State v. Bobby Perry A/K/A Bobby Penny(075114) , 225 N.J. 222 ( 2016 )

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
interest of brevity, portions of any opinion may not have been summarized.)
State v. Bobby Perry (A-34-14) (075114)
Argued January 26, 2016 – Decided May 17, 2016
SOLOMON, J., writing for a unanimous Court.
In this appeal arising from a prosecution for aggravated sexual assault, the Court considers the
admissibility, under the New Jersey Rape Shield Law, N.J.S.A. 2C:14-7, of DNA evidence from the victim’s
clothing that did not belong to defendant, which he asserted would support his defense that a third party was
responsible for the victim’s injuries.
On August 1, 2009, at approximately 10:00 p.m., the victim visited defendant, whom she had been dating
for about three weeks, at his sister’s apartment. She drank with him, his sister and others for several hours. The
others then left, leaving defendant and the victim alone, and they began to argue. During the encounters that
followed, the victim claimed that defendant assaulted her, including hitting her face and causing her to bleed, and
engaged in multiple acts of sexual contact and intercourse with her against her will. The victim further claimed that,
during one of the episodes, defendant’s sister returned home, and he told the victim to get dressed and act as though
nothing had happened. The victim complied, and the parties and defendant’s sister then gathered together and spoke
for some fifteen to twenty minutes.
When they were alone again, the victim claimed that defendant continued to engage her in sexual contact
against her will, and attempted to assault her. The victim finally left the apartment at approximately 5:00 a.m., and
called her ex-boyfriend. He picked her up and drove to a nearby police station, arriving at approximately 6:20 a.m.
The victim was transported to the hospital where she was treated for her injuries. The victim later gave a sworn
statement to the police, and identified defendant as her attacker.
Defendant was indicted for first-degree aggravated sexual assault, second-degree sexual assault, and third-
degree aggravated assault. On the eve of trial, defendant filed a Notice of Intent to Assert Evidence of Semen
Source under the Rape Shield Law to admit DNA evidence from the semen stain found on the shorts that the victim
was wearing on the night of the alleged assaults. Defendant contended that the evidence was admissible to support
his defense that the victim had consented to sexual intercourse and left the apartment uninjured, a third party --
allegedly her ex-boyfriend -- then raped and assaulted her, and she falsely accused defendant. He further argued that
admission of the DNA was not precluded by the Rape Shield Law. The trial court denied defendant’s motion,
finding that the evidence was inadmissible under the Rape Shield Law because it was not relevant to the issue of
consensual sex, and its low probative value was substantially outweighed by a danger of prejudice. The trial
proceeded, and defendant was found guilty of second-degree sexual assault and third-degree aggravated assault. He
was sentenced to imprisonment for eight years, with an eighty-five percent period of parole ineligibility.
Defendant appealed, and asserted that the trial court improperly excluded the DNA evidence, which
prevented him from presenting a complete defense. A divided Appellate Division panel reversed defendant’s
convictions, finding that the semen evidence was relevant to the third-party conduct defense that defendant had
asserted, and was admissible under the liberal approach to the admission of evidence pertaining to third-party guilt
that the courts in New Jersey have utilized. The dissent concluded that the trial court properly applied the Rape
Shield Law to exclude the DNA evidence, stating that it served only to establish that the victim engaged in sex with
an unknown third party.
The State appealed as of right under Rule 2:2-1(a)(2) based on the dissent in the Appellate Division.
HELD: The semen found on the victim’s clothing constitutes inadmissible evidence of sexual conduct under the
Rape Shield Law, and was not relevant to defendant’s defense of third-party guilt. Any probative value of the
1
evidence is substantially outweighed by its prejudicial effect.
1. When evidentiary rulings of a trial court are challenged on appeal, the appellate court should uphold the trial
court’s determination absent a showing of an abuse of discretion demonstrating a clear error of judgment. Under
this standard, an appellate court should not substitute its own judgment for that of the trial court unless the trial
court’s ruling was so wide of the mark that a manifest denial of justice occurred. (p. 13)
2. The admissibility of evidence of a victim’s prior sexual conduct is governed by the Rape Shield Law, which was
enacted to restrict a defendant’s ability to present evidence of the victim’s past sexual conduct. The Rape Shield
Law is designed to deter unscrupulous foraging for information about the victim, and does not permit the
introduction of evidence of the victim’s past sexual conduct to cast the victim as promiscuous or of low moral
character. To encourage the reporting of sexual abuse, the law assures victims that they will not be subject to
untoward invasions of privacy through excessive and collateral cross-examination of prior sexual conduct. (pp. 14-
15)
3. While protection of the victim’s privacy interests is a paramount purpose of the Rape Shield Law, the Court has
consistently refused to construe the law in a way that would impair a defendant’s constitutional right to a fair trial.
