STATE OF NEW JERSEY v. KARL SMITH

Annotate this Case

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5557-17

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
April 19, 2022

v. APPELLATE DIVISION

KARL SMITH, a/k/a
CARL SMITH,

Defendant-Appellant.
_______________________

Submitted November 8, 2021 – Decided April 19, 2022

Before Judges Messano, Rose and Enright.

On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Indictment No. 18-01-
0178.

Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on
the brief).

Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff, Special
Deputy Attorney General/ Acting Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.
A Camden County grand jury returned a twenty-count indictment against

defendant Karl Smith. The judge granted the State's pretrial motion to dismiss

six of the first eighteen counts alleging defendant committed sexual offenses

against his daughter, K.W. (Karen), born August 2003; the last two counts

alleged he committed sexual offenses against S.E. (Sara), the daughter of

defendant's girlfriend, born June 2008. 1

The remaining twelve counts involving Karen charged defendant with

two counts of first-degree aggravated sexual assault committed between

November 2015 and August 2016, N.J.S.A. 2C:14-2(a)(1) (counts one and

two); two counts of second-degree sexual assault committed during the same

dates, N.J.S.A. 2C:14-2(b) (renumbered counts three and four); two counts of

first-degree aggravated sexual assault committed between August 2016 and

January 2017, N.J.S.A. 2C:14-2(a)(2)(a) (renumbered counts five and six); two

counts of third-degree aggravated sexual contact committed during the same

dates, N.J.S.A. 2C:14-3(a) (renumbered counts seven and eight); and four

1
We use initials and pseudonyms pursuant to Rule 1:38-3(c)(9). Apparently
the six dismissed counts were added to the original indictment via a
superseding indictment. Although insignificant to the issues presented, the
judge considered certain pre-trial motions, including defendant's motion to
sever, under the original indictment and prior to the filing of the superseding
indictment.

A-5557-17
2
counts of second-degree endangering the welfare of a child committed between

November 2015 and January 2017, N.J.S.A. 2C:24-4(a)(1) (renumbered counts

nine, ten, eleven and twelve). The two counts involving Sara alleged

defendant committed second-degree sexual assault between October 2015 and

August 2016, N.J.S.A. 2C:14-2(b) (renumbered count thirteen); and second-

degree endangering the welfare of a child between the same dates, N.J.S.A.

2C:24-4(a)(1) (renumbered count fourteen).

Prior to trial, defendant moved to sever the two counts involving Sara

for a separate trial. He also sought a ruling that admission of evidence

regarding Sara's precocious sexual knowledge did not violate the Rape Shield

Law, N.J.S.A. 2C:14-7. The judge denied both motions. At trial, the jury

acquitted defendant of counts one through four, could not reach a verdict on

the remaining eight counts as to Karen, and found defendant guilty of counts

thirteen and fourteen alleging offenses against Sara.

After granting the State's motion to impose an extended term of

imprisonment on defendant as a persistent offender, N.J.S.A. 2C:44-3(a), the

judge sentenced defendant to eighteen years' imprisonment on the sexual

assault conviction with an eighty-five percent period of parole ineligibility

A-5557-17
3
under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent ten-year

term on the child endangerment conviction. 2

Before us, defendant raises the following points for our consideration:

POINT I — DEFENDANT'S MOTION FOR
SEVERANCE SHOULD HAVE BEEN GRANTED,
AND AS A RESULT OF IMPROPER JOINDER OF
OFFENSES HE WAS DENIED THE RIGHT TO A
FAIR TRIAL.

POINT II — DEFENDANT WAS DENIED THE
RIGHT TO A FAIR TRIAL DUE TO THE COURT'S
ERROR IN PRECLUDING DEFENDANT FROM
INTRODUCING EVIDENCE OF THE VICTIM'S
PREVIOUS FAMILIARITY WITH SEXUALITY.

POINT III — DEFENDANT WAS DENIED THE
RIGHT TO A FAIR TRIAL DUE TO MULTIPLE
HEARSAY STATEMENTS OF THE VICTIM
ALLOWED INTO EVIDENCE. (Not raised below.)

POINT IV — THE DEFENDANT WAS DENIED
THE RIGHT TO A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT DURING
CLOSING ARGUMENTS, WHERE THE STATE
SUGGESTED THAT THE DEFENDANT HAD THE
PROPENSITY TO COMMIT CRIMES. (Not raised
below.)

2
Ten days later, defendant entered a conditional guilty plea to renumbered
count twelve as amended to charge third-degree child endangerment of Karen,
preserving his right to appeal the denial of his severance motion. The State
recommended a concurrent five-year term of imprisonment, which the judge
imposed, and dismissed the remaining counts of the indictment on which the
jury did not reach a unanimous verdict.

A-5557-17
4
POINT V — THE SENTENCE OF EIGHTEEN
YEARS [IN] NEW JERSEY PRISON WAS
EXCESSIVE.[3]

The State contended defendant's sexual abuse of the two children first

came to light on August 20, 2016. At that time, defendant lived in a two-

bedroom apartment in Camden with Sara, her mother and defendant's

girlfriend, K.D. (Kate), Kate's twelve-year old son, A.E. (Anthony), and

defendant's and Kate's infant daughter, D.S. (Donna). The charges involving

Karen surfaced in early 2017 when doctors examined Karen and discovered

she had gonorrhea. During further questioning, Karen said defendant had

sexually assaulted her on several occasions beginning in 2015 and continuing

until two months before her exam.

The Pre-trial Severance Motion

Defendant moved to sever the two counts charging him with crimes

committed against Sara from trial of all other counts in the indictment. He

asserted that trying the two sets of charges together would be unduly

prejudicial. In her brief opposing the motion, the prosecutor extensively

3
We have deleted the subpoints in defendants' brief.

A-5557-17
5
summarized Sara's statement to Detective Daniel Choe on August 21, 2016. 4

She also summarized Kate's statement to the detective, in which Kate said she

confronted defendant after Sara's disclosure, and "defendant denied touching

[Sara] inappropriately." The prosecutor wrote: "[Kate] stated the defendant

said, 'Maybe she might [have] thought I grabbed her when I picked the blanket

off of her and put it on [Donna].'" In her brief, the prosecutor summarized

defendant's statement to the detective, also given on August 21, noting

defendant "denied intentionally touching [Sara] in a sexual manner and

claimed he only touched her to move her over on the bed." The prosecutor

then summarized the case regarding Karen's allegations in detail, extensively

quoting portions of Karen's statement to Detective Choe.

The State argued a single trial was appropriate, because defendant's

assaults were against "female children to whom . . . defendant [wa]s a father

figure," and the crimes "occurred when the children were staying at . . .

defendant's home." Citing State v. Covell, 157 N.J. 554 (1999), the prosecutor

contended a wider range of Rule 404(b) evidence is admissible when "motive

or intent of the accused . . . is material." Regarding the two counts of the

indictment charging offenses against Sara, the prosecutor said,

4
Because the judge cited the briefs in rendering his decision on the motion,
we obtained the filed briefs from the trial court record.

