State v. Carl J. Garrison(076537) , 228 N.J. 182 ( 2017 )

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. Carl J. Garrison (A-38-15) (076537)
Argued October 27, 2016 -- Decided March 20, 2017
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court considers whether the admission into evidence of an uncharged incident—a strip
poker game that took place in another state—constituted error.
A Gloucester County grand jury indicted defendant Carl Garrison on several counts of child sexual abuse.
The charges stemmed from allegations of abuse against his girlfriend’s daughter, Joan. (In order to protect the
confidentiality of the juvenile victim in this case, the Court uses fictitious names to refer to the minor and her
relatives.) Joan testified that defendant abused her throughout the summer of 2010, when she was eleven years old,
both in Alabama and New Jersey.
Prior to trial, defendant moved to exclude evidence of events that took place in Alabama, including a strip
poker game, as inadmissible other-crimes evidence under N.J.R.E. 404(b). The trial court found that the evidence of
what occurred in Alabama was admissible not as other-crimes evidence, but as intrinsic evidence of the charged
crimes under State v. Rose, 206 N.J. 141 (2011). The court provided limiting instructions to the jury at the time the
evidence was introduced and in the final charge to the jury.
During the trial, the State also presented an expert witness, Dr. Mary Theresa Baker, who testified with
regard to the physical characteristics child-abuse victims may exhibit. Dr. Baker examined Joan and found no
evidence of physical abuse. As part of her testimony, Dr. Baker stated that “[o]verall, 95 to 96 percent of children,
who give a credible disclosure of sexual contact, have a normal or non-specific exam.”
The jury subsequently convicted defendant of three counts of first-degree aggravated sexual assault, two
counts of second-degree sexual assault, and one count of third-degree endangering the welfare of a child. Defendant
received an aggregate sentence of fifty-two years in prison, with an eighty-five percent period of parole ineligibility.
Defendant appealed, arguing that evidence of the strip poker game was improperly admitted. Although not
raised below, defendant also contended that the admission of Dr. Baker’s statistics-based testimony was error. The
Appellate Division reversed defendant’s convictions and remanded for a new trial. The panel rejected the State’s
contention that evidence of the strip poker game was intrinsic to the crimes charged and determined that this
evidence should have been evaluated under N.J.R.E. 404(b). The Appellate Division then concluded that the strip
poker evidence failed to satisfy Rule 404(b) and that its admission was not harmless error. In a footnote, the panel
agreed that Dr. Baker’s testimony amounted to an improper opinion of Joan’s credibility and constituted plain error.
The Court granted the State’s petition for certification. 223 N.J. 558 (2015).
HELD: The evidence of the strip poker game meets the rigorous test set forth in State v. Cofield, 127 N.J. 328 (1992),
and therefore was admissible under Rule 404(b). The evidence was properly admitted at trial with an appropriate
limiting instruction.
1. In order to minimize the dangers presented by other-crimes evidence, the Court has insisted that evidence
proffered under Rule 404(b) must pass a rigorous test, set forth in State v. Cofield: (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. (pp. 12-13)
2. Under the first prong of the Cofield test, the strip poker game has direct relevance “to a material issue in dispute.”
A linchpin of the defense’s theory of the case was that any inappropriate actions originated with Joan. Defendant
repeatedly denied wrongdoing, and, at trial, portrayed Joan as “the aggressor.” The testimony that defendant
initiated the strip poker game enables the jury to better weigh defendant’s assertions. Thus, the testimonial evidence
of the strip poker game is relevant because it tends “to prove or disprove” whether any inappropriate action
originated with Joan. Moreover, the strip poker game is admissible against defendant under Rule 404(b) as evidence
of his plan to further desensitize Joan to sexual conduct so that he could continue to abuse her. (pp. 13-16)
3. The strip poker evidence satisfies the second prong of the Cofield test. Defendant is hard-pressed to contest the
close temporal relationship between the strip poker game and the sexual assaults with which he was charged. (p. 17)
4. Under the third prong of the Cofield framework, evidence of the other crime must be clear and convincing. Here,
it is undisputed that defendant played strip poker with Joan and her sister. Although the precise details of the
incident, including which articles of clothing were removed and who initiated the game, were subject to dispute, the
evidence that defendant played strip poker with the girls was beyond clear and convincing. (pp. 17-18)
5. Finally, the Court considers whether the probative value of the strip poker evidence is outweighed by its apparent
prejudice. The probative value of the evidence is high because it provided the jury with evidence of a continuous
course of conduct concerning defendant’s abuse of Joan throughout the summer. Moreover, evidence of the strip
poker game was just one of many incidents the jury heard about. The jury also heard detailed testimony regarding