The Court has therefore departed from the literal language of the Rape Shield Law’s standard for the admissibility of
evidence of a victim’s prior sexual conduct, which requires a showing that the evidence is relevant and highly
material, and that its probative value substantially outweighs its collateral nature or prejudicial effect. Instead, the
Court has held that such evidence is subject to a two-step analysis. First, the trial court must determine whether
evidence within the scope of the Rape Shield Law is relevant and necessary to resolve a material issue in light of the
other available evidence. Second, the court must decide whether, under N.J.R.E. 403, the probative value of the
contested evidence outweighs the prejudicial effect to the victim. The determination whether evidence is admissible
under this test is inherently fact-sensitive and dependent on the particular facts of the case. (pp. 15-20)
4. In asserting that the trial court’s exclusion of the DNA evidence violated his constitutional right to a fair trial,
defendant contends that the ruling impermissibly encroached upon his ability to show third-party guilt, and thereby
deprived him of the ability to present a complete defense. A complete defense includes the right to introduce
evidence of third-party guilt if the proposed proof has a rational tendency to engender a reasonable doubt regarding
an essential element of the State’s case. A defendant cannot seek to introduce evidence of some adverse event and
leave its connection with the case to conjecture. Instead, the evidence must be capable of demonstrating some link
between the third-party evidence and the victim or the crime. (pp. 20-22)
5. The semen stain fits within the definition of sexual conduct under the Rape Shield Law. Accordingly, the
admissibility analysis turns to the two-prong test stated above. Applying the first prong of the analysis requiring
proof that the evidence is relevant, there is nothing in the record to indicate when the semen was deposited on the
victim’s clothing, and it was also never linked to the victim’s ex-boyfriend. Thus, the proffered evidence fails to
support the defense of third-party guilt, and it is irrelevant to the defense that the parties’ sexual contact was
consensual. The trial court’s exclusion of the evidence therefore did not constitute an abuse of discretion or a due
process violation. (pp. 23-28)
6. Under the second prong of the analysis, which requires that the Court weigh the probative value of the evidence
against its prejudicial effect, the minimal probative value of the evidence is outweighed by its potential for prejudice
to the victim. It would have been an unwarranted invasion into the victim’s privacy to confront her at trial with
evidence of sexual conduct with someone other than the defendant. Allowing such an examination of the victim’s
past conduct, particularly where the probative value of the evidence and its relevance to the defense is insignificant,
is the precise matter that the Rape Shield Law is intended to prevent. (pp. 28-30)
The judgment of the Appellate Division is REVERSED and defendant’s convictions are reinstated.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-34 September Term 2014
075114
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BOBBY PERRY (a/k/a BOBBY
PENNY),
Defendant-Respondent.
Argued January 26, 2016 – Decided May 17, 2016
On appeal from the Superior Court, Appellate
Division.
Sara M. Quigley, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Lawrence S. Lustberg argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Gibbons,
attorneys; Mr. Lustberg and Joseph A. Pace,
on the letter brief).
JUSTICE SOLOMON delivered the opinion of the Court.
Defendant was charged with sexually and physically
assaulting a woman he had been casually dating. Prior to trial,
defendant filed a motion under the New Jersey Rape Shield Law,
1
N.J.S.A. 2C:14-7 (Rape Shield Law), to admit DNA evidence of an
unidentified semen stain, which did not belong to defendant,
found on the shorts that the victim was wearing on the night of
the assault. Although it was never determined to whom the semen
belonged or when it was left on the victim’s shorts, defendant
argued that the evidence supported his defense that the victim
was still romantically involved with her ex-boyfriend, providing
motive for the ex-boyfriend to assault the victim and for the
victim to fabricate the charges.
The trial court denied defendant’s motion, finding that the
DNA evidence was irrelevant to defendant’s theory of third-party
guilt, precluded by the Rape Shield Law, and, in any event,
inadmissible because “the low probative value of the evidence
[wa]s substantially outweighed by a danger of prejudice.”
Following a jury trial, defendant was convicted of second-degree
sexual assault and third-degree aggravated assault.
In a split decision, the Appellate Division reversed and
remanded for a new trial, holding that the DNA evidence was
relevant to prove defendant’s theory that the victim’s ex-
boyfriend perpetrated the assault and was, therefore, admissible
because “[e]ven if there is no evidence linking another specific
suspect to the crime, ‘courts have recognized that evidence that
tends to create reasonable doubt that someone else, generically,
rather than defendant, committed the offense, is admissible.’”
2
The dissent, conversely, concluded that “the trial court
properly applied the Rape Shield Law to exclude [the DNA]
evidence proffered by defendant that served only to establish
that the victim engaged in sex with an unknown third party.”
We conclude that the semen found on the victim’s shorts
constituted inadmissible evidence of “sexual conduct” within the
meaning of the Rape Shield Law, and was not relevant to
defendant’s third-party guilt defense. We further find that any
probative value of the evidence is substantially outweighed by
its prejudicial effect. We, therefore, reverse the judgment of
the Appellate Division and reinstate defendant’s convictions.
I.
A.
The trial record reveals the following. In 2009, defendant
met and began dating Sara.1 At the time, defendant lived with
his sister, Byinnah Jones (Jones),2 in an apartment in Union
where Jones’ two children and husband also resided. Defendant
and Sara dated for about three weeks and had engaged in
consensual sex seven or eight times prior to the incident.
1 Consistent with the Appellate Division, we use a pseudonym for
the victim due to the sexual nature of the crimes.
2 Jones and defendant are not biological siblings, but refer to
each other as brother and sister.
3
On August 1, 2009, at about 10:00 p.m., Sara went to Jones’
apartment to see defendant. When she arrived at the residence,
Sara joined defendant, Jones, Jones’ husband, and Jones’ cousin
on the back sun porch. Around midnight, after being together
and drinking for a few hours, Jones and her cousin left the
apartment to attend a party. Jones’ husband and children were
asleep in the back of the apartment. Shortly after Jones and
her cousin left, defendant and Sara began arguing.
According to Sara, during the argument defendant struck her
from behind on the right side of her face with a closed fist.
After being hit, Sara fell off of the chair she was seated in
and felt her tooth become loose and her mouth fill with blood.
Defendant then grabbed Sara and pulled her into a bathroom where
she saw her bloodied face in the mirror and began to scream.
