STATE OF NEW JERSEY v. DAVID M. LACONTI

This case can also be found at 197 N.J. 477.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4039-06T44039-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID M. LACONTI,

Defendant-Appellant.

__________________________

 

Argued September 24, 2008 - Decided

Before Judges Rodr guez, Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0115-I.

Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary and Jane M. Personette, of counsel and on the brief).

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for the respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, on the brief).

PER CURIAM

Pursuant to Passaic County Indictment No. 04-02-0115-I, defendant David M. LaConti, a sergeant in the Ringwood Police Department, was charged in four counts: official misconduct, N.J.S.A. 2C:30-2(a) (count one); official misconduct, N.J.S.A. 2C:30-2(b) (count two); sexual assault by committing acts of penetration, N.J.S.A. 2C:14-2(c)(1) (count three); and sexual assault by intentionally touching intimate parts of the victim, N.J.S.A. 2C:14-3(b) (count four). These counts are all based on the alleged conduct of defendant towards K.M., a dispatcher in the Ringwood Police Department. K.M. alleged that on three different occasions, defendant sexually assaulted her by making her perform oral sex on him, by forcing her to masturbate him, and by grabbing her breast over her clothes.

At the end of the State's case, defendant moved for a judgment of acquittal with respect to counts one and two of the indictment (the official misconduct counts). The trial court granted the motion as to count one, but denied it as to count two.

The jury returned a not guilty verdict as to counts three and four, but found defendant guilty of count two. On the amended verdict sheet, the jury found defendant guilty of official misconduct as to all three incidents specified on the verdict sheet. A motion to set aside the jury's verdict and enter a judgment of acquittal, or alternatively, to order a new trial, was denied.

The trial court, without objection from the State, sentenced defendant for a third degree crime, even though he was convicted of a second degree crime, to three years' imprisonment, along with the appropriate fines and penalties. The trial judge continued bail and stayed the sentence pending appeal. Defendant appeals. We affirm.

From June 1989 to 1991, K.M. was employed as a civilian police dispatcher for the Ringwood Police Department ("police department"). During this period, she and defendant, a patrolman at the time, had a consensual sexual relationship. On numerous occasions, they engaged in sexual acts, including intercourse and oral sex, in the police department, while they were on duty. Their sexual activities took place in the patrol room, located in the back of the police department building. Theirs was not a dating relationship, and they did not see each other outside of the police department.

In May 1990, K.M. ended the sexual relationship with defendant after getting engaged to another man. She testified that defendant did not want to end the relationship, became "belligerent" and made nasty comments to her. In 1991, K.M. left the department's employment because her husband received another job in Illinois. She returned to New Jersey in 2000. In January 2002 she started working again as a part-time 9-1-1 dispatcher at the police department but was made a full-time dispatcher after a short time. In the interim, defendant had become a sergeant.

K.M. testified that when she was previously employed, the police department did not have a 9-1-1 emergency system, but when she returned, they had implemented one. As a dispatcher, if K.M. wanted to step away from the dispatch area, she had to contact the State, log-off her computer and call the neighboring town designated to receive the re-routed calls and report what was happening. If this did not happen and a dispatcher did not answer a phone, after a few rings, the call would be re-routed anyway.

The shifts for a dispatcher were split into three time periods: 7:00 a.m. to 3:00 p.m. (day shift), 3:00 p.m. to 11:00 p.m. (evening shift) and 11:00 p.m. to 7:00 a.m. (midnight shift). A dispatcher would work four days on one shift, have two days off, then work four days on the next shift, cycling through the three shifts. The police officers worked six days on, three days off, with shifts starting on a rotating basis. K.M. testified that there were times when she and defendant would be the only ones in the building, especially during the midnight shifts.

The first incident took place in late spring or early summer of 2002. When K.M. was walking from the patrol room back to the dispatch area, defendant was sitting in one of the chairs in the dispatch area with his penis hanging out of his pants. She testified that his pants were unbuttoned and opened, but that they were not pulled down. K.M. testified that defendant grabbed her arm and said "Why don't you take care of this for old times sake?" She responded that she did not want to, but he pulled her down to her knees because he wanted her to perform oral sex on him. After performing oral sex, she went to the bathroom and washed her face off. She testified that she was "scared." At the time this happened, defendant, in uniform, was the shift supervisor. It was the midnight shift, and the 9-1-1 emergency system was up and running.

