State of New Jersey v. J.M., Jr. , 438 N.J. Super. 215 ( 2014 )


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  •                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2562-13T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,            APPROVED FOR PUBLICATION
    v.                                          November 21, 2014
    J.M., JR.,                                      APPELLATE DIVISION
    Defendant-Appellant.
    __________________________________________________________
    Argued September 9, 2014 - Decided November 21, 2014
    Before Judges Fisher, Nugent and Accurso.
    On interlocutory appeal from Superior Court
    of New Jersey, Law Division, Gloucester
    County, Indictment No. 13-01-0072.
    Jennifer L. Gottschalk argued the cause for
    appellant (Law Offices of Richard Sparaco,
    attorneys; Mr. Sparaco, on the brief).
    Audrey M. Curwin, Senior Assistant Prosecutor,
    argued the cause for respondent (Sean F.
    Dalton,    Gloucester    County    Prosecutor,
    attorney; Ms. Curwin, of counsel and on the
    brief).
    The opinion of the court was delivered by
    FISHER, P.J.A.D.
    We granted leave to appeal — and now reverse – an order
    which   authorized   the   State's   use   at   trial   of   "other-crimes"
    evidence regarding similar accusations made against defendant in
    Florida six years earlier.          What makes this different from most
    other applications of N.J.R.E. 404(b) is that a jury acquitted
    defendant of this alleged "other crime."           We conclude that the
    acquittal bars admission of this evidence and reverse.
    I
    Defendant is charged with one count of second-degree sexual
    assault, N.J.S.A. 2C:14-2(c)(1), and one count of fourth-degree
    criminal sexual contact, N.J.S.A. 2C:14-3(b).          The State alleges
    that     defendant,   a   massage   therapist,   digitally   penetrated    a
    female customer, E.S., at a Washington Township spa on July 5,
    2012.     In pretrial proceedings, the State made known its desire
    to present evidence that defendant sexually molested A.W. while
    providing her with a massage at a place of business in Florida
    on August 26, 2006.        The trial judge conducted a hearing during
    which A.W. testified.        After applying the Cofield factors,1 the
    judge rendered an oral decision, during which he concluded that
    A.W.'s testimony would be admissible as proof of defendant's
    "motive, intent, plan and absence of mistake" in the commission
    of the charged offenses.
    We granted leave to appeal and reverse not only because, as
    discussed in Section II, a proper Cofield analysis compels that
    1
    State v. Cofield, 
    127 N.J. 328
    , 338 (1992).
    2                           A-2562-13T2
    result but also because, as discussed in Section III, acquittal-
    evidence should never be admitted in a later prosecution when
    offered to show that the prior offense actually occurred.
    II
    Cofield   requires    that   the   proponent   of   other    crimes
    evidence2 demonstrate:
    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.
    [Ibid.; see also State v. Carlucci, 
    217 N.J. 129
    , 141 (2014).]
    All four of these factors must support the admission of the
    evidence in question.     State v. P.S., 
    202 N.J. 232
    , 255 (2010).3
    In seeking reversal, defendant chiefly argues the first and
    fourth factors militate against admission of A.W.'s testimony.
    2
    N.J.R.E. 404(b) refers not just to "other crimes" but also other
    "wrongs or acts," thereby opening the door to evidence of
    conduct that does not constitute a crime. See State v. Goodman,
    
