STATE OF NEW JERSEY v. LAMONTE CALLOWAY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05214-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMONTE CALLOWAY,

Defendant-Appellant.

________________________________

September 17, 2013

Submitted September 10, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-06-0367, Accusation No. W-10-163-1814.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief).

PER CURIAM

In a four-count indictment, defendant Lamonte Calloway was charged with two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts one and three); and two counts of fourth-degree lewdness, N.J.S.A. 2C:14-4a (1) (counts two and four). In a separate complaint, defendant was charged with the disorderly persons offense of lewdness, N.J.S.A. 2C:14-4a. Prior to trial, the court sua sponte dismissed count four of the indictment, without objection by the State. Following a jury trial, defendant was acquitted of counts one and three, but convicted on count two. Additionally, the Law Division judge, sitting as the North Plainfield Municipal Court judge pursuant to R. 3:15-3, found defendant guilty of the disorderly persons lewdness offense. On count two of the indictment defendant was sentenced to four years probation, with credit for 492 days served while awaiting trial. On the disorderly persons lewdness conviction, defendant was sentenced to time served and a $500 fine.

On appeal, defendant presents the following argument for our consideration:

Point I

THE COURT BELOW ERRED IN ADMITTING HIGHLY PREJUDICIAL R. 404(B) EVIDENCE WITHOUT CONDUCTING A HEARING ON THE RECORD AND WITHOUT AN ADEQUATE LIMITING INSTRUCTION, THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1,9 & 10) (NOT RAISED BELOW).

After reviewing the record and the applicable law in light of the contentions advanced on appeal, we reject defendant's argument. Accordingly, we affirm.

The most pertinent trial evidence can be summarized as follows. Law enforcement officials first became involved in this matter on May 26, 2010. On that date, twenty-four-year old J.V.1 was returning to her home. J.V. was accompanied by a two-year-old child whom she was babysitting. Upon exiting her vehicle, J.V. heard a noise coming from the home immediately adjacent to the driveway where she parked. In the yard of that home, J.V. observed a male neighbor, subsequently identified as defendant, with his pants down, smiling and holding his penis. The police were called, and since J.V. could not speak English, her then twelve-year old sister, Y.G., served as interpreter. Based on J.V.'s account of the incident, and her description and identification of the actor, defendant was placed under arrest and initially charged with the disorderly persons lewdness offense.

During the course of the police interview in which Y.G. served as interpreter for J.V., and later at police headquarters, Y.G. informed the investigating officers of similar incidents involving defendant that she had witnessed. At the time, Y.G. was a seventh-grade student. On approximately five-to-six occasions earlier that spring, while walking home from school with her friend, S.G., Y.G. heard defendant making noises in order to attract their attention as the girls walked past his home. On two of those occasions Y.G. looked over and observed defendant standing inside the side screen door of his home, naked and holding his penis.

Additionally, approximately three or four weeks prior to the May 26, 2010 incident, Y.G. was in her bedroom with her adult cousin, J.P., who resided with Y.G. in her home. J.P. testified that at that time she looked out the bedroom window, where Y.G. was also standing, and observed defendant standing outside his neighboring home masturbating. Upon observing defendant's actions, J.P. instructed Y.G. not to look. In her testimony, Y.G. confirmed J.P.'s description of this bedroom incident. Prior to May 26, 2010, however, none of these earlier incidents were reported to the police.

Defendant testified and denied all allegations that he either intentionally exposed himself or made noises to attract attention to himself. He admitted however that he occasionally urinated outside, when the bathroom inside his home was occupied. Defendant further questioned whether the girls could see him behind the dark mesh screen on his door. On cross-examination defendant admitted to a record of three prior criminal convictions.

On this appeal, Defendant first argues that J.V.'s testimony about the May 26, 2010 driveway incident and J.P.'s testimony about the earlier bedroom incident, during both of which defendant exposed himself to them, constitute impermissible other-crime evidence under N.J.R.E.404(b), which provides, in pertinent part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

In general, other-crime evidence is not admissible to prove guilt by criminal predisposition. N.J.R.E.404(b). See alsoState v. Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent to prove one crime by proving another.") (citation omitted). The rationale is that a jury, aware of such evidence, may be tempted to convict, not by reason of proof, but by reason of perception. State v. Gibbons, 105 N.J. 67, 77 (1987).

"The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403." State v. Rose, 206 N.J. 141, 179 (2011). An uncharged offense is intrinsic evidence of a charged crime if: (1) "it 'directly proves' the charged offense," or (2) the uncharged act was "performed contemporaneously with the charged crime" and it "facilitate[d] the commission of the charged crime." Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, ___ U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)). Under N.J.R.E. 404(b), other-crime evidence may be admitted for specific, non-propensity purposes to prove "motive, opportunity, intent, preparation, plan, knowledge," or to establish a "necessary background." Id. at 181.