A-5557-17
6
The State is required to prove defendant's intent and
knowledge in touching [Sara's] vagina. The
defendant's state of mind is a material issue in dispute.
The significance of this material issue is magnified by
the fact that the defendant provided a statement to
police, and [Sara's] mother provided a statement to
police, claiming that [Sara] may have been confused
regarding the sexual assault . . . by . . . defendant
mistakenly touching her while he was trying to move
the blanket covering her. Thus, it is abundantly clear
that absence of mistake and defendant's intent are
material issues in dispute at trial.

[(Emphasis added).]

At oral argument, the judge indicated he had read the briefs. 5 Defense

counsel began by arguing defendant's "intent or motive" was not material. The

judge asked if "intent [was] a question based upon what [defendant] said in his

statement," to which counsel responded, "it may very well be." In the colloquy

that followed, the judge acknowledged he had not read defendant's statement,

but said,

Going on what's in the briefs, [defendant] indicated
that . . . he was moving the blanket . . . and there was
an inadvertent touching if you will —

Defense counsel: Correct.

Judge: — versus a purposeful act. And that seems to
me goes directly to intent.

5
There is no indication that Kate's statement to police was reviewed by the
judge, and the statement is not in the appellate record.

A-5557-17
7
[(Emphasis added).]

Defense counsel changed tack, arguing that trying the counts charging offenses

against Karen and those charging crimes against Sara in the same trial would

"create an overwhelming . . . prejudice . . . with regard to the other two

counts."

The prosecutor argued the State had to prove "defendant's intent in

touching [Sara]." She said, "Obviously, the fact that he was doing this to his

other child during the same time frame and that those behaviors began exactly

the same way . . . would obviously go to intent . . . ." The judge asked:

"[W]ith reference to [Sara], apparently because she complained immediately[,]

. . . it got no further . . . than the first touching incidents. Is that a fair

statement . . . [?]" The prosecutor replied, "That is a fair statement." 6

Reviewing the State's proffer, the judge noted that in his statement to

Detective Choe, defendant "suggested that [Sara] may have mistakenly thought

he grabbed her when he picked the blanket off her and put it on her sister."

Applying the Cofield7 analysis, the judge denied the severance motion,

concluding as to the first prong, "there [wa]s relevance in the testimony

6
Actually, in her statement to Detective Choe and her later testimony at trial,
Sara said defendant sexually touched her vagina more than once and before
August 20, 2016.
7
State v. Cofield, 127 N.J. 328, 338 (1992).

A-5557-17
8
regarding these two incidents." Considering the fourth prong, and quoting

State v. Garrison, 228 N.J. 182, 197–98 (2017), the judge concluded, "Some

types of evidence . . . require a very strong showing of prejudice to justi fy

exclusion. One example is evidence of motive or intent." The judge said

"intent is the issue" in this case, and he denied the motion for severance.

The Rape Shield Motion

Defendant sought to introduce evidence that when Sara was four years

old, her teacher notified the Division of Child Protection and Permanency (the

Division) that she observed the child on several occasions lying on her back

with her legs spread and her hands down the front of her pants. The Division

discovered from Kate that Sara had a urinary tract infection and her physician

prescribed vaginal cream for relief.

Additionally, Sara told a Division caseworker that she and her three-

year-old male cousin would play a game wherein whenever she said "ice cream

vanilla," her cousin touched her vaginal area with a pen. The Division referred

the family to CARES Institute (CARES), described later during trial as "a

medical clinic that sees children when there are concerns for abuse or neglect

of those children." Dr. Stephanie Lanese examined Sara during the referral

and also four years later, when the August 2016 incident arose. Knowing Dr.

Lanese was a probable State's witness at trial, defendant sought to question the

A-5557-17
9
doctor about Sara's first involvement with CARES and the sexually-related

matters the child discussed. Defense counsel argued the evidence was relevant

to rebut any "assumption that [Sara] could not possibly know about [sexual

conduct] unless . . . defendant . . . committed the act."

The prosecutor countered by arguing the evidence was strictly prohibited

by the Rape Shield Law. Moreover, she contended Sara was now eight years

old, i.e., old enough to know what was inappropriate touching; her complaints

about defendant's sexual contact did not demonstrate precocious sexual

knowledge.

After considering arguments and relying on the Court's decision in State

v. P.S., 202 N.J. 232 (2010), the judge barred defendant from questioning the

doctor about the earlier incidents. 8

Trial Evidence Regarding Sara's Allegations of Abuse

Sara was the first witness at trial, which began in February 2018. Late

on the evening of August 20, 2016, she was watching television with Donna

asleep next to her on the bed in a bedroom defendant shared with Kate and the

newborn baby. Sara said defendant came into the bedroom, touched her

8
The judge's oral decision did not specifically bar defendant from calling the
Division caseworker who investigated the school's referral, but it clearly
barred both defense proffers pursuant to the Rape Shield Law.

A-5557-17
10
"private part" in the front and "rubbed it." This happened on other occasions

when, before he went to work, defendant would come into the bedroom Sara

shared with Anthony and touched her as she slept. Sara said she would "close

[her] legs" to try to avoid this. On August 20, after defendant left the bedroom

and went into the bathroom, Sara decided for the first time to tell Kate.

The jury saw a videotaped statement Detective Choe took from Sara on

August 21, 2016. 9 Sara initially said defendant only touched her private part

once, but then, as questioning continued, she told the detective it happened

"more than once." Showing reluctance to provide any particular dates or times

of previous incidents, Sara eventually said defendant "did it today and he

do[es] it every time when he go[es] to work."

Kate testified she was dating defendant for about one year prior to

August 2016, first living together with the children in a different apartment

before moving two or three months earlier into the apartment where the

incident occurred. Kate was not working at the time, but defendant worked

weekdays from 4:00 a.m. to 5:00 p.m. Late on the evening of August 20, Kate

and defendant were watching television in the living room; Sara and Donna

9
The statement was admitted pursuant to N.J.R.E. 803(c)(27), the "tender
years" exception to the hearsay rule, after the judge held a pre-trial Michaels
hearing. See State v. Michaels, 136 N.J. 299, 320–21 (1994) (requiring the
State to demonstrate the reliability of the child's statement, and that it was not
the product of suggestive or coercive interview techniques).

A-5557-17
11
were in Kate's bedroom. When the baby began crying, defendant left the

living room to give her a pacifier. Kate heard defendant go into the bathroom;

then Sara came out of the bedroom and said defendant touched her private

part. Kate immediately took Sara to the hospital.

Dr. Lanese, an expert in "child abuse pediatrics," examined Sara on

September 1, 2016, at CARES. Sara told her defendant touched her private

part over her clothing on more than one occasion. 10 Dr. Lanese found no

physical signs of sexual abuse. The doctor explained she saw Sara again six

months later, in March 2017, because defendant's daughter Karen was "found

to be positive for gonorrhea." Dr. Lanese said Sara did not have gonorrhea and

could not have contracted the disease from the "touching" she described.

