State of New Jersey v. P.S.

Annotate this Case

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. P.S. (A-21-09)

Argued February 1, 2010 -- Decided June 7, 2010

LONG, J., writing for a majority of the Court.

The Court addresses: 1) the standard to be applied where a child sex abuse victim's taped statement is lost;
and 2) the proper use of other-crimes evidence under N.J.R.E 404(b).

Defendant Peter Scott was indicted in Passaic County for first-degree aggravated sexual assault, (count
one); second-degree sexual assault, (count two); and second-degree endangering the welfare of a child, (count
three). The victim was Scott's step-daughter, Katie Jones. Prior to trial, an N.J.R.E.104 (a), hearing was held to
determine whether Giselle Henriquez, a child interview specialist with the Passaic County Prosecutor's Office,
could testify regarding statements made to her by Katie. At the hearing, Henriquez, who interviewed Katie on April
14, 2003, described Katie's statements to her, stating that Katie recounted three separate incidents of sexual abuse
by defendant. Henriquez also testified, among other things, about her experience and training in interviewing child
sex abuse victims. The judge held that Katie's statements to Henriquez were admissible under the tender years
exception to the hearsay rule, N.J.R.E. 803(c) (27). The court concluded that the interview was not suggestive and
that there was a probability that the statements were trustworthy.

The State later moved, pre-trial, to offer evidence of defendant's "other crime," namely, an allegation that
he had sexually assaulted a three-year-old boy, I.B., in 1997, while defendant was a resident of a halfway house.
After a hearing, the judge found the evidence of defendant's sexual assault of I.B. admissible to bolster the
credibility of Katie and to rebut claims of bias, but only after cross-examination, if defense counsel challenged the
credibility of Katie and her mother by placing their bias at issue. In making its determination, the court found that
this other-crimes evidence satisfied the four-factor test articulated in State v. Cofield; namely that: the evidence was
relevant because the credibility of the victim would likely be placed in issue; the other crime was similar in kind and
reasonably close in time as both I.B. and Katie were child victims; evidence of the other crime was clear and
convincing; and the probative value would not be outweighed by the prejudicial effect of the evidence, especially
once a limiting instruction was given.

The State also made a motion in limine to preclude defendant from mentioning that Katie's uncles assaulted
and blinded defendant after Katie's allegations surfaced. Defense counsel noted that the uncles were convicted of
attempted murder for the assault and argued not only that Katie's mother, Ursula Jones, may have influenced Katie
to fabricate her allegations to get defendant out of the house, but also that Ursula became more invested in the case
against defendant after her brothers were sentenced to lengthy prison terms. The judge rejected defendant's
arguments and granted the State's motion, ruling that defendant could not bring up the assault.

At trial, Katie testified that she was "raped three times" by her stepfather on three separate occasions,
describing the incidents, all of which occurred when she was nine or ten years old. She also testified that in April
2003, she told her grandmother that her "private was hurting," as a way to tell her grandmother about the abuse.
Ursula testified that after Katie told her about the touching after coming home from her grandmother's house and
that she was thereafter taken to the hospital to be examined.

Defendant sought to introduce evidence that Katie had disclosed prior sexual activity when she went to the
hospital with her mother. The evidence consisted of a notation in the hospital record reading: "11 year old female [ ]
burning sensation when she urinate [sic] and also [increased] frequency of urination had sex 3 months ago one time [
] vaginal discharge." The State argued that the evidence was barred by the Rape Shield Law, N.J.S.A. 2C:14-7. The
trial judge ruled that the evidence was inadmissible as too speculative and lacking probative value.

Henriquez testified about her interview of Katie and Katie's description of the sexual abuse. She further
testified that after the interview, she discovered that the video equipment had failed to tape record Katie's interview.
To avoid traumatizing Katie, Henriquez declined to re-interview her; instead, she immediately made notes of
everything she recalled of her questions and Katie's responses. Those notes formed the basis for a report written by
Henriquez and submitted to her supervisor. The report was filed approximately two months after the interview.
Henriquez's notes were discarded.

Defendant originally intended to present a vendetta defense to the jury by demonstrating that Katie, with
Ursula's help, fabricated her allegations in order to get defendant out of the house. At trial, defense counsel elicited
testimony from Ursula confirming that, in 1999, Ursula hit Katie and that authorities became involved. Katie
confirmed on cross-examination that her mother had hit her before, and that she was afraid that her mother would hit
her if she told her about the abuse. Presumably to avoid opening the door to the admission of evidence of
defendant's alleged assault of I.B., defense counsel declined to attack the credibility of either witness directly and
did not overtly suggest the vendetta theory.

At the conclusion of trail, the jury convicted defendant on all counts. On the sexual assaults, defendant was
sentenced to a custodial term of twenty years with ten years of parole ineligibility. A consecutive sentence of ten
years with five years of parole ineligibility was imposed on the endangering count.

Defendant appealed his convictions and sentence, arguing that Katie's statements to Henriquez were
inadmissible because there was no videotape; the statements were not sufficiently reliable; the other-crimes evidence
was improperly ruled admissible; and the Rape Shield Law did not bar the evidence he offered regarding Katie's
alleged prior sexual experience. The Appellate Division affirmed defendant's conviction on all counts and his
sentence on counts one and two. The panel remanded defendant's sentence on count three because of its
consecutive nature, which the panel held violated State v. Yarbough. The panel rejected defendants remaining
arguments. Although it agreed with defendant that the other-crimes evidence was inadmissible, the panel ruled that
because the evidence was not actually admitted, any error by the court was harmless.

The Supreme Court granted defendant's petition for certification.

HELD: The Court declines to adopt a per se rule of exclusion in a case in which a child sex abuse victim's taped
statement is lost. The Court reaffirms the totality of circumstances standard as the appropriate benchmark for the
admissibility of a tender years statement under N.J.R.E. 830 (c) (27). In addition, the Court reiterates its holdings in
State v. Cook and State v. Branch that simultaneous notes taken of a child sex abuse victim's interview should not
be destroyed but should be maintained throughout trial. The Court declines to interpret its decisions in State v. G.S.
and State v. G.V. as providing an automatic basis for the admission of other-crimes evidence to counter a bias or
vendetta defense. Rather, such other-crimes evidence may only be admitted if it satisfies N.J.R.E. 404(b) and is not
offered to prove the defendant's criminal propensity.

1. Under the tender years exception to the hearsay rule, N.J.R.E. 803(c) (27), an out-of-court statement of a child
sexual abuse victim may be admitted into evidence under specific circumstances. The trial judge must conduct a
preliminary hearing, pursuant to N.J.R.E. 104 (a), to determine whether the statement is sufficiently reliable and
whether it is trustworthy. The judge should consider the totality of the circumstances. A trial court's determination
of reliability or trustworthiness under N.J.R.E. 803(c) (27) should not be disturbed unless, after considering the
record and giving the deference owed to the trial court's credibility findings, it is apparent that the finding is clearly
mistaken and so plainly unwarranted that the interests of justice require that the appellate court intervene. The Court
has carefully reviewed the record and, like the Appellate Division, has determined that the trial judge's conclusions
are fully supported by the evidence and legally unassailable. (Pp. 14-21)

2. There is no basis for the adoption of a per se rule, which would provide that, in the absence of a tape recording, a
child victim's statement should be deemed inadmissible under N.J.R.E. 803 (c) (27). The absence of a tape because
of a malfunction is not dispositive; rather, it is only one factor in the totality of circumstances analysis. What is
important is that the simultaneous notes of an interview should not be destroyed but should be maintained
throughout the trial in case the videotape is unusable. In this case, Henriquez took notes during the interview and
used those notes to prepare a full report. She testified that the material in her report reflected the contemporaneous
notes made during the interview of the victim. The judge found that even in the absence of a tape or

contemporaneous notes, there was enough evidence to find that Katie's out-of-court statement was trustworthy. (Pp.
21-24)

