STATE OF NEW JERSEY v. R.J.M.

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5306-15T1

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
February 9, 2018
v.
APPELLATE DIVISION
R.J.M.,

Defendant-Appellant.

____________________________

Argued December 5, 2017 – Decided February 9, 2018

Before Judges Reisner, Hoffman, and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 15-07-0832.

John W. Douard, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mark H. Friedman, Assistant Deputy
Public Defender, of counsel and on the
briefs).

David M. Liston, Assistant Prosecutor,
argued the cause for respondent (Andrew C.
Carey, Middlesex County Prosecutor,
attorney; Susan Berkow, Special Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.
Under N.J.R.E. 609, there are different standards for

admissibility of a prior criminal conviction for impeachment

purposes, depending on whether "more than ten years have passed"

since the defendant's1 conviction "or release from confinement

for it, whichever is later." N.J.R.E. 609(b)(1). In this

appeal, we decide whether the time period during which a

defendant has been civilly committed pursuant to the Sexually

Violent Predator Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38, must

be included in determining the ten-year time period.

We hold that because civil commitment is not confinement

"for" the crime of which a defendant was convicted, the period

of civil commitment must be included in determining the ten-year

time period.2 The trial court erred in holding that, for

purposes of N.J.R.E. 609(b), defendant's conviction was not

remote because of his continued confinement to the Special

Treatment Unit (STU) pursuant to the SVPA. The trial court also

mistakenly applied discretion in holding, in the alternative,

that if the conviction was remote under N.J.R.E. 609(b)(1), the

State carried its burden of proving admissibility. Due to the

1
We use "defendant," because this is a criminal case. By its
terms, however, N.J.R.E. 609 applies to "any witness." N.J.R.E.
609(a)(1).
2
We use the term "remote" to refer to a conviction that is more
than ten years old within the meaning of N.J.R.E. 609(b)(1).

2 A-5306-15T1
judge's erroneous ruling, defendant decided not to testify at

his trial. Because defendant was unfairly prevented from

testifying, and the jury might have reached a different result

had defendant testified, we reverse the conviction and remand

the case for retrial.

Defendant R.J.M.3 was previously convicted of first-degree

sexual assault, for which he was sentenced on May 4, 1990. In

2000, after defendant completed his sentence for that criminal

conviction, the State successfully applied to have him civilly

committed under the SVPA. In 2014, while he was a resident at

the STU, defendant was accused of making threats against one of

the corrections officers who staffed the STU, resisting efforts

by other corrections officers to subdue him, and assaulting

several officers. Defendant was indicted and tried for third-

degree terroristic threats,
N.J.S.A. 2C:12-3(a), third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), fourth-degree

obstructing the administration of law,
N.J.S.A. 2C:29-1(b), and

fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(5)(h).

Defendant's trial took place in March 2016 – almost twenty-

six years after his 1990 conviction, and sixteen years after his

3
Because defendant is civilly committed, we use initials to
protect his privacy.

3 A-5306-15T1
2000 release from prison. Prior to the trial, the State applied

for a Sands4 hearing, seeking permission to impeach defendant

with the 1990 conviction if he testified. The State argued that

defendant's civil commitment should be treated as "confinement,"

within the meaning of N.J.R.E. 609(b), and thus ten years had

not elapsed since the end of his confinement for his 1990

conviction. The trial court accepted that construction of

N.J.R.E. 609(b). In an alternate analysis, the trial court

reasoned that, even if the conviction was remote, the

seriousness of the crime outweighed other factors that favored

preclusion. See N.J.R.E. 609(b)(2) (listing factors the court

may consider in deciding admissibility).

We need not discuss the trial evidence in detail.

Corrections Officer Francis testified that defendant hurled

threats and obscene insults at her, and tried to incite other

STU residents to take his side. She thought she was facing an

incipient riot. She sprayed defendant with pepper spray, and

called for back-up assistance, after he made what she considered

a threatening gesture. The back-up officers testified that

after defendant retreated to his room, they entered in order to

bring him to the shower room and wash off the pepper spray.

They testified that defendant violently resisted their efforts

4
State v. Sands,
76 N.J. 127 (1978).

4 A-5306-15T1
to put him in handcuffs, and in the ensuing struggle, he was

injured when he hit his head on a bed frame.

Defendant declined to testify, because he did not want to

face impeachment with his prior conviction. Defendant's version

of the incident - presented through witness cross-examination

and his attorney's arguments to the jury - was that he made some

offensive comments but no verbal or physical threats. Defendant

contended that Francis was offended by his insults, and she and

her fellow officers pepper-sprayed him and beat him up as

payback.

