STATE OF NEW JERSEY v. JAMES E. MINOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2184-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES E. MINOR,

Defendant-Appellant.

__________________________________

April 5, 2012

Submitted January 25, 2012 - Decided

Before Judges Lihotz and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-09-1697.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James E. Minor appeals from his conviction, following a guilty plea, for second-degree burglary, contrary to N.J.S.A. 2C:18-2(b); and fourth-degree contempt of a court order, contrary to N.J.S.A. 2C:29-9(b). We affirm.

I.

We discern the following facts and procedural history from the record on appeal, including the testimony given at the evidentiary hearing concerning pre-trial motions.

Minor and his former girlfriend, to whom we will refer by the pseudonym Smith, met through an online dating service in August 2008, and began dating shortly thereafter. In September 2008, Minor was arrested and charged with an alleged act of domestic violence against a prior girlfriend.

After Minor was released, he and Smith started living together at her apartment in Manchester. Minor lived there until March 19, 2009. Smith alleged that Minor committed acts of domestic violence against her on November 12, 2008, December 28, 2008, and March 19, 2009. Following the November 2008 incident, Minor was charged with three counts of making terroristic threats, contrary to N.J.S.A. 2C:12-3. After the March 2009 incident, Smith sought and received a restraining order that prohibited Minor from having contact with her.

On April 16, 2009, Smith received a friend request on Facebook from a person named "James Minor." She contacted the police and supplied them with a printed copy of the request. As a result, Minor was arrested and charged with violating the restraining order. Minor remained in jail for four days prior to his trial on that charge.

Smith testified against Minor at the April 20 trial. Minor was acquitted because the judge found that there was insufficient evidence that Minor himself had contacted Smith through Facebook. Minor was released from jail following the acquittal.

The next day, Minor entered a secure area in Smith's apartment complex and assaulted her. He also pulled a charm off of the necklace Smith was wearing. Minor was arrested and eventually indicted for second-degree burglary and violating the restraining order, as well as second-degree robbery, contrary to N.J.S.A. 2C:15-1.

In a pretrial motion, the State sought leave to present trial testimony concerning Minor's domestic violence history involving both Smith and the prior girlfriend. The State also sought to try a separate indictment, arising out of the November 2008 incident, at the same time. The judge denied both applications. The judge granted Minor's motion to sever the count charging fourth-degree contempt arising from the April 2009 incident, and ordered a separate trial on that charge.

However, the judge allowed the State to introduce evidence concerning the March 2009 restraining order and the fact that Smith had testified against Minor one day before the alleged burglary and robbery in April. The judge concluded that the testimony was relevant to the issue of Minor's motive and that the existence of the restraining order was relevant to the charge of burglary.

Minor subsequently agreed to enter a guilty plea, reserving his right to appeal the order from the pretrial ruling on evidence. The plea offer included treating the burglary charge as a third-degree crime for the purpose of sentencing and dismissing the robbery count. Minor received an aggregate sentence of incarceration for three years, subject to an eighty-five percent period of parole ineligibility, plus three years of parole supervision. This appeal followed.

II.

Minor raises the following issues on appeal:

POINT I: THE COURT ERRONEOUSLY ALLOWED THE STATE TO ADMIT EVIDENCE OF PRIOR BAD ACTS WHICH WERE MINIMALLY PROBATIVE AND CARRIED A HIGH RISK OF UNDUE PREJUDICE TO THE DEFENDANT.

A. Evidence Of The Restraining Order Prohibiting Contact Between Minor And [Smith] Should Not Have Been Allowed Because It Was Unnecessary To The State's Proofs And Its Prejudicial Nature Substantially Outweighed Its Probative Value.

B. Evidence Of [Smith]'s Testimony Against Minor At The Prior Contempt Hearing Should Have Been Excluded Because Its Potential For Prejudice Substantially Outweighed Its Probative Value.

C. Allowing The State To Introduce The Evidence Of The Defendant's Prior Bad Acts Was An Abuse Of Discretion And Prejudicial Error.