3. Because the other-crimes evidence rule, N.J.R.E. 404 (b) is a rule of exclusion, the proponent of other-crimes
evidence must satisfy a four-prong test: 1)the other-crime evidence 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 other-crime evidence
must be clear and convincing; and 4) the probative value of the evidence must not be outweighed by its apparent
prejudice. Other-crimes evidence must be necessary for the proof of the disputed element and should not be
admitted solely to bolster the credibility of a witness against a defendant. Here, the other-crimes evidence was an
unrelated sex crime, which was only linked to the bias of the State's witnesses by the notion that if defendant did it
before, he likely did it again, thus supporting the credibility of Katie and Ursula. While the Court agrees with the
Appellate Division that this evidence should not have been admissible, it disagrees that this error was harmless.
Although the other-crimes evidence was not actually admitted into evidence, the defendant paid a price to keep it
out. He was forced to alter trial strategy completely and he was effectively precluded from presenting the vendetta
theory, which was central to his defense. (Pp. 24-34)

4. From the evidence defendant proffered in respect of a hospital notation of Katie's alleged past sexual activity,
there is no way to determine whether this was similar to defendant's alleged abuse, or even separate from it; the
reference may well have been to defendant's abuse of Katie. Therefore, the Appellate Division correctly ruled that
evidence sufficient to counter the Rape Shield Law had not been adduced. (Pp. 34-37)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial
consistent with the principles to which the court has adverted.

JUSTICE RIVERA-SOTO, concurring in part and dissenting in part, in which JUSTICE HOENS
joins, finds that in the circumstances presented, there is no basis for determining that the trial court abused its
discretion in allowing the use of prior bad acts evidence to rebut any claimed "vendetta defense." In any event and
based on the facts in this case, that evidentiary determination, even if in error, was harmless; therefore, the judgment
of the Appellate Division should be sustained and defendant's conviction and sentence affirmed.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and WALLACE join in
JUSTICE LONG'S opinion. JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and
dissenting in part, in which JUSTICE HOENS joins.

SUPREME COURT OF NEW JERSEY
A-
21 September Term 2009

STATE OF NEW JERSEY,

Plaintiff-Respondent,

P.S.,

Defendant-Appellant.

Argued February 1, 2010 Decided June 7, 2010

On certification to the Superior Court,
Appellate Division.

Alison S. Perrone, Designated Counsel,
argued the cause for appellant (Yvonne Smith
Segars, Public Defender, attorney).

Jeanne Screen, Deputy Attorney General,
argued the cause for respondent (Paula T.
Dow, Attorney General, attorney); Ms. Screen
and Marisa Slaten, Deputy Attorney General,
on the brief).

JUSTICE LONG delivered the opinion of the Court.

In this appeal we address several recurring issues in

criminal law. The first is what standard to apply where a child

sex abuse victim's taped statement is lost. In particular,

defendant asks us to establish a per se rule of exclusion in

such circumstances, a request that we decline. Instead we

reaffirm the totality of circumstances standard as the

appropriate benchmark for the admissibility of a tender years

statement under N.J.R.E. 803(c)(27). In addition, we reiterate

our holdings in State v. Cook,
179 N.J. 533 (2004), and State v.

Branch,
182 N.J. 338 (2005), to the effect that simultaneous

notes taken of a child sex abuse victim's interview should not

be destroyed but should be maintained through trial.

The second issue centers on the proper use of other-crimes

evidence under N.J.R.E. 404(b). Like the Appellate Division, we

conclude that a defendant's invocation of the so-called vendetta

defense does not permit the prosecutor to bolster the

credibility of a sex abuse victim by adducing evidence of

another molestation. To be sure, such evidence could be offered

to negate accident; to establish motive, pattern, or design; or

for a myriad of other legitimate reasons under the rule. What

is interdicted is its admission to show that because the

defendant committed a bad act before, he is likely to have

committed one again, thus making the victim's story more

believable.

Defendant Peter Scott was indicted in the Superior Court of

Passaic County for first-degree aggravated sexual assault,

contrary to N.J.S.A. 2C:14-2(a)(1) (Count One); second-degree

sexual assault, contrary to N.J.S.A. 2C:14-2(b) (Count Two); and

second-degree endangering the welfare of a child, contrary to

2 N.J.S.A. 2C:24-4(a) (Count Three), all allegedly perpetrated on

his stepdaughter, Katie Jones.1

Prior to trial, a preliminary hearing pursuant to N.J.R.E.

104(a) was held to determine whether Giselle Henriquez, a child

interview specialist with the Passaic County Prosecutor's

Office, could testify regarding statements made to her by Katie.

At the hearing, Henriquez, who interviewed Katie on April 24,

2003, described Katie's statements to her as follows:

[Katie] referenced an incident where
[defendant] put a pillow over her head. She
was laying on the bed. He turned her over.
He -- these again were his -- her words.
And he put a pillow over her head because
she was trying to call her brother or
something to that degree.

....

She was very specific in saying he turned
her -- she was on her back, to -- so, she --
he turned her onto her stomach.

He put his private, which she referred to as
his private in her butt.

[The second time] was pretty much the same.
Him putting his private in her butt.

He pulled -- he pulled it out and yellow
stuff came out . . . either he urinated or
ejaculated.

On the third incident, I think that was the
one that she describes where he not only put
his private in her butt but also in her
front part, I think she uses -- she refers

1
Both names are pseudonyms.

to her vagina? . . . [a]nd put his private
into her -- into her front part.

Henriquez testified that she had extensive experience

interviewing child sex abuse victims and had been well-trained

in interview techniques. According to Henriquez, she "stressed

the importance of telling the truth," and Katie agreed to do so.

Henriquez testified that she did not promise Katie anything

during the interview, that she never suggested any answers to

her, and that Katie was the one who first brought up defendant's

name.

The judge held that Katie's statements to Henriquez were

admissible under the tender years exception to the hearsay rule,

N.J.R.E. 803(c)(27). In ruling, the judge found that the

interview was not suggestive and that there was a probability

that the statements were trustworthy.

The State then moved, pre-trial, pursuant to N.J.R.E.

404(b), to adduce evidence of defendant's "other crime," namely,

an allegation that defendant had sexually abused a three-year-

old boy, I.B., in 1997, while defendant was a resident at a

halfway house.

An evidentiary hearing was held at which I.B.'s mother

testified that she left I.B., then three years old, to play on

the porch of the halfway house unsupervised, and that defendant

was on the porch with him. She further testified that after

they left the halfway house, I.B. told her that defendant had

touched him. Pointing to places on his body, the mother

determined that defendant had touched I.B. on his buttocks and

rectum. Charles H. Parks, a supervisor at the halfway house,

testified that he had told I.B.'s mother on March 24, 2007, and

on previous visits, not to let I.B. out of her sight; she had

ignored his requests. Parks also testified that defendant and

I.B. were alone on the porch, and that he heard defendant tell

I.B. to hold the back of his pants. Parks explained that in

prison culture, that meant that I.B. was defendant's "woman."

Finally, Dr. Mary Grace Ponce testified that she had examined

I.B. on March 24, 1997, and that I.B. had told her that

defendant put medicine or cream in I.B.'s behind. When Dr.

Ponce examined I.B.'s rectum, I.B. said, "[defendant] did that."

Dr. Ponce noted two superficial fissures, or cuts, in I.B.'s

rectal area, and said that the fissures could "be caused by

constipation but [that she could not] entirely rule out fondling

or sexual abuse."

The judge found that the other-crimes evidence satisfied

the four-factor test articulated in State v. Cofield,
127 N.J.
328, 338 (1992): the evidence was relevant because the

credibility of the victim would likely be placed at issue; the

other crime was "similar in kind" and "reasonably close in time"

as both I.B. and Katie were child victims; evidence of the other

crime was clear and convincing; and the probative value would

not be outweighed by the prejudicial effect of the evidence

because the judge would give the jury a limiting instruction.

Thus, the judge held that evidence of defendant's sexual assault

of I.B. would be admissible to bolster the credibility of Katie

and to rebut claims of bias, but only after cross-examination,

if defense counsel challenged the credibility of Katie and her

mother by placing their bias in issue.