    415 N.J. Super. 210
    , 227-28 (App. Div. 2010), certif. denied,
    
    205 N.J. 78
    (2011).
    3
    We are mindful the impact of the second factor has been
    minimalized in more recent decisions of our Supreme Court that
    are discussed later.
    3                             A-2562-13T2
    We conclude that, in fact, none of the four factors supports use
    of the testimony in question.4
    A. Relevance
    As to the first factor, we agree with defendant that A.W.'s
    testimony about what allegedly occurred to her six years earlier
    is not probative of defendant's alleged (1) "motive," or (2)
    "intent," suggestive of (3) a "plan" to commit the offense for
    which he has here been charged, or admissible to demonstrate (4)
    "absence of a mistake."           Although the trial judge permitted use
    of the evidence by invoking all these purposes, the State has
    failed to demonstrate or persuade how any apply here.
    1. Motive
    Motive   evidence     is     that   which   suggests     the    accused
    committed a specific offense.          See, e.g., State v. Mazowski, 337
    N.J.   Super.   275,   283   (App.    Div.   2001);   M.C.    Slough   &   J.W.
    Knightly, Other Vices, Other Crimes, 
    41 Iowa L
    . Rev. 325, 328
    (1956) (stating that "motive supplies the reason that nudges the
    4
    Although the parties did not demand oral argument, we scheduled
    the matter for oral argument and requested supplemental briefs
    addressing the impact of double jeopardy principles, as well as
    Dowling v. United States, 
    493 U.S. 342
    , 
    110 S. Ct. 668
    , 107 L.
    Ed. 2d 708 (1990), and our earlier decision in State v. Schlue,
    
    129 N.J. Super. 351
    (App. Div.), certif. denied, 
    66 N.J. 316
    (1974), which had not been cited in the parties' earlier
    submissions.
    4                               A-2562-13T2
    will and prods the mind to indulge the criminal intent").                                     By
    way of example, in State v. Marrero, 
    148 N.J. 469
    , 489 (1997),
    the Court held that the defendant's knowledge that the victim
    might file new charges against him evinced a motive for the
    victim's murder.          See also State v. Williams, 
    190 N.J. 114
    , 129-
    30   (2007)      (affirming           admission            of    consciousness-of-guilt
    evidence, including "lying to police, inducing others to lie,
    and tampering with evidence"); State v. Baker, 
    400 N.J. Super. 28
    , 45-46 (App. Div. 2008), aff’d o.b., 
    198 N.J. 189
    (2009)
    (holding that the defendant's failed bank robbery was relevant
    to show a motive for the charged store robbery the following
    day).
    A motive theory, however, will not be permitted "when the
    'motive'    is   so       common      that      the       reasoning    that    establishes
    relevance     verges       on    ordinary           propensity     reasoning          or    when
    'motive'    is   .    .    .    just    another           word   for   propensity."            1
    McCormick on Evidence § 190 (Broun ed., 7th ed., 2013).                                       For
    example, proof of a defendant's drug addiction to show motive
    for committing a burglary or theft is inadmissible on the theory
    that drug addicts are perpetually in need of money.                               
    Mazowski, supra
    ,     337   N.J.       Super.         at       282    (finding     such      a        motive
    "indistinguishable             from    a        claim       that      defendant        has     a
    5                                     A-2562-13T2
    'disposition,' or general propensity to commit crimes, which is
    precisely what N.J.R.E. 404(b) prohibits").
    Here,    the    prosecution's     theory    is   that   evidence     of   an
    alleged sexual assault six years earlier demonstrates a motive
    for committing the offense in question.               This proffer does not
    logically suggest a motive, only an alleged propensity, which
    N.J.R.E. 404(b) emphatically prohibits.5
    2. Intent
    When offered as a means of proving intent, other-crimes
    evidence     is    often   indistinguishable      from    motive.        It    is
    admissible    in    this   context     only    when   disclosing    a    mental
    intention or purpose in committing a particular offense.                       See
    State v. Mulero, 