numerous sexual acts, including Joan’s testimony that she had sex with defendant on several occasions in New
Jersey and in Alabama. In the context of the record as a whole, it is unlikely the strip poker evidence had “a
probable capacity to divert the minds of the jurors” when far more prejudicial evidence was presented. (pp. 18-21)
6. Having determined that the evidence of the strip poker game satisfies each of the four prongs of the Cofield test,
the Court considers whether its admission was accompanied by a sufficient limiting instruction. Immediately after
Joan testified, the court instructed the jury that the evidence of conduct that occurred in Alabama was to be “used
only with regard to the charges that have been indicted in New Jersey” and that they were “not to speculate as to
whether this conduct resulted in any charges in Alabama.” In its final charge, the court also provided a limiting
instruction to the jury. Although that instruction did not specifically address the strip poker game or the sexual
assaults in Alabama, the court instructed the jury that it was not to use the testimony it heard about defendant’s other
criminal conduct for propensity purposes. When viewed as a whole, it cannot be said that the challenged instruction
is “of such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2. The essential
principle—that the jury could not use the strip poker game for propensity purposes—was adequately communicated
to the jury even if the trial court in its final charge did not refer specifically to the Alabama evidence. Therefore, the
404(b) evidence was properly admitted with an appropriate limiting instruction. Because the Court concludes that
evidence of the strip poker game is admissible under the rigorous standard of Rule 404(b), it does not address the
State’s arguments regarding intrinsic evidence. (pp. 21-24)
7. The Court notes the testimony of Dr. Baker—that “[o]verall, 95 to 96 percent of children, who give a credible
disclosure of sexual contact, have a normal or non-specific exam”—and finds the comment problematic. However,
the error does not mandate reversal. Because defendant did not object or raise the issue during trial, the Court
evaluates his arguments under a plain-error standard of review. Dr. Baker’s stray remark, to which defendant did
not object at trial, did not enable the jury to reach a result that it otherwise might not have reached. (pp. 24-27)
The judgment of the Appellate Division is REVERSED, and defendant’s convictions are REINSTATED.
The matter is REMANDED to the Appellate Division for consideration of the issue not addressed by that court
concerning defendant’s sentence.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON,
and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-38 September Term 2015
076537
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CARL J. GARRISON,
Defendant-Respondent.
Argued October 27, 2016 – Decided March 20, 2017
On certification to the Superior Court,
Appellate Division.
Sarah E. Ross, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General of New Jersey,
attorney).
Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, we consider whether the admission into
evidence of an uncharged incident constituted error. Prior to
his trial on several counts of child sexual abuse, defendant
Carl J. Garrison moved to exclude evidence of events, including
a strip poker game, that took place in another state as
inadmissible other-crimes evidence under N.J.R.E. 404(b). The
trial court found that the evidence of what occurred in the
1
other state was admissible not as other-crimes evidence, but as
intrinsic evidence of the charged crimes under State v. Rose,
206 N.J. 141 (2011). Defendant was subsequently convicted on
three counts of first-degree aggravated sexual assault, two
counts of second-degree sexual assault, and one count of third-
degree endangering the welfare of a child.
On appeal, the Appellate Division reversed defendant’s
convictions and remanded for a new trial. The panel concluded
that the evidence of the strip poker game was not admissible
under Rule 404(b) or as intrinsic evidence under Rose.
For the reasons set forth in this opinion, we hold that the
evidence was admissible under Rule 404(b). Accordingly, we
reverse the judgment of the Appellate Division and reinstate
defendant’s convictions without reaching the question of whether
the strip poker game is intrinsic to the crimes charged.
I.
A.
In the summer of 2010, defendant Carl J. Garrison, then
fifty-three years old, dated Harriet and often stayed at her
home in New Jersey, where she lived with her two daughters, Joan
and Nancy.1 That summer, defendant, Harriet, Joan, and Nancy
1 In order to protect the confidentiality of the juvenile victim
in this case, we use fictitious names to refer to the minor and
her relatives. In the interest of consistency, we use the same
fictitious names used by the Appellate Division.
2
also stayed in Alabama for several weeks. Joan, who was eleven
years old in Summer 2010, testified that defendant abused her
throughout the summer, both in Alabama and New Jersey.
Joan testified that the abuse started in June 2010, shortly
after she finished fifth grade. The first incident occurred
while she was watching a television show on defendant’s
computer. Defendant put his hands down Joan’s pants, digitally
penetrated her vagina, and touched her breasts with his hands
and mouth.