Defendant muffled and choked Sara and told her that if she did
not stop screaming, he would slam her head against the wall.
Sara complied, and defendant took her clothes off, cleaned the
blood off of her shoulders and chest, and placed her in the
shower. While in the shower, defendant repeatedly threatened to
harm her and her family if she did not comply with his
instructions. She further claimed that before permitting her to
exit the shower, defendant forced her to chug beer and other
alcohol, and digitally penetrated her vagina.
4
Defendant then forced Sara onto the sun porch, where he
inserted his penis into her vagina against her will. This
occurred for an estimated twenty to thirty minutes, and ceased
when defendant heard Jones returning to the apartment.3 He then
told Sara to put on some clothes and act like nothing happened.
Sara complied and Jones joined the pair on the porch. Sara,
defendant, and Jones spoke for about fifteen to twenty minutes
after which Jones left the room.4 Defendant then ordered Sara to
the basement where he washed her clothes and the bath mats.
While in the basement, defendant again vaginally penetrated Sara
against her will.
Following the assault in the basement, defendant brought
Sara back upstairs and directed her into the shower. This time,
according to Sara, defendant also got into the shower and
attempted to assault her once more, but she resisted and fell.
When she fell, Sara screamed and hit the side of the bathtub
with her hand. The noise apparently woke up Jones and prompted
her to knock on the bathroom door to see if everything was okay.
Defendant replied that Sara “had too much to drink” and had
“c[o]me into a spell.”
3 Sara stated that defendant was not wearing a condom during the
assault, and that she was unsure whether or not he ejaculated.
4 Jones stated that when she returned from the party she did not
notice any physical injuries on Sara’s face.
5
Sara claimed that she finally left the apartment at around
5:00 a.m. and that defendant followed her to the end of the
block. In order to get away from him, Sara hid in an opening
between a building and a yard. Once defendant left the area,
Sara called her ex-boyfriend, Hakim Wilkins (Wilkins). Wilkins,
who was aware that she had been dating defendant, picked up Sara
in his car and took her to the nearby Maplewood Police
Department, arriving at about 6:20 a.m.
At the station, Sara spoke briefly to a sergeant who
immediately took note of her facial injuries. Sara then went to
the hospital where she was examined by a sexual assault nurse
and received eleven stitches to her lip. Upon her release,
Detective Fuentes transported Sara to the Union Township Police
Department.5 Once there, Sara gave a sworn statement detailing
the events of the previous night, and identified defendant as
her attacker using a photo array.
Thereafter, Detective Fuentes and other investigators went
to Jones’ apartment and searched the back sun porch, bathroom,
and basement, but found no evidence of blood or bodily fluids,
and no evidence that anyone had tried to “clean up” the scene.
After speaking with Sara, investigators returned to Jones’
5 Once Sara told the Maplewood Police Sergeant the location of
Jones’ apartment, the Sergeant realized that the alleged
assaults occurred in the Township of Union, not Maplewood, and
notified the Union Police Department of the incident.
6
apartment the next day and found blood on the back side of a
chair on the sun porch.
The blood sample from the chair, the DNA evidence from the
sexual-assault kit, and the clothing Sara wore on the night of
the assault were tested. While no DNA matched defendant,
testing confirmed that the blood from the chair and the blood on
Sara’s t-shirt both belonged to Sara. There was no evidence of
semen from the samples taken at the hospital. The only semen
found was on Sara’s shorts and was from an unidentifiable third
party.
Defendant also gave a statement to police in which he
admitted to having sexual intercourse with Sara, but claimed
that it was consensual.6
B.
A Union County Grand Jury indicted defendant on one count
each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(3), second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1),
and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).
On the eve of trial, defendant filed a Notice of Intent to
Assert Evidence of Semen Source under the Rape Shield Law to
admit DNA evidence from the semen stain found on the shorts Sara
6 Defendant’s statement was not introduced at trial.
7
was wearing the night of the assaults. The following day, the
trial court heard argument on the motion.7
Defendant argued that the sperm found on Sara’s shorts did
not constitute inadmissible evidence of sexual conduct under the
Rape Shield Law and was admissible to support his defense that
Sara consented to sexual intercourse and left the apartment
uninjured. Defendant further asserted that the DNA evidence was
relevant to show that a third party -- allegedly Wilkins --
raped and assaulted Sara after she left Jones’ apartment and
that Sara falsely accused defendant in order to appease that
third party. Without this evidence, defendant claimed, he would
not be able to present a complete defense. The State,
conversely, argued that the Rape Shield Law precluded admission
of the DNA evidence and that evidence of unidentified semen,
without any indication that it was left on Sara’s shorts the
night of the assault, was neither relevant nor material to
whether Sara consented to having sex with defendant or to
whether her injuries occurred before or after she left Jones’
apartment.
After hearing argument and reviewing relevant case law, the
trial court determined that the Rape Shield Law prohibited the
7 The trial court also heard argument on the State’s application
to exclude evidence of Sara’s previous consensual sexual
relationship with defendant, which the court later denied.
8
admission of the semen stain because it was not relevant to
whether Sara consented to having sex with defendant, nor did it
support defendant’s third-party guilt defense. The trial court
further found that the “low probative value of the evidence
[wa]s substantially outweighed by a danger of prejudice,” and,
therefore, denied defendant’s motion.8
The case then proceeded to trial. The State called Sara,
who testified that defendant physically and sexually assaulted
her repeatedly at Jones’ apartment. Several law enforcement
officials also took the stand and testified regarding their
investigation.9 Defendant did not testify and only called one
witness, Jones, who testified that upon returning from the party
she spoke with both Sara and defendant and that Sara left the
apartment uninjured on the night of the assaults.