    51 N.J. 224
    , 228 (1968).                Accordingly, other-
    crimes evidence may be probative "to evidence the intent with
    which [the defendant] did the act or to negative the existence
    of an innocent intent."        
    Ibid. Examples recognized in
    our case
    law reveal the extent of its application.                In Mulero, evidence
    of prior assaults upon the victim was found admissible to show
    an intent to later inflict serious bodily injury to kill the
    5
    N.J.R.E. 404(b) is often referred to as a rule of exclusion, not
    inclusion. See 
    P.S., supra
    , 202 N.J. at 255. It has long been
    recognized that other-crimes evidence cannot be used to show an
    accused's propensity for committing offenses of the type
    charged. See State v. Nance, 
    148 N.J. 376
    , 386 (1997); State v.
    Gibbons, 
    105 N.J. 67
    , 77 (1987).
    6                                A-2562-13T2
    victim in the charged matter.                   
    Ibid. In an arson
    prosecution,
    we held that the defendant's prior threats to his landlord if he
    raised the rent were admissible to show an intent to burn down
    the landlord's building.                 State v. Schubert, 
    235 N.J. Super. 212
    , 224 (App. Div. 1989), certif. denied, 
    121 N.J. 597
    (1990);
    see   also    State     v.     Davidson,       225    N.J.   Super.   1,    10-13       (App.
    Div.), certif. denied, 
    111 N.J. 594
    (1988).
    These examples reveal that proof of intent in this context
    requires a closer nexus between the prior crime and the charged
    offense than may be fairly or logically asserted here.                             In each
    of these examples, the victim was the same person.                                That, of
    course,      is   not    the     case    here.        And,    although     other-crimes
    evidence     to   show    intent        need    not   always    relate     to     the   same
    victim,      there       must     nevertheless          be     some   other        logical
    relationship.        See State v. Covell, 
    157 N.J. 554
    , 566-67 (1999)
    (admitting the defendant's earlier statement that he was only
    interested in young girls to show his intent to later lure a
    child-victim       into      a   car);    
    Marrero, supra
    ,   148      N.J.    at    485
    (admitting evidence of a sexual assault to rebut evidence that
    sexual relations were consensual in a later aggravated sexual
    assault and murder prosecution).
    The State has not shown a sufficient nexus between the
    alleged Florida offense and the matter at hand.                             The alleged
    7                                   A-2562-13T2
    victims are different and no logical relationship (other than
    the suggestion of a propensity) has been revealed.                      As said in a
    similar context in State v. Stevens, 
    115 N.J. 289
    , 307 (1989),
    the invocation of "intent" as a ground for the admission of this
    type of evidence requires "an enhanced degree of precision" not
    present here.
    3. Plan
    With regard to "plan" – the third ground asserted by the
    State    and   endorsed    by   the    trial     judge   –     the    proponent     must
    demonstrate the evidence "proves the existence of an integrated
    plan, of which the other crimes and the indicted offenses are
    components."      
    Id. at 305-06;
    see also State v. Louf, 
    64 N.J. 172
    ,     178   (1973)     (holding      that     other-crimes         evidence      must
    "establish the existence of a larger continuing plan of which
    the crime on trial is a part"); 1 McCormick on Evidence, supra,
    § 190 (recognizing that other-crimes evidence is admissible only
    if "each crime [is] an integral part of an over-arching plan
    explicitly     conceived     and      executed    by     the       defendant   or    his
    confederates").      The evidence offered here of an alleged offense
    committed against a different person a thousand miles away six
    years earlier eliminates "plan" as a logical basis for admission
    of this evidence.          As our Supreme Court has emphasized, "the
    'plan'     example      contemplates      more      than       a     strong    factual
    8                                     A-2562-13T2
    similarity between the 'other crimes' and the indicted offense."
    