In the ensuing weeks, defendant exposed himself to Joan,
showed her pornography on his computer, and digitally penetrated
her anus. Defendant had oral and vaginal intercourse with Joan
multiple times in both New Jersey and Alabama. Joan stated
that, over the course of the summer, defendant had intercourse
with her “around eight or more times.” On one occasion, Nancy,
who was nine years old at the time, saw her sister washing
defendant’s penis with a washcloth after intercourse.
In July 2010, while in Alabama, defendant played strip
poker with Joan and Nancy. The girls testified that they were
playing together when defendant approached them and told them
about strip poker. Nancy was asked twice whose idea it was to
play strip poker and both times replied, “Carl Garrison’s.”
According to defendant, they were just playing cards and the
game moved to strip poker at Joan’s suggestion. Defendant
3
testified that he took off his shirt and pants and was in his
underwear. When asked whether Joan and Nancy stripped to their
underwear, defendant replied: “No. They stripped to their
bras. Yeah, their bras, underwear. They didn’t take –- I’m not
sure if they took their pants off or not. I don’t think they
did. So it was -– it wasn’t nothing major.” Nancy testified
that she and Joan took their pants and shirts off and only had
on panties at one point. She also stated that defendant took
off his underwear and was naked with his penis exposed.
Defendant’s abuse of Joan continued once they returned to
New Jersey. Joan testified that the abuse ceased in September,
before school started. During the course of the abuse,
defendant told Joan not to tell anyone about it because it would
ruin his relationship with her mother and he would go to prison.
In September 2010, the Division of Child Protection and
Permanency2 (Division) removed Joan and Nancy from their mother’s
custody due to defendant’s involvement in an unrelated assault.
The Division placed the girls with their father, Sam, in
December 2010. In Spring 2011, after several months of living
with Sam, Joan and Nancy approached their father to discuss
2 At the time of these events, the Division of Child Protection
and Permanency was named the Division of Youth and Family Services.
L. 2012, c. 16. For ease of reference, we refer to the agency by
its current name.
4
Garrison and the assaults he had committed on Joan. The girls
disclosed the abuse gradually, at the urging of Nancy.
Sam reported the abuse during a court appearance to settle
child support issues in May 2011, after which the police took
statements from Sam, Joan, and Nancy. The police then asked
defendant to come to the Monroe Township Police Department,
which he did voluntarily. There, he denied the sexual assaults
but admitted that he had played strip poker with the girls while
they were in Alabama.
B.
In November 2011, a Gloucester County grand jury indicted
defendant on four counts of first-degree aggravated sexual
assault of a victim less than thirteen, contrary to N.J.S.A.
2C:14-2(a)(1); two counts of second-degree sexual assault of a
victim less than thirteen, with the actor at least four years
older than the victim, contrary to N.J.S.A. 2C:14-2(b); four
counts of second-degree sexual assault by force or coercion,
contrary to N.J.S.A. 2C:14-2(c)(1); and one count of third-
degree endangering the welfare of a child, contrary to N.J.S.A.
2C:24-4(a).
Prior to trial, defendant moved to exclude evidence of the
events in Alabama, including the strip poker game, as
inadmissible other-crimes evidence. In denying defendant’s
motion, the trial court concluded that evidence of what occurred
5
in Alabama was admissible not as other-crimes evidence subject
to N.J.R.E. 404(b), but as intrinsic evidence of the charged
crimes under Rose, supra, 206 N.J. at 141. The trial court
found that the “strong probative value” of the evidence
outweighed its prejudicial effect because it was “part of the
entire story.”
The court provided the following instruction to the jury at
the time this evidence was introduced:
You are to consider this evidence, along with
all other evidence, in determining whether the
[d]efendant is guilty or not guilty of the
charges stated in the Indictment.
That is, you are to determine what weight, if
any, this evidence should be given, using the
instructions I will give you when this matter
is concluded.
You’re not to speculate as to whether this
conduct resulted in any charges in Alabama.
That has no relevance to this proceeding. It
is not to enter into your consideration in any
manner, at any time.
As stated previously, this evidence is to be
used only with regard to the charges that have
been indicted here in New Jersey and are
before you.
The court also provided a limiting instruction in its final
charge to the jury:
You have heard evidence that Carl Garrison has
previously been convicted of crimes. This
evidence may only be used in determining the
credibility or believability of the
[d]efendant’s testimony.
6
You may not conclude that the defendant
committed the crime charged in this case, or
is more likely to have committed the crime
charged, simply because he committed a crime
on another occasion.
. . .
You are not, however, obligated to change your
opinion as to the credibility of the defendant
simply because of his prior convictions. You
may consider such evidence, along with all the
other factors we previously discussed, in
determining the credibility of the defendant.
At trial, defendant argued that Joan had pursued him.