Trial Evidence Regarding Karen's Allegations of Abuse

The balance of the trial focused on Karen's allegations. On February 13,

2017, Dr. Monica Burton, a pediatrician, saw Karen for a "well child

examin[ation]" because an earlier "lab result" was concerning. Dr. Burton told

10
The judge conducted a hearing outside the presence of the jury and ruled
Dr. Lanese could testify about statements Sara made to her pursuant to
N.J.R.E. 803(c)(27).

A-5557-17
12
Karen she had gonorrhea. The doctor said Karen first denied having sexual

relations, but ultimately admitted having sex with someone for some time. 11

Dr. Monique Higginbotham, also affiliated with CARES, testified as an

expert child abuse pediatrician. She first saw Karen on February 21, 2017.

The doctor recounted in exacting detail Karen's descriptions of sexual assaults

by "an adult male" that began when she was twelve years old, and last

occurred two months earlier. 12 The doctor found nothing "abnormal" when she

physically examined Karen, who was then negative for gonorrhea.

Karen's mother, K.W. (Kylie) testified. She and defendant dated until

approximately one year after Karen's birth in 2003. Kylie and Karen moved to

Oklahoma, and defendant was not in his daughter's life until 2015, when she

and her mother returned to Camden. Kylie said after they returned, they would

11
At one point, the doctor testified Karen told her it was her "father."
However, apparently understanding the hearsay nature of the statement and
attempting to forestall any further objectionable testimony, the prosecutor
limited her direct examination by asking only a few leading questions. The
doctor did not repeat Karen's accusation of defendant.
12
There was an initial hearsay objection by defense counsel. Much of the
sidebar that ensued is "indiscernible," but it appears the prosecutor or judge
asserted the doctor's hearsay testimony was admissible as a "[m]edical
exception." See N.J.R.E. 803(c)(4) (excepting from the hearsay rule, "[a]
statement . . . made in good faith for purposes of, and is reasonably pertinent
to, medical diagnosis or treatment; and . . . describes medical history; past or
present symptoms or sensations; their inception; or their general cause"). This
ruling is not challenged on appeal.

A-5557-17
13
do things together as a family with defendant's oldest daughter, T.S. (Tara),

who lived with defendant along with her children. In October 2015, Karen and

her younger brother 13 began overnight visits with defendant at his home, and

Karen spent every weekend with defendant, Tara and her children. The visits

continued after defendant began living with Kate, but ended after Karen saw

Dr. Burton in February 2017. Karen never told Kylie about defendant's sexual

abuse.

Detective Kevin Courtney testified briefly on direct. On cross-

examination, however, defense counsel questioned the detective extensively

about the investigation. Courtney acknowledged defendant was not arrested

until March 1, 2017, based on Karen's allegations and after the detective spoke

with Kylie and Dr. Burton. The detective never spoke with Tara and never

secured a search warrant for defendant's home. 14

Karen was fourteen years old when she testified. She stopped visiting

defendant and Kate in February 2017, after the doctor told her she had

gonorrhea; she told the doctor "it was from" her father. Karen initially

13
Karen's brother was not defendant's child.
14
In her statement to police, apparently Karen alleged defendant forced her to
watch pornography at his house using an Xbox video gaming console. The
statement is not in the record, but defense counsel asked Karen if she recalled
telling detectives that defendant made her watch things on the Xbox; she could
not recall.

A-5557-17
14
testified she did not remember anything her father did to her. As the

prosecutor continued direct examination and asked whether her father "tr[ied]

to have sex with [her], Karen responded, "Yes." Karen described how

defendant penetrated her vagina with his finger and penis and inserted his

penis in her mouth. Karen said this always happened at defendant's house,

sometimes when they were alone, but not every time she visited.

On cross-examination, Karen admitted telling Dr. Higginbotham some

things she failed to tell detectives. Defense counsel probed other

inconsistencies between Karen's testimony and her prior statement.

After admitting by stipulation defendant's jail medical records for the

year after his arrest in February 2017, the State rested.

Defense case

Tara testified as the first defense witness. She was living with her

children and defendant — her father — in his home when she first met Karen,

who came to visit defendant on weekends, sometimes with her brother, and

stayed in the house. At the time, defendant worked every day except Sunday,

and Tara babysat all the children.

Before defendant testified, the judge conducted a Rule 104(c) hearing

regarding the recorded video statement defendant made to Detective Choe on

August 21, 2016, the day after Sara's accusation. The judge ruled the State

A-5557-17
15
could use the statement during cross-examination for impeachment purposes.

The judge also conducted a Sands/Brunson15 hearing and ruled all of

defendant's prior convictions were admissible for impeachment purposes.

Defendant's testimony was surprisingly brief; direct examination

comprises seventeen pages of transcript and cross-examination only five.

There are less than two pages each of re-direct and re-cross. Defendant had

six prior convictions and was last released from a halfway house in 2015,

when he returned to Camden, his hometown. Defendant described how he met

Kate while he was in the halfway house, and how he became reacquainted with

his daughter, Karen. Karen began to visit when Tara and her children were

living in the house with him. When Tara moved out, and Kate and her

children moved in, Karen continued to visit and stay overnight. Defendant

said he never lived in a third house since his release and never lived alone in

the house. This explicitly rebutted Karen's testimony that defendant

sometimes sexually assaulted her on weekends when he was alone in the

house, and that she visited him in three different houses.

15
State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
Defense counsel specifically requested that defendant's prior convictions not
be "sanitized." Id. at 380.

A-5557-17
16
Defendant said on the night of August 20, 2016, he was with Kate

watching television when Donna began to cry. He took the pacifier and went

into the bedroom where Sara was watching television, pretending to be asleep,

next to the baby. After getting the baby back to sleep, defendant told Sara to

move over on the bed, but "she didn't move." Defendant "pushed [Sara] over

to move her over on the bed and . . . laid [his] daughter down." Defendant put

a blanket over his daughter and left for the bathroom.

When Kate confronted him at the bathroom door, defendant told her to

take Sara to the hospital "[t]o have her checked to prove that she was lying."

Defendant denied ever "rub[bing Sara's] vagina" and also denied all of Karen's

accusations.

On cross-examination, the prosecutor reviewed defendant's prior

convictions: two for distribution of CDS in a school zone in 1995; possession

of CDS in 2002; resisting arrest and eluding police in 2002; distribution of

CDS in a school zone in 2004; and possession of a firearm during a CDS

offense in 2012. 16 The prosecutor asked defendant to confirm that he "pushed"

Sara on the night of August 20, but asked no further questions about those

16
Only the last conviction was within ten years of the start of trial in 2018.
The other convictions were presumptively inadmissible. See N.J.R.E. 609(b).
There is no appeal from the judge's ruling admitting all the convictions for
impeachment purposes.

A-5557-17
17
events or any questions about the accusations made by Karen. She did not

confront defendant with his prior statement to Detective Choe.

Defendant called Kate as the trial's final witness. She confirmed details

about when she and defendant first began living together, where they lived,

and when Karen first started visiting. Kate also said she contracted chlamydia,

not gonorrhea, from defendant sometime after the birth of their daughter

Donna in 2015.