At the conclusion of the trial, the jury convicted
defendant of second-degree sexual assault and third-degree
aggravated assault. The jury acquitted defendant of first-
degree aggravated sexual assault. Thereafter, the trial court
sentenced defendant to concurrent terms of eight years of
8 Defendant’s emergent application to file an interlocutory
appeal from the denial of his motion to admit the DNA evidence
from the semen stain was denied by the Appellate Division.
9 Sara’s mother also testified, as did the dentist who treated
Sara for her injuries and a DNA analyst employed by the Union
County Prosecutor’s Office.
9
imprisonment for second-degree sexual assault, with an eighty-
five percent period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2(a), and three years of
imprisonment for third-degree aggravated assault. Defendant was
also sentenced to parole supervision for life, pursuant to
Megan’s Law, N.J.S.A. 2C:43-6.4.
Defendant appealed, claiming, among other things,10 that the
trial court erroneously prohibited him from admitting the
evidence of another man’s semen found on Sara’s shorts the night
of the assaults, which prevented him from presenting a complete
defense, in violation of his federal and state constitutional
rights to confrontation, compulsory process, and due process.
A divided Appellate Division panel reversed defendant’s
convictions, finding that the semen evidence was relevant to
support defendant’s assertion that Wilkins committed the
assaults and was admissible given New Jersey’s consistently
“liberal approach” to the admission of evidence pertaining to
third-party guilt. In the majority’s view, because the semen
10Defendant also claimed that: 1) the trial court erred by
allowing the admission of “improper” 404(b) evidence regarding
defendant’s alleged hatred of women and previous gang
membership; 2) the State committed prosecutorial misconduct by
purportedly “elaborating on the virtues of the victim,
disparaging the defense witness, and inflaming the passions of
the jury”; 3) the cumulative effects of the errors denied him a
fair trial; and 4) the trial court failed “to conduct a proper
weighing of the aggravating and mitigating factors” at
sentencing.
10
evidence had a “tendency to create a reasonable doubt that
[defendant] committed the crime” and could possibly “discredit[]
Sara, and show[] a possible motive [for her] to lie . . . it
meets the minimum threshold our Court has set for the admission
of [third-party guilt] evidence.”
Judge Guadagno dissented, finding that the trial court
properly applied the Rape Shield Law in ruling that the evidence
was irrelevant to whether the victim consented and, further,
provided no support for defendant’s claim of third-party guilt.
Noting that “[o]ur case law consistently rejects third-party
evidence that is based on mere conjecture[,]” Judge Guadagno
found that “[s]emen on a victim’s clothing that could have been
deposited by any of her sexual partners during the weeks or even
months prior to the incident does not, as claimed by the
majority, tend to support the assertion that someone other than
defendant committed the assault.” Moreover, according to Judge
Guadagno, the probative value of the DNA evidence was not only
“negligible and . . . substantially outweighed by its
prejudice,” but also “exactly the type of embarrassing and
unwarranted exploration of the victim’s character and conduct
that the Rape Shield Law was designed to exclude.”
The Appellate Division subsequently granted the State’s
motion to stay the judgment. Based on the dissent, the State
appealed to this Court as of right. R. 2:2-1(a)(2).
11
C.
The State argues that the trial court properly excluded,
under the Rape Shield Law, the DNA evidence from the semen stain
because it was not relevant to whether Sara and defendant
engaged in consensual sexual intercourse on the night of the
assaults or supportive of defendant’s third-party guilt defense.
Here, because the semen was not linked to the third party –-
Wilkins -- and there was no evidence that it was left on the
victim’s shorts at or near the time of the crime, the State
asserts that the evidence shows only that the victim had a
sexual encounter with an unidentified person at some unspecified
time, “leaving its connection to the crime as mere conjecture.”
Defendant maintains that the trial court prevented him from
presenting a complete defense by improperly excluding evidence
relevant to third-party guilt. According to defendant, the
Appellate Division correctly held that the DNA evidence of the
semen stain was admissible because it was relevant to his theory
that Wilkins assaulted Sara on the night in question and that
Sara was motivated to fabricate the charges against defendant in
order to protect her relationship with Wilkins.
Amicus Association of Criminal Defense Lawyers of New
Jersey (ACDL-NJ) argues that the Rape Shield Law does not
mandate exclusion of evidence of past sexual conduct introduced
to establish third-party guilt. ACDL-NJ contends that the
12
Appellate Division correctly held that a semen stain on the
victim’s shorts, introduced to show that she was in a
relationship with another man and therefore had a motive to lie
about being assaulted by defendant, was sufficiently probative
to require admission under the Confrontation and Compulsory
Process Clauses.
II.
A.
We begin by acknowledging our deferential standard for
reviewing a trial court’s evidentiary rulings, which should be
upheld “‘absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment.’” State v. Brown, 170 N.J.
138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). An appellate court applying this standard should not
substitute its own judgment for that of the trial court, unless
“the trial court’s ruling ‘was so wide of the mark that a
manifest denial of justice resulted.’” Marrero, supra, 148 N.J.
at 484 (quoting State v. Kelly, 97 N.J. 178, 216 (1984)); see
also State v. J.A.C., 210 N.J. 281, 295 (2012). That standard
governs our instant analysis of whether the trial court erred in
excluding evidence of the semen stain on Sara’s shorts pursuant
to the Rape Shield Law and, thereby, deprived defendant of
“[t]he constitutional right to present a defense . . . that
someone else committed the crime.” State v. Fortin, 178 N.J.