Defendant testified that Joan would grab him and try to “nuzzle
[his] face into her breasts”; that she would run around the
house naked and “put her ass in [his] face”; that Joan touched
his penis while he was sleeping on a chair; and that, on one
occasion, Joan gave him a condom. In his videotaped statement
from the police department, which was played at trial, defendant
told the detectives, “[t]he girl walked over and handed me a
condom, she is definitely the aggressor.”
Defendant also told detectives in the taped interrogation
that Joan made passes at him and that “she was like, she was in
love with me.” He denied touching Joan’s vagina, and, when
asked by a detective why Joan would say that if it was not true,
defendant replied, “[m]aybe it was wishful thinking.” Defendant
also stated that Joan told him that she had “busted her cherry
playing with herself” and that “she’s that type of girl.”
7
Defendant testified that he rejected Joan’s advances and
told her “there’s no way I could have a relationship with you.
It’s against the law. You have to find somebody your age.”
Harriet similarly testified that Joan had “com[e] on to” and
“had a crush on” defendant, whom Joan “thought somehow . . . was
her boyfriend,” which was “why she gave the condom.”
During the trial, the State presented an expert witness,
Dr. Mary Theresa Baker, who testified with regard to the
physical characteristics child-abuse victims may exhibit. Dr.
Baker examined Joan and found no evidence of physical abuse. As
part of her testimony, Dr. Baker stated that “[o]verall, 95 to
96 percent of children, who give a credible disclosure of sexual
contact, have a normal or non-specific exam.”
The jury subsequently convicted defendant on three counts
of first-degree aggravated sexual assault, three counts of
second-degree sexual assault, and one count of third-degree
endangering the welfare of a child. Defendant received an
aggregate sentence of fifty-two years in prison, with an eighty-
five percent period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing that evidence of the strip
poker game was improperly admitted. Although not raised below,
defendant also contended that the admission of Dr. Baker’s
statistics-based testimony was error. In an unreported opinion,
8
the Appellate Division reversed defendant’s convictions. The
panel rejected the State’s contention that evidence of the strip
poker game was intrinsic to the crimes charged and determined
that this evidence should have been evaluated under N.J.R.E.
404(b). The Appellate Division then concluded that the strip
poker evidence failed to pass muster under the analytical
framework of Rule 404(b) and that its admission was not harmless
error. Additionally, in a footnote, the panel agreed that Dr.
Baker’s testimony amounted to an improper opinion of Joan’s
credibility and constituted plain error.
The Court granted the State’s petition for certification.
223 N.J. 558 (2015).
II.
Stressing that “evidence that is intrinsic to a charged
crime need only satisfy the evidence rules relating to
relevancy,” Rose, supra, 206 N.J. at 177, the State contends
that evidence of the strip poker game is admissible as intrinsic
to the charged offenses. The State maintains that the strip
poker game satisfies the definition of intrinsic evidence
adopted in Rose, supra, 206 N.J. at 180, because it is direct
evidence of defendant’s sexual relationship with Joan and
because the game occurred contemporaneously with, and
facilitated the commission of, the charged crimes. Considering
the strip poker game intrinsic evidence, the State asserts
9
that it is admissible because its probative value is not
substantially outweighed by its prejudicial effect.
The State also argues that, even if the strip poker game is
not intrinsic evidence, it is admissible under Rule 404(b). The
State claims that the strip poker game with the girls was
relevant to whether defendant acted for the purpose of sexual
arousal. That evidence, in the State’s view, supported an
inference that defendant was aroused by young girls, which, in
turn, was relevant to whether he had the motive and intent to
commit the charged offenses.
As for the limiting instruction that is required when
evidence is admitted under Rule 404(b), the State emphasizes
that the trial court instructed the jurors that they were not to
speculate whether defendant was charged with any offenses in
Alabama and that the court gave a limiting instruction
concerning evidence of defendant’s other criminal conduct in its
final charge. When the two instructions are taken together, the
State contends, the essential point of a Rule 404(b) instruction
–- that other-crimes evidence cannot be used to show a
defendant’s propensity to commit the charged offense –- was
conveyed to the jury.
Conversely, defendant argues that, under the definition set
out in Rose, the strip poker game is not intrinsic to the
charged offenses. In addition, defendant avers that the strip
10
poker evidence is not admissible under Rule 404(b) in light of
State v. J.M., 225 N.J. 146, 160 (2016), in which this Court
held that a witness’s testimony regarding a prior bad act was
“inadmissible to establish motive, intent, or absence of mistake
because [the] defendant’s state of mind [was] not a ‘genuinely
contested’ issue” when the defendant maintained that no sexual
assault occurred. Defendant argues that his state of mind is
not genuinely contested because he too has maintained that no
sexual assault occurred.