Summations

Defense counsel stressed that defendant's medical records revealed he

tested negative for gonorrhea shortly after his arrest and could not have been

the source of Karen's infection. He criticized the lack of investigation of

Karen's allegations, noting Detective Courtney "fail[ed] to gather . . .

corroborating evidence." Counsel suggested Karen's brief testimony was

incredible.

As to Sara, defense counsel highlighted that although the events

allegedly took place in August 2016, and Sara gave a statement the next day,

detectives did not arrest defendant until March 2017, when Karen's allegations

surfaced. Counsel acknowledged defendant admitted pushing Sara across the

bed, but only to make space on the bed for Donna.

A-5557-17
18
The prosecutor recounted Karen's testimony and the findings of Drs.

Burton and Higginbotham. She reviewed defendant's medical records, which

demonstrated he tested negative for chlamydia and gonorrhea at the jail. She

noted the records reflected that defendant kept asking jail officials to

administer the test, and she asserted, despite the lack of any evidence, that by

then defendant had already been "tested and treated." Defense counsel

objected. Although the judge sustained the objection, he only told jurors their

recollection of the evidence controlled.

The prosecutor picked up the argument immediately, telling the jury:

[I]t's clear from the testimony that . . . gonorrhea and
chlamydia . . . go hand in hand, there's enough there
for you to make the very logical inference that the
defendant was treated. That the defendant had
chlamydia and gonorrhea. . . . Again, chlamydia and
gonorrhea go hand in hand. Even if you test positive
for only one the doctors said you get treated for both.

Citing testimony that anonymous testing was available in the county,

defendant's knowledge as of August 2016 that he was under investigation, and

that adult males "experience symptoms more readily than females," the

prosecutor urged the jury to "conclude . . . defendant had gonorrhea, gave

gonorrhea to [Karen]" and was treated for it prior to his post-arrest negative

test.

A-5557-17
19
The prosecutor asserted that "just as was the case with [Karen],"

defendant's abuse of Sara "was a matter of opportunity." She said that unlike

those occasions when defendant molested Sara before going to work, on

August 20, 2016, it happened at night, and Sara's mother, Kate, was awake in

the next room. In urging jurors to find Sara and Karen more credible than

defendant, the prosecutor said defendant was "essentially a career criminal

who has six prior convictions, has spent a good deal of his adult life in prison,

clearly showing contempt for the balance and rules of society." There were no

objections.

II.

Defendant contends it was reversible error to deny his motion to sever

the two counts of the indictment involving Sara's allegations from the

remaining counts involving Karen because the evidence regarding Sara would

be inadmissible at a separate trial of counts involving Karen "and vice versa."

The State contends the severance motion was properly denied because the

"charged offenses . . . were the same or similar offenses, and constituted a

pattern of ongoing and overlapping criminal activity." We find defendant's

argument persuasive.

A-5557-17
20
Rule 3:7-6 permits the State to charge multiple offenses in a single

indictment "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." (Emphasis added). "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).

Rule 3:15-2(b) provides "[r]elief from prejudicial joinder," and states:

"If for any . . . reason it appears that a defendant . . . is prejudiced by a

permissible or mandatory joinder of offenses . . . in an indictment . . . the court

may order . . . separate trials of counts . . . or direct other appropriate relief."

"A court must assess whether prejudice is present, and its judgment is

reviewed for an abuse of discretion." Sterling, 215 N.J. at 73 (citing State v.

Chenique-Puey, 145 N.J. 334, 341 (1996)).

"The test is whether the evidence from one offense would have been

admissible N.J.R.E. 404(b) evidence in the trial of the other offense . . . ." Id.

at 98. "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 (emphasis added) (quoting State v. Coruzzi, 189 N.J. Super. 273,

299 (App. Div. 1983)). To avoid prejudicial joinder, the court must conclude

A-5557-17
21
the proffered evidence for each set of charges would be admissible in a

separate trial on the other set of charges because the "N.J.R.E. 404(b)

requirements [are] met, and the evidence of other crimes or bad acts [is]

'relevant to prove a fact genuinely in dispute and the evidence is necessary as

proof of the disputed issue.'" Sterling, 215 N.J. at 73 (first citing Cofield, 127 N.J. at 338; and then quoting State v. Darby, 174 N.J. 509, 518 (2002)).

In State v. Green, the Court succinctly explained:

Rule 404(b) bars "evidence of other crimes, wrongs,
or acts" when used "to show that [a] person acted in
conformity therewith." However, evidence of prior
"crimes, wrongs, or acts" may be used to show intent,
. . . knowledge, . . . or absence of mistake or
accident." Because evidence of a defendant's other
crimes "has a unique tendency" to prejudice the jury,
other-crimes evidence proffered under Rule 404(b)
"must pass [a] rigorous test."

[ 236 N.J. 71, 81 (2018) (alterations in original) (first
quoting N.J.R.E. 404(b); then State v. Reddish, 181
N.J. 553, 608 (2004); and then Garrison, 228 N.J. at
194).]

That "rigorous test" is the four-part Cofield test. Id. at 81–82 (citing Cofield,

127 N.J. at 338). 17

17
"The evidence of the other crime must be admissible as relevant to a
material issue . . . similar in kind and reasonably close in time to the offense
charged; . . . clear and convincing; and [its] probative value . . . must not be
outweighed by its apparent prejudice." Cofield, 127 N.J. at 338 (quoting
Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence:

A-5557-17
22
We apply a deferential standard of review to the trial judge's evidential

rulings. Id. at 81. "In addition, sensitive admissibility rulings regarding other-

crimes evidence made pursuant to Rule 404(b) are reversed '[o]nly where there

is a clear error of judgment.'" Ibid. (alteration in original) (quoting State v.

Rose, 206 N.J. 141, 157–58 (2011)). However, "[t]hat deferential approach

does not fit in cases where the trial court did not apply Rule 404(b) properly to

the evidence at trial; in those circumstances, to assess whether admission of

the evidence was appropriate, an appellate court may engage in its own

'plenary review' to determine its admissibility." Rose, 206 N.J. at 158 (quoting

State v. Barden, 195 N.J. 375, 391 (2008)).

With these guideposts in mind, we consider the trial evidence here.

Construing the State's proffer as admissions by defendant to Kate and

Detective Choe of "inadvertently" touching Sara's vaginal area when he

"pushed" her to make room for Donna on the bed, the judge seemingly

concluded evidence that defendant sexually assaulted Karen by vaginally

penetrating her with his penis and finger, and orally penetrating her with his

______________________
Rules 404(b), 608(b), And 609(a),
38 Emory L.J. 135, 160–61 (1989) (footnote
omitted)). See State v. Gillispie, 208 N.J. 59, 88–89 (2011) (noting second
Cofield prong need not receive universal application).