    Stevens, supra
    , 115 N.J. at 305.6
    Moreover, even if it could be said, as have some courts of
    other states, that "plan" possesses a broader scope in sexual
    abuse and domestic violence matters, 1 McCormick on Evidence,
    supra, § 190, the lack of "sufficient common features" negates
    the argument that the prior event and the charged offense "are
    manifestations of a common design or plan."                People v. Ewoldt,
    
    867 P.2d 757
    , 771 (Cal. 1994); see also State v. DeJesus, 
    953 A.2d 45
    , 75-76 (Conn. 2008).          The State argues similarities in
    that in both matters defendant was engaged as a masseuse and his
    alleged victims were female customers.               No other similarity,
    however,   has   been   suggested;    the    State   has    not   argued   the
    alleged    victims   have   similar       appearances,     that   defendant's
    conduct was so similar as to constitute signature offenses,7 or
    that there was a peculiarity about the two alleged offenses that
    would provide a sufficient link and negate the potential that a
    6
    Stevens involved a prosecution of a police officer for official
    misconduct.   At trial, testimony was admitted regarding three
    prior instances in which defendant used his official position to
    force women to submit to strip searches and sexual acts. 
    Id. at 295-98.
    7
    The State provided no evidence that defendant engaged in similar
    peculiar conduct – such as, for example, playing the same music,
    donning a particular article of clothing, or making in both
    instances a specific statement – immediately before the sexual
    contact in both matters.
    9                              A-2562-13T2
    jury    would      view     the    prior       alleged      offense       as    revealing
    defendant's propensity to commit such an offense.
    4. The Absence of Mistake
    The State argues that the evidence is admissible to prove
    absence of a mistake in the conduct charged here.                              Defendant,
    however,     has   asserted       he    will    not    assert      mistake      at    trial,
    negating absence of a mistake as a basis for admitting A.W.'s
    testimony.         See    State    v.    Darby,       
    174 N.J. 509
    ,       518     (2002)
    (holding that other-crimes evidence must be relevant to prove a
    fact genuinely in dispute).
    To summarize our view of this first Cofield factor, the
    allegation that defendant was motivated, intended or planned to
    molest E.S. because he allegedly did something similar six years
    earlier is simply another way of asserting propensity to engage
    in such conduct – the very contention N.J.R.E. 404(b) strictly
    prohibits.      
    Carlucci, supra
    , 217 N.J. at 143; State v. Reddish,
    
    181 N.J. 553
    , 608 (2004); State v. Koskovich, 
    168 N.J. 448
    , 482
    (2001).
    B. Similarity and Temporality
    The   second       Cofield       factor    requires         that    other-crimes
    evidence be "similar in kind and reasonably close in time to the
    offense 
    charged." 127 N.J. at 338
    .               To be sure there are
    10                                        A-2562-13T2
    similarities.      As we have mentioned, in both instances defendant
    was working as a masseuse and the alleged victims were female
    customers.     But the similarities there end.
    In   comparing     the    two     events,       the    State    offered       the
    statement E.S. provided to police.                    She asserted that, during
    the massage, defendant's hands kept "getting closer and closer"
    to her vagina until defendant inserted a finger, causing her to
    jump up.       She observed defendant had exposed himself, and he
    then   requested    she     perform    oral     sex    on    him,   causing    her    to
    leave.      On the other hand, A.W. testified to markedly different
    circumstances during the N.J.R.E. 104 hearing.                        She testified
    that defendant had completed the massage and asked whether A.W.
    "want[ed]     anything    more."        She     responded     "sure    .   .   .   [i]f
    there's     time   left,"     and,    according       to    A.W.,   defendant      then
    massaged her legs until she "had the sensation" of "a brush of
    his fingertip up against [her] pubic area."                     She asserted that
    defendant "massaged [her] clitoris area and then he inserted his
    middle finger into my vagina."             After "15, 30 seconds" she told
    him    he   "need[ed]    to   stop     before    something      happens,"      and     he
    immediately complied.
    If we assume the truth of both E.S.'s statement and A.W.'s
    testimony, nothing suggests such a similarity as to represent
    signature crimes or a distinctive modus operandi.                          E.S. has
    11                                    A-2562-13T2
    asserted that, without warning, defendant digitally penetrated
    her while he exposed himself; on the other hand, A.W. testified
    that defendant asked whether she wanted to continue the massage,
    touched her without objection for fifteen to thirty seconds, and
    stopped upon her request.
    Cofield also held that courts should consider whether the
    two events were "reasonably close in 
    time." 127 N.J. at 338
    .
    Although the application or weight to be given to this factor
    has since been limited, see State v. Rose, 
    206 N.J. 141
    , 163
    (2011) (stating that "[t]he second prong of the Cofield test,
    addressing the similarity and temporality of the evidence, is
    not found in Rule 404(b), and is not universally required");
    
    Williams, supra
    ,    190    N.J.    at    131    (recognizing    the    second
    factor's "usefulness as a requirement is limited to cases that
    replicