STATE OF NEW JERSEY VS. THOMAS P. CANALES (17-02-0143, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5846-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS P. CANALES,
a/k/a THOMAS P.
CHAPAWESTON,
Defendant-Appellant.
________________________
Submitted January 4, 2021 – Decided August 20, 2021
Before Judges Hoffman, Suter and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-02-
0143.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following a trial that extended over parts of three months, a jury found
defendant Thomas P. Canales guilty of three counts of second-degree sexual
assault against a minor under the age of thirteen, N.J.S.A. 2C:14-2(b); three
counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a)(1); and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-
3(b). On May 11, 2018, the trial judge sentenced defendant to an aggregate
prison term of seventeen and one-half years. Defendant now appeals his
conviction and sentence. Because we conclude there is reasonable doubt as to
whether improperly admitted evidence under N.J.R.E. 404(b) led the jury to a
result it otherwise might not have reached, we vacate defendant's conviction and
sentence, and remand for a new trial.
I.
On February 1, 2017, a Middlesex County grand jury indicted defendant
on charges related to four separate incidents, alleging defendant sexually
assaulted three girls under the age of thirteen (J.R., H.C., L.K-D.) and one adult
woman (E.J.).1 Specifically, the indictment charged defendant with the
1
We use initials to protect the victims' identities, pursuant to Rule 1:38-3(c)(9),
(12).
A-5846-17
2
following offenses: second-degree sexual assault upon J.R., who was less than
thirteen years of age and defendant being at least four years older, N.J.S.A.
2C:14-2(b) (count one); third-degree endangering the welfare of a child, J.R.,
N.J.S.A. 2C:24-4(a)(1) (count two); second-degree sexual assault upon H.C.,
who was less than thirteen years of age and defendant being at least four years
older, N.J.S.A. 2C:14-2(b) (count three); third-degree endangering the welfare
of a child, H.C., N.J.S.A. 2C:24-4(a)(1) (count four); fourth-degree criminal
sexual contact against E.J., N.J.S.A. 2C:14-3(b) (count five); second-degree
sexual assault upon L.K-D., who was less than thirteen years of age and
defendant being at least four years older, N.J.S.A. 2C:14-2(b) (count six); and
third-degree endangering the welfare of a child, L.K-D., N.J.S.A. 2C:24-4(a)(1)
(count seven).
The assaults alleged in the indictment occurred over a four-month period
in four different municipalities in central Middlesex County. Defendant's first
trial ended in a mistrial after the jury could not reach a verdict. Defendant's
retrial occurred between November 28, 2017 and January 2, 2018. Prior to trial,
the State moved for permission to admit certain N.J.R.E. 404(b) evidence as part
of its case in chief. The evidence concerned an uncharged sexual assault that
occurred on August 26, 2016, two days before the last of the four assaults
A-5846-17
3
included in the indictment against defendant. The judge granted the State's
motion, following an evidentiary hearing held near the end of the State's case;
at the hearing, B.V. – the victim of the uncharged assault – testified. The next
day, the State presented the testimony of B.V. as its last witness. Thereafter,
defendant testified, denying all allegations; in addition, defendant's wife
testified. Following summations and the judge's charge, the jury received the
case on December 14, 2017. On the fourth day of deliberations, the jury found
defendant guilty of all counts.
We set forth the relevant facts and trial testimony concerning the four
charged assaults, followed by the relevant facts and trial testimony concerning
the uncharged assault.
Assault of J.R.
On April 20, 2016, a man in a pickup truck stopped J.R., an eleven -year-
old girl, as she walked down her street in North Brunswick. The man asked her
if there was anywhere nearby to eat, told her he was there for modeling business,
and told her that she was really pretty. At some point, while the man spoke to
her, J.R. looked inside the truck; at that point, she saw the man fondling himself
with his private parts exposed. After realizing what she just observed, J.R.
walked away.
A-5846-17
4
On April 20, and April 26, 2016, the police interviewed J.R., who
recounted for them what happened. The police recorded the latter interview on
video, which the State played for the jury at defendant's trial. During the
interview, J.R. told the police that the man's truck was dark blue, almost black,
and described the man as "kind of chubby" with "really chubby cheeks, and he
had kind of like a beard." She stated the man was wearing a backwards baseball
cap. On January 3, 2017, suspecting J.R.'s case may be related to other cases,
police showed J.R. a photo array, a series of photographs that included
defendant's photograph; however, J.R. did not select any of the photographs.