Turning to the limiting instruction, defendant asserts that
it was “completely inadequate” because it did nothing more than
tell the jury to consider the evidence “in determining whether
[d]efendant is guilty or not guilty of the charges stated in the
indictment.” Moreover, defendant contends that the trial
court’s limiting instruction in its final charge was inadequate
because it was limited to his prior convictions and did not
reference the strip poker game or any acts for which no criminal
conviction had been obtained.
Lastly, defendant urges this Court to uphold the Appellate
Division’s reversal of his convictions based on the alleged
improper testimony of the State’s expert witness, Dr. Baker.
Defendant highlights Dr. Baker’s statement that “[o]verall, 95
to 96 percent of children, who give a credible disclosure of
sexual contact, have a normal or non-specific exam.” He claims
11
this remark “went beyond the bounds of permissible expert
testimony” in that it inappropriately bolstered Joan’s
credibility.
III.
Under N.J.R.E. 404(b), uncharged extrinsic bad acts may not
be introduced to demonstrate a defendant’s criminal disposition
as a basis for proving guilt of the crimes charged. Rule 404(b)
provides that
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.
One of the well-recognized dangers inherent in the
admission of so-called “other-crimes evidence” is that a jury
may convict a defendant not for the offense charged, but for the
extrinsic offense. State v. Skinner, 218 N.J. 496, 514 (2014).
Courts therefore “cautiously examine any evidence that is in the
nature of prior bad acts, wrongs, or, worse, crimes by a
defendant” because such evidence has a tendency to prejudice a
jury. Ibid. “Put simply, a defendant must be convicted on the
basis of his acts in connection with the offense for which he is
charged. A defendant may not be convicted simply because the
jury believes that he is a bad person.” Ibid.12
In order to minimize the dangers presented by other-crimes
evidence, this Court has insisted that evidence proffered under
Rule 404(b) “must pass [a] rigorous test.” State v. Kemp, 195
N.J. 136, 159 (2008). In State v. Cofield we adopted the
following four-part test for analyzing the admissibility of
other-crimes evidence:
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.
[127 N.J. 328, 338 (1992).]
Against this evidentiary backdrop, we turn to the parties’
dispute over whether the evidence of the strip poker game
satisfies this analytical framework. Because the trial court
never performed that analysis, our review is de novo. Rose,
supra, 206 N.J. at 158 (citing State v. Lykes, 192 N.J. 519, 534
(2007)).
A.
1.
To satisfy the first prong of the Cofield test, the
“proffered evidence must be ‘relevant to a material issue
genuinely in dispute.’” State v. Gillispie, 208 N.J. 59, 86
13
(2011) (quoting State v. Darby, 174 N.J. 509, 519 (2002)).
Evidence is relevant if it tends “to prove or disprove any fact
of consequence to the determination of the action.” N.J.R.E.
401. The main focus “in determining the relevance of evidence
is whether there is a logical connection between the
proffered evidence and a fact in issue.” J.M., supra, 225 N.J.
at 160 (quoting State v. Willis, 225 N.J. 85, 98 (2016)). The
burden of establishing this connection is not onerous: “if the
evidence makes a desired inference more probable than it would
be if the evidence were not admitted, then the required logical
connection has been satisfied.” State v. Williams, 190 N.J.
114, 123 (2007) (describing standard for connection as
“generous”). “Moreover, the material fact sought to be proved
must be one that is actually in dispute[.]” J.M., supra, 225
N.J. at 160 (alteration in original) (quoting Willis, supra, 225
N.J. at 98).
In this case, defendant repeatedly denied wrongdoing, and
insisted that any inappropriate actions originated with Joan.
For example, defendant testified that Joan would grab him and
try to pull his face to her chest and that she touched his penis
while he was sleeping on a chair. Defendant told detectives in
his videotaped statement that was played at trial, “[t]he girl
walked over and handed me a condom, she is definitely the
aggressor.”
14
Indeed, defendant repeatedly portrayed Joan as “the
aggressor” at trial. He testified that Joan was “big and
strong” and “not no, tiny petite thing.” Likewise, he told
detectives in his videotaped interrogation that Joan made passes
at him and that “she was like, she was in love with me.”
Harriet also testified to that effect when she stated that Joan
“thought somehow [defendant] was her boyfriend” and that “she
had a crush on him.” From this testimony and defendant’s
statements to detectives in his videotaped interrogation, it is
apparent that a linchpin of the defense’s theory of the case was
that any inappropriate actions originated with Joan.
Contrary to defendant’s arguments, the strip poker game has
direct relevance “to a material issue in dispute.” Gillispie,
supra, 208 N.J. at 86. The testimonial evidence of the strip
poker game is relevant because it tends “to prove or disprove”
whether any inappropriate action originated with Joan. N.J.R.E.