The second incident took place in late spring 2003. During the midnight shift, while defendant was the shift supervisor and in uniform, K.M. testified that as she walked down the hall from the patrol room to the dispatch area, defendant walked up to her and said he wanted oral sex. She said no and walked to her seat in the dispatch area. When she was sitting down, defendant came up behind her with his penis out of his pants and said "just take care of this for me." She stood to get up and defendant grabbed her arm and started stroking his penis with her hand. She was leaning up against a low cabinet, and defendant unbuttoned her pants and stuck his hand in her pants. She pushed him away again. He took her hand and started stroking his penis again, resulting in him ejaculating on the floor. After this happened, K.M. went to the bathroom, started crying and then left the police department. While this was taking place, the 9-1-1 emergency system was up and running.

The third incident took place in July 2003 when K.M. was on the midnight shift. At the time, defendant was the shift supervisor, wearing his uniform and no one else was in the building. K.M. testified that she was entering information in the computers and had to ask defendant a question. She went into the patrol room and sat down. She testified that defendant said she was cranky, and he stood up to give her a back rub. While he was massaging her shoulders, he slid his hand down over her breast, above her clothing. K.M. told him to stop, got up and walked away.

A few days after the third incident, K.M. approached Sergeant Henry Hill, who was the chief commander on the night shift. She told him that she was having a problem with a police officer and did not know what to do. She told Sgt. Hill that she was being sexually harassed by defendant and that she needed advice on how to handle the situation. She was told by Sgt. Hill that she had to talk to Lt. Mancher. Lt. Mancher was on vacation and she did not speak to him until a week later. When she did speak with him, she told him what happened with defendant. After talking to Lt. Mancher, K.M. told Chief Bernard Lombardo what happened. After meeting with Chief Lombardo, K.M. met with the Passaic County Prosecutor's Office and provided a statement regarding the sexual abuse.

Detective Maria Papargau of the Prosecutor's Office, Sgt. Hill, and Chief Lombardo all testified at trial as to what K.M. told them. Defendant did not testify, nor did he call any witnesses.

On appeal defendant raises the following issues for our consideration.

POINT I: VARIOUS ERRORS REGARDING JURY INSTRUCTIONS AND THE JURY VERDICT SHEET REQUIRE THE REVERSAL OF DEFENDANT'S CONVICTION

a. The amended verdict sheet was misleading and had the clear capacity to confuse the jury and produce an unjust result, thus warranting reversal of defendant's conviction

b. Defendant was denied a fair trial as a result of the introduction to the jury of the amended verdict sheet after counsel had summed up and five hours into jury deliberations, thus warranting reversal of Defendant's conviction

c. The three acts specified on amended verdict sheet relating to Count Two actually reflected the State's theory in support of Count One on which the court had granted a judgment of acquittal

POINT II: THE COURT BELOW ERRED IN FAILNG TO DISMISS COUNT TWO DUE TO LACK OF SPECIFICITY IN THE INDICTMENT

POINT III: DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE

POINT IV: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE STATE TO INTRODUCE EVIDENCE PURSUANT TO RULE 404(b) OF A SEXUAL RELATIONSHIP BETWEEN DEFENDANT AND [K.M.] THAT ALLEGEDLY OCCURRED IN 1989-1990

a. The court below erred in admitting evidence of the alleged sexual relationship in the State's case in chief because the evidence fails parts two, three and four of the Cofield test

b. The state had other less inflammatory evidence available to it

POINT V: NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL

In Point I, defendant posits his argument on the assumption that the State's theory of count two was based on the three separate incidents and that the trial court correctly concluded that the verdict sheet needed to be amended to insure that the jury reached unanimity on one of the theories to support a guilty verdict on count two, relying on State v. Frisby, 174 N.J. 583, 596 (2002). Defendant contends that the verdict sheet, as amended, misstates the State's theory on count two and that the theories actually presented by the State were: "(i) [defendant] refrained from performing a duty and/or (ii) [defendant] prevented [K.M.] from performing a duty".

Defendant asserts that even though the trial court presented the State's theory of count two originally, it did not reiterate this theory when it provided the supplemental instructions and amended verdict sheet on the second day of jury deliberations. In support of his position, defendant cites State v. Grunow, 102 N.J. 133, 148-49 (1986), where the Supreme Court discusses the purpose of jury deliberations and the impact of instructions on the jury. Defendant also likens the facts of this case to those in State v. Hakim, 205 N.J. Super. 385 (App. Div. 1985), in further support of his contention that the amended verdict sheet and supplemental instructions caused prejudice such that a new trial is warranted.