J.R. testified at defendant's trial, describing the man as "tan" with "really
chubby cheeks" and "a small forehead, and he was kind of big." She did not
remember the color of the truck the man drove, but she did recall it had "the
number 4 X 4 on it." J.R. was not asked to identify her assailant.
Assault of H.C.
On the afternoon of July 3, 2016, seven-year-old H.C. was on the porch
of her New Brunswick home playing with her sister when she walked down the
stairs to retrieve a ball. At that point, a black car pulled up in front of H.C.'s
house, and a man inside the car "said something" to H.C., who looked inside the
car and saw the man masturbating. The man then said "sorry" to H.C. At that
A-5846-17
5
point, H.C.'s father emerged from the home and yelled at the driver of the car,
but the man drove off.
New Brunswick Officer Justin Miller responded to the scene after the man
drove off. Officer Miller spoke with H.C., who told him the man in the car "tried
to get [her] to come to the vehicle." Officer Miller also testified that H.C.'s
father told him that the man was Hispanic and drove a black Honda. Two days
later, on July 5, 2016, H.C.'s father informed a detective that H.C. had revealed
that the man in the car was masturbating.
On September 1, 2016, the police conducted a recorded forensic interview
of H.C., which the State played for the jury at defendant's trial. During the
interview, H.C. stated the man in the car was "fat" and had brown skin. She
recounted that the man stopped the car and asked her, "Where is the gas
station[?]" and that the man was touching his exposed genitalia. Also, during
this September 1 interview, the police presented H.C.'s father with a series of
photographs, which included a photograph of defendant. H.C.'s father selected
the photo of defendant and identified him as the driver of the car.
At trial, H.C.'s father stated the man was driving a black car and that the
man "looked Hispanic." He also identified defendant at trial as the driver of the
car who spoke to his daughter on July 3, 2016. On cross-examination, H.C.'s
A-5846-17
6
father acknowledged that at defendant's first trial, the judge asked him, "[D]o
you see the person in court[?]," and he responded, "I can't see him." When asked
to explain the change in his testimony from only three months earlier, H.C.'s
father explained, "Because I was afraid that day."
H.C. also testified at trial, stating the man "looked like he was brown.
Like dark brown. And he didn't have hair." She was not asked if the driver of
the car was in court.
Assault of E.J.
On August 25, 2016, E.J., an Edison resident in her thirties, walked with
her three-year old daughter to a park near the apartment complex where they
lived. E.J. and her daughter were alone until a man arrived and sat on a bench
in front of the playground's slide. E.J. realized the man was watching her and
her daughter and decided to go home. Back at the apartment complex, E.J. went
to get chalk out of her car for her daughter when the man appeared and walked
toward her. The man asked E.J. for directions to Highland Park and asked the
age of her daughter. When E.J. turned to point in the direction of Highland Park,
the man groped and squeezed E.J.'s buttocks. He then ran away.
Police eventually connected the assault of E.J. with the other cases and
arranged for E.J. to view a photo array on September 8, 2016. During this
A-5846-17
7
review, E.J. selected defendant's photo and stated, "He looks familiar, but I'm
not one hundred . . . percent sure." At defendant's trial, she explained that "after
picking him out from the line of photos, I was somewhat concerned . . . as to the
question[,] what if I picked the wrong person[?], but sometime later I saw his
picture again in a newspaper article and I realized that that was the right person."
E.J. also identified defendant in court as the man she saw at the park in Edison
and the man who groped her. Additionally, the State played surveillance video
from the area where the assault took place, and E.J. pointed out herself and her
daughter walking back to the apartment complex, defendant following them, and
then defendant running away.
Assault of L.K-D.
On August 28, 2016, at around 8:30 p.m., eleven-year-old L.K-D. went
outside to retrieve her phone from the family car parked at the curb in front of
their home in Highland Park. When L.K-D. went to open the car door, she
realized someone was behind her. It was a man, who L.K-D. did not know. He
asked her for directions. She answered his question and the man thanked her
and tried to shake her hand. The man then grabbed L.K-D.'s arm and touched
her buttocks once or twice. The car door was still open and L.K -D. managed to
climb inside. L.K-D. moved to the back of the car while the man poked his head
A-5846-17
8
through the doorway of the car and asked L.K-D. her name. The man also told
L.K-D. to take off her shirt and touched her stomach. Eventually, the man ran
away.