401. Multiple witnesses testified about whose idea it was to
play the game. Joan testified that she was playing with her
sister when defendant approached them and told them about strip
poker and the rules of the game. Nancy also testified that
defendant initiated the game. Conversely, defendant testified
that he and the girls played strip poker at Joan’s suggestion.
Because the testimonial evidence of the strip poker game sheds
light on whose idea it was to play the game, it is highly
15
relevant to the issue that any inappropriate actions originated
with Joan, an issue defendant himself raised in this case. Put
simply, Joan and Nancy’s testimony that defendant initiated the
strip poker game enables the jury to better weigh defendant’s
assertion that any inappropriate actions originated with Joan.
Although defendant relies on J.M., that case is inapposite.
In J.M., supra, we held that a witness’s testimony regarding a
prior bad act was “inadmissible to establish motive, intent, or
absence of mistake because [the] defendant’s state of mind [was]
not a ‘genuinely contested’ issue” where [the] defendant
maintained that no sexual assault occurred. 225 N.J. at 160.
Unlike the defendant in J.M., defendant in this case has not
merely denied that a sexual assault took place. Defendant has
repeatedly asserted that any inappropriate actions originated
with the victim. Defendant’s reliance on J.M. is therefore
unavailing as the circumstances of that case are readily
distinguishable.
Moreover, the strip poker game is admissible against
defendant under Rule 404(b) as evidence of his plan to further
desensitize Joan to sexual conduct so that he could continue to
abuse her. See, e.g., State v. DeVincentis, 47 P.3d 606, 610
(Wash. Ct. App. 2002) (“One reason the common scheme or plan
exception arises in prosecutions alleging sexual abuse of
children is that such crimes often occur only after the
16
perpetrator has successfully used techniques designed to obtain
the child’s cooperation.”), aff’d, 74 P.3d 119 (Wash. 2003).
2.
The second prong of the Cofield test requires that the
other-crimes evidence “be similar in kind and reasonably close
in time to the [alleged crime].” Skinner, supra, 218 N.J. at
515 (quoting Cofield, supra, 127 N.J. at 338). Defendant is
hard-pressed to contest the close temporal relationship between
the strip poker game and the sexual assaults with which he was
charged in New Jersey. The game took place in July 2010,
between the June and August sexual assaults. The strip poker
evidence therefore satisfies the second prong of the Cofield
test.
3.
Under the third prong of the Cofield framework, evidence of
the other crime must be clear and convincing. It is undisputed
that defendant played strip poker with Joan and Nancy.
Defendant acknowledged having played strip poker with the girls
in both the videotaped statement he provided to detectives and
in his testimony at trial. Harriet, Joan, and Nancy also stated
that the strip poker game occurred. We need not belabor this
point. Although the precise details of the incident, including
which articles of clothing were removed and who initiated the
game, were subject to dispute, the evidence that defendant
17
played strip poker with the girls was beyond “clear and
convincing.” Cofield, supra, 127 N.J. at 338.
4.
Finally, we consider whether the strip poker evidence meets
the fourth prong of the Cofield test -- whether the probative
value of the evidence is outweighed by its apparent prejudice --
“generally the most difficult part of the test.” State v.
Barden, 195 N.J. 375, 389 (2008). Some types of evidence,
however, “require a very strong showing of prejudice to justify
exclusion. One example is evidence of motive or intent.”
Skinner, supra, 218 N.J. at 516 (quoting State v. Covell, 157
N.J. 554, 570 (1999)). Furthermore, despite this Court’s
imposition of a stringent standard for the admission of other-
crimes evidence, “our courts have not frequently excluded highly
prejudicial evidence under the fourth prong of Cofield.” State
v. Long, 173 N.J. 138, 162 (2002).
Here, the probative value of the Alabama evidence and the
strip poker game is high because it provided the jury with
evidence of a continuous course of conduct concerning
defendant’s abuse of Joan throughout the summer. The abuse
began after Joan finished school in mid to late June and
continued until early September. To remove the period in July
when defendant abused Joan in Alabama from a time span of about
two and a half months would leave a significant gap in the time
18
period of continuous conduct; see United States v. Gibson, 170
F.3d 673, 681 (7th Cir. 1999) (stating other-crimes evidence may
be necessary to avoid “a chronological or conceptual void in the
story of the crime” (quoting United States v. Ramirez, 45 F.3d
1096, 1102 (7th Cir. 1995))). In addition, the Alabama evidence
and the strip poker game are probative in that they enabled Joan
to provide a coherent explanation of defendant’s continuous
conduct, depicting her perception of what occurred because
“[y]oung children often ‘do not think in terms of dates or time
spans.’” State v. L.P., 338 N.J. Super. 227, 239 (App. Div.),
certif. denied, 170 N.J. 205 (2001) (quoting In re K.A.W., 104
N.J. 112, 118 (1986)).