A-5557-17
23
penis, was admissible to prove defendant intended to touch Sara's vagina for

his sexual gratification or to disprove a potential defense that the touching was

"inadvertent" or by mistake. See, e.g., P.S., 202 N.J. at 256 ("In determining

whether 404(b) evidence bears on a material issue, the Court should consider

whether the matter was projected by the defense as arguable before trial, raised

by the defense at trial, or was one that the defense refused to concede." (citing

State v. Stevens, 115 N.J. 289, 301–02 (1989))); State v. Cusick, 219 N.J.

Super. 452, 465–66 (App. Div. 1987) (admitting evidence of the defendant's

sexual abuse of two different victims to rebut his claim of inadvertent sexual

contact). The judge never explained, however, why the alleged touching of

Sara's vagina was relevant to prove a material fact in dispute regarding Karen's

allegations.

More importantly, defendant's intent in rubbing Sara's vaginal area, or

that it did not occur by mistake, was never an issue because defendant denied

touching Sara's vaginal area at all, inadvertently or otherwise. In State v. J.M.,

the defendant, a massage therapist, was charged with sexually assaulting a

client during a massage. 225 N.J. 146, 151–53 (2016). The defendant denied

any sexual contact occurred when interviewed after his arrest. Id. at 153. The

trial court ruled the State could introduce evidence that the defendant was

accused of similar conduct with a massage client in Florida six years earlier.

A-5557-17
24 Id. at 153–54. We granted leave to appeal and reversed, finding the evidence

was inadmissible under Cofield. Id. at 150–51 (citing State v. J.M., 438 N.J.

Super. 215, 240 (App. Div. 2014)). 18

The Court agreed, clearly stating: "In a case in which a defendant

contends the alleged assault did not occur, intent and absence of mistake are

not at issue. In the absence of a genuinely contested fact, other-crime evidence

is irrelevant and the first Cofield prong cannot be satisfied." Id. at 159

(emphasis added). 19 The Court explained:

Defendant does not argue that the alleged sexual
assault of [the victim] was consensual or accidental;
rather, he maintains that the sexual assault never
occurred. As such, [the Florida victim's] testimony is
inadmissible to establish motive, intent, or absence of
mistake because defendant's state of mind is not a
"genuinely contested" issue in this case. The
testimony is also inadmissible for proof of plan,
because it is insufficient to establish the existence of a
larger continuing plan of which the crime on trial is a

18
We also concluded that because defendant was acquitted of the Florida
charges, that evidence was always inadmissible under Rule 404(b) unless the
jury was convinced beyond a reasonable doubt the other crimes occu rred. Id.
at 153. The Court specifically refused to adopt that "bright-line" rule. Id. at
151.
19
The Court tempered this by noting that it could "envision certain
circumstances in which motive evidence may be admissible in the face of a
denial by the defendant that the charged act did not occur. A fact-sensitive
evaluation of the proffered evidence would be required to determine if the
defendant's motive is a genuine issue in the case." Ibid. n.1 (citing Rose, 206 N.J. at 162–63).

A-5557-17
25
part[.] A "strong factual similarity" between the two
sexual assaults is not enough to reveal a plan.
Because the proposed testimony does not serve any of
the permitted purposes of other-crime evidence set
forth in N.J.R.E. 404(b), the testimony is inadmissible
under the first Cofield requirement.

[Id. at 160 (emphasis added) (first quoting State v.
Willis, 225 N.J. 85, 98 (2016); and then quoting
Stevens, 115 N.J. at 306).]

In Garrison, the issue was whether evidence the defendant played strip

poker with the minor daughters of his girlfriend was admissible under Rule

404(b). 228 N.J. at 186–88. Even though the defendant denied sexually

assaulting the victimized daughter, he "insisted that any inappropriate actions

originated with [the victim]. For example, defendant testified that [the victim]

would grab him and try to pull his face to her chest and that she touched his

penis while he was sleeping on a chair." Id. at 195. The Court distinguished

these facts from those presented in J.M., noting, "Unlike the defendant in J.M.,

defendant in this case has not merely denied that a sexual assault took place.

Defendant has repeatedly asserted that any inappropriate actions originated

with the victim." Id. at 196. The Court held evidence of the strip poker game

met all four Cofield prongs and was properly admitted. Id. at 200.

Even when the defendant's intent or state of mind is at issue, the Court

has recognized the admission of other crimes evidence is highly prejudicial

and courts must proceed with caution. For example, in Willis, the Court
A-5557-17
26
considered whether evidence of an earlier sexual assault against a different

victim should have been admitted at the defendant's trial for sexual assault.

225 N.J. at 87. The Court noted the "central issue in th[e] case was not

whether defendant and [the victim] had sexual relations . . . . The issue was

whether the sexual relations were consensual." Id. at 100. Acknowledging the

two assaults "had certain common elements," the Court nonetheless held,

Great care must be taken . . . 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.

[Ibid.]

In addition, the Court noted that "the quality and quantity of the other-

crime evidence introduced at trial," which was extensive and consumed almost

as much trial time as the evidence of the charged crime, "could have been

interpreted by the jury only as evidence that defendant had a propensity to

commit sexual offenses against young women he encountered on the street."

Id. at 102.

Here, the evidence at trial regarding crimes allegedly committed against

Sara consisted of her brief live testimony, her recorded statement to Detective

Choe, Kate's very brief testimony, and the testimony of Dr. Lanese. The
A-5557-17
27
State's case regarding Karen included her brief and frequently contradictory

testimony, extensive testimony from Dr. Higginbotham about Karen's

allegations of sexual abuse at the hands of an unidentified adult male, and lots

of testimony about venereal disease, its diagnosis and treatment, and whether

gonorrhea was frequently comorbid with chlamydia.

It is obvious to us that evidence regarding Karen's allegations would not

have been properly admitted at a separate trial of the crimes alleged by Sara

because they were not relevant to a material disputed fact under Cofield's first

prong. Defendant never said he touched Sara in her vaginal area, much less

that it was by accident, mistake or inadvertence.

Similarly, the evidence adduced at trial regarding Sara's allegations

would not have been properly admitted at a separate trial of the crimes alleged

by Karen. The prosecutor contended there were common threads between the

two sets of allegations, namely that defendant was a "father figure" to Sara and

Karen and the molestations occurred in his home during the same timeframe.

Yet, there was no "clear and strong" logical connection between Sara's

allegation that defendant repeatedly sexually touched her vaginal area before

he went to work at 4 a.m., and Karen's explicit claims of sexual penetration

during the same timeframe and sometimes in the same house.

A-5557-17
28
Admission of other crimes evidence to bolster Karen's or Sara's

credibility was inappropriate. See P.S., 202 N.J. at 259. Simply put, the judge

denied defendant's severance motion without conducting the "kind of

carefully-focused analysis . . . required by N.J.R.E. 404(b)." Ibid. The judge

should have granted defendant's motion for severance and tried the two sets of

allegations separately.