On the night of the assault, police conducted a videotaped interview of
L.K-D., which the State played for the jury at defendant's trial. During this
interview, L.K-D. said the man had "dark hair," which was "short and spiky."
She also stated he was white and appeared to be in his forties.
Three days later, on August 31, 2016, police arranged a photo array for
L.K-D. that contained defendant's photograph; however, L.K-D. did not select a
photograph from the array.
At defendant's trial, L.K-D.'s father testified that on the night of the attack,
L.K-D. told her the man who attacked her was white. L.K-D. testified that she
did not remember what the man looked like and stated she "couldn't see him
very well." L.K-D. was not asked to identify her assailant.
Uncharged Assault of B.V.
At approximately 8 a.m. on August 26, 2016, B.V., a twenty-year old
college student, was walking to work in New Brunswick when a "smaller car"
that was "either black or navy blue" pulled up next to her. The car had a New
Jersey license plate. The man driving the car rolled down his passenger window
A-5846-17
9
and asked her for directions to the nearest gas station. As B.V. began answering
the man's question, she peered into the car through the open window and
observed that the man "had exposed himself and was masturbating in the front
seat." She then walked away because she "needed to get to work" and "it just
seemed easier and better just to get to work." Later that day, however, B.V.
reported the incident to the police, informing them the perpetrator was "a white
male . . . ."
On September 10, 2016, the police arranged for B.V. to view a photo array
containing six photographs. B.V. selected defendant's picture and stated, "This
one is recognizable. . . . Like I feel that this one is like the most – like the face
structure, this is like the face I remember. Because a lot of his face was covered,
but like this is like the face I remember." She stated she was seventy-five
percent certain she identified the correct person. Defendant was not charged
with any crime related to the assault of B.V.
Defendant's Arrest and First Trial
On August 28, 2016, the same day of the assault of L.K-D., but earlier
during the day, G.S., J.B. and some other friends opened a lemonade stand not
far from their homes in Highland Park. G.S. was then thirteen years old and J.B.
ten years old.
A-5846-17
10
A truck pulled up to the lemonade stand and its driver asked the girls for
directions to a gas station, which G.S. provided. At trial, G.S. stated the truck
was "like a metallic like grayish," and she was "pretty sure it was Ford." She
remembered the man had "like maybe like a darker skin kind of like mine, but
like maybe like darker or lighter, it was, because it's like dark in the car. Not
really dark in the car, but it was not easy to see." The man had a slight Spanish
accent and was wearing a red shirt. J.B. testified at trial that the driver of the
truck "looked Hispanic. He was like a little bit thicker and he had dark hair, like
dark brown hair," which was "a little bit curly but . . . not like super curly. Just
like little curls." J.B. also stated the man had some hair on his chin and cheeks.
The same truck returned to the lemonade stand and gave one of the girls a
dollar. When G.S.'s mother approached the truck, it drove away. The truck
returned again, and the driver attempted to give the girls another dollar, but they
declined it. As the truck drove away, J.B. wrote down the truck's license plate
number on her arm. Later that evening, the parents of the girls contacted the
police and reported the suspicious man driving the truck.
Because the assault of L.K-D. occurred only blocks away from where G.S.
and J.B. set up their lemonade stand, the police began considering the two events
might be related. The police completed a look-up of the license plate number
A-5846-17
11
J.B. wrote on her arm, which yielded defendant's name and address. On August
30, 2016, the police drove to defendant's address and observed a charcoal gray
pick-up truck with the license plate number written down by J.B.; in addition,
they observed a black Honda Accord registered to defendant's wife.
Meanwhile, Highland Park police posted a TRAX bulletin to other law
enforcement departments about the incident involving L.K-D. to see if a similar
incident had occurred elsewhere. A New Brunswick police officer, who
investigated the assault of H.C., saw the bulletin and thought the cases were
connected based on the fact that they both involved an adult asking children for
directions. This led to a September 1, 2016 meeting between the police, H.C.,
and H.C.'s father, where H.C.'s father selected defendant's picture from a photo
array. The police arrested defendant that day. After the police connected
defendant to the other alleged assaults, the Middlesex County grand jury
returned the seven-count indictment against defendant previously described.
Defendant's first trial on these charges began in July 2017; however, the judge
declared a mistrial after the jury could not reach a verdict.