We give "substantial deference" to a trial judge's evidentiary rulings, State v. Morton, 155 N.J. 383, 453 (1998) (citations omitted), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and review them for abuse of discretion. State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). Factual findings resulting from evidentiary hearings related to such rulings are also entitled to deference. State v. Robinson, 200 N.J. 1, 15 (2009). "Our review of a judge's legal conclusions, however, is plenary." State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), aff'd, 206 N.J. 39 (2011).

When considering the admissibility of evidence of other crimes or wrongs under N.J.R.E. 404(b), we apply the standard adopted by the Supreme Court in State v. Cofield, 127 N.J. 328, 338 (1992). That standard requires a careful analysis of four factors:

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.

[Cofield, supra, 127 N.J. at 338 (citation omitted).]

If the trial judge conducts an appropriate analysis under Cofield, we will not disturb the judge's ruling on the admissibility of 404(b) evidence, absent a "'clear error of judgment.'" State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010) (quoting State v. Marrero, 148 N.J. 469, 483 (1997)), certif. denied, 205 N.J. 78 (2011).

There can be no doubt that the evidence at issue was relevant, which satisfies the first Cofield factor. The events that gave rise to Minor's indictment took place one day after the trial at which Smith testified against him. In addition, Minor had spent several days prior to the trial in jail. Consequently, the evidence was highly probative of motive, which is one of the bases for admission of other-wrongs evidence enumerated in N.J.R.E. 404(b). There was no practical way of getting the motive evidence before the jury without providing the background of why Minor had been arrested and incarcerated, and why Smith testified against him the day before the alleged crime. See Marrero, supra, 148 N.J. at 482.

The second Cofield factor, similarity between the prior crime and the one being tried, need not be met with respect to evidence of motive. See State v. Williams, 190 N.J. 114, 131 (2007). We are satisfied that the proposed evidence satisfies the third Cofield factor, which requires proof by clear and convincing evidence. The facts at issue, that is, issuance of the restraining order, the allegation that Minor violated the order, Minor's arrest and incarceration, and Smith's testimony at the contempt trial, are all matters of public record.

The final Cofield factor requires a weighing of the probative value against the prejudice of the evidence. The close temporal relationship between the incarceration and trial, on one hand, and the alleged crime, on the other, enhances the probative value of the evidence in demonstrating motive, while any undue prejudice is tempered by the fact that the jury would be told that Minor was acquitted of the alleged violation of the restraining order.

In State v. Covell, 157 N.J. 554, 570 (1999), the Supreme Court reiterated the reduced importance of prejudice in the balancing analysis when motive is at issue in the weighing process:

Some types of evidence require a very strong showing of prejudice to justify exclusion. One example is evidence of motive or intent. The Court in State v. Carter, 91 N.J. 86, 106 (1982) (quoting 1 Wharton, Criminal Evidence, []170 at 316 (13th ed. 1972)), stated that "evidence as to motive of a criminal defendant is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." See also [State v.] Rogers, 19 N.J. [218,] 228 [(1955)] ("[W]henever the motive or intent of the accused is important and material, a somewhat wider range of evidence is permitted in showing such motive or intent than is allowed in the support of other issues."). For example, evidence of a defendant's former membership in the Black Panther Party and the defendant's express hatred of police was held to be admissible on the issue of motive at his trial on a charge of shooting an officer. State v. Cherry, 289 N.J. Super. 503, 527-28 (App. Div. 1995).

See also State v. Wakefield, 190 N.J. 397, 434-35 (2004), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

Our review of the record in light of the applicable law convinces us that the trial judge correctly performed the Cofield analysis and did not abuse his discretion in concluding that the probative value of the evidence at issue was not, in the words of N.J.R.E. 403, "substantially outweighed" by its undue prejudice. See Covell, supra, 157 N.J. at 568 ("To satisfy part four of the Cofield test, we apply the balancing test of N.J.R.E. 403.").

Consequently, we affirm the pretrial order permitting the use of the testimony, as well as Minor's conviction.

Affirmed.