The State also made a motion in limine to preclude

defendant from mentioning that Katie's uncles assaulted and

blinded him on June 3, 2003, after Katie's allegations surfaced.

Defense counsel represented that the uncles were convicted of

attempted murder for the assault and argued not only that

Katie's mother, Ursula Jones,2 may have influenced Katie to

fabricate her allegations to get defendant out of the house, but

also that Ursula became more invested in the case against

defendant after her brothers were sentenced to "15 and 12 years"

in prison. The judge rejected defendant's arguments and granted

the State's motion, ruling that defendant could not bring up the

2003 assault.

At trial, Katie testified that she was "raped three times"

by her stepfather on three separate occasions, all of which

occurred when she was nine or ten years old. She described one

2
The name is a pseudonym.

incident wherein he "pushed [her] and then turned [her] over

onto [her] stomach," and then "put his private part in [her]

butt"; a second incident wherein he "pushed [her] back on the

bed and put his private in [her] butt" and "something - yellow

stuff came out"; and a third incident wherein he "came in [her]

room and he put his private in [her] front and in [her] back."

Katie further testified that on April 24, 2003, she went to her

grandmother's house after school. Katie told her grandmother

that her "private was hurting," because she "felt like that was

[her] way to tell" her grandmother about the abuse.

Ursula testified that when she picked Katie and her brother

up from their grandmother's house that day, the grandmother

informed Ursula that Katie's "bottom was hurting" and that Katie

had something to tell Ursula. After bringing Katie home, Ursula

asked her what happened and if someone had touched her. Katie

said that it was defendant who touched her. At that point,

Ursula brought Katie to the hospital to be examined. Katie

testified that when she returned home from the hospital, her

stepfather whispered to her, "lie so we can be a family."

During trial, defendant sought to introduce evidence that

Katie had disclosed prior sexual activity when she went to the

hospital with her mother. The evidence consisted of a notation

in the hospital record reading: "11 year old female [ ] burning

sensation when she urinate [sic] and also frequency of

urination had sex 3 months ago one time [ ] vaginal discharge."

Defense counsel argued that the introduction of the report was

necessary for three reasons: to explain Katie's mother's

statement that she had looked at Katie's vaginal opening and

that it "looked bigger than . . . a normal child's at that

time"; because it shed light on Katie's credibility and the

consistency of the story she told; and to explain how a twelve-

year-old girl would know about ejaculation. The State argued

that that evidence was barred by the Rape Shield Law, N.J.S.A.

2C:14-7.

The trial judge ruled that that evidence was inadmissible.

In particular he noted that there was no suggestion in the

notation that ejaculation was involved in the prior incident,

that the evidence was "too speculative," and that its "probative

value . . . [was] not there." The trial judge also noted that

Katie "didn't use any age inappropriate language that she may

[not] have gotten from some other place to describe this."

According to the testimony at trial, after leaving the

hospital, Ursula and Katie reported the incident to the police,

who took them to see Henriquez. Henriquez testified that, in

interviewing Katie, she followed a specific protocol known as

"Finding Words," which is designed to gather information from a

young child in a short period of time while avoiding

intimidating or suggesting responses to the child. First she

built a rapport with Katie; then she inquired as to the terms

Katie used to refer to different parts of the male and female

anatomy. Next, she questioned Katie as to what Katie considered

to be "positive and negative touches." Katie volunteered that

her stepfather sometimes touched her in a way she did not like,

describing several incidents of sexual abuse. Henriquez

recounted those statements as follows:

[Katie] told me about a time where she was
lying down and her stepfather came into the
room and turned her over. She was lying on
a bed. He turned her over, put a pillow
over her head, and put his private in her
private -- or in her butt.

....

[Katie] talked about another time where he
only had underwear on and he pulled his
penis out of the front hole of the underwear
and put -- I'm sorry -- put his private in
her butt and her vagina -- her private --
her private . . . And she said -- she
describes something coming -- stuff coming
out of his private.

....

[S]he described what can be assumed is
ejaculation.

....

[Katie] told me about another incident that
occurred in her Mom's bedroom. Her Mom had
-- she said she was sleeping in bed with her
Mom. Her Mom had gotten up to go to work.
And she heard steps. She heard someone
walking. Her Mom had already left for work.
Her stepfather came into the bedroom, took -
- taken off his clothes, and gotten into bed

with her. And she specifically said she was
holding onto a pillow and he rolled her
over, put his private in her -- in her
private and in her butt.

Henriquez further testified that she had intended to

videotape the interview, and believed that the interview was

being recorded; however, after the interview, she discovered

that the video equipment had failed. To avoid traumatizing

Katie, Henriquez declined to re-interview her; instead, she

immediately made notes of everything she recalled of her

questions and Katie's responses. Those notes formed the basis

for a report that Henriquez wrote and submitted to her

supervisor. The report was filed on June 26, 2003,

approximately two months after the interview, and Henriquez's

notes were discarded.

Defendant originally intended to present a vendetta defense

to the jury by demonstrating that Katie, with Ursula's help,

fabricated her allegations in order to get defendant out of the

house. At trial, defense counsel elicited testimony from Ursula

confirming that, in 1999, Ursula hit Katie and the authorities

became involved. The judge allowed the question under the

theory that because Katie was afraid of her mother, Ursula would

be able to coerce Katie into lying about the sexual abuse.

Katie confirmed on cross-examination that her mother had hit her

before, and that she was afraid that her mother would hit her if

she told her about the abuse.

Defense counsel also questioned Ursula regarding her

statement to a Prosecutor's Office investigator that her

"marriage was a mess." In his summation, defense counsel

alluded to some minor inconsistencies in Katie's, Ursula's, and

Henriquez's testimony, and argued that Ursula did not behave the

way a reasonable mother would in response to allegations of

sexual abuse against her daughter. However, presumably to avoid

opening the door to the admission of evidence of defendant's

prior alleged assault of I.B., defense counsel declined to

attack the credibility of either witness directly and did not

overtly suggest the vendetta theory. Instead, he said the

following:

Now, I know what's in everyone's
questions -- questions in everyone's mind
and I'm sure the [p]rosecutor is going to
want to come up and say this is why would
[Katie] say something like this? That's on
everybody's mind. Why would she say this?
And the [p]rosecutor -- she's going to say
she said this because it happened.

And my job, and it's not my job or my
burden or responsibility to tell you why
[Katie] did this. You have to understand
something here. The State has the burden to
prove this. The evidence that you were
shown, a lot of things can be deduced from
what happened.

[Katie], through her testimony, asked
if she was scared of her mother. She said,

yes, I'm scared of my mother. She said her
mother hits her. I asked her if she ever
got hit by her and she said yes.

Her mother, [Ursula], testified there
were times that she did beat her -- her
daughter. And she said even on direct --
direct examination she would beat her if she
didn't tell her what happened when she asked
her in reference to why her private was
hurting. She said it pretty vigorously.
She admitted in cross-examination that she
hit her so bad at one point that the
authorities had to be called.

The child here -- it seems that she's
petrified of her mother and she had a right
to because she had -- had hit her at one
point and the authorities had to come.

On direct examination, when the
[p]rosecutor asked [Ursula] about the
relationship between her and [Peter], she
said it was a mess. She said it wasn't
good. Here's an impressionable young girl
who's scared of her mother.

The jury convicted defendant on all counts. On the sexual

assaults, he was sentenced to a custodial term of twenty years

with ten years of parole ineligibility. A consecutive sentence

of ten years with five years of parole ineligibility was imposed

on the endangering count.

Defendant appealed, raising a series of arguments,

including that Katie's statements to Henriquez were inadmissible

because there was no videotape; that the statements were not

sufficiently reliable; that the other-crimes evidence was

improperly ruled admissible; and that the Rape Shield Law did

not bar the evidence he offered regarding Katie's alleged prior

sexual experience. He also challenged his sentence.

The Appellate Division affirmed defendant's conviction on

all counts, and his sentence on Counts One and Two. The panel

remanded defendant's sentence on Count Three because of its

consecutive nature, which the panel held violative of State v.