Defendant's Second Trial
The State retried defendant, this second jury trial taking place between
November 28, 2017 and January 2, 2018, including six days of witness
A-5846-17
12
testimony. J.R., H.C., H.C.'s father, E.J., B.V., L.K-D., L.K-D.'s father, G.S.,
G.S.'s mother, J.B., and various police witnesses testified for the State. The
State also played police video recordings of the photo array identification
procedures utilized with J.R., H.C.'s father, E.J., B.V, and L.K-D.
The State also presented a cell tower map, generated using defendant's
cell phone records, which showed that a short time before the North Brunswick
incident in April 2016, a call from defendant's cell phone hit a cell phone tower
in North Brunswick; that a short time before the New Brunswick incident on
July 3, 2016, a phone call from defendant hit a cell phone tower in New
Brunswick; that defendant's last phone call prior to the Edison incident on
August 25, 2016 hit a cell phone tower in Edison; that within twenty minutes of
the Highland Park incident on August 28, 2016, a phone call from defendant's
phone hit a cell phone tower in Highland Park. Additionally, firefighters of the
East Franklin Fire Department, of which defendant was a member in 2016,
testified that defendant helped cover fire protection for the fire department in
Highland Park on August 28, 2016, the day of the Highland Park incidents
involving the lemonade stand and L.K-D. They testified that defendant and two
other firefighters rode in a fire truck to Highland Park's fire station in the
A-5846-17
13
morning and rode back to East Franklin on the truck shortly after the Highlan d
Park firefighters returned from their training, at around 1:00 or 2:00 p.m.
Notwithstanding the substantial evidence already presented, the State
sought to end its case by admitting evidence of B.V.'s assault under N.J.R.E.
404(b). On December 11 and 13, 2017, the trial judge held a N.J.R.E. 104(c)
hearing on the State's motion. At the hearing, B.V. recounted what occurred on
August 26, 2016, describing the perpetrator as a "heavier-set" white man
wearing sunglasses. She also stated she remembered telling the police the man
had a goatee. Notably, when asked by the prosecutor if she would be able to
identify the man again if she saw him in person, B.V. stated she did not think
she could.
After B.V.'s testified, defendant's attorney argued that evidence of B.V.'s
assault should not be admitted because the risk of undue prejudice outweighed
the evidence's probative value. Specifically, he argued B.V.'s testimony lacked
probative value because of her admitted inability to identify her assailant and
her uncertainty in selecting defendant's picture during the photo array. He
contended the prejudicial effect of "pil[ing] on" an unreliable fifth accusation
thus outweighed the non-existent or minimal probative value of the evidence of
the uncharged assault of B.V. Rejecting this argument, the trial judge granted
A-5846-17
14
the State's motion and admitted B.V.'s testimony, finding it satisfied the
requirements set forth in State v. Cofield, 127 N.J. 328 (1992) and State v. Fortin
(Fortin I), 162 N.J. 517 (2000).
When B.V. testified at trial, she recalled telling police that her assailant
"was a more heavyset man[,]" and she remembered "he had like shorter hair"
and "some facial hair like a goatee." She recalled he "was wearing sunglasses,
so I couldn't really see his face that well, but I could see it enough, I guess." She
also stated, "[f]rom what I could tell, he was definitely lighter complexion, so I
assumed he was white." B.V. did not bend down to look at the man as she spoke
to him. She described the man's car as "small and dark in color, like black or
navy blue."
Despite B.V.'s statement at the motion hearing that she did not think she
would be able to identify her assailant if she saw him again in person, at trial,
the following exchange inexplicably took place between the prosecutor and B.V.
during direct examination:
Q: And in discussing this matter with you, I've asked
you if you could recognize the person if you saw
him again. You indicated that you could. Is that
correct?
A: Yes.
A-5846-17
15
Q: All right. Let me ask you this. If you look at the
photograph that you selected back in September
of 2016, could you tell us if the person in that
photograph is here in the courtroom?
A: No. No, I don't think he is in the courtroom.
After the State rested, defendant testified, denying the allegations against
him. He admitted he was in Edison on the day of E.J.'s assault, though he
claimed he was cutting lawns there. In addition, he admitted he was in Highland
Park on August 28, when he accompanied other members of the East Franklin
Fire Department. Defendant recounted,
[W]hile we were at Highland Park, we responded to two
calls. While we were on those two calls, I noticed . . .
a couple properties that I wanted to pick up for
landscaping, [I] was trying to build my accounts in [the]
Highland Park area due to the fact that I had lost a
couple of them. And so I went back to Highland Park
to try to measure the properties and get some more
information on them.