Moreover, evidence of the strip poker game was not so
prejudicial that it had “‘a probable capacity to divert the
minds of the jurors from a reasonable and fair evaluation’ of
the issues in the case.” Long, supra, 173 N.J. at 163-64(quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). In this
case, the strip poker game was just one of many incidents the
jury heard about. The jury also heard detailed testimony
regarding Joan’s performance of oral sex on defendant and how he
digitally penetrated her anus. In addition, the jurors listened
to Joan’s testimony on how she had sex with defendant in her
mother’s trailer in New Jersey, at defendant’s mother’s house in
New Jersey, and in Alabama. Moreover, they heard how Nancy, who
19
was nine years old at the time, saw Joan washing defendant’s
penis with a washcloth. In the context of the record as a
whole, it is unlikely the strip poker evidence had “a probable
capacity to divert the minds of the jurors” when far more
prejudicial evidence was presented.
Defendant contends that the testimonial evidence of the
strip poker game had the capacity to divert the minds of the
jurors. He asserts that the State’s proof of the sexual
assaults hinged on testimony from Joan and, thus, evidence of
the strip poker game could have tipped the scales on whether the
jury found defendant or Joan more credible as to whether the
assaults occurred.
That argument is unpersuasive because the testimony
regarding the strip poker game also required the jury to make
credibility determinations. For example, the girls’ mother
Harriet testified that she witnessed the game, but Joan and
Nancy testified that their mother was not present.
Additionally, defendant testified that Joan initiated the game,
but the girls testified that defendant was the one who suggested
they play. Because the strip poker evidence also required the
jury to make credibility determinations, defendant’s argument
that the game could have influenced the credibility
determination that was central to whether the assaults occurred
is unconvincing.
20
Defendant also posits that the strip poker evidence
“permeated the trial” because it was addressed on direct and
cross-examination during the testimony of witnesses for the
State and defense. True, the strip poker incident was brought
up several times over the course of the trial, but other pieces
of evidence that had far greater potential effect were also
raised multiple times. For instance, both Joan and Nancy
testified regarding the incident in which Joan allegedly washed
defendant’s penis. The strip poker evidence was only one of
many incriminating pieces of evidence. Because far more
damaging evidence was presented at trial, it is unlikely that
the strip poker evidence had “a probable capacity to divert the
minds of the jurors.” Long, supra, 173 N.J. at 163-64.
In sum, we conclude that evidence of the strip poker game
satisfies each of the four prongs of the Cofield test and was
therefore admissible. We thus consider whether its admission
was accompanied by a sufficient limiting instruction.
B.
In order to reduce “the inherent prejudice in the admission
of other-crimes evidence, our courts require the trial court to
sanitize the evidence when appropriate.” Rose, supra, 206 N.J.
at 161 (quoting Barden, supra, 195 N.J. at 390). Thus, when
other-crimes evidence is deemed admissible under the Cofield
rubric, the court must provide a limiting instruction that
21
“inform[s] the jury of the purposes for which it may, and for
which it may not, consider the evidence of defendant’s uncharged
misconduct, both when the evidence is first presented and again
as part of the final jury charge.” Ibid. (quoting Barden,
supra, 195 N.J. at 390). The limiting instruction is designed
to explain to the jury the “fine distinction to which it is
required to adhere.” Ibid. (quoting Barden, supra, 195 N.J. at
390).
In the instant case, immediately after Joan testified, the
court reminded the jury that “[t]he conduct . . . that is
alleged to have occurred in Alabama is that the [d]efendant
played strip poker with [Joan] and [Nancy] and engaged in sexual
conduct with [Joan].” The court then instructed the jury that
this evidence was to be “used only with regard to the charges
that have been indicted in New Jersey” and that they were “not
to speculate as to whether this conduct resulted in any charges
in Alabama.”
In its final charge, the court also provided a limiting
instruction to the jury. Although that instruction did not
specifically address the strip poker game or the sexual assaults
in Alabama, the court instructed the jury that it was not to use
the testimony it heard about defendant’s other criminal conduct
for propensity purposes. The court thus cautioned the jury
22
against considering other-crimes evidence to prove defendant’s
disposition to commit the offenses with which he was charged.