The Supreme Court has made it clear that "an extraordinarily high value" is placed on the "importance of appropriate and proper jury charges" and that "[e]rroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." Grunow, supra, 102 N.J. at 148 (citations omitted). Likewise, "the court ordinarily has a supervening responsibility to charge the jury concerning any version of the offense 'clearly indicate[d]' by the evidence to require proper jury consideration." Ibid. (citing State v. Choice, 98 N.J. 295, 299 (1985)).

Along these lines, general instructions on unanimity are not enough when:

a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and [when] circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but all of the jurors will not agree on the same theory.

[State v. Parker, 124 N.J. 628, 635 (1991) (citation omitted).]

This approach can apply when there is a "genuine possibility of jury confusion," where a "conviction may occur as a result of different jurors concluding that the defendant committed different acts," "where the facts are exceptionally complex," where the "allegations in a single count are either contradictory or only marginally related to one another," or "where there is a variance between the indictment and the proof at trial." Id. at 635-36 (quotations and citations omitted). The Supreme Court pared this down to the following holding:

Concerning the need for a specific unanimity instruction, we agree with the proposition stated in [United States v. North, 910 F.2d 843, 875 (D.C. Cir. 1990)] that is generally applied in the federal system: in cases where there is a danger of a fragmented verdict the trial court must upon request offer a specific unanimity instruction.

[Id. at 637 (quotations and internal citation omitted).]

There can be no doubt that the trial court needed to provide specific instructions as to count two in order to insure that a guilty verdict was based on a unanimous verdict and not on a fragmented one. At issue then is whether the later amendment of the verdict sheet was prejudicial to defendant, thus requiring a new trial.

The trial court found that there was no prejudice to defendant, in part, because the three theories as related to count two had been discussed from an early point, including during defendant's motion for judgment of acquittal. Even though the State's theory as to count two was that it was defendant's inaction that made him guilty of official misconduct, it was his inability to carry out his duty while engaged in the three incidents that supported the charge, and not a general failure to do his duty, as he now argues.

While the jury instructions and verdict sheet with the unanimity requirements should have been included in the initial charge, the fact that the charge was later amended did not prejudice defendant. This was not the first time the "triple theory" had been discussed or argued during the trial.

Likewise, defendant's argument that he was prejudiced because his attorney did not have the ability to address the three incidents during his summation can only fall on his attorney's shoulders. The fact that the trial judge did not give a specific instruction at that time did not prevent defendant's attorney from discussing these three incidents related to count two. Indeed, defense counsel discussed the specific episodes in his closing argument. The gist of his argument was that these sexual events never took place. We fail to see how defendant was prejudiced by not being afforded a special opportunity to address the jury as to the amended verdict sheet.

Defendant's reliance on State v. Hakim is also misplaced. In Hakim, this court affirmed the trial court's decision to instruct the jury on accomplice liability, even though the defendant there argued that no proof was presented during trial that could support a conviction on this theory. Hakim, supra, 205 N.J. Super. at 388. We affirmed the conviction because, even though the accomplice liability theory was not mentioned in the indictment, the trial court informed the parties prior to summations that it was going to provide the instructions to the jury. Id. at 389.

Unlike Hakim, here there was support for this instruction and defendant's attorney was on "notice" that this instruction could be applicable, based on the State's continuing theory that the official misconduct was more specifically based on the alleged incidents that took place while defendant was on duty. In Hakim, neither the State nor the defense counsel knew or anticipated that the instructions were given, but because they were informed prior to summations, there was no prejudice. Ibid.

The trial court's decision to amend the verdict sheet to conform with the specific unanimity requirements was correct and did not prejudice defendant.

In Point II, defendant argues that the indictment language for count two does not satisfy the specificity requirements of Rule 3:7-3 and the requirements set out in State v. Spano, 128 N.J. Super. 90 (App. Div. 1973), aff'd, 64 N.J. 566 (1974).

The indictment as to count two stated:

The Grand Jurors of the State of New Jersey for the County of Passaic upon their oath present that David M. LaConti, a public servant, on or about April 2002 up to the July 26, 2003, in the Borough of Ringwood, in the County of Passaic, aforesaid, and within the jurisdiction of this Court, did commit an act or acts of official misconduct, when with the purpose to obtain a self benefit for himself or another, or to injure or to deprive another of a benefit he knowingly refrained from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office, contrary to the provision of 2C:30-2b., and against the peace of this State, the Government and dignity the same.