Regarding this return to Highland Park, defendant recalled, "I definitely
remember the lemonade stand. I remember pulling up and asking for lemonade
when I saw the stand"; however, "they didn't have any ready." Defendant
testified he left the area "between 6 and 7 p.m." and "went fishing."
On January 2, 2018, on the fourth day of deliberations, the jury returned
its verdict, finding defendant guilty on all seven charged counts. On May 11,
A-5846-17
16
2018, the trial judge sentenced defendant to an aggregate prison term of
seventeen and one-half years, representing two concurrent eight-year terms on
counts one and three, a consecutive eighteen-month sentence on count five, and
a consecutive sentence of eight years on count six. The sentences for counts
one, three, and six were subject to periods of parole ineligibility under the No
Early Release Act, N.J.S.A. 2C:43-7.2. The judge merged count two with count
one, count four with count three, and count seven with count six.
This appeal followed, with defendant raising the following arguments:
POINT ONE
THE TRIAL JUDGE'S FINDING THAT THE
UBIQUITOUS FEATURES DEMONSTRATED A
SUFFICIENTLY SIMILAR UNIQUENESS WAS AN
ABUSE OF DISCRETION.
POINT TWO
THE TRIAL JUDGE'S JURY CHARGE AS TO THE
MANNER IN WHICH B.V.'S TESTIMONY,
TOGETHER WITH THE ADMISSION OF THE
PHOTOGRAPH SHE IDENTIFIED, COULD BE
USED DURING DELIBERATIONS REGARDING
THE QUESTION OF IDENTITY WAS PLAIN
ERROR. (Not raised below).
POINT THREE
THE CONSECUTIVE PORTION OF THE
SENTENCE IMPOSED WAS EXCESSIVE.
A-5846-17
17
POINT FOUR
THE FAILURE TO SEVER THE FOUR SEPARATE
INCIDENTS OF SEXUAL ASSAULT WAS
CLEARLY CAPABLE OF PRODUCING AN
UNJUST RESULT. (Not raised below).
POINT FIVE
THE TRIAL ATTORNEY'S FAILURE TO MAKE A
MOTION TO SEVER AMOUNTED TO
INEFFECTIVE ASSISTANCE OF COUNSEL. (Not
raised below).
II.
Defendant challenges the trial judge's admission of B.V.'s testimony,
arguing it failed to meet the "stringent" requirements to admit evidence when
offered under N.J.R.E. 404(b) "to link a particular defendant to a crime on the
basis of modus operandi, or a signature way of committing the crime." State v.
Sterling, 215 N.J. 65, 93 (2013) (citing Fortin I, 162 N.J. at 530-31). We agree.
N.J.R.E. 404(b) governs other crimes, wrongs, or acts evidence as follows:
[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.
A-5846-17
18
In light of its potential for prejudice, "[e]vidence relating to other crimes is
handled with particular caution." State v. Reddish, 181 N.J. 553, 608 (2004).
The concern in admitting evidence of other crimes or bad acts "is that a jury may
convict a defendant not for the offense charged, but for the extrinsic offense [,]"
State v. Garrison, 228 N.J. 182, 193-94 (2017), or "because he is 'a "bad" person
in general[,]'" Cofield, 127 N.J. at 336 (quoting State v. Gibbons, 105 N.J. 67,
77 (1987)).
Because of the dangers that admission of other crimes evidence presents,
"evidence proffered under Rule 404(b) 'must pass [a] rigorous test.'" Garrison,
228 N.J. at 194 (quoting State v. Kemp, 195 N.J. 136, 159 (2008)). Under this
test, commonly known as the Cofield test, evidence is admissible under N.J.R.E.
404(b) if the following four prongs are met:
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.
[Cofield, 127 N.J. at 338.]
A-5846-17
19
Under the first prong of the Cofield test, "[e]vidence is relevant if it tends
'to prove or disprove any fact of consequence to the determination of the
action.'" State v. Covell, 157 N.J. 554, 565 (1999) (quoting N.J.R.E. 401). To
satisfy the first prong, the offered evidence must also concern a material issue.