In State v. Orlando, the defendant was convicted of separate counts in an

indictment charging him with impairing the morals of two girls who were his

neighbors, ages nine and seven, one in April and one in June. 101 N.J. Super.
390, 391 (App. Div. 1968). The trial court denied a motion for severance

without explanation, despite "circumstances indicating, at least prima facie,

serious prejudice to defendant and tactical advantage to the State if the t wo

charges were tried together." Id. at 393. Noting the lack of evidence beyond

the testimony of each child, we held:

in reality, although the jury was told to consider each
count separately, the effect of the joinder was to give
the State two witnesses instead of one to overcome
defendant's denial of either offense and, in view of the
abhorrent nature of the offense, to multiply the
chances that defendant would be convicted. Further,
the prejudice to be anticipated from joint trial of the
two offenses was confirmed by what in fact did occur
at the trial.

There was no compelling valid reason why the
State should insist, over defendant's objection, that the
A-5557-17
29
two charges, involving offenses allegedly committed
some two months apart, be tried at one time. No
appreciable saving of time resulted from the joinder of
the two distinct offenses for trial rather than offering
the proofs specifically applicable to each offense at
separate trials, each of which would be of short
duration.

[Id. at 394.]

The failure to sever the two sets of charges in this case resulted in the

jury hearing evidence that our courts historically have recognized "has a

unique tendency to turn a jury against the defendant." Stevens, 115 N.J. at
302. Where the trial court errs by improperly joining offenses, the reviewing

court must assess whether the error "led to an unjust result. The possibility

must be real, one sufficient to raise a reasonable doubt as to whether [it] led

the jury to a verdict it otherwise might not have reached." Sterling, 215 N.J. at
101 (alteration in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)). This

requires "an independent analysis of the quality of the evidence of defendant's

guilt on a conviction-by-conviction basis." Id. at 102.

In Sterling, the Court affirmed the defendant's conviction regarding one

sexual assault, despite improper joinder with another sexual assault and a

separate burglary, because of "the strong, independent proof of [the]

defendant's guilt" of that assault. 215 N.J. at 104. Notably, the Court found

A-5557-17
30
the incontrovertible DNA evidence as to that one assault rendered the improper

joinder harmless error as to that conviction. Id. at 105.20

In this case, the jury convicted defendant of only the two counts

involving Sara. It either acquitted defendant or could not reach a verdict on all

the counts charging him with crimes allegedly committed against Karen.

Nonetheless, the jury heard evidence of defendant's alleged repeated assaults

of his daughter, her treatment for a sexually transmitted disease, and a doctor's

detailed recitation of Karen's allegations. The State's proofs against defendant

on the charges involving Sara consisted of her testimony, her video recorded

statement, and Kate's very brief "fresh complaint" testimony. Dr. Lanese

added little to the State's case. Trying these two sets of allegations together

before a single jury clearly implied defendant had "a propensity to commit

crimes, and, therefore, that it [wa]s 'more probable that he committed the

crime[s] for which he [was] on trial,'" Willis, 225 N.J. at 97 (quoting State v.

Weeks, 107 N.J. 396, 406 (1987)). The improper joinder clearly had the

capacity to bring about an unjust result. R. 2:10-2. We therefore reverse

20
We note that evidence adduced as to the other sexual assault in Sterling also
included DNA evidence that was "less-precise," and "simply did not exclude
[the] defendant as the perpetrator." Id. at 105. Nevertheless, the Court
concluded the stronger evidence as to the one assault may have "influenced the
jury in its assessment of the offenses involving" the victim of the other assault
and led to its guilty verdicts on both assaults. Ibid.

A-5557-17
31
defendant's convictions, vacate the sentences imposed, and remand for a new

trial.21

While we disagree with the trial judge's application of Cofield's test, his

ruling that evidence regarding both sets of charges would be admissible at each

trial if the counts were tried separately, and his denial of defendant's severance

motion, we appreciate the trial attorneys did little to assist him in the required

"carefully-focused analysis" whenever Rule 404(b) evidence is involved. P.S.,

202 N.J. at 259. Moreover, the trial here demonstrates several challenges

posed by the analytic paradigm set out in Chenique-Puey and its progeny. We

raise these concerns, which are implicated every time a single indictment

alleges two or more distinct sets of offenses, and a defendant brings a

severance motion.

Rule 3:7-6 permits the joinder of offenses in a single indictment for a

single trial if they are of a "same or similar character or are based on the same

act or transaction or on [two] or more acts or transactions connected together

21
Although defendant specifically reserved his right to appeal the judge's
denial of his pre-trial severance motion when he pled guilty to endangering
Karen, he makes no argument in his brief regarding the effect our reversal on
those grounds would have on his guilty plea. Pursuant to Rule 3:9-3(f), if a
defendant prevails on appeal after entering a conditional guilty plea,
"defendant shall be afforded the opportunity to withdraw his or her plea." The
issue should be addressed by the trial court on remand.

A-5557-17
32
or constituting parts of a common scheme or plan." (Emphasis added).

"Charges need not be identical to qualify as 'similar' for purposes of joinder

under Rule 3:7-6," Sterling, 215 N.J. at 91 (citing State v. Baker, 49 N.J. 103,

105 (1967)), but they must be "connected together," id. at 91, or be "parts of a

common scheme or plan," id. at 72. "Rule 3:7-6 expressly permits joinder

when there is some connection between separate counts rendering the evidence

probative of a material issue in another charge." Id. at 91. A similar standard

applies when the State proffers evidence of an uncharged crime or bad act at

trial pursuant to Rule 404(b). See Green, 236 N.J. at 82 ("[T]he 'proffered

evidence must be "relevant to a material issue genuinely in dispute."'"

(emphasis added) (quoting Gillispie, 208 N.J. at 86)).

The preference is for joinder of the offenses in a single trial unless the

defendant demonstrates prejudice. Chenique-Puey, 145 N.J. at 341. Yet, in

proffering Rule 404(b) evidence at trial, the State bears the burden of proof,

and "[u]nder the third Cofield prong, [the State] must establish that the other

crime 'actually happened by "clear and convincing" evidence.'" Green, 236 N.J. at 83 (quoting Rose, 206 N.J. at 160).

Perhaps most importantly, prior to the introduction of Rule 404(b)

evidence at trial, the judge's fact-finding on the crucial issues of material

relevancy and quality of the State's proofs

A-5557-17
33
is made after the court conducts a Rule 104 hearing
outside the presence of the jury. In a Rule 104 hearing
the trial court would hear the specific content of the
other-crime testimony and be able to assess its
relevance to an issue in dispute and its necessity to the
proof of that issue. As an integral part of that
assessment, the court also would determine whether it
finds the proof of the other crime to be clear and
convincing.

[State v. Hernandez, 170 N.J. 106, 127 (2001)
(emphasis added).]

Usually, when a defendant seeks severance from allegedly prejudicial joinder

of "same or similar crimes," or separate crimes "connected together" in one

indictment, the court does not conduct a Rule 104 hearing to put the State to its

proofs. As in this case, the judge often relies upon proffers of evidence the

prosecutor intends to adduce at trial for a permitted use under Rule 404(b), or

to rebut an asserted or anticipated defense at trial; the judge rarely hears the

actual testimony before deciding if the evidence meets Cofield's rigorous test,

in which case, severance should be denied.