The language used in count one was identical to the language in count two, except for the citation to N.J.S.A. 2C:30-2(a), instead of to subsection (b).

Relying on the purposes of an indictment as described in Spano, defendant argues that the indictment is invalid because it "failed to adequately inform [LaConti] of the charges and accusations against which he must defend."

N.J.S.A. 2C:30-2(b) provides that a public servant is guilty of official misconduct "when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit: [. . .] (b) He knowingly refrains from performing a duty which is imposed" by law or is "clearly inherent in the nature of his office." Likewise, official misconduct has three elements: "(1) the defendant is a public servant, (2) who committed an act relating to his office, (3) with the purpose to benefit himself or deprive another of a benefit." State v. Mason, 355 N.J. Super. 296, 301 (App. Div. 2002) (citing State v. Bullock, 136 N.J. 149, 153 (1994)).

After denying the motion to dismiss the indictment, the motion judge directed the State to set forth its theories of misconduct in relation to both counts one and two. In that letter, the prosecution stated that defendant used his position as supervisor to obtain sexual gratification from K.M., and as to count two, that he was not doing his duty as a police officer when he was engaging in sexual relations with K.M.

An indictment will be upheld if there is "some evidence" as to each element of the State's case. State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987)). With respect to the official misconduct charge in count two, the motion judge found that "some evidence" had been presented that defendant acted without authorization, while under obligation to perform the duties of his office, when he was engaging in the sexual acts with K.M. As the motion judge noted "[f]ailing to perform the duties of a police officer by having relations with another while on duty even if consensual clearly violates defendant's obligations inherent to his office."

Because of the high level of discretion afforded to a judge when deciding motions to dismiss indictments and based upon the evidence, whether minimal or not, that demonstrates sexual acts occurred with K.M. while defendant was on duty, the motion judge did not abuse his discretion in denying defendant's motion to dismiss the indictment for lack of specificity. Mason, supra, 355 N.J. Super. at 298-99.

Following the jury verdict of guilty on count two as to all three incidents, but not guilty as to counts three or four, defendant's attorney filed a motion to set aside the verdict as inconsistent and as against the weight of the evidence. Both motions were denied. Defendant argues in Point III that the trial court's decision was in error.

The standard of review for this court is "essentially the same as that controlling the trial judge." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). It is only "essentially the same" because certain aspects of the trial, such as witness credibility, demeanor, feel of the case, or other similar criteria, cannot be transmitted on the written record. Ibid. On those criteria, this court must defer to the view of the trial court; however, no deference is given to decisions that rest on determinations of "worth, plausibility, consistency or other tangible considerations apparent from the face of the record . . . ." Ibid.

Generally, inconsistent verdicts are permitted so long as there is "sufficient evidence to permit a rational factfinder to find a defendant's guilt beyond a reasonable doubt" which means that "as long as a reviewing court is satisfied that based on the evidence 'the jury could rationally have reached a verdict of guilt beyond a reasonable doubt.'" State v. Ellis, 299 N.J. Super. 440, 455-56 (App. Div. 1996) certif. denied, 151 N.J. 74 (1997) (quoting United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478, 83 L. Ed. 2d 461, 470 (1984)). Likewise, courts are "cautioned against setting aside inconsistent or illogical verdicts and from speculating as to whether such inconsistencies resulted from jury lenity, compromise, or mistake not adversely affecting the defendant, when the reason for their inconsistency cannot be determined." State v. Overton, 357 N.J. Super. 387, 397 (2003) certif. denied, 177 N.J. 219 (2003) (citing Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 190, 76 L. Ed. 356, 359 (1932)). This is in part based on the idea that "[i]nconsistent verdicts are accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004) (citing State v. Grey, 147 N.J. 4, 11 (1996)).

In denying the motion, the trial court observed that it is unknown why or how the jury decided to convict on count two, but found defendant not guilty on counts three and four. However, the trial judge, in commenting on the issue in the motion to set aside the verdict on the grounds of vagueness and inconsistency of the verdict, noted the illogic of defendant's attorney's theory that if the jury found him not guilty of forced sex, it must mean that the jury found the acts to be consensual. Instead, the trial court observed that the verdict meant that the State failed to prove beyond a reasonable doubt that it was forced sex, but that it did not mean that it was necessarily consensual either. The jury could have simply found that even though the acts were not criminal, they did constitute official misconduct under the statute. For those reasons, the trial court did not set aside the verdict as against the weight of the evidence or on grounds of inconsistency.