State v. Rose, 206 N.J. 141, 160 (2011) (quoting State v. P.S., 202 N.J. 232, 256
(2010)). An issue is material if "the matter was projected by the defense as
arguable before trial, raised by the defense at trial, or was one that t he defense
refused to concede." Ibid. (quoting P.S., 202 N.J. at 256). Identity is a material
issue when a defendant claims he was not the perpetrator of the charged crime.
See Sterling, 215 N.J. at 99; State v. Baluch, 341 N.J. Super. 141, 192 (App.
Div. 2011).
Proof of the second prong is not required in all cases, but only in those
that replicate the facts in Cofield, where "evidence of drug possession that
occurred subsequent to the drug incident that was the subject of the prosecution
was relevant to prove possession of the drugs in the charged offense." State v.
Barden, 195 N.J. 375, 389 (2008).
The third prong requires clear and convincing proof that the person against
whom the evidence is introduced actually committed the other crime or wrong.
State v. Carlucci, 217 N.J. 129, 143 (2014). "[T]he prosecution must establish
A-5846-17
20
that the act of uncharged misconduct . . . actually happened by 'clear and
convincing' evidence." Rose, 206 N.J. at 160 (quoting Cofield, 127 N.J. at 338).
Last, the fourth prong is "generally the most difficult part of the test."
Barden, 195 N.J. at 389. "Because of the damaging nature of such evidence, the
trial court must engage in a 'careful and pragmatic evaluation' of the evidence to
determine whether the probative worth of the evidence is outweighed by its
potential for undue prejudice." Ibid. (quoting State v. Stevens, 115 N.J. 289,
303 (1989)). The analysis incorporates balancing prejudice versus probative
value required by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that
the prejudice substantially outweigh the probative value of the evidence.
Reddish, 181 N.J. at 608. Rather, the risk of undue prejudice must merely
outweigh the probative value. Ibid.We review a trial court's ruling on the admissibility of other crimes,
wrongs, or bad acts evidence for abuse of discretion. Barden, 195 N.J. 390-91.
We afford great deference to the court's ruling and will reverse only where there
was a clear error of judgment. Ibid.Generally, evidence of a crime or bad act may be used to prove identity in
two situations: 1) when specific evidence derived from one offense connects
multiple offenses; or 2) when the crimes are signature crimes. Sterling, 215 N.J.
A-5846-17
21
at 92-93. For example, joinder has been permitted where police found specific
items stolen during the first burglary when they arrested defendant for the
second burglary. State v. Pierro, 355 N.J. Super. 109, 117 (App. Div. 2002).
Alternatively, courts have admitted signature-crime evidence to prove identity
when the unique nature of the crimes is clear. State v. Fortin (Fortin II), 189
N.J. 579, 594 (2007). "The conduct in question must be unusual and
distinctive," and "there must be proof of sufficient facts in both crimes to
establish an unusual pattern." Fortin, 162 N.J. at 530 (quoting State v. Reldan,
185 N.J. Super. 494, 502-03 (App. Div. 1982)). However, "[t]he standard for
admitting other-crimes evidence to prove identity becomes more stringent when
the State attempts to link a particular defendant to a crime on the basis of modus
operandi, or a signature way of committing the crime." Sterling, 215 N.J. at 93.
Here, we are convinced the trial judge mistakenly exercised her discretion
by admitting evidence of B.V.'s assault because this evidence did not satisfy the
requirements for admission under N.J.R.E. 404(b). Our concerns begin with the
third Cofield prong, which required the State prove by clear and convincing
evidence that defendant actually committed the assault of B.V. The trial judge
found the State clearly and convincingly established defendant assaulted B.V.
based on
A-5846-17
22
the totality of her testimony regarding the incident,
including her description of being stopped by a man in
a small black car asking for directions to a gas station,
followed by his exposing himself.
Her testimony in that regard was solid. She did
report the incident that day, the day it happened, and
she identified the defendant, as I said, in the lineup on
the video with 75 percent certainty. The [c]ourt is
aware from the trial that the defendant has access to a
black Honda that is registered to his wife, when the
vehicles were traced back from the lemonade stand
young lady's writing down his license plate number.
The judge, however, failed to appreciate the significance of B.V.'s
acknowledgement during the N.J.R.E. 104(c) hearing that she did not think she
could identify the perpetrator if she saw him again. Indeed, when she testified
before the jury, she was asked to "look at the photograph that you selected back
in September of 2016," and "tell us if the person in that photograph is here in
the courtroom?" B.V. responded, "No. No, I don't think he is in the courtroom."