Lastly, if Rule 404(b) evidence is admitted at trial, the judge is required

to provide a "carefully crafted limiting instruction . . . explain[ing] to the jury

the limited purpose for which the other-crime evidence is being offered,"

Hernandez, 170 N.J. at 131 (citing State v. Fortin, 162 N.J. 517, 534 (2000)),

and "setting forth the prohibited and permitted purposes of the evidence."

Ibid. The charge is given when the evidence is received and again in the
A-5557-17
34
court's final instructions. State v. Williams, 190 N.J. 114, 133–34 (2007). The

model jury charge unambiguously provides this guidance and further advises

the jury that before giving any weight to the other crimes evidence, it "must be

satisfied that the defendant committed the other [crime]." Model Jury Charges

(Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev.

Sept. 12, 2016). We know of no reported case that requires similar

instructions be given when two different sets of charges are tried together. 22

The case before us also raises the issue of what should happen when the

prosecutor misstates the proffered evidence, or the State never introduces some

of the very evidence it proffered in opposing the severance motion at trial . For

example, here, in opposing the severance motion, the prosecutor said

defendant made statements to Kate and Detective Choe that Sara may have

been "confused" about his touch on the night of August 20, 2016. However, in

his statement to Detective Choe the very next day, it was the detective who

suggested Sara could have "minsinterpret[ed]" or "misunderst[ood]" something

from the night before; he suggested "maybe [defendant] touched her genital

area – her vagina"; he suggested defendant "may have thought [he] touched her

22
In State v. Krivacska, writing for our court, Judge Baime implied that such
instructions were necessary when two sets of sexual assaults against two
victims, one set charged in an indictment and the second in an accusation,
were joined in a single trial. 341 N.J. Super. 1, 37 (App. Div. 2001).

A-5557-17
35
vagina" when he pushed his daughter over on the bed. To these repeated

entreaties defendant simply responded that he did not know or that he simply

pushed the child.

At trial, the prosecutor understandably never sought to introduce in the

State's case-in-chief the exculpatory statement defendant provided. During

defendant's trial testimony, the prosecutor never asked defendant if, in moving

Sara to make room for Donna on the bed, he touched the child's vaginal area.

Indeed, contrary to the proffer made in opposition to the severance motion, it

was obvious defendant never suggested in his statement that Sara was

confused about his touch and never asserted he inadvertently touched or

rubbed Sara's vaginal area.

The State's pre-trial proffer also cited Kate's statement to detectives as

support for defendant's "suggestion" that Sara was confused about the nature

of his touch. Kate's statement is not in the record, yet, when Kate testified, the

prosecutor never asked a single question about what defendant said to her after

Sara's accusation.

In opposing severance, the prosecutor extensively cited Karen's

statement to Detective Choe about defendant's sexual abuse, providing

significant details about the assaults. It suffices to say that statement was

never introduced at trial, and Karen's testimony before the jury was relatively

A-5557-17
36
brief, with few specific details and short answers to leading questions. The

jury apparently rejected claims that defendant sexually assaulted Karen before

August 2016, i.e., before Sara's allegations arose, because it acquitted

defendant of the four counts charging sexual offenses against Karen alleged to

have occurred prior to August 2016.

As a court of intermediate appellate jurisdiction, we are bound by the

Court's precedent in Chenique-Puey, as was the trial judge. Our courts,

however, have recognized the ability of the trial court to address the denial of

an earlier severance motion when events at trial require reconsideration

because of prejudice to a defendant.

We have recognized the court's inherent authority to sua sponte order a

severance of defendants tried together when it is apparent the bulk of the trial

evidence was inculpatory only as to one. Long ago, in State v. Hall, we said,

Where a significant portion of the evidence to
be adduced at a trial is admissible only as to one
defendant, the probability of harm to the other may be
so great that the trial judge should, as a matter of fair
practice, exercise his [or her] discretion in favor of a
severance. If, however, the potential for prejudice
was not measurable at the pretrial hearing but
becomes evident during the trial, the trial judge is
again required to exercise his [or her] discretion when
the subject evidence is offered by the State. Should
[the judge] at that point determine that . . . protective
instructions will be plainly ineffective, the better
course will require [the judge] to grant the severance
initially denied.
A-5557-17
37
[ 55 N.J. Super. 441, 451 (App. Div. 1959).]

In State v. Hudson, we agreed with the trial judge's decision to sua

sponte declare a mistrial when the prosecutor inadvertently failed to reveal his

intention to offer a statement made by one defendant at a joint trial of both.

139 N.J. Super. 360, 362–63 (App. Div. 1976). Of course, declaring a mistrial

is never a preferred course. See, e.g., State v. Smith, 224 N.J. 36, 47 (2016)

("A mistrial should only be granted 'to prevent an obvious failure of justice.'"

(quoting State v. Harvey, 151 N.J. 117, 205 (1997))).

In Baker, the Court considered Rule 3:4-7, the predecessor to Rule 3:7-6,

which contained the same language as our current rule. We held that joinder

of two separate sales of heroin on different dates to different buyers was "plain

error." Baker, 49 N.J. at 104 (quoting State v. Baker, 90 N.J. Super. 488 (App.

Div. 1966)). In reversing, the Court held, "The two offenses here involved are

'of the same or similar character' within the meaning of the . . . rule." Id. at

105. The Court concluded there was no plain error, but noted, "We are not

indifferent to the possibility of harm, and we do not suggest that a motion for

severance . . . of unrelated offenses should be regarded lightly." Ibid.

Between our decision in Baker and the Court's reversal, a tentative draft

of Rule 3:7-6 was proposed by the Supreme Court's Coordinating Committee

on the Revision of the Rules of Court. The Coordinating Committee's report
A-5557-17
38
recommended that the Rule permit the joinder of offenses that were "of the

same or similar character and are based on the same act or transaction or on

[two] or more acts or transactions connected together or constitution parts of a

common scheme or plan." Sup. Ct. Coordinating Comm. on the Revision of

the Rules of Ct., Proposed Revision of the Rules Governing the Courts of the

State of New Jersey R. 3:7-6 (1966) (emphasis added). The Coordinating

Committee's commentary was striking:

This rule makes one major change in the source
rule, namely, it requires as a prerequisite to joinder
not only that the offenses be of the same or similar
nature but that they are also based either on the same
transaction or on transactions constituting part of a
common scheme. The Committee is of the view that it
is essentially unfair to join two or more like but
unrelated crimes.

[Id. R. 3:7-6 cmt.]

The Court rejected the Coordinating Committee's recommendation, adopting

the Rule essentially without change, and with the disjunctive "or," thereby

permitting joinder of offenses that are of the "same or similar character"

without necessarily being "based on the same . . . transaction" or "part[] of a

common scheme." R. 3:7-6.

Judge Pressler's comments to the revision shortly after enactment

explained:

A-5557-17
39
Because of the evident high degree of prejudice
to a defendant inherent in a single trial of two entirely
separate offenses of the same nature, the tentative
draft rule . . . proposed [an] amendment . . . to prohibit
joinder in a single indictment of two separate offenses
of the same nature unless they were based on the same
act or transaction or on acts or transactions connected
together or constituting part of a common scheme or
plan.