Based on the evidence presented at trial, along with the clear policy in allowing inconsistent verdicts so long as the evidence demonstrates that proof was made beyond a reasonable doubt, we are satisfied that the trial judge did not err in denying defendant's motion on these grounds.

Pursuant to Rule 3:20-1, on the defendant's motion, the trial judge "may grant the defendant a new trial if required in the interest of justice;" however, the trial judge

shall not [. . .] set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

[R. 3:20-1.]

When a trial judge is determining whether to grant a motion for a new trial because the verdict is against the weight of the evidence, the "object is to correct clear error or mistake by the jury," which means "the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion". Dolson, supra, 55 N.J. at 6. The trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)).

Contrary to defendant's assertion, the trial judge carefully reviewed the testimony presented during the trial and concluded that the jury could have determined that while the sexual acts were not forced, their commission still amounted to official misconduct as charged. Likewise, upon review of the transcripts and testimony provided, it is clear that the verdict was not against the weight of the evidence. A reasonable jury could have concluded that defendant was acting contrary to his duty when he engaged in the sexual acts with K.M., regardless of whether those acts were criminal or consensual.

The trial court's denial of defendant's motion to set aside the verdict was not against the weight of the evidence.

In Point IV, defendant argues that the trial court erred in allowing testimony relating to the relationship between defendant and K.M. that took place from 1989 to 1990. He argues that N.J.R.E. 404(b) is not applicable in this instance.

The standard of review of admissibility of evidence under N.J.R.E. 404(b) is highly deferential. "Only where there is a clear error of judgment should the trial court's conclusion with respect to the balancing test be disturbed." State v. Barden, 195 N.J. 375, 391 (2008) (citing State v. Marrero, 148 N.J. 469, 483 (1997)). However, when the trial court does not engage in a balancing test under State v. Cofield, 127 N.J. 328 (1992), this court "may conduct a plenary review to determine [the] admissibility" of the evidence. Barden, supra, 195 N.J. at 391 (citing State v. Lykes, 192 N.J. 519, 534 (2007)).

N.J.R.E. 404(b) states, in pertinent part, that evidence that is otherwise admissible is not admissible "to prove the disposition of a person in order to show that such person acted in conformity therewith" and that "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."

In Cofield, the Supreme Court set forth a four-part test to determine when, in the criminal context, evidence of other "bad conduct" is admissible against a defendant. First, the "evidence of the other crime must be admissible as relevant to a material issue;" second, it "must be similar in kind and reasonably close in time to the offense charged;" third, the "evidence of the other crime must be clear and convincing;" and fourth, the "probative value of the evidence must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338 (citations omitted). Defendant argues that the evidence should not have been admissible because it fails the second, third and fourth prong of the Cofield test.

The trial judge, in deciding the N.J.R.E. 404(b) issue, noted that he thought the statements regarding the past relationship between defendant and K.M. were admissible "without regard to Rule 404(b), because [. . .] what occurred in 1989 is part of an indivisible story." The trial court made this determination because of K.M.'s testimony that defendant said to her "take care of this for old time's sake" just prior to the first sexual incident alleged by K.M. The trial judge found if the jury were to hear that statement, which he found to be admissible, and there was no testimony regarding a prior relationship, that this "would lead to confusion on the part of the jury." Based on this alone, the trial court found that the testimony regarding the prior relationship was admissible under a res gestae theory. However, because N.J.R.E. 404(b) was presented as an alternative avenue to allow the testimony to be admissible, the trial court also conducted a 404(b) analysis. This decision is what defendant now appeals.

As a general rule, the second prong of the Cofield test is not always applicable. Likewise, "its usefulness as a requirement is limited to cases that replicate the circumstances in Cofield." Barnes, supra, 195 N.J. at 391 (quotation omitted). When applicable, the second prong considers whether the evidence is "similar in kind and reasonably close in time to the offense charged." Cofield, supra, 127 N.J. at 338. Here, the trial court found that the element was applicable to the case and applied it as such.