13
540, 590 (2004) (citing State v. Jimenez, 175 N.J. 475, 486
(2003), and State v. Koedatich, 112 N.J. 225, 297 (1988), cert.
denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803
(1989)).
The introduction of evidence of a victim’s prior sexual
conduct is governed by New Jersey’s Rape Shield Law, N.J.S.A.
2C:14-7, which was enacted in 1978 to “place[ ] restrictions on
a defendant’s ability to introduce evidence of the rape victim’s
past sexual conduct.” Assembly Judiciary, Law and Public Safety
Committee, Statement to Assembly Bill No. 677, at 1 (Jan. 20,
1994), reprinted in N.J.S.A. 2C:14-7 (2005). In this way, the
Rape Shield Law “is designed ‘to deter the unwarranted and
unscrupulous foraging for character-assassination information
about the victim’ and ‘does not permit introduction of evidence
of the victim’s past sexual conduct to cast the victim as
promiscuous or of low moral character.’” State v. Schnabel, 196
N.J. 116, 128 (2008) (quoting 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 Rape Shield Law defines “sexual conduct” as “any
conduct or behavior relating to sexual activities of the victim,
including but not limited to previous or subsequent experience
of sexual penetration or sexual contact, use of contraceptives,
sexual activities reflected in gynecological records, living
14
arrangement and life style.” N.J.S.A. 2C:14-7(f). Thus, in
order “to encourage the reporting of sexual abuse by assuring
victims that they will not be subject to untoward invasions of
privacy through excessive and collateral cross-examination of
their prior sexual conduct,” Garron, supra, 177 N.J. at 165, the
Rape Shield Law proscribes that such evidence is admissible only
if it is “relevant and highly material, meets the requirements
of subsections (c) and (d) of [the statute],” and its probative
value “substantially outweighs its collateral nature or the
probability that its admission will create undue prejudice,
confusion of the issues, or unwarranted invasion of the privacy
of the victim.” N.J.S.A. 2C:14-7(a).11 Under N.J.S.A. 2C:14-
7(c) and (d), evidence of past sexual conduct is only relevant
if “it is material to proving the source of semen, pregnancy or
disease[,]” N.J.S.A. 2C:14-7(c), or “if it is probative of
whether a reasonable person, knowing what the defendant knew at
the time of the alleged offense, would have believed that the
alleged victim freely and affirmatively” consented. N.J.S.A.
2C:14-7(d).12
11This statutory standard was later modified by Budis and
Garron, as will be seen.
12These examples of relevance under the Rape Shield Law are
illustrative not exhaustive. State v. Scherzer, 301 N.J. Super.
363, 412 (App. Div.), certif. denied, 151 N.J. 466 (1997).
15
While the protection of the “privacy interests of the
victim” is certainly paramount to its purpose, the Rape Shield
Law also aims to “‘ensur[e] a fair determination of the issues
bearing on the guilt or innocence of the defendant.’” State v.
P.S., 202 N.J. 232, 261 (2010) (quoting Garron, supra, 177 N.J.
at 165). As such, we have consistently refused to construe the
Rape Shield Law in a way that would impinge on a defendant’s
constitutional right to a fair trial. This right includes “a
meaningful opportunity to present a complete defense” as well as
a defendant’s right to confront the witnesses against him and to
have compulsory process for obtaining witnesses in his favor.
See J.A.C., supra, 210 N.J. at 298 (noting that “the
constitutional rights of confrontation and compulsory process
have long been recognized as essential to the due process right
to a fair opportunity to defend against the State’s accusations,
and thus [are] among the minimum essentials of a fair trial”);
Garron, supra, 177 N.J. at 168-69 (same); see also State v.
Budis, 125 N.J. 519, 530-31 (1991).
In Budis and Garron we addressed “the tension between [a]
defendant’s right to confrontation and the compulsory process of
witnesses, and the victim’s right to be free from an unnecessary
invasion of her privacy” under the Rape Shield Law. Garron,
supra, 177 N.J. at 153; Budis, supra, 125 N.J. at 531. In
Budis, we instructed that “[b]ecause confrontation is
16
fundamental to a fair trial, . . . its ‘denial or significant
diminution calls into question the ultimate integrity of the
fact finding process and requires that the competing interests
be closely examined.’” Budis, supra, 125 N.J. at 532 (citing
Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038,
1046, 35 L. Ed. 2d 297, 309 (1986)). Therefore, to ensure that
application of the Rape Shield Law does not unduly trample on a
criminal defendant’s constitutional rights to confrontation and
compulsory process, this Court in Budis “departed from the
literal language of N.J.S.A. 2C:14-7(a), which requires evidence
of a victim’s previous sexual conduct to be ‘relevant and highly
material,’ and to have probative value that ‘substantially
outweighs’ its collateral nature or prejudicial effect.”
J.A.C., supra, 210 N.J. at 298. Instead, we held in Budis that
such evidence should be admitted if it is “‘relevant to the
defense . . . [and] its probative value outweighs its
prejudicial effect.’” Ibid. (quoting Budis, supra, 125 N.J. at
532).
In Garron, we revisited “the constitutional standard
enunciated in Budis” and, again, emphasized the need to
“construe the [Rape Shield Law] so that its reach does not
exceed constitutional limits.” Garron, supra, 177 N.J. at 172.