Yarbough,
100 N.J. 627 (1985), cert. denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed. 2d 308 (1986), superseded by statute,

N.J.S.A. 2C:44-5. The panel rejected defendants' remaining

arguments. Although it agreed with defendant that the N.J.R.E.

404(b) evidence was inadmissible, the panel ruled that because

the evidence was not, in fact, admitted, any error by the court

was harmless.

Defendant filed a petition for certification, which we

200 N.J. 369 (2009).
granted.

II.

Defendant argues that Katie's out-of-court statements to

Henriquez were improperly admitted because the interview was not

electronically recorded and asks this Court to adopt a per se

rule barring the admission of such statements. Defendant

further contends that Katie's statements to Henriquez were not

sufficiently reliable because Henriquez had a "preconceived

notion of what had supposedly happened." Regarding the other-

crimes evidence, defendant maintains that the judge's ruling

deprived him of a fair trial even though the evidence was never

admitted. Finally, defendant argues that the judge's barring of

the evidence of Katie's prior sexual experience deprived him of

his rights under the Confrontation Clause, U.S. Const. amend.

VI.

The State maintains that the trial court's factual findings

regarding Katie's interview were supported by sufficient

credible evidence and that Katie's statements were properly

deemed reliable. Noting this Court's prior rejection of a per

se rule barring unrecorded statements, the State objects to

defendant's proposal that the Court adopt such a rule. The

State further argues that the trial court correctly ruled on the

other-crimes evidence, and that regardless, any error was

harmless because the evidence was not actually admitted.

Finally, the State argues that the Rape Shield Law precludes

evidence of the victim's previous sexual conduct and that, in

any event, defendant did not have sufficient evidence of Katie's

alleged prior sex acts, even if they were relevant.

III.

The tender years exception to the hearsay rule, which

allows the out-of-court statement of a child sexual abuse victim

to be admitted into evidence, provides:

A statement by a child under the age of 12
relating to sexual misconduct committed with
or against that child is admissible in a

criminal, juvenile, or civil proceeding if
(a) the proponent of the statement makes
known to the adverse party an intention to
offer the statement . . . ; (b) the court
finds, in a hearing conducted pursuant to
Rule 104(a), that on the basis of the time,
content and circumstances of the statement
there is a probability that the statement is
trustworthy; and (c) either (i) the child
testifies at the proceeding, or (ii) the
child is unavailable as a witness and there
is offered admissible evidence corroborating
the act of sexual abuse . . . .

[N.J.R.E. 803(c)(27).]

The rule was this Court's response to the proof problems that

inhere in the prosecution of child sex abuse -- in particular,

the absence of witnesses and physical evidence, the ambivalence

of the victim about discussing sexual matters, and the victim's

fear of naming a close friend or relative. State v. D.R.,
109 N.J. 348, 358-60 (1988). Although we recognized in D.R. that a

spontaneous out-of-court statement by a child can be "highly

credible," we were also concerned with the defendant's need for

Id. at
confrontation and particularly for cross-examination.

359, 369. Thus, sufficient indicia of reliability or

trustworthiness became the focus of the rule, originally Evid.

R. 63(33), in order to avoid Confrontation Clause conflicts.

Idaho v. Wright,
497 U.S. 805, 822,
110 S. Ct. 3139, 3150,
111 L. Ed. 2d 638, 657 (1990).

N.J.R.E. 803(c)(27) requires the trial judge to conduct a

preliminary hearing pursuant to N.J.R.E. 104(a) to determine

whether an out-of-court statement is sufficiently reliable,

based on the "time, content and circumstances of the statement"

and then decide what is the "probability that the statement is

trustworthy." State v. D.G.,
157 N.J. 112, 128 (1999). In

determining whether the statement satisfies that standard, the

judge should consider "the totality of the circumstances."

State v. Roman,
248 N.J. Super. 144, 152 (App. Div. 1991).

In Idaho v. Wright, the United States Supreme Court

summarized a non-exclusive list of factors relevant to

evaluating the reliability of out-of-court statements made by

child victims of sexual abuse, including spontaneity, consistent

repetition, mental state of the declarant, use of terminology

unexpected of a child of similar age, and lack of motive to

fabricate. Wright, supra,
497 U.S. at 821-22,
110 S. Ct. at
3150,
111 L. Ed. 2d at 656 (citations omitted).

Crawford v. Washington,
541 U.S. 36,
124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), "has entirely changed the Confrontation

Clause landscape, rendering `defunct' the reliability test set

out in Wright." State v. Burr,
392 N.J. Super. 538, 569-70

(App. Div. 2007), aff'd and modified,
195 N.J. 119 (2008).

Under the new rule, admissibility of a child victim's statement

is conditioned upon the State's prior notice of its intention to

introduce the child's statement, "a pre-trial judicial finding

of trustworthiness, and [an] opportunity to cross-examine the

child at trial[.]" State v. R.B.,
183 N.J. 308, 318 (2005).

Nonetheless, there remains a "need for a trustworthiness

analysis . . . under N.J.R.E. 803(c)(27), and the same factors

identified in Wright, and endorsed by D.G., are appropriate for

guidance in that context." Burr, supra,
392 N.J. Super. at 570

(citations omitted).

Further, in State v. Michaels,
136 N.J. 299 (1994), we

outlined factors to determine whether an interview technique has

the requisite indicia of reliability. Relevant to the analysis

are details such as "lack of investigatory independence, the

pursuit by the interviewer of a preconceived notion of what

happened to the child, the use of leading questions, and a lack

of control for outside influences on the child's statements[.]"

Id. at 309. The analysis is flexible and does not require a

D.G., supra,
157 N.J. at 125. In
mechanical approach.

Michaels, we also underscored the importance of videotaping

child interviews and held that such videotapes should be

Michaels, supra,
considered in any trustworthiness analysis.

136 N.J. at 313-14 n.1.

Regarding admissibility under N.J.R.E. 803(c)(27), the

judge's factual findings are entitled to deference by a

reviewing court. State v. Robinson,
200 N.J. 1, 15 (2009);

State v. Locurto,
157 N.J. 463, 474 (1999); State v. Johnson,
42 N.J. 146, 160-61 (1964). "[A]n appellate court reviewing a

motion to suppress must uphold the factual findings underlying

the trial court's decision so long as those findings are

`supported by sufficient credible evidence in the record.'"

State v. Elders,
192 N.J. 224, 243 (2007) (citations omitted).

Specifically, in reviewing a trial judge's finding that a

child's statement meets the trustworthiness requirement of

N.J.R.E. 803(c)(27), appellate courts affirm unless the judge's

determination amounted to an abuse of discretion. State v.

Nyhammer,
197 N.J. 383, 411, cert. denied, U.S. ,
130 S. Ct. 65,
175 L. Ed. 2d 48 (2009). A trial court's determination

of reliability or trustworthiness sufficient to allow admission

of evidence should not be disturbed unless, after considering

the record and giving the deference owed to the court's

credibility findings, it is apparent that the finding is

"clearly a mistaken one and so plainly unwarranted that the

interests of justice demand intervention and correction[.]"

Locurto, supra,
157 N.J. at 471 (internal quotation marks and

citations omitted). Only in those circumstances may "an

appellate court `appraise the record as if it were deciding the

matter at inception and make its own findings and conclusions.'"

Elders, supra,
192 N.J. at 244 (quoting Johnson, supra,
42 N.J.

at 162).

In respect of the admissibility of Henriquez's trial

testimony, the trial judge concluded:

The Court has heard testimony from Ms.
Giselle Henriquez. She's a Child Interview
Specialist. Her job is to interview
children under the age of 12 who were
allegedly sexually abused.

She said she's conducted approximately
600 to 700 of these interviews and she --
they use -- she, in conjunction with the
Passaic County Prosecutor's Office, uses a
technique known as the Corner House Forensic
Interview Approach. These interviews are
conducted at a Child Advocacy Center. . . .

....