The trial court found that "without question" the conduct during the relationship was similar to the conduct alleged in the indictments. The trial court even considered it "virtually identical." The trial court noted that "it occurred at the same location," consisted of "the same type of sex," and "involves the same people [in] the same circumstances".

The trial court also found that it was "reasonably close in time measured against the totality of the facts." Even though thirteen or fourteen years had passed between the relationship and the incidents, the trial court noted that K.M. had left her job at the police department, moved out of state and then returned. During most of the time span between the relationship and the incidents, K.M. and defendant did not have any contact with each other.

Defendant and K.M. both admit that there was a past relationship. The relationship and incidents are remarkably similar, involving sexual acts in the police department. Because the time span between the relationship and the incidents is mostly made up of time that K.M. and defendant were not even living in the same state, the second prong of Cofield was satisfied.

Under the third prong of the Cofield test, the trial court must consider whether the evidence of the past conduct was proved by clear and convincing evidence. The trial judge found K.M. to be a credible witness and that the proofs submitted supporting the conclusion that there was a past relationship were also credible. Great deference is given to a trial court's findings regarding witness credibility, demeanor on the stand, and related elements of a trial. See Dolson, supra, 55 N.J. at 7.

Here, there is nothing in the record that impugns the trial court's decision regarding K.M.'s credibility. In support of his argument, defendant simply states that K.M.'s testimony was not credible because she could not remember details about the sexual encounters during the period of 1989 to 1990. However, the trial court noted that even despite her inability to remember some details, it still found her credible. We see no basis to disturb this credibility assessment. Put another way, the trial court's conclusion that there was clear and convincing evidence that a past relationship existed was well documented by the record.

Finally, under the fourth prong of Cofield, the trial court must balance the probative value of the evidence against the apparent prejudice of the evidence. The trial court acknowledged that the evidence regarding the past relationship was prejudicial, but found that it was outweighed by the probative value of the evidence. When providing the elements to be considered, the Cofield Court noted that the "inflammatory characteristics of other-crime evidence [. . .] mandates a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice." Cofield, supra, 127 N.J. at 334 (citing State v. Stevens, 115 N.J. 289, 303 (1989)). Stated differently, a "decision to admit such evidence should not be upset unless 'the danger of undue prejudice . . . outweigh[s] probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" Marrero, supra, 148 N.J. at 490 (citing State v. Moore, 122 N.J. 420, 467 (1991)).

Part of this analysis considers whether there is available evidence that is less inflammatory but equally probative of the issue. Id. at 482. Defendant contends that less inflammatory evidence existed, but does not specify what this evidence is or how it could have been presented. Likewise, defendant does not state why it is less prejudicial, but still equally probative to tip the scale in favor of not allowing the testimony regarding the past relationship between defendant and K.M.

Here, the evidence admitted was not inflammatory in nature. It was neither evidence of defendant's past conduct involving sexual acts which were considered criminal, nor was it evidence of past conduct that could place a shadow on his actions with K.M. Instead, it was simply evidence of a past, consensual relationship between defendant and K.M. that put into context K.M.'s testimony that when defendant forced himself on her, he referenced their past sexual relationship.

We add that prior defense counsel argued that evidence of a past sexual relationship be presented to the grand jury. At that point, the defense wanted the grand jury to know that defendant and K.M. had a prior consensual relationship. Obviously, the defense wanted to plant the seed that there were no forced sexual acts. Indeed, the jury acquitted defendant of the forced sexual acts under counts three and four here. Despite the presentation that this testimony of a past sexual relationship should be inadmissible, it likely played an important role in the not guilty verdicts on counts three and four. It would not be surprising that this line of testimony worked to defendant's benefit.

In any event, we defer to the trial court's determination of the four-pronged test under Cofield, which is amply supported by the record, to admit testimony of the prior consensual sexual relationship pursuant to N.J.R.E. 404(b).

We need not dwell on defendant's contention that cumulative error warrants a new trial because we have determined that no error was committed.

The judgment of conviction is affirmed.

We note that defendant never served a request for a bill of particulars. R. 3:7-5. Nonetheless, the State's letter explicated the basis for the charges underlying counts one and two of the indictment and could have satisfied a bill of particulars request if one had been made. Of course, the court has the authority on its own to order a bill of particulars pursuant to R. 3:7-5, which the motion judge, in substance, did.

(continued)

(continued)

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A-4039-06T4

November 7, 2008