospital, Officer Kennovin received a

call from another officer that K.M.’s purse had been found. The

purse was returned to K.M. before she left the hospital. It

contained a wallet without any money and several condoms.

At 2:00 p.m. the following day, a Sexual Assault Nurse

Examiner conducted a rape kit examination of K.M. The nurse

prepared slides to test for bodily fluids and observed injuries

and bruises on the back of K.M.’s neck and thigh and burn marks

on her wrist. The nurse also observed a cut on the inside of

K.M.’s mouth and that her face was slightly swollen.

A few days after the examination, K.M. spoke with a

Plainfield Police Department detective. During this interview,

K.M. denied that she worked as a prostitute. At trial, K.M.

stated that her parents attended the interview and that she had

denied working as a prostitute because of their presence, but

the detective testified that K.M.’s parents were not present.



9

K.M. also did not tell the detective that Pookie was a drug

dealer, but admitted that she had taken drugs that night.

K.M. described the driver as “fat,” “dark complected,” with

“braids or curly hair,” and a beard. She estimated his age as

between twenty-nine and thirty-seven.

Almost a year after the alleged sexual assault, the

detective who had interviewed K.M. obtained a photograph of

defendant and prepared a six-photo photographic array. Although

K.M. was unable to definitively identify defendant from the

photos, she asked to see photo number three -- defendant’s photo

-- a second time because he looked familiar. K.M. told the

detective that she was trying to imagine what the man depicted

in photo number three “looked like with braids.” She also told

the detective that she could not be one hundred percent sure

whether photo three depicted her assailant because “it happened

a while ago, she was high, and it was dark outside, poor light.”

The detective obtained a court order for defendant’s DNA,

and buccal swabs from defendant were sent to the State Police

Laboratory. Defendant’s DNA was a match for the DNA found in

the semen on the vaginal swab obtained from K.M. Based on that

information, an arrest warrant was issued, and defendant was

arrested on May 16, 2007. At the time of defendant’s arrest, he

was forty-four years old, weighed 260 pounds, and had facial



10

hair described by the investigating detective as a “goatee

mustache sort of thing[.]”

Following the testimony of K.M., the responding police

officers, and the nurse who conducted the sexual assault

examination of K.M., the State presented the testimony of N.J.

regarding a 2003 attempted sexual assault of her, which the

trial court concluded was admissible as other-crime evidence

pursuant to N.J.R.E. 404(b). N.J. testified that on May 9,

2003, she was in Plainfield visiting her grandmother with her

friend, Michelle. After the visit, at approximately 6:00 p.m.,

N.J. and Michelle returned to Michelle’s car, but the car did

not start. They walked to a mechanic’s garage but discovered

that it was closed. The two women attempted to find someone who

could help fix the car or give them a ride to Piscataway.

Michelle went inside a store, while N.J. stood outside. At some

point, N.J. left the area with another friend, Scoop. As they

were walking, a passerby blew his horn and pulled over.

Although N.J. did not know the driver by name, she recognized

him from the neighborhood. The driver told N.J. that his name

was “Xavier.” After he agreed to drive N.J. to her sister’s

house, N.J. entered his car. N.J. asked the driver what he was

doing and he replied, “I’m out doing the devil’s work.”

Soon after, N.J. noticed that the driver was driving in the

wrong direction and she asked him why he did not make the



11

correct turn. The driver replied that he had to stop by his

apartment. He eventually drove into a parking lot of an

apartment complex and parked his car. The driver jumped over

and started choking N.J., who was seated in the front passenger

seat. N.J. tried to scream. The driver told her to “[s]hut up”

and “[t]ake [her] pants down.” The driver unbuttoned N.J.’s

pants but N.J. resisted. The driver then pulled up N.J.’s shirt

and touched her as he continued choking her with one hand.

At this point, N.J. begged the driver to let her “come up

for air,” and stated, “If you let me get in the back, I can get

some air.” N.J. climbed into the back seat, unlocked the car

door, and escaped. As N.J. was leaving the car, a baseball bat

and some CDs fell out of the car, which she picked up and threw

back into the car. The driver then sped off.