In doing so, “[w]e reaffirm[ed] the test in Budis that evidence
relevant to the defense that has probative value outweighing its
17
prejudicial effect must be placed before the trier of fact”13 and
that “evidence that is relevant and necessary to prove the
defense of consent is not excluded under the [Rape Shield Law].”
Id. at 172-73.
Thus, under our case law interpreting the Rape Shield Law,
determining the admissibility of evidence of a victim’s prior
sexual conduct requires a two-step analysis. Garron, supra, 177
N.J. at 172-73; Budis, supra, 125 N.J. at 532-34. The first
step requires the trial court to ascertain whether evidence
encompassed under the Rape Shield Law is relevant and necessary
to resolve a material issue in light of the other evidence that
is available to address that issue. J.A.C., supra, 210 N.J. at
299; Budis, supra, 125 N.J. at 532. “Relevant evidence” is
defined by N.J.R.E. 401 as “‘evidence having a tendency in
reason to prove or disprove any fact of consequence to the
determination of the action.’” State v. Jenewicz, 193 N.J. 440,
457 (2008) (quoting N.J.R.E. 401). This determination focuses
on “‘the logical connection between the proffered evidence and a
fact in issue.’” Schnabel, supra, 196 N.J. at 130-31 (quoting
State v. Williams, 190 N.J. 114, 123 (2007)).
13This test is nearly identical to the analysis trial courts
employ when determining the admissibility of evidence,
generally, under our evidentiary rules. See N.J.R.E. 403.
18
If found to be relevant, the court must then, as the second
step, decide whether, under N.J.R.E. 403, the probative value of
the contested evidence outweighs the prejudicial effect to the
victim in the context of the Rape Shield Law. Budis, supra, 125
N.J. at 532. Generally, the “probative value” of evidence is
determined by “its tendency to establish the proposition that it
is offered to prove.” Garron, supra, 177 N.J. at 167 n.2
(citing State v. Wilson, 135 N.J. 4, 13 (1994)). Under the Rape
Shield Law, the probative value of a victim’s prior sexual
conduct “‘depends on clear proof that [the conduct] occurred,
that [it is] relevant to a material issue in the case, and that
[it is] necessary to a defense.’” J.A.C., supra, 210 N.J. at
300 (quoting Budis, supra, 125 N.J. at 533).
The prejudice contemplated by the Rape Shield Law includes
the trauma to the victim, the degree to which the evidence
sought to be admitted would invade the victim’s privacy, the
“impact of a given ruling on a victim reporting sexual abuse,”
as well as the need to guard victims from excessive cross-
examination and prevent undue jury confusion. Ibid. Given that
a “trial court must weigh the relevance of the proffered
evidence, its necessity to the defense, and its apparent
veracity against its potential to humiliate the victim, invade
her privacy, and confuse the jury[,]” State v. J.D., 211 N.J.
344, 358 (2012), “[t]here is . . . substantial overlap between
19
the relevancy determination [called for] in the first step of
the [analysis], and the measure of the ‘probative value’ for
purposes of the second step.” J.A.C., supra, 210 N.J. at 300.
The determination of whether evidence of a victim’s prior
sexual conduct is admissible “is exquisitely fact-sensitive” and
“depends on the facts of each case.” J.D., supra, 211 N.J. at
358 (citation and quotation marks omitted); see also Budis,
supra, 125 N.J. at 533. When evidence of prior sexual conduct
satisfies the two-step analysis set forth in Budis and Garron,
it is admissible and courts are required to “impose case-
specific parameters, where appropriate, to any such evidence
admitted.” J.A.C., supra, 210 N.J. at 301.
B.
Because defendant claims that the trial court’s exclusion
of the DNA evidence impermissibly encroached upon the
presentation of his theory of third-party guilt and thereby
deprived him of “a meaningful opportunity to present a complete
defense,” a brief review of our jurisprudence surrounding third-
party guilt is instructive.
We have long recognized that “by implication, a complete
defense includes a criminal defendant’s right to introduce
evidence of third-party guilt ‘if the proof offered has a
rational tendency to engender a reasonable doubt with respect to
an essential feature of the State’s case.’” State v. Cotto, 182
20
N.J. 316, 332 (2005) (quoting Fortin, supra, 178 N.J. at 591);
see also State v. Sturdivant, 31 N.J. 165, 179 (1959), cert.
denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).
“That standard does not require a defendant to provide evidence
that substantially proves the guilt of another, but to provide
evidence that creates the possibility of reasonable doubt.”
Cotto, supra, 182 N.J. at 332 (citing Fortin, supra, 178 N.J. at
591). Indeed, even if there is no evidence linking another
specific suspect to the crime, we “have recognized that evidence
that tends to create reasonable doubt that someone else,
generically, rather than defendant, committed the offense, is
admissible.” State v. Loftin, 146 N.J. 295, 345 (1996) (citing
State v. Jorgensen, 241 N.J. Super. 345, 351 (App. Div.),
certif. denied, 122 N.J. 386 (1990)).
The concern, of course, is “the ease in which unsupported
claims may infect the process.” Ibid. As such, a defendant
cannot simply seek to introduce evidence of some hostile or
indecent event and “leave its connection with the case to mere
conjecture.” Sturdivant, supra, 31 N.J. at 179. Rather, the
evidence a defendant seeks to admit in support of a third-party
guilt defense must be capable of demonstrating “some link
between the [third-party] evidence and the victim or the crime.”
Koedatich, supra, 112 N.J. at 301; see also Sturdivant, supra,
31 N.J. at 179 (“Somewhere in the total circumstances there must
21
be some thread capable of inducing reasonable men to regard the
event as bearing upon the State’s case.”). The decision to
admit or exclude evidence of third-party guilt is “particularly
fact-sensitive” and rests within the trial court’s discretion.