The process of the -- interview was
explained to the mother and then Ms.
Henriquez took the alleged child victim to
the interview room. She and the young child
were the only ones in the interview room.
She told the child to tell the truth and did
not -- gave the child the admonition that
the child did nothing wrong and she
shouldn't feel in any way that she was
creating a problem for others.

She reviewed the anatomy with the
child. The child used age-appropriate
language. And then when she, when
describing body parts she then on both males
and females she then talked about good hugs
and bad hugs. She knew the difference
between good hugs and bad hugs and she said
that allegedly the defendant in this case
gave her bad hugs which is something that
she did not like, a touching that she did
not like.

....

These interviews are normally video
taped but the video tape malfunctioned.
There's no requirement under the law that
they be video taped. And there was a
reasonable reason given for not re-
interviewing the child -- to re-traumatize

the child. The child was able to provide a
-- a clear account of what she says
happened.

Now, a report was prepared by Ms.
Henriquez and this was done based on notes
that she had taken. When that final report
was -- perhaps it was two months before the
final report was issued because others had
to review it.

There's no suggestion in this case with
this child. There's nothing -- the child
was not spoken to in front of her mother.
There's no evidence that the mother
influenced the child at all. The child,
according to Ms. Henriquez, who I find to be
credible and competent and capable in these
types of issues, acted appropriately,
discussed the matter appropriately.

And I'm going to permit the . . .
statement of the child. . . . I'm satisfied
that the reliability is trustworthy.

On appeal, the Appellate Division stated:

The judge had the opportunity to
observe and assess the credibility of
Henriquez, who testified fully and was
subject to extensive cross-examination. The
judge applied appropriate reliability
factors under the totality of circumstances
test. See . . . Michaels, [supra,] 136 N.J.
. . . [at] 306 . . . . These factors
include, for example, whether the child's
statement was made spontaneously without
prompting, whether the account was repeated
with consistency, the mental state of the
declarant, lack of motive to fabricate, use
of age-appropriate terminology,
interrogation, and potential manipulation by
adults. See . . . D.G., [supra,] 157 N.J. .
. . [at] 125 . . . . The judge's
credibility assessment and finding of
trustworthiness is well supported by the
evidence presented at the Rule 104(a)

hearing, and we defer to that finding. . . .
Locurto, [supra,] 157 N.J. . . . [at] 474 .
...

We have carefully reviewed this record and, like the Appellate

Division, have determined that the trial judge's conclusions are

fully supported by the evidence and legally unassailable.

We turn then to defendant's claim that we should establish

a per se rule that in the absence of a tape recording, a child

victim's statement should be deemed inadmissible under N.J.R.E.

803(c)(27). Of that contention, the Appellate Division stated:

We can dispose of defendant's argument
urging a per se rule of exclusion quite
summarily. Defendant acknowledges that no
State or federal court has adopted such a
rule. Further, defendant did not raise this
issue in the trial court, and it is not
properly before us. Nieder v. Royal Indem.
Ins. Co.,
62 N.J. 229, 234 (1973). We
nevertheless address the issue
substantively.

In Michaels, the Court identified video
taping as a "sound interviewing
methodology," endorsed by "nearly all
experts," which courts should consider in
determining trustworthiness. Michaels,
supra,
136 N.J. at 313-14 n.1. The [C]ourt
did not impose a recording requirement or
even afford that procedure more weight than
other desirable interviewing procedures and
techniques. See id. at 312-15. Further,
the Court stated, "We have recognized
generally that the existence of a video or
sound recording of a statement elicited
through pretrial interrogation is a factor
bearing on its reliability." Id. at 314 n.1
(citing State v. Gross,
121 N.J. 1, 10 . . .
(1990)). It is thus clear that the presence
or absence of electronic recording is only

one factor in the totality of the
circumstances that determines the
admissibility of a tender years statement.
There is no basis for adoption of a per se
rule of exclusion.

Again we are in agreement with the Appellate Division's

conclusions.

We have no doubt, nor did we in Michaels, of the benefits

of tape recording the statements of child sex abuse victims.

Indeed, the videotape "convey[s] not only the exact words spoken

by the child, but their finer shades of meaning through facial

expressions, body movements and inflections of voice." State v.

Donegan,
265 N.J. Super. 180, 185-86 (App. Div. 1993). In

addition, a video recording creates an objective, reviewable

record, enhances the reliability of confessions, protects police

officers from false allegations, improves the overall quality of

police work, and may well "preserve judicial resources" by

discouraging defendants from raising frivolous pre-trial

challenges to the admission of the child's statement. Cook,

supra,
179 N.J. at 551-62. If no video equipment is available,

some of the same purposes, though not all, can be served by

audio recording.

As we understand it, prosecutors across the state have

voluntarily undertaken to tape record the statements of child

sex abuse victims for all of those stated reasons. Thus it

would be redundant for us to order them to do so. We presume

that they will continue such recording because it is a factor in

the totality of circumstances analysis that determines the

admissibility of a tender-years statement.

In this case, we are asked to consider the effect of tape

machine malfunction. Because the tape is only one factor in the

totality of circumstances analysis we established regarding

trustworthiness, it follows that the absence of a tape, standing

alone, is not dispositive. It is to be considered along with

all the other factors we have previously set forth in Michaels

and D.G. as relevant to trustworthiness.

What is important, however, as we indicated in Cook, is

that simultaneous notes of an interview should not be destroyed

but should be maintained through trial for use in a case in

which the tape is lost or, for some reason, unusable. We

reiterated that principle in Branch:

We register our displeasure that police
officers engage in the seemingly routine
practice of destroying their contemporaneous
notes of witness interviews after the
preparation of formal reports. . . . We
expressed our disapproval of the practice of
destroying contemporaneous notes in . . .
Cook, [supra,] 179 N.J. [at] 542 n.3 . . . ,
and do so again here.

[Branch, supra,
182 N.J. at 367 n.10.]3

3
The events in this case preceded Cook and Branch.

Obviously, such notes will be invaluable in assessing the

circumstances of the victims' statements and in establishing the

substance thereof. See Michaels, supra,
136 N.J. at 321 (noting

interviewer's "failure to videotape or otherwise document the

initial interview sessions" as factor weighing against

trustworthiness (emphasis added)).

Here, the investigator took notes during the interview and

used those notes to prepare a full report of the interview two

months later. She testified that the material in her report

reflected the contemporaneous notes, and the judge believed her,

thus concluding that even in the absence of the tape or the

contemporaneous notes, there was enough evidence to find that

Katie's out-of-court statement was trustworthy. That is all

that is required.

IV.

We turn next to defendant's claim that the trial judge

improperly ruled regarding the admissibility of other-crimes

N.J.R.E. 404(b) governs other crimes,
evidence in this trial.

wrongs, or acts evidence:

Except as otherwise provided by Rule 608(b),
evidence 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.

[N.J.R.E. 404(b).]

Under the rule,

[t]he evidence must be offered for a proper
purpose, must be relevant, must have
probative value that is not substantially
outweighed by the danger of unfair prejudice
to the defendant, and must be coupled with a
limiting instruction. A proper application
of those rules balances the State's interest
in presenting the evidence of "other crimes
or wrongs" against the possibility of unfair
prejudice to the defendant.

....

The limited purposes for which other-crime
evidence may be admitted include, but are
not limited to, "establishment of a common
scheme or plan, a signature crime, motive,
and most frequently, to impeach the accused
who takes the witness stand, but only
through a conviction." . . .

The underlying danger of admitting other-
crime evidence is that the jury may convict
the defendant because he is "a `bad' person
in general." . . . Hence, even if the
other-crime evidence is relevant to prove
some legitimate trial issue, the trial court
must still exclude it unless, under Evidence
Rule [104], its probative value outweighs
its prejudicial impact. . . .

[Cofield, supra,
127 N.J. at 334, 336
(citations omitted).]

Because N.J.R.E. 404(b) is a rule of exclusion rather than

a rule of inclusion, the proponent of other-crimes evidence must

satisfy a four-part test:

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.