N.J. testified that, soon thereafter, she encountered

several of her husband’s friends and described the man and his

vehicle. They responded that they knew the driver and would

find him. N.J. and the men got into a car and drove to Sixth

Street in Plainfield. While they were in the car, they also

called 9-1-1. Meanwhile, N.J. flagged down a passing police

car. While N.J. was speaking to the police, she saw a vehicle

driven by her assailant and identified the driver to the police.

The officers who encountered N.J. following the attempted

assault also testified at trial. According to one of the



12

officers, N.J. pointed to a passing vehicle and said, “That’s

the guy, that’s the guy.” The officer and his partner pursued

and stopped the assailant’s vehicle. Defendant was the driver

of the vehicle.

Meanwhile, another officer took a detailed statement from

N.J. She described her assailant, as well as the items in his

car. After the interview, the officer placed N.J. in his patrol

car, drove to the place where the other officers had stopped

defendant, and approached defendant. The officer testified that

defendant matched the description provided by N.J. He also

observed the items described by N.J. in the backseat of

defendant’s car. The officer testified that N.J. later

identified defendant as her assailant.

Although defendant was arrested for attempted sexual

assault, N.J. testified that she never heard from anyone from

the Prosecutor’s Office thereafter. She explained that she had

moved several times within New Jersey during that time, but had

given her cell phone number to the police. She thought that the

authorities had not believed her and decided not to pursue the

case.

Following N.J.’s testimony, the trial court instructed the

jury that the evidence of the attempted sexual assault against

N.J. was admitted “solely to show that the defendant had the

intent to commit a sexual assault upon [K.M.]” The trial court



13

also informed the jury that it could not use N.J.’s testimony to

conclude that defendant has a tendency to commit crimes or that

he is a bad person. The trial court reiterated that the

evidence had been admitted “only to help [the jury] decide the

specific question as to whether the defendant had a specific

intent to sexually assault [K.M.]”

In the final charge to the jury, the trial court reiterated

that the evidence presented by N.J. regarding the May 2003

attempted sexual assault was admitted “solely to show the intent

of the defendant to commit a sexual assault against [K.M.]” The

trial court also informed the jury that it could not use the

evidence advanced by N.J. to conclude that defendant had a

tendency to commit criminal acts. The trial court, however,

also informed the jury that the identification of defendant as

the person who sexually assaulted K.M. was a disputed issue in

the trial and referred to N.J.’s testimony and her

identification of defendant as her assailant in May 2003. The

trial court stated:

The defendant as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense.

. . . .

Now the State has presented evidence . . . of [K.M.] concerning the April 25th incident in ‘06 and [N.J.] for a different purpose but



14

identification of the assault that occurred - allegedly occurred on the 9th of May, 2003.

Now you will recall that these witnesses identified the defendant -- [N.J.] identified the defendant[;] [K.M.]’s identification was uncertain as the person who committed the offense.

. . . .

Now, according to the witnesses, their identifications of the defendant w[ere] based upon the observations and perception[s] that they made of the perpetrator at the time the offense was being committed.

It is your function to determine whether the witnesses’ identification of the defendant is reliable and believable or whether it is based on any mistake or for any other reason which is not worthy of belief. You must consider whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged.

The jury found defendant guilty of third-degree criminal

restraint, second-degree sexual assault, and the disorderly

persons offense of simple assault. The trial court imposed a

ten-year term of incarceration with an eighty-five percent

parole disqualifier for the sexual assault conviction and a

consecutive four-year term for the criminal restraint charge.

The court also imposed a concurrent term of six months’

incarceration for the simple assault conviction.

II.