Loftin, supra, 146 N.J. at 345 (quoting Koedatich, supra, 112
N.J. at 300); see also Cotto, supra, 182 N.J. at 333.
III.
A.
With these standards in mind, we must determine whether the
evidence in this case that defendant sought to be admitted,
notwithstanding the Rape Shield Law, was relevant to defendant’s
third-party guilt defense, and if so, whether its probative
value outweighed its prejudicial effect. In making this
determination, we are mindful of both the underlying purpose of
the Rape Shield Law and the deferential standard by which we
review a trial court’s evidentiary rulings. See J.A.C., supra,
210 N.J. at 301 (“We review the trial court’s evidentiary
ruling, entitled to substantial deference under the ‘abuse of
discretion’ standard of review, in light of the Legislature’s
objective in enacting N.J.S.A. 2C:14-7 and this Court’s
construction of the statute.”).
Here, the trial court denied defendant’s motion to admit
the DNA evidence of the semen stain, finding that it was
irrelevant to prove consent, which was the material issue in
22
this case, and did not support defendant’s theory of third-party
guilt. The trial court further found that the low probative
value of the evidence was outweighed by the danger of prejudice.
On appeal, the Appellate Division held that the trial court
erred in excluding the unidentified semen evidence because it
was relevant to prove defendant’s theory of third-party guilt.
We disagree.
Our inquiry begins by determining whether the semen stain
constitutes “sexual conduct” under the Rape Shield Law.
N.J.S.A. 2C:14-7(f) broadly defines “sexual conduct” as “any
conduct or behavior relating to sexual activities of the victim,
including but not limited to previous or subsequent experience
of sexual penetration or sexual contact . . . .” Here, evidence
of semen found on the victim from an unidentified third party
fits squarely within that broad definition. Accordingly, we
must turn to the two-pronged analysis for determining the
admissibility of evidence of prior sexual conduct set forth in
Budis, supra, 125 N.J. at 532-34, and Garron, supra, 177 N.J. at
172-73.
As stated above, the first step of that analysis requires
the trial court to determine whether evidence covered by the
Rape Shield Law is relevant and necessary to resolve a material
issue, taking into account the other evidence that is available
to address that issue. J.A.C., supra, 210 N.J. at 299; Budis,
23
supra, 125 N.J. at 532. Defendant contends here, and maintained
at trial, that evidence of an unknown man’s semen deposited on
Sara’s shorts was relevant to support his theory that Sara was
assaulted by her ex-boyfriend, Wilkins, and that she fabricated
the charges against defendant in order to appease Wilkins, to
whom she was “romantically linked.” To support this theory,
defendant relies, in part, upon the undisputed fact that Sara
left defendant around 5 a.m., did not arrive at the police
station, located a few blocks away, until approximately 6:20
a.m., and was unable to explain what occurred during this period
of time. In addition, defendant points out that he presented a
witness, Jones, who testified that she did not see any physical
injuries on Sara when Sara left the apartment on the night in
question.
At trial, defense counsel cross-examined Sara extensively
about her relationship with Wilkins and about the gap in time
between when she left Jones’ apartment and arrived at the police
station. In response, Sara testified that she had been talking
to Wilkins “[o]ff and on” and that he was a “prior boyfriend”
who was “dating someone else” at the time of the sexual assault.
Sara also acknowledged that Wilkins was the only person who
could corroborate that she was injured when she left defendant’s
apartment. On redirect, Sara insisted she did not have any
romantic feelings towards Wilkins at the time, but admitted that
24
even though she and Wilkins had broken up, “he was still [her]
best friend.” Additionally, defense counsel was able to elicit
from Sara’s mother that Wilkins and Sara had resumed their
relationship by the time of trial. All of this evidence was
relevant to defendant’s third-party guilt defense. Indeed, it
linked Wilkins to the assaults in both time and place –-
according to Sara’s own testimony, Wilkins was at or near the
scene of the assaults when he picked Sara up by Jones’ apartment
and was the only person with Sara between the time of the
incident and her reporting of the assaults to police. The same
cannot be said for the DNA evidence of the semen stain.
Significantly, the semen found on Sara’s shorts was never
linked to Wilkins, the alleged third party. Moreover, there is
nothing in the record to indicate when the semen was deposited
onto Sara’s shorts; it may have been left weeks or months before
the sexual assault that is the subject of this appeal. In
essence, all the contested evidence shows is that some unknown
individual engaged in a sexual act with Sara at some unknown
time. As Judge Guadagno stated in his dissent here, we fail to
see how “[s]emen on a victim’s clothing that could have been
deposited by any of her sexual partners during the weeks or even
months prior to the incident [tends to support] . . . the
assertion that someone other than defendant committed the
assault.” Surely, without proof that the semen is in any way
25
related to the crime here, the DNA evidence of the semen stain
on Sara’s shorts was not relevant to the issue the jury had to
decide –- namely, whether Sara was raped and assaulted by
defendant or whether she consented to having sex with defendant
and was later assaulted by Wilkins. See Schnabel, supra, 196
N.J. at 130 (stating that relevancy analysis focuses on “the
logical connection between the proffered evidence and a fact in
issue”). Thus, because the existence of the semen stain on
Sara’s shorts has no “tendency in reason to prove or disprove
any fact of consequence” in the case at bar, N.J.R.E. 401, it
was inadmissible under the N.J.R.E. 401 relevancy standard at
the heart of the first prong of the Garron/Budis analysis. See
Garron, supra, 177 N.J. at 176.