[Id. at 338 (citation omitted).]4

It is the relevance prong that is the focus in this case.

Relevance means "having a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action." N.J.R.E. 401. Consequently, to be relevant, the

other-crimes evidence must bear on a subject that is at issue at

the trial, for example, an element of the offense or some other

factor such as motive, opportunity, intent, or plan. State v.

Brown,
138 N.J. 481, 533 (1994), overruled on other grounds,

State v. Cooper,
151 N.J. 326, 377 (1997). In determining

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

4
As we have stated, the evidence of similarity and temporality

is not one that can be found in the language
of Evidence Rule 404(b). Cofield's second
prong, therefore, need not receive universal
application in Rule 404(b) disputes. Its
usefulness as a requirement is limited to
cases that replicate the circumstances in
Cofield.

[State v. Williams,
190 N.J. 114, 131
(2007).]

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. State v. Stevens,
115 N.J. 289, 301-02 (1989). Further, the other-crimes evidence

must be necessary for the proof of the disputed element. State

v. Marrero,
148 N.J. 469, 482 (1997) (citing Stevens, supra,
115 N.J. at 301). Indeed, in assessing the fourth prong, courts

should consider whether the matter can be proved adequately by

Stevens, supra,
115 N.J. at 303.
other evidence.

Importantly, other-crimes evidence should not be admitted

solely to bolster the credibility of a witness against a

defendant. State v. Darby,
174 N.J. 509, 520 (2002). "If

other-crime evidence is admissible merely to support the

credibility of a witness, then the Cofield standard designed to

severely limit the use of such highly inflammatory evidence

becomes meaningless." Id. at 521. See also Stevens, supra,
115 N.J. at 306 (holding other-crimes evidence not admissible as

basis for inference that victim's version of events is true).

Two cases relied upon by the trial judge in declaring the

other-crimes evidence admissible in this case are instructive.

In State v. G.S.,
145 N.J. 460, 469 (1996), we held that

evidence of a prior allegation that a defendant had sexually

abused his stepdaughter was admissible at a trial wherein she

newly alleged the same type of abuse. The rationale for the

admission of the evidence was that an issue at trial was the

victim's delay in reporting the abuse charged. Id. at 464-68.

Because the victim's mother did not believe or support her the

first time she claimed sexual abuse by the defendant, the victim

initially recanted her first accusation. Id. at 463-66. Thus

the evidence regarding her first allegation was relevant to

explain the victim's delay in reporting the new accusation,

which could have led the jury to believe that her claim was not

Id. at 469.
true.

More recently, we considered whether a claim of previous

molestation of an older daughter by her father, the defendant,

was admissible in a trial for sexual offenses against the

defendant's younger daughter, allegedly occurring years later.

State v. G.V.,
162 N.J. 252 (2000). There the stories told by

the girls were remarkably similar, including the age the

molestation began, how and when it proceeded to intercourse, and

Id. at
that it always occurred when the mother worked nights.

256.

Although we rejected the admissibility of the evidence

based on the reasons advanced by the trial court (intent or

absence of mistake), we recognized that the evidence was

potentially admissible on material issues such as access and

feasibility. We also recognized that that evidence could be

used to counter a claim of bias - the so-called "vendetta

defense." In connection with the latter, we noted that the bias

of the victim against the defendant was an issue materially in

dispute, and that other-crimes evidence to prove or disprove it

was putatively admissible, subject to the application of the

remainder of the Cofield test. Id. at 264-65.

Citing G.S. and G.V., the trial judge in this case held

that evidence of I.B.'s sex assault would be admissible for the

narrow purpose of bolstering the credibility of Katie and

Ursula, if defense counsel insinuated on cross-examination that

they had fabricated the allegations due to bias. He said:

In G.S., the Supreme Court said that
evidence of prior sexual abuse was
admissible as other crimes in evidence
pursuant to R. 404(b) as relevant to the
defendant's motive, absence of mistake, or
accident, and to the victim's credibility.

....

Again, in State [v.] G.V., the court
allowed prior abuse allegations to bolster
victim's credibility and to show lack of
bias on the part of the victim.

....

. . . I'm going to permit it only after
cross-examination . . . . Depending on what
[defense counsel's] cross-examination is.

The Appellate Division disagreed and distinguished this

matter from G.S., declaring that "neither of the purposes for

which the other crimes evidence was admitted in G.S. appl[ied]."

In ruling, the panel noted that in G.S. the previous accusation

had been made by the same victim, and was admitted for the

purpose of explaining the delay in her reporting the abuse and

in responding to attacks on her credibility based on the delay.

G.S., supra,
145 N.J. at 469. Accordingly, in G.S., "[t]here

was a logical nexus between the prior course of conduct with a

recantation and the assertion that the new allegations were also

made up, in each case for some specific purpose for which

evidence was presented."

Regarding G.V., the panel stated:

We do not read G.V. as a blank check for the
admission of evidence that a defendant
sexually molested another person in any
trial for a sexual offense in order to
bolster the credibility of the victim in
that trial and to refute any claim of bias
by the victim against the defendant.

The panel noted that this case bears no resemblance to G.V.,

which involved two similar sets of accusations by sisters living

in the same household, which were likely admissible for other

relevant purposes. Here, I.B. was a three-year-old boy, Katie

an eleven-year-old girl,5 and no evidence of a common pattern or

motive was proffered. Nor were issues of access or feasibility

raised. The panel emphasized:

[t]he only manner in which the I.B. incident
could serve to bolster [Katie]'s credibility
and refute any allegation of bias by her
against defendant would be from an inference

5
Katie was eleven when first interviewed by Henriquez in April
2003.

that [Katie] must be telling the truth
because defendant engaged in sexual
misconduct against a child before, and thus
he has a propensity to engage in such
conduct and must have done so with [Katie.]
This, of course, is the precise purpose for
which other crime evidence is not permitted.

We agree with the panel's analysis in respect of both

cases. The reasons for which the other-crimes evidence was

admitted in G.S. were finely honed and directed at specific

issues in the case -- in particular, to explain a delay in

reporting and to counter the natural inference that such delay

is an indicator of the falseness of the challenge. G.S., supra,

145 N.J. at 469. That kind of carefully-focused analysis is

what is required by N.J.R.E. 404(b). See, e.g., State v.

Oliver,
133 N.J. 141, 153 (1993) (permitting evidence of

assaults on women at defendant's home where others were present

downstairs to prove feasibility of occurrence in case being

tried); State v. Cusick,
219 N.J. Super. 452, 464-65 (App. Div.)

(holding other sex assaults admissible at trial to prove lack of

mistake where defendant argued sexual contact with victim was

inadvertent), certif. denied,
109 N.J. 54 (1987).

Likewise, we do not read G.V. as an automatic basis for the

admission of other-crimes evidence to counter a vendetta

defense. Indeed, in G.V., we specifically ruled on the unique

facts before us, which left open the possibility that the

evidence could be admitted for legitimate purposes, such as

access and feasibility. Further, plan or scheme might have

provided potential grounds for admission in that case as well.

Thus we have no quarrel with the ultimate holding in G.V. that

the evidence was admissible subject to the remainder of the

Cofield analysis.

However, as the Appellate Division here aptly observed, any

interpretation of G.V. "as a blank check for the admission of"

other-crimes evidence in a bias case is a misreading of the

opinion. Indeed, such a reading would confound the well-

established rule that other-crimes evidence is not admissible

solely to bolster the credibility of a witness against the

defendant, Darby, supra,
174 N.J. at 520, or as the basis for an

inference that the victim's version of the events is true,

Stevens, supra,
115 N.J. at 306. Rather, the evidence may only

be admitted if it satisfies the requirements of N.J.R.E. 404(b)

and is not offered "to prove the disposition" of the defendant

toward criminality. Here, what was proffered was an unrelated

sex crime, which was only linked to the bias of the State's

witnesses by the notion that if defendant did it before, he

likely did it again, thus supporting the credibility of Katie

and Ursula. Indeed, when questioned at oral argument, the State

was unable to suggest any other basis on which the crime against

I.B. could be considered to bear on the bias of Katie and

Ursula. Because the admission of such propensity evidence is

unmoored from the principles informing N.J.R.E. 404(b), the

abuse of I.B. had no purpose in this case. We are thus in full

accord with the Appellate Division's analysis of that issue and

its conclusion that the evidence was inadmissible here.