[Pressler, Current N.J. Court Rules, cmt. on R. 3:7-6
(1969).]

Judge Pressler noted the proper "technique" for a defendant to avoid prejudice

was "to employ . . . pretrial motion for severance . . . ." Ibid. Further, "[a]s

. . . the possibility of harm [wa]s generally substantial, the motion for

severance or other suitable relief should be readily granted." Ibid. (citing

collected cases).

In Orlando, we noted that "[t]he problem of joinder and severance of

offenses . . . in criminal cases" was recently subject to study and a report by

the American Bar Association's Advisory Committee on the Criminal Trial

(ABA Tentative Draft). 101 N.J. Super. at 392 n.*. In particular, the Advisory

Committee recommended that "when . . . two or more offenses had been joined

'solely on the ground that they are of the same or similar character,' defendant

[should have] an absolute right to a severance on demand." Ibid.

The ABA Tentative Draft specifically noted that "joinder together for

one trial of two or more offenses of the same or similar character when the
A-5557-17
40
offenses are not part of a single scheme or plan has been subjected to severe

criticism over the years." ABA Minimum Standards for Crim. Just. § 2.2(a) at

29 (Tentative Draft Copy 2, 1967). It noted that "joinder of offenses not part

of a single scheme or plan [wa]s difficult to justify" on the grounds of

"avoiding duplicitous, time-consuming trials in which the same factual and

legal issues must be litigated." Ibid. The ABA Tentative Draft cited one of

the "most compelling reasons for granting the defendant this right of severance

without any specific showing of prejudice," id. at 31, was the "introduction of

evidence which fails to meet the other crimes test," id. at 32.

In 1980, the ABA published its Approved Report on Criminal Justice

Standards that included an earlier report from its "Task Force on Joinder and

Severance" (Task Force Report). Section 13-1.2 of the Task Force Report

recommended different procedures to employ when a single "accusatory

instrument" included "[r]elated offenses," defined as "[t]wo or more offenses

. . . based upon the same conduct, upon a single criminal episode, or upon a

common plan[,]" ABA Standards for Crim. Just. Standard 13.1.2 at 8–9

(1978), and "[u]nrelated offenses," defined in section 13-1.3, as "offenses

which are not 'related' offenses," id. at 10. In its commentary, the Task Force

Report noted, "Offenses committed at different times and places are not

'related' merely because they are of the same or similar character." Id. at 11.

A-5557-17
41
Notably, the Task Force Report recommended, "Whenever two or more

unrelated offenses have been joined for trial, the prosecuting attorney or the

defendant shall have a right to a severance of the offenses." Id. at 29.

The trial here suggests it may be time to revisit the rules regarding

joinder at trial of "same or similar" offenses that are not part of a "common

plan or scheme," and a defendant's ability to seek relief from prejudicial

joinder through a pretrial motion for severance. Also, it may require the

revisiting of the Chenique-Puey analytic framework to ensure unfair prejudice

will not seep into a trial when the State contends two different sets of offenses

are "connected together" by N.J.R.E. 404(b). We shall serve a copy of this

opinion on the Supreme Court's Committee on Criminal Practice for its

consideration of possible amendment to Rule 3:7-6, or Rule 3:15-2(b).

III.

We address the balance of defendant's arguments because they raise

issues that may occur if there is a retrial.

We agree with the judge's pre-trial decision that barred defendant from

adducing evidence of Sara's supposed precocious sexual knowledge through

testimony of Dr. Lanese or the Division's caseworker. The purpose of the

Rape Shield Law "is to protect the privacy interests of the victim while

ensuring a fair determination of the issues bearing on the guilt or innocence of

A-5557-17
42
the defendant." State v. Garron, 177 N.J. 147, 165 (2003). While the statute

protects against "unwarranted and unscrupulous foraging for character-

assassination information about the victim," id. at 165, "if evidence is relevant

and necessary to a fair determination of the issues, the admission of the

evidence is constitutionally compelled," id. at 171.

To be admissible, the probative value of the prior acts must rest on clear

proof that they occurred, they must be relevant to a material issue in the case,

and the evidence must be necessary to the defense. State v. Budis, 125 N.J.
519, 533 (1991). The Court in Budis announced a two-step analysis. First, the

judge should "ascertain, apart from the Rape Shield Law, whether the evidence

[i]s relevant to the defense." Id. at 532. Second, the judge must consider if the

prior sexual conduct would "create undue prejudice, confusion of the issues, or

unwarranted invasion of the privacy of the victim." Id. at 538 (quoting

N.J.S.A. 2C:14-7).

Here, we agree with the State that Sara's allegations about defendant did

not reveal a precocious knowledge of sexual activities; the child clearly

understood what was permitted touching and what was inappropriate. See

State v. Schnabel, 196 N.J. 116, 131 (2008) (rejecting defense’s assertion that

two teenage girls would lack sufficient knowledge to describe sexual abuse

without prior sexual experience). Evidence of the game Sara said she played

A-5557-17
43
with her cousin, if true, was of such attenuated relevance to the sexual contact

defendant allegedly committed that the judge properly ruled it was

inadmissible. In each instance, the judge appropriately applied the first step of

the Budis test.

Defendant next contends there was excessive hearsay admitted about

Sara's allegations, noting her statement to Detective Choe was admitted, Kate

was permitted to recount what the child told her, and Dr. Lanese testified about

Sara's claims. The judge found the statements to the detective and the doctor

were admissible under N.J.R.E. 803(c)(27) after conducting an appropriate

hearing.

On appeal, defendant does not challenge the admissibility of these

hearsay statements; instead, he objects to the cumulative nature of similar

evidence and contends it was only an attempt to bolster Sara's credibility.

Defendant never objected at trial, and, so, we consider the claim for plain

error. R. 2:10-2.

We have held that even when evidence is admissible under the tender

years exception, "the trial court 'should be cognizant of its right under N.J.R.E.

403 to exclude evidence, if it finds in its discretion, that the prejudicial value

of that evidence substantially outweighs its probative value.'" State v. Burr,

392 N.J. Super. 538, 572 (App. Div. 2007) (quoting State v. D.G., 157 N.J.

A-5557-17
44
112, 128 (1999)). Certainly, we reject defendant's argument as it applies to

Sara's statements to her mother and Detective Choe, because both were close

in time to the alleged events, and the statement to the detective was in far

greater detail. We offer no opinion about the propriety of permitting the

doctor to repeat Sara's allegations as made to her, except to say that if the case

is retried, the judge should consider whether the probative value of that

evidence is substantially outweighed by the prejudicial nature of repeated

hearsay testimony, even if it falls within an exception to the hearsay rule.

Lastly, the prosecutor's fleeting reference to defendant as a "career

criminal" was improper, but there was no objection at trial, and, more

importantly, we do think it was so egregious as to have required reversal. It

should not be repeated if there is a retrial.

In light of our decision, we do not address defendant's sentencing

arguments.

Reversed. We vacate defendant's sentence and remand for a new trial.

A-5557-17
45

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.