As to J.P., we agree with the State that her testimony was not impermissible other-crime evidence because it proved actions by defendant that were encompassed in counts one and two of the indictment. Specifically, count one charged that between January 1, 2010 and May 26, 2010, defendant engaged in sexual conduct that would impair the morals of a child under age sixteen, i.e., Y.G. Count two charged that during that same period, defendant exposed himself under circumstances where he knew or reasonably expected that he would likely be observed by a child. Here, it was the State's theory that during the relevant period defendant exposed himself when J.P. and twelve-year-old Y.G. were standing near a bedroom window visible to defendant. As such, the evidence related to this bedroom incident only needed to satisfy the evidence rules relating to relevancy. Rose, supra, 206 N.J. at 179. Consequently, we conclude that the testimony of J.P., as well as that of Y.G., relating to the bedroom incident was relevant to the acts charged in the indictment and properly admissible. Additionally, we agree with the State that since this testimony was not subject to N.J.R.E. 404(b), the trial court was not obligated to provide the jury with a limiting instruction regarding its use.

With respect to defendant's N.J.R.E. 404(b) argument concerning J.V.'s testimony as to the May 26, 2010 driveway incident, we first note that since this issue was not raised at trial, we review it under the plain error standard. See R. 2:10-2.

Here we recognize the court did not expressly address the four factors for the admission of this other crimes evidence under State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted):

1. The evidence of the other crime must be admissible as relevant to a material issue; 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice.

Nonetheless, the evidence clearly supported the court's decision. As for the first prong, the evidence was relevant to a material issue whether defendant's exposure was intentional, or whether he was simply urinating as he claimed. The second prong applied in that the evidence that defendant exposed himself to J.V. was similar in kind to the evidence that defendant exposed himself to Y.G. and S.G. while they walked home from school within the same time period. The third prong was met because J.V. recognized defendant as a neighbor, and observed him smiling with his pants down while holding his penis, rather than urinating as he claimed. Lastly, the probative value was not outweighed by its apparent prejudice. It helped establish that defendant's conduct was intentional rather than accidental, and further provided the context within which the charged acts of lewdness first came to light. Hence we find no error in the admission of J.V.'s testimony.

Finally, defendant argues that the trial court erred regarding the limiting instruction it gave the jury concerning the evidence that defendant had exposed himself to J.V. We disagree.

At the charge conference, the assistant prosecutor addressed the need to provide the jury with a limiting instruction concerning the use of J.V.'s testimony:

[Prosecutor]: Your Honor, I have - - I have nothing with respect to the charge itself, just the charge from your Honor as set forth.

However, I do have some thoughts on the charge that may need to be given.

[The Court]: Okay.

[Prosecutor]: Okay. And that is with respect to the testimony of [J.V.]. As you know, I brought that up in chambers the other day, and we agreed that the testimony would be admissible [] even though your Honor is citing to the first offense, it would be admissible before the jury. So they would have an understanding of how this thing came to light and so on, as part of the case.

So I think the jury needs some type of charge about that, just to be on the safe side. And akin to some type of almost like a 404b charge, akin to that.

[The Court]: Okay.

Subsequently, the assistant prosecutor and defense counsel agreed on the language of this limiting instruction. Defense counsel stated: "[y]es, I agree with it. It's very thorough and I accept it." The court then went on to instruct the jury as follows:

Evidence has been presented to you in the form of testimony of [J.V.] regarding her observations of defendant on May 26th, 2010. The conduct alleged in her testimony does not constitute the crimes alleged in the indictment. That evidence is presented to you for limited purposes. Those are to assist the State in explaining to you how the situations involving the allegations in the indictment came to light, and as evidence of defendant's intent regarding the acts alleged in the indictment, and to prove absence of mistake or accident as to defendant's actions as alleged in the indictment.

It is up to you to determine what weight, if any, to give to this evidence. You may decide that the evidence is not helpful at all. In that case, you must disregard the evidence. If you find that the defendant exposed himself to [J.V.], I caution you that you may not use that evidence to decide that just because the defendant exposed himself to [J.V.], that he committed the offenses charged in the indictment. You still must be satisfied that the other evidence presented to you by the State satisfied each and every element of the crimes charged beyond a reasonable doubt.

Because defendant did not object to the charge, we consider it under the plain error standard, Rule1:7-2, and disregard any error or omission by the trial court "unless it is of such a nature as to have been clearly capable of producing an unjust result." R.2:10-2; see alsoState v. Hock, 54 N.J.526, 538 (1969) (noting the "legal impropriety in the charge" must be "sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result").

Here defendant expressed satisfaction with the limiting instruction. Moreover, contrary to defendant's argument, the charge properly instructed the jury that it was to consider J.V.'s testimony only for the specified limited purposes. Although not identical to the Model Charge2, the limiting instruction adequately tracked its language. It advised the jury that the conduct alleged in J.V.'s testimony did not constitute evidence of the crimes charged in the indictment, properly specified the limited purposes for which the evidence could be used, and informed the jury that it was free to weigh the evidence and to disregard it if it found that the evidence was not helpful. We assume the jury followed the court's instructions, State v. Martini, 187 N.J.469, 477 (2006) (citation omitted), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007), and conclude that any inadequacy in the charge was "not clearly capable of producing an unjust result." R.2:10-2.

Affirmed.

1 Initials are used to protect the privacy of the victims and minors.

2 See Model Jury Charges (Criminal), "Proof of Other Crimes, Wrongs or Acts (N.J.R.E. 404(b))" (2007), the limiting instruction when prior bad acts are admitted into evidence.