However, we part company from that court insofar as it held

that the trial judge's error was harmless. An error is harmful

if it was "clearly capable of producing an unjust result." R.

2:10-2; State v. Nero,
195 N.J. 397, 409 (2008). Although the

improper other-crimes evidence was never actually admitted here,

defendant paid a price to keep it out. Indeed, the threat of

its admission forced defendant to alter his trial strategy

completely and effectively precluded him from presenting the

vendetta theory, which was his central, if not sole, defense.

Defense counsel did not overtly refer to bias during his opening

or summation, nor did he directly confront Katie or Ursula on

that point on cross-examination. Even if, as suggested by the

appellate panel, Ursula and Katie would have "undoubtedly

denied" their bias if cross-examined on the issue, the jury

still would have had the opportunity to evaluate their tone,

manner, and body language, and accordingly, to assess their

credibility. "Cross-examination is the principal means by which

the believability of a witness and the truth of his testimony

are tested[,]" Davis v. Alaska,
415 U.S. 308, 316,
94 S. Ct. 1105, 1110,
39 L. Ed. 2d 347, 353 (1974), and defendant was

denied a complete opportunity to utilize that essential tool.

This was a credibility case from stem to stern. As such, we

cannot say that an erroneous ruling diluting defendant's ability

to challenge the credibility of the victim and her mother was

harmless. We therefore reverse the Appellate Division's

contrary conclusion.

We turn finally to defendant's contention that the trial

judge erred in invoking the Rape Shield Law, N.J.S.A. 2C:14-7,

to bar admission of the hospital record suggesting that Katie

"had sex 3 months ago one time."

The Rape Shield Law provides that in prosecutions for

various sexual offenses, "evidence of the victim's previous

sexual conduct shall not be admitted nor reference made to it in

the presence of the jury except" in certain limited

circumstances enumerated in the statute. N.J.S.A. 2C:14-7(a).

The statute provides that when a defendant seeks to introduce

evidence of the victim's previous sexual contact, the trial

"court shall conduct a hearing in camera to determine the

admissibility of the evidence." Ibid.

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

the defendant." State v. Garron,
177 N.J. 147, 165 (2003),

cert. denied,
540 U.S. 1160,
124 S. Ct. 1169,
157 L. Ed. 2d 1204

(2004). The statute protects against "unwarranted and

unscrupulous foraging for character-assassination information

about the victim." Ibid. However, "if evidence is relevant and

necessary to a fair determination of the issues, the admission

of the evidence is constitutionally compelled." Id. at 171

(citation omitted).

In State v. Budis,
125 N.J. 519 (1991), we articulated a

two-step process for determining the admissibility of such

evidence. The first step is to "ascertain, apart from the Rape

Shield Statute, whether the evidence was relevant to the

defense[,]" Budis, supra,
125 N.J. at 532:

The probative value of the prior acts
depends on clear proof that they occurred,
that the acts are relevant to a material
issue in the case, and that they are
necessary to the defense. . . . When
evidence is offered to show a child's
knowledge of sexual acts, its relevance also
depends on whether the prior abuse closely
resembles the acts in question.

[Id. at 532-33 (citations omitted).]

In this case, defendant argues that evidence of Katie's

previous sexual contact was "critical to defendant's right to

confront the charge against him by explaining how a 12-year-old

girl might know enough about sexual penetration and sexual

ejaculation to make the claims she did[,]" as well as explaining

Ursula's statement that Katie's vaginal opening "looked bigger

than . . . a normal child's at that time[.]" If there were

clear proof that Katie had engaged in sexual contact with

another person, and that the contact included vaginal and/or

anal intercourse, and ejaculation, that might well be relevant

to the defense. As in Budis, a jury might wonder how an eleven-

year-old would be familiar with such actions unless she had been

But see State v. Schnabel,
196 N.J. 116, 131 (2008)
victimized.

(in light of present day realities, rejecting defense's

assertion that two girls, aged fourteen and seventeen, would

lack sufficient knowledge to describe sexual abuse without prior

sexual experience).

However, as the trial court and Appellate Division found,

the proffered evidence was simply too thin. It consisted of a

single notation in a medical report that stated: "11 year old

female [ ] burning sensation when she urinate [sic] and also

frequency of urination had sex 3 months ago one time [ ] vaginal

discharge." That notation does not satisfy the requirement that

there be "clear proof" that the prior acts occurred. Budis,

supra,
125 N.J. at 532-33. The Appellate Division noted that

that reference may have been a typographical error, meant to

signify three years, not three months, which was approximately

when Katie said defendant abused her. Moreover, the notation

does not include any specific facts about the incident. Cf. id.

at 527, 534 (finding, where State conceded occurrence and

similarity of previous sexual abuse, evidence relevant to

"rebut[] inference that [victim] acquired the knowledge to

describe sexual matters from her experience with defendant").

Thus, there is no way to tell from the evidence defendant

proffered whether the alleged prior sexual contact was similar

to defendant's alleged abuse, or even separate from it; the

reference may well have been to defendant's abuse of Katie.

Accordingly, the Appellate Division correctly ruled that

evidence sufficient to counter the Rape Shield Law had not been

adduced.

VI.

Recapping, we decline to adopt a per se rule of exclusion

in a case in which a child sex abuse victim's taped statement is

lost. We reiterate that the totality of circumstances standard

is the appropriate benchmark for the admissibility of a tender-

years statement under N.J.R.E. 803(c)(27). We likewise reaffirm

our holdings in Cook, supra,
179 N.J. 533, and Branch, supra,

182 N.J. 338, to the effect that simultaneous notes taken of a

child sex abuse victim's interview should not be destroyed but

should be maintained through trial.

We likewise decline to interpret our decisions in G.S.,

supra,
145 N.J. 460, and G.V., supra,
162 N.J. 252, as providing

an automatic basis for the admission of other-crimes evidence to

counter a bias or vendetta defense. Rather, such other-crimes

evidence may only be admitted if it satisfies N.J.R.E. 404(b)

and is not offered to prove the defendant's criminal propensity.

VII.

The judgment of the Appellate Division is reversed. The

matter is remanded for a new trial consistent with the

principles to which we have adverted.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
WALLACE join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO
filed a separate opinion concurring in part and dissenting in
part, in which JUSTICE HOENS joins.

SUPREME COURT OF NEW JERSEY
A-
21 September Term 2009

STATE OF NEW JERSEY,

Plaintiff-Respondent,

P.S.,

Defendant-Appellant.

JUSTICE RIVERA-SOTO, concurring in part and dissenting in

part.

The majority reaches five separate conclusions in which I

concur: (1) that the admission of the child victim's statement

under N.J.R.E. 803(c)(27) was "fully supported by the evidence

and legally unassailable[,]" ante at ___ (slip op. at 21); (2)

that the per se rule advanced by defendant that would bar any

child statement not videotaped should be rejected, and that "the

absence of a tape, standing alone, is not dispositive[ as i]t is

to be considered along with all the other factors we have

previously set forth . . . as relevant to trustworthiness[,]"

ante at ___ (slip op. at 23); (3) that witness interview notes

should be preserved, ante at ___ (slip op. at 23-24); (4) that

State v. G.S.,
145 N.J. 460 (1996) (holding that evidence of

uncharged prior sexual assaults on same victim are admissible in

respect of victim's credibility), is not controlling here, ante

at ___ (slip op. at 31); and (5) that the Rape Shield Law,

N.J.S.A. 2C:14-7, barred the admission of the child victim's

alleged prior sexual acts, ante at ___ (slip op. at 34-37).

Each of those conclusions dovetails with the Appellate

Division's decision below.