15

In an unreported opinion, the Appellate Division affirmed

defendant’s conviction but remanded for reconsideration of his

sentence. The appellate panel rejected defendant’s argument

that the trial court should have excluded N.J.’s testimony of

the May 2003 attempted sexual assault. The panel concluded that

defendant’s intent was a material issue, that the circumstances

of the assaults experienced by K.M. and N.J. were similar, that

the three-year interval between the incidents was reasonably

close in time, that the evidence provided by N.J. was probative

of defendant’s intent regarding K.M., and that “the events

described by N.J. were no more inflammatory than the events

described by K.M.” The Appellate Division also dismissed

defendant’s challenge to the identification charge delivered by

the trial court. In doing so, the panel remarked that identity

was not at issue in the trial.

We granted defendant’s petition for certification. State

v. Willis, 218 N.J. 532 (2014).

III.

A.

The admission or exclusion of evidence at trial rests in

the sound discretion of the trial court. State v. Gillispie,

208 N.J. 59, 84 (2011). That discretion is not unbounded.

Rather, it is guided by legal principles governing the

admissibility of evidence which have been crafted to assure that



16

jurors receive relevant and reliable evidence to permit them to

perform their fact-finding function and that all parties receive

a fair trial. See N.J.R.E. 102 (stating that New Jersey’s rules

of evidence are meant to “secure fairness in administration and

elimination of unjustified expense and delay” and permit

development of law “to the end that the truth may be ascertained

and proceedings justly determined”).

This appeal focuses on the admission of other-crime

evidence -- specifically, the admission of a prior uncharged act

of attempted sexual assault against a young woman who identified

defendant as her assailant. N.J.R.E. 404(b) governs the

admissibility of such evidence.

N.J.R.E. 404(b) provides:

[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.

Because evidence of a defendant’s previous misconduct “has a

unique tendency” to prejudice a jury, it must be admitted with

caution. State v. Reddish, 181 N.J. 553, 608 (2004) (internal

citation omitted); see also State v. Stevens, 115 N.J. 289, 302

(1989) (“There is widespread agreement that other-crime evidence

has a unique tendency to turn a jury against the defendant.”).



17

Prior-conduct evidence has the effect of suggesting to a jury

that a defendant has a propensity to commit crimes, and,

therefore, that it is “more probable that he committed the crime

for which he is on trial.” State v. Weeks, 107 N.J. 396, 406

(1987) (citation omitted).

With those principles in mind, this Court, in Cofield,

supra, established a four-prong test designed “to avoid the

over-use of extrinsic evidence of other crimes or wrongs”

pursuant to a 404(b) exception. 127 N.J. at 338. The Cofield

test requires that:

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.]

In this appeal, our review of the admission of the uncharged

2003 prior sexual assault of N.J. focuses on prongs one and

four.

The first prong requires that “the evidence of the prior

bad act, crime, or wrong . . . be relevant to a material issue

that is genuinely disputed.” State v. Covell, 157 N.J. 554,

564-65 (1999). Under N.J.R.E. 401, evidence is relevant if it



18

“[has] a tendency in reason to prove or disprove any fact of

consequence to the determination of the action.” In Covell,

supra, this Court noted that the primary focus in determining

the relevance of evidence is whether there is a “logical

connection between the proffered evidence and a fact in issue.”

157 N.J. at 565 (internal quotation marks omitted). Moreover,

the material fact sought to be proved must be one that is

actually in dispute, Cofield, supra, 127 N.J. at 338, and cannot

merely be offered to indicate that because the defendant is

disposed toward wrongful acts generally, he is probably guilty

of the present act, see State v. Nance, 148 N.J. 376, 386

(1997).

In State v. Oliver, 133 N.J. 141, 155 (1993), the Court

addressed the use of other-crime evidence in sexual assault

cases in which the victim’s consent is a genuine and material

issue. The Court reasoned that “[w]hen a defendant claims that

he penetrated with permission, he puts his own state of mind in

issue: he argues that he reasonably believed that the alleged

victim had affirmatively and freely given him permission to

penetrate.” Ibid. Therefore, when a defendant claims the

victim consented, the State may “introduce evidence to disprove

that the defendant had that state of mind.” Ibid. Importantly,

the Court recognized that evidence of prior similar bad acts to

show present state of mind have the clear capacity to cause



19

undue prejudice to a defendant. Id. at 156. Therefore,

although the Court recognized that a prior similar bad act may

be admissible, the Court instructed the trial court in that case

to “limit the use of other-crimes evidence to showing only the

feasibility of the [sexual assaults in the defendant’s third

floor room] and the defendant’s use of pretext.” Ibid.