The trial court dismissed the resisting arrest charge at

the close of the State's case. The jury acquitted defendant of

aggravated assault, but convicted him of terroristic threats and

obstruction. Defendant appeals from his conviction, raising one

issue:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY ALLOWING THE STATE TO USE DEFENDANT'S
REMOTE 19[90] CONVICTION FOR AGGRAVATED
SEXUAL ASSAULT TO IMPEACH DEFENDANT'S
CREDIBILITY IF HE TESTIFIED. DEFENDANT'S
CIVIL COMMITMENT TO THE SPECIAL TREATMENT
UNIT (STU) PURSUANT TO THE SEXUALLY VIOLENT
PREDATOR ACT (SVPA) WAS NOT "CONFINEMENT FOR
[THE CONVICTION]" WITHIN THE MEANING OF
N.J.R.E. 609(B)(1).

Ordinarily we review a trial court's evidentiary rulings

for abuse of discretion. State v. T.J.M.,
220 N.J. 220, 233-34

5 A-5306-15T1
(2015). However, we do not defer to a ruling that is based on a

mistaken interpretation of an evidence rule, or that misapplies

the rule. See State v. Rose,
206 N.J. 141, 158 (2011); State v.

Lykes,
192 N.J. 519, 534 (2007); State v. Reddish,
181 N.J. 553,

608-09 (2004).

Pursuant to N.J.R.E. 609(a), a defendant's prior criminal

conviction is admissible for impeachment purposes, unless the

defense establishes, pursuant to N.J.R.E. 403, that its

admission will be substantially more prejudicial than probative.

See N.J.R.E. 403; T.J.M.,
220 N.J. at 233; State v. Kelly,
97 N.J. 178, 217 n. 21 (1984). However, N.J.R.E. 609(b)(1) creates

a presumption that a conviction more remote than ten years is

inadmissible for impeachment purposes, unless the State carries

the burden of proving "that its probative value outweighs its

prejudicial effect." The ten-year period runs from the date of

conviction or defendant's release from confinement "for it":

If, on the date the trial begins, more than
ten years have passed since the witness's
conviction for a crime or release from
confinement for it, whichever is later, then
evidence of the conviction is admissible
only if the court determines that its
probative value outweighs its prejudicial
effect, with the proponent of that evidence
having the burden of proof.

[N.J.R.E. 609(b)(1) (emphasis added).]

6 A-5306-15T1
"We interpret an evidence rule, as we would a statute, by

first looking at its plain language." State ex rel. J.A.,
195 N.J. 324, 338 (2008). We give "the terms used . . . their

ordinary and accepted meaning," State v. Shelley,
205 N.J. 320,

323 (2011), and we construe the words in the context in which

they appear.
N.J.S.A. 1:1-1; State v. Regis,
208 N.J. 439, 447

(2011). Viewed in context, the words "for it" logically refer

to confinement for the crime for which a defendant was

convicted.

However, on this appeal, as in the trial court, the State

focuses on the term "confinement," which it argues is broader

than the terms imprisonment or incarceration and should be

construed to include civil commitment. We cannot agree. The

pertinent language in the rule is not simply "confinement," but

rather, "confinement for it," where "it" refers to the

"conviction for a crime." N.J.R.E. 609(b)(1). Defining

"confinement" in a vacuum, as the State urges, rather than

reading it in context, produces an overbroad reading at odds

with the statute's plain language.

The State also argues that because the 1990 conviction

served as the predicate act for defendant's civil commitment

under the SVPA, his commitment was "a direct result of that

conviction." That argument flies in the face of case law

7 A-5306-15T1
construing the SVPA, and the constitutional limits under which

civil commitment is permissible.

A conviction for an underlying sexual offense is not the

only permissible predicate for civil commitment, and by itself

is not sufficient evidence to justify commitment. See
N.J.S.A.

30:4-27.26.5 Although defendant's prior conviction satisfied one

of the predicate elements leading to his confinement under the

SVPA, he was not committed for the conviction. As our Supreme

Court has recognized in another context:

[C]ommitment pursuant to the [SVPA] is not a
direct consequence of pleading guilty to a
predicate sexual offense because commitment
does not automatically flow from the
conviction. . . . [A] person may be
convicted of a predicate sex offense, and
yet not be committed under the Act because
the evidence is not sufficient to find that
his or her present mental condition creates
a likelihood of future sexually violent
behavior.

[State v. Bellamy,
178 N.J. 127, 138 (2003)
(emphasis added).]

5
Pursuant to
N.J.S.A. 30:4-27.26, a "sexually violent predator"
is "a person who has been convicted, adjudicated delinquent or
found not guilty by reason of insanity for commission of a
sexually violent offense, or has been charged with a sexually
violent offense but found to be incompetent to stand trial."
Additionally, the person must "suffer[] from a mental
abnormality or personality disorder that makes the person likely
to engage in acts of sexual violence if not confined in a secure
facility for control, care and treatment." Ibid.

8 A-5306-15T1
Moreover, basing civil commitment on a prior conviction, without

proof of a defendant's current dangerousness due to a serious

mental disorder, would be unconstitutional. See Kansas v.