Defendant contends that the trial court’s limiting
instruction in its final charge “was completely inadequate”
because it was limited to his prior convictions and did not
reference the strip poker game or any acts for which no criminal
conviction had been obtained. We must, however, view the charge
as a whole. State v. Baum, 224 N.J. 147, 159-60 (2016). “The
Court must not look at portions of the charge alleged to be
erroneous in isolation . . . .” State v. McKinney, 223 N.J.
475, 494 (2015).
When viewed as a whole, in light of the evidence and the
court’s instructions, it cannot be said that the challenged
instruction is “of such a nature as to have been clearly capable
of producing an unjust result.” R. 2:10-2; see State v.
Galicia, 210 N.J. 364, 388 (2012) (“For an error to require
reversal, there must be ‘some degree of possibility that [the
error] led to an unjust result. The possibility must be real,
one sufficient to raise a reasonable doubt as to whether [it]
led the jury to a verdict that it otherwise might not have
reached.’” (quoting State v. Lazo, 209 N.J. 9, 26 (2012)
(alterations in original))). We are satisfied that the
essential principle -- that the jury could not use the strip
poker game for propensity purposes -- was adequately
23
communicated to the jury even if the trial court in its final
charge did not refer specifically to the Alabama evidence. We
therefore conclude that the 404(b) evidence was properly
admitted with an appropriate limiting instruction.
Because we conclude that evidence of the strip poker game
is admissible under the rigorous standard of Rule 404(b), we
need not address the State’s arguments regarding intrinsic
evidence. See Rose, supra, 206 N.J. at 178 (“It is therefore
more likely that evidence of uncharged misconduct will be
admitted into evidence if it is considered intrinsic to the
charged crime and subject only to Rule 403 than if it is not
considered intrinsic evidence and subject to both Rule 404(b)
and Rule 403.”).
IV.
Defendant also urges this Court to affirm the Appellate
Division’s determination that the improper testimony of the
State’s expert witness, Dr. Baker, warranted reversal of his
convictions. Defendant highlights Dr. Baker’s statement that
“[o]verall, 95 to 96 percent of children, who give a credible
disclosure of sexual contact, have a normal or non-specific
exam.”
We agree that this aspect of Dr. Baker’s testimony is
troubling. In State v. W.B., we explained that expert testimony
concerning the statistical credibility of victim-witnesses
24
“deprives the jury of its right and duty to decide the question
of credibility of the victim based on evidence relating to the
particular victim and the particular facts of the case.” 205
N.J. 588, 614 (2011). Consequently, we find Dr. Baker’s comment
regarding the percentage of children who have non-specific exams
problematic.
But this error does not mandate reversal. See ibid.(“Convictions after a fair trial, based on strong evidence
proving guilt beyond a reasonable doubt, should not be reversed
because of a technical or evidentiary error that cannot have
truly prejudiced the defendant or affected the end result.”).
Defendant did not object or raise this issue during trial, so we
evaluate his arguments under a plain-error standard of review.
R. 2:10-2. Under this standard, a conviction will stand and
“the error will be disregarded unless a reasonable doubt has
been raised whether the jury came to a result that it otherwise
might not have reached.” State v. R.K., 220 N.J. 444, 456
(2015).
The purpose of Dr. Baker’s testimony was to explain to the
jury the physical characteristics child abuse victims may
exhibit and that the absence of physical injuries is not an
indication that abuse did not occur. Dr. Baker testified that
physical injuries generally heal quickly for girls who have
reached a certain point in their development. It is in this
25
context that Dr. Baker commented about the percentage of
credible disclosures. In addition, Dr. Baker explicitly stated
that she could not reach a conclusion either way as to whether
Joan was abused.
In W.B., supra, the defendant objected to an expert’s
estimate regarding the percentage of children that lie about
sexual abuse. 205 N.J. at 612. This Court deemed the testimony
harmless, relying on the expert’s assertions that he never
evaluated the witness and the strength of the trial court’s jury
charge. Id. at 615. Here, Dr. Baker made clear that she only
physically examined Joan and that she never interviewed Joan or
“ask[ed] questions about the allegations.” The trial court also
provided an appropriate limiting instruction on the use of
expert testimony. After careful consideration, we do not
believe that Dr. Baker’s stray remark, to which defendant did
not object at trial, enabled the jury to reach “a result that it
otherwise might not have reached.” R.K., supra, 220 N.J. at
456. We therefore find this comment to be harmless error that
does not warrant a reversal of defendant’s conviction.
V.
Evidence of the strip poker game meets the Cofield test and
was therefore properly admitted at trial. The remark by Dr.
Baker is harmless error. We therefore reverse the judgment of
the Appellate Division and reinstate defendant’s convictions.
26
The matter is remanded to the Appellate Division for
consideration of the issue not addressed by that court
concerning defendant’s sentence.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s
opinion.
27