Tellingly, even in the cases in which the Court found that

the trial court properly admitted other-crime evidence to prove

the intent or state of mind of a defendant charged with sexual

assault, see, e.g., Stevens, supra, 115 N.J. at 293, 305

(holding that testimony containing evidence of defendant’s prior

uncharged solicitations of sexual favors and similar sexual

misconduct involving other women, committed while defendant was

acting as police officer, was admissible to prove his purpose of

receiving sexual gratification when ordering two different women

to disrobe during routine investigations), this Court has

repeatedly emphasized that other-crime evidence must be relevant

to a genuinely contested fact and that the probative value of

the proffered evidence must be critically evaluated in order to

properly balance the relevance of the evidence and the prejudice

its admission will cause, id. at 302.

The fourth Cofield prong requires that the “probative value

of the evidence must not be outweighed by its apparent

prejudice.” 127 N.J. at 338. The fourth prong recognizes that



20

the “inflammatory characteristic of other-crime evidence . . .

mandates a careful and pragmatic evaluation by trial courts,

based on the specific context in which the evidence is offered,

to determine whether the probative worth of the evidence

outweighs its potential for undue prejudice.” Stevens, supra,

115 N.J. at 303. When analyzing prejudice under N.J.R.E.

404(b), courts should also consider the factors presented in

N.J.R.E. 403, which states that “relevant evidence may be

excluded if its probative value is substantially outweighed by

the risk of (a) undue prejudice, confusion of issues, or

misleading the jury or (b) undue delay, waste of time, or

needless presentation of cumulative evidence.” (Emphasis

added). However, because “[o]ther-crimes evidence . . .

necessitates a more searching inquiry than that required by

N.J.R.E. 403,” “the potential for undue prejudice need only

outweigh probative value to warrant exclusion” of other-crime

evidence. Reddish, supra, 181 N.J. at 608 (citation omitted).

Thus, courts have interpreted N.J.R.E. 404(b) “as a rule of

exclusion rather than a rule of inclusion.” State v. Marrero,

148 N.J. 469, 483 (1997) (citing Cofield, supra, 127 N.J. at

337-38).

“[T]he party seeking to admit other-crimes evidence bears

the burden of establishing that the probative value of the

evidence is not outweighed by its apparent prejudice.” Reddish,



21

supra, 181 N.J. at 608-09. Ultimately, if the party seeking to

admit the evidence “demonstrate[s] the necessity of the other

crime evidence to prove a genuine fact in issue and the court

has carefully balanced the probative value of the evidence

against the possible undue prejudice it may create, the court

must instruct the jury on the limited use of the evidence.”

Cofield, supra, 127 N.J. at 340-41 (citation omitted).

IV.

The central issue in this case was not whether defendant

and K.M. had sexual relations on the evening of April 25, 2006.

The issue was whether the sexual relations were consensual. The

N.J.R.E. 404(b) evidence permitted by the trial court concerned

evidence presented by N.J., who testified that defendant

attempted to sexually assault her in May 2003. Defendant had

been arrested but never indicted for that incident.

We acknowledge that the assaults of K.M. and N.J. had

certain common elements. Great care must be taken, however,

whenever evidence of prior sexual assaults are introduced

purportedly to illuminate a defendant’s state of mind to assure

that such evidence cannot be used, even inadvertently, by a jury

as evidence of a propensity to commit criminal acts. To that

end, the logical connection between the prior bad act and the

contested issue must be clear and strong. Here, the logical

relationship between N.J.’s encounter with defendant three years



22

before the assault of K.M. is marginal at best. Furthermore,

the admission of evidence of the 2003 uncharged sexual assault

caused undue prejudice to defendant. Indeed, as presented in

this case, the prejudice attendant to this evidence overwhelmed

its marginal probative value.