I must part company with both the Appellate Division and

the majority in one fundamental respect: in my view, the trial

court's evidentiary determination that the State would be

permitted to rebut defendant's "vendetta defense" with proof of

defendant's prior sexual assault on another child was proper and

entirely in accord with State v. G.V.,
162 N.J. 252, 263-65

(2000). I also part company with the majority in its rejection

of the Appellate Division's separate conclusion -- that, even

assuming the trial court's evidentiary determination that the

State would be permitted to rebut defendant's "vendetta defense"

with proof of defendant's prior sexual assault on another child

was in error, such error was harmless -- thereby requiring a new

trial, ante at ___ (slip op. at 31-33, 37-38).

In G.V., this Court held that proof of a defendant's prior

but uncharged sexual assaults is admissible to rebut a "vendetta

defense," that is, that the victim/witness fabricated the

allegations against defendant as a means of "getting back at"

defendant. G.V., supra,
162 N.J. at 263-65. As G.V. explains,

-2-

if it is a theory of the defense that the victim's assertion of

a sexual assault was fabricated "as revenge" against the

defendant, id. at 263, then the evidence of a defendant's prior

similar acts can be deemed relevant as it "tends `to prove or

disprove any fact of consequence to the determination of the

Ibid. (quoting N.J.R.E. 401). Particularly where, as
action.'"

here, a defendant in a sexual assault prosecution claims that

the victim's accusations are motivated by revenge, proofs that

the defendant previously committed similar sexual assaults is

and rightly should be admissible to rebut the claim of bias the

defendant has raised against his accuser. Id. at 264 ("It is

only when defendant puts the bias of the witness (on account of

a vendetta) into issue that the evidence would be admissible.").

G.V. also sets forth the procedure to be followed:

If, at the hearing prior to trial under
Evidence Rule 104, defendant disclaims the
use of the vendetta defense, the State would
have no basis for admitting the evidence.
On the other hand, if defendant renews the
vendetta defense, it appears to us that the
testimony of the [prior, uncharged sexual
assaults] is relevant to show that the
testimony of [the child victim] is not the
product of bias. Of course, the trial court
would have to . . . balanc[e] the probative
worth of the evidence against its
prejudicial effect.

[Id. at 264-65.]

That is precisely what occurred here. When defendant

asserted a "vendetta defense," the State sought and was granted

-3-

a Rule 104 hearing to determine the admissibility of rebuttal

proofs that defendant had sexually assaulted another child

before he committed the acts for which he stood charged. As the

majority correctly notes, the trial court performed a Cofield1

analysis and, applying N.J.R.E. 404(b), ruled that "evidence of

defendant's [prior] sexual assault of [another child] would be

admissible to bolster the credibility of [the victim] and to

rebut claims of bias, but only after cross-examination, if

defense counsel challenged the credibility of [the victim] and

Ante at ___ (slip
her mother by placing their bias in issue."

op. at 6).

The majority rejects that ruling, asserting without

explanation that G.V. does not provide "an automatic basis for

the admission of other-crimes evidence to counter a vendetta

Ante at ___ (slip op. at 31). Without overruling or
defense."

otherwise rejecting G.V.'s clear holding, the majority

nevertheless repeats the Appellate Division's reasoning and

asserts that "any interpretation of G.V. `as a blank check for

the admission of' other-crimes evidence in a bias case is a

misreading of the opinion." Ante at ___ (slip op. at 32).

Tagging the evidence of defendant's prior sexual assaults with

the death warrant of "propensity evidence," ante at ___ (slip

1
State v. Cofield,
127 N.J. 328, 338 (1992).

-4-

op. at 32), the majority declares that those proofs "had no

Ante at ___ (slip op. at 33).2
purpose in this case."

If G.V.'s recognition that a defendant's vendetta defense

can be rebutted by proof of prior similar acts retains any

vitality, then the majority's conclusion clearly is in error.

If the State is to be barred from rebutting a vendetta defense

through competent and relevant proofs of prior similar acts,

then how can that defense ever be rebutted? Under the

majority's now emasculated view of G.V., a defendant may assert

willy-nilly that the accusations against him were manufactured

by the victim solely to exact revenge, yet the prosecution is

powerless to use plainly probative evidence to demonstrate that

the claimed vendetta defense is without foundation. The effect

is to sanction, in favor of defendant, an unfettered license to

fabricate charges of a victim's bias and ill motive, a result

that neither achieves justice nor makes any sense.

The better reasoned and more impartial view was earlier

recognized by this Court in G.V., which specifically informed

2
As a practical matter, the majority has engaged in an
exercise in misdirection: without expressly admitting its
purpose, it has incorporated that portion of the majority
writer's earlier dissent in G.V., which rejected G.V.'s
"separate determination that [the prior bad acts] testimony may
be relevant, and therefore possibly admissible on another basis
-- to refute the so-called `vendetta defense.'" G.V., supra,

162 N.J. at 265 (Long, J., concurring in part and dissenting in
part). In effect, while not outright reversing G.V., the
majority has made it irrelevant.

-5-

and guided the conditions on admissibility the trial court

imposed: a defendant should remain free to assert a vendetta

defense, but he may not do so with utter impunity; that defense

can be rebutted by otherwise relevant proofs that the

accusations made against defendant are "not the product of

G.V., supra,
162 N.J. at 264.
bias."

Thus, to the extent both the Appellate Division and the

majority conclude otherwise and sub silentio overrule G.V., I

respectfully dissent.

II.

Even if the majority correctly concludes that the trial

court abused its discretion in allowing the State -- but only in

rebuttal -- to introduce proof of defendant's prior sexual

assaults to rebut his "vendetta defense," it nonetheless

incorrectly concludes that a new trial is warranted here. In my

view, the Appellate Division correctly analyzed this question

when it reasoned that

the other crime evidence was never presented
to the jury. Thus, the severe prejudice
that would have resulted had it been
presented did not occur. [D]efendant was
not denied the opportunity to mount a
defense based upon his assertion that [the
child victim] and her mother fabricated
these charges to get him out of the house.
The assertion is completely unfounded and
unsubstantiated. Had the judge ruled that
the other crime evidence was not admissible,
and if defense counsel would have asked [the
child victim] and her mother whether they

-6-

concocted this story to get him out of the
house, they would have undoubtedly denied
it, consistent with their unwavering
testimony and pretrial statements throughout
this case. [D]efendant proffered no other
evidence (unlike in G.S. and G.V.) to
support his assertion. [T]herefore, . . .
the erroneous ruling did not affect the
outcome of the trial. Accordingly, the
error was harmless and does not warrant
reversal of defendant's convictions.

The only substantive difference between the majority's view

and the Appellate Division's decision lies in whether the trial

court's ruling concerning the admission of the "other crimes"

evidence under N.J.R.E. 404(b) and the four-prong test of

Cofield, supra, was harmless. Because I agree with the

Appellate Division that, in the context of this case, the trial

court's ruling, even if in error, was harmless, I further

respectfully dissent.

III.

In the circumstances presented, there is no basis for

determining that the trial court abused its discretion in

allowing the use of prior bad acts evidence to rebut any claimed

"vendetta defense." In any event and based on the facts in this

case, that evidentiary determination, even if in error, was

harmless. For those reasons, the judgment of the Appellate

Division should be sustained and defendant's conviction and

sentence affirmed. Because the majority fails to do so, I must

dissent.

-7-

JUSTICE HOENS joins in this opinion.

-8-

SUPREME COURT OF NEW JERSEY

NO. A-21 SEPTEMBER TERM 2009

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

P.S.,

Defendant-Appellant.

DECIDED June 7, 2010
Chief Justice Rabner PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINION BY Justice Rivera-Soto
DISSENTING OPINION BY

CONCUR IN
REVERSE AND
CHECKLIST PART/DISSENT
REMAND
IN PART
CHIEF JUSTICE
X
RABNER
X
JUSTICE LONG
X
JUSTICE LaVECCHIA
X
JUSTICE ALBIN
X
JUSTICE WALLACE
X
JUSTICE RIVERA-SOTO
X
JUSTICE HOENS
TOTALS 5 2

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