Our Supreme Court has ruled that video evidence allegedly depicting a
defendant committing an uncharged robbery "did not satisfy the Cofield
admissibility standard that the evidence must be clear and convincing" when
"the masked robbers recorded on the videotape were unrecognizable." State v.
Darby, 174 N.J. 509, 521 (2002). This is analogous to the case under review,
where B.V. indicated she could not recognize the man who assaulted her. At
A-5846-17
23
the very least, B.V.'s admitted inability to identify her attacker seriously
undermines the trial judge's finding that the evidence defendant assaulted B.V.
was clear and convincing. Cf. State v. Angoy, 329 N.J. Super. 79, 86-87 (App.
Div. 2000) (finding "the State met the 'clear and convincing' standard" under
Cofield by presenting a witness who described the defendant's prior bad act
through testimony that was "consistent, detailed, and specific.").
B.V.'s uncertainty as to defendant's identity also implicates the first and
fourth Cofield prongs. The first prong requires the other-crimes evidence be
relevant. However, because B.V. could not identify defendant, her testimony
had little or no tendency to prove defendant's identity as the perpetrator of the
charged sexual assaults. The evidence of B.V.'s assault thus had no or minimal
probative value, which was outweighed by the prejudice inherent in other-crimes
evidence. See Darby, 174 N.J. at 521 ("The videotape was not relevant and
hence had no probative value.").
When B.V. informed the judge, outside the presence of the jury, that she
could not identify defendant, the judge should not have allowed the jury to hear
B.V.'s testimony. Permitting B.V. to testify, knowing she could not identify
defendant, constituted harmful error that compromised defendant's right to a fair
trial.
A-5846-17
24
The trial judge's reliance on Fortin I was misplaced. While Fortin I
recognized the principle that 404(b) evidence is admissible to prove identity
when the "bizarre quality of the crime is self-evident," the issue there involved
whether the comparative analysis of the "signature-crime" evidence with the
crimes set forth in the indictment required expert testimony. Fortin I, 189 N. J.
at 595-596. No such issue was presented in this case.
The trial judge also cited State v. Porambo, 266 N.J. Super. 416 (App.
Div. 1988) as providing support for her decision to allow the State to admit the
B.V. incident as part of its case. In Porambo, we found no abuse of discretion
when the trial court allowed the State to admit evidence of the defendant's
participation in another robbery to prove his identity in the crime charged in the
indictment. Id. at 423. We determined the trial judge's finding was reasonable
to warrant admission of the other robbery where the two crimes had "similar,
unusual, and distinctive features,'' such as the defendant gained entry wearing a
beard and mustache disguise and posed as a fireman in one assault and as a
policeman in the other. Id. at 423-24.
Unlike Porambo, the trial judge here found that the features characterizing
the circumstances in these incidents "may not be signature crimes."
Notwithstanding this finding, the judge nonetheless determined that the
A-5846-17
25
incidents were "unique enough'' based on ''locations,'' "vehicles" and "timings"
to suggest a "sufficiently similar" modus operandi. Because the "sufficiently
similar" standard does not reflect the heightened burden which involves a
finding of "unusual and distinctive features," the trial judge's decision to admit
the B.V. incident constituted a clear mistaken exercise of discretion.
We reject the State's argument that we find the introduction B.V.'s
testimony as other-crimes evidence amounted to harmless error. There were
inconsistencies between B.V.'s description of her assailant and the descriptions
provided by the victims of the charged assaults, most notably in terms of his
skin color; in addition, three of the victims of the charged assaults did not
identify defendant, either during the photo array identification procedure or at
trial. Defendant's identity as the perpetrator of the four charged assaults was the
major issue at trial. We therefore conclude the trial judge's error in admitting
B.V.'s testimony was a clear error of judgment that was "clearly capable of
producing an unjust result." State v. Shepard, 437 N.J. Super. 171, 188 (App.
Div. 2014) (citing R. 2:10-2).
Because we vacate defendant's conviction and sentence based on the
harmful error in admitting B.V.'s testimony under N.J.R.E. 404(b), we decline
to address defendant's remaining arguments.
A-5846-17
26
Reversed and remanded. We do not retain jurisdiction.
A-5846-17
27