The trial proceeded over five days. The first day of trial

consisted of jury selection and opening statements. The second

day of trial consisted of the testimony of K.M., the man who

heard K.M.’s screams and called the police, the police officer

who responded to the call for police assistance, the nurse who

examined K.M. at the hospital, and the detective who interviewed

K.M. The third day of trial was an abbreviated session3

consisting solely of the testimony of the forensic scientist at

the State Police Laboratory, who testified about the DNA

analysis that established that defendant was the source of the

semen found inside K.M. The fourth day of trial consisted of

the testimony of N.J. and two of the Plainfield officers who

assisted her and detained defendant in April 2003. In other

words, the other-crime evidence permitted in this trial consumed

almost as much time as the evidence of the State’s case-in

chief. The State’s presentation of the other-crime evidence

3 The transcript of the State Police forensic scientist covers less than thirty-nine pages. Defense counsel did not crossexamine this witness.



23

also appears to have proceeded on the premise that it was

required to submit clear and convincing evidence of that prior

uncharged criminal act. In a very real sense, N.J.’s other

crime evidence became a trial on N.J.’s allegation of attempted

sexual assault by defendant within the trial of K.M.’s sexual

assault.

We emphasize that N.J.R.E. 404(b) is at base a rule of

exclusion. Marrero, supra, 148 N.J. at 483. Moreover, when

other-crime evidence is admitted, it must be proportionate to

the limited purpose for which it is admitted. The demonstration

of clear and convincing proof only relates to the admissibility

of the evidence and that is a threshold inquiry for the trial

court. In other words, while the State is free to introduce

substantial corroborating evidence to establish that a prior

event occurred at a Rule 104 hearing, the other-crime evidence

introduced at trial must not be allowed to overwhelm the matter

at hand.

Here, the testimony from the two police officers involved

in N.J.’s case may have been useful to establish that N.J.’s

assault occurred in order to inform the trial court’s decision

to admit or exclude N.J.’s testimony. However, the amount of

other-crime evidence produced at trial for the ostensible

purpose of discerning defendant’s intent on April 25, 2006,

compared to the amount of evidence produced by the State in its



24

case-in-chief, was so disproportionate that it had the clear

capacity to distract the jury’s attention from the case-in-chief

and overwhelm any effort to cabin the jury’s consideration of

the limited role this evidence had at trial. Moreover, the

testimony of the assisting police officers effectively

corroborated N.J.’s identification of defendant as her

assailant, and the outsized role of N.J.’s purportedly limited

testimony was compounded by the trial court’s instruction on the

issue of identification. Contrary to its ruling on the

admissibility of N.J.’s other-crime evidence and the limiting

instruction provided to the jury, the trial court invited the

jury to consider the fact that N.J. also identified defendant as

her assailant and that her description of her assailant was

markedly similar to the description provided by K.M. of her

assailant. At that point, defense counsel’s fear that N.J.’s

testimony would be used to bolster K.M.’s shaky identification

became a reality.

The marginal relevance of a three-year-old attempted sexual

assault against N.J. could not overcome the manifest prejudice

of that evidence. It should not have been admitted. The error

was compounded by the quality and quantity of the other-crime

evidence introduced at trial that could have been interpreted by

the jury only as evidence that defendant had a propensity to



25

commit sexual offenses against young women he encountered on the

street.

This appeal illustrates the restraint that must be

exercised in the admission of other-crime evidence in sexual

assault cases. It underscores the observation of this Court in

Oliver, supra, that “evidence of past acts to show present state

of mind raises problems . . . under [N.J.R.E. 403] because the

prejudice to defendant seemingly far outweighs the limited

probative quality of that evidence.” 133 N.J. at 156. This is

one of those cases where the unrestrained use of evidence of

another marginally relevant and arguably remote-in-time sexual

assault had so clear a capacity to distract the jury from the

evidence in support of the State’s case-in-chief that it should

have been excluded.

The judgment of the Appellate Division is reversed.