Nor do we agree with the Appellate Division majority’s
conclusion that the unidentified semen stain “had a rational
tendency to engender a reasonable doubt with respect to an
essential feature of the State’s case,” Loftin, supra, 146 N.J.
at 345, and was thus admissible under our “liberal approach” on
the admission of evidence pertaining to third-party guilt.
Testimony concerning third-party guilt is not admissible unless
there is evidence linking a third party to the crime. Ibid. In
other words, we will not upend a trial court’s decision to
exclude purported third-party guilt evidence when, as here, the
evidence proffered did no more than “prove some hostile event
26
and [left] its connection with the case to mere conjecture.”
Koedatich, supra, 112 N.J. at 301 (citation omitted). Indeed,
it bears repeating that the semen had no apparent connection to
this case other than the fact that the victim was wearing those
shorts on the night of the incident.
While defendant maintains that “[e]vidence that Sara and
Wilkins [were romantically linked and] had sex within a
considerable window of time prior to the incident would have
been relevant to Sara’s motive to fabricate the charges, and to
Wilkins’ motive to assault Sara,” there is no evidence of record
that the semen stain is connected to the time period in
question, or the alleged third party, Wilkins. Thus, the
proffered evidence was irrelevant to defendant’s consent
defense, fails to support the defense of third-party guilt, and
was, therefore, properly excluded. See Fortin, supra, 178 N.J.
at 598 (“Reasonable doubt cannot arise from pure conjecture.”);
see also Koedatich, supra, 112 N.J. at 305 (finding that it is
insufficient for defendant’s proffered evidence of third-party
guilt to simply advance “possible ground of suspicion against
another person”).
In sum, because the evidence was not relevant to whether
Sara consented to have sex with defendant, or whether a third
party perpetrated the assaults, it follows that it was not
“necessary to a fair determination of the issues” and, thus, its
27
exclusion by the trial court did not amount to an abuse of
discretion or a due process violation. Garron, supra, 177 N.J.
at 171.
B.
For the sake of completeness, we will briefly discuss the
second prong of the analysis set forth in Budis and Garron,
which requires the trial court to weigh the probative value of
the contested evidence against its prejudicial impact. Here,
the trial court found that, notwithstanding the irrelevancy of
the semen evidence to the defense, “the low probative value of
the evidence is substantially outweighed by a danger of
prejudice.” The Appellate Division, conversely, determined that
the evidence of another man’s semen on Sara’s shorts has a
tendency to establish that someone else committed the assault,
and if offered for that limited purpose, the likelihood of
prejudice to the victim is outweighed by its probative value.
Again, we disagree.
First, as previously discussed, the mere existence of a
semen stain on Sara’s shorts, without proof of when it was
deposited or who deposited it, is irrelevant to the issue of
consent and insufficient to support defendant’s third-party
guilt defense. See J.A.C., supra, 210 N.J. at 300 (noting that
“[t]he probative value of sexual conduct covered by N.J.S.A.
2C:14-7 ‘depends on clear proof that [the conduct] occurred,
28
that [it is] relevant to a material issue in the case, and that
[it is] necessary to a defense’” (quoting Budis, supra, 125 N.J.
at 533)); see also Garron, supra, 177 N.J. at 167 n.2
(reaffirming that the “probative value” of evidence is “its
tendency to establish the proposition that it is offered to
prove” (citing Wilson, supra, 135 N.J. at 13)).
Moreover, it would have been an unwarranted invasion into
Sara’s privacy to confront her at trial with evidence of sexual
conduct with someone other than defendant. Indeed, a ruling
permitting examination of the existence of semen on Sara’s
shorts would inevitably have led to an impermissible inquiry
into Sara’s sexual encounters with an unknown third party.
Allowing such free examination into Sara’s past, especially
where the probative value of the evidence and its relevancy to
the defense is so insignificant, is precisely what the Rape
Shield Law sought to prevent as it would have effectively put
Sara on trial and diverted the jury’s attention from the conduct
at issue in this case. See Statement to Assembly Bill No. 677,
supra, at 1 (“It is in the public interest to protect the
privacy of the victim, as opposed to allowing the defendant to
freely examine the victim’s past when the examination serves no
material or relevant evidentiary or constitutional purpose.”);
see also J.A.C., supra, 210 N.J. at 297 (“It is clear from this
series of amendments progressively strengthening N.J.S.A. 2C:14-
29
7, that the Legislature’s policy is to direct the focus of
sexual assault trials toward the alleged crime, and away from
the lifestyle of the victim.”); see also Garron, supra, 177 N.J.
at 165 (“The [Rape] Shield [Law] is intended to deter the
unwarranted and unscrupulous foraging for character-
assassination information about the victim. The Statute does
not permit introduction of evidence of the victim’s past sexual
conduct to cast the victim as promiscuous or of low moral
character.”).
Accordingly, we find the trial court’s determination that
the minimal probative value of the evidence was significantly
outweighed by its potential for prejudice is in line with the
Legislature’s intent in enacting the Rape Shield Law, and proper
under the second prong of the Budis/Garron analysis.
IV.
The judgment of the Appellate Division is reversed and
defendant’s convictions are reinstated.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA did not participate.
30
SUPREME COURT OF NEW JERSEY
NO. A-34 SEPTEMBER TERM 2014
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BOBBY PERRY (a/k/a BOBBY PENNY),
Defendant-Respondent.
DECIDED May 17, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
CHECKLIST REVERSED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6