Crane,
534 U.S. 407, 411-13 (2002); In re Commitment of W.Z.,

173 N.J. 109, 128-29 (2002).

In light of the rule's plain language, and applicable

precedent construing the SVPA, a civil commitment under the SVPA

is not confinement "for" the conviction serving as the SVPA

predicate offense.

The State argues that N.J.R.E. 609(b) excludes remote

convictions in order to avoid unfair prejudice to defendants who

have voluntarily lived law-abiding lives for a substantial

period of time since their prior convictions. The State

contends that the term "confinement" should include civil

commitment because, like imprisonment, commitment to the STU

prevents a defendant from committing new crimes. We reject that

argument.

Determining "[t]he Legislature's intent is the paramount

goal when interpreting a statute and, generally, the best

indicator of that intent is the statutory language." DiProspero

v. Penn,
183 N.J. 477, 492 (2005). Where the meaning is evident

from the plain language, we need not look further in

interpreting the rule. State v. Rangel,
213 N.J. 500, 509

9 A-5306-15T1
(2013) ("If giving an enactment's words their commonsense and

ordinary meaning reveals legislative intent, our mission is

complete."); DiProspero,
183 N.J. at 492. In this case,

N.J.R.E. 609(b)(1) is not ambiguous and we decline to give it a

broader construction than its plain language will support.6

Taken in context, "confined" clearly refers to the custodial

portion of a defendant's criminal sentence, and is not a more

general reference to any deprivation of physical liberty. See

State v. Lee,
60 N.J. 53, 58 (1972).

Defendant's confinement for his 1990 conviction terminated

in 2000, almost sixteen years before his trial. Therefore, the

trial court mistakenly applied discretion in holding that the

conviction was admissible under N.J.R.E. 609(a).

In its alternate analysis, the trial court also erred in

applying the standards for admissibility of a remote conviction

under N.J.R.E. 609(b). Evidence of a remote conviction is only

admissible if "its probative value outweighs its prejudicial

effect, with the proponent of that evidence having the burden of

proof." N.J.R.E. 609(b)(1). In making that determination, the

court "may consider" four listed factors. N.J.R.E. 609(b)(2).

6
The State's argument proves too much. If we untether the term
"confinement" to the words "for it," the State's argument would
support excluding all periods of time during which a defendant
was physically confined for any reason, including any mental
illness or physical injury.

10 A-5306-15T1
(i) whether there are intervening
convictions for crimes or offenses, and if
so, the number, nature, and seriousness of
those crimes or offenses,

(ii) whether the conviction involved a
crime of dishonesty, lack of veracity or
fraud,

(iii) how remote the conviction is in time,

(iv) the seriousness of the crime.

[N.J.R.E. 609(b)(2)(i) to (iv).]

However, making findings as to those four factors is not

enough. The court must then engage in the weighing process

under (b)(1), to determine whether the State has carried its

burden of proving that evidence of the remote conviction would

not be more prejudicial than probative. N.J.R.E. 609(b)(1).

Here, the trial court gave controlling weight to the seriousness

of the crime - although none of the other factors applied - and

did not analyze the prejudice versus the probative value of this

remote conviction. The court also mistakenly relied on State v.

Paige,
256 N.J. Super. 362 (App. Div. 1992), in the analysis.

Paige predated the adoption of N.J.R.E. 609(b), and turned in

part on defendant having the burden of proving that his remote

murder conviction should be excluded. Id. at 373.

In the context of this case, defendant was already facing

unavoidable prejudice from the jury's knowledge that he was in a

facility run by the Department of Corrections and staffed by

11 A-5306-15T1
corrections officers. The prior conviction was very remote, and

although it was the product of a repulsive crime, it did not

reflect on defendant's honesty or veracity, but rather on his

sexual compulsion. On these facts, we conclude that the State

did not carry its proof burden, and the trial court's ruling was

a mistaken exercise of discretion.

III

Based on our review of the trial record, including the

video footage of the STU security cameras, we cannot conclude

that the trial court's erroneous evidentiary ruling was

harmless. The case hinged on the jury's evaluation of witness

credibility. The testimony of the State's witnesses was

contradictory in some respects, and the security videos do not

entirely support their version of events. The jurors evidently

did not credit all of their testimony, because they acquitted

defendant of the assault charge.

Defendant understandably declined to testify in light of

the court's ruling that if he did so, the State could impeach

him with his prior first-degree conviction. Had defendant

testified, the jury may have acquitted him of additional

charges. Because the State's evidence cannot fairly be

described as overwhelming, and defendant's testimony might have

influenced the outcome, the error had a clear capacity to

12 A-5306-15T1
produce an unjust result. See R. 2:10-2; State v. Scott,
229 N.J. 469, 483-84 (2017); State v. Murphy,
412 N.J. Super. 553,

561 (App. Div. 2010). Accordingly, we are constrained to

reverse defendant's conviction and remand the case for retrial.

Reversed and remanded. We do not retain jurisdiction.

13 A-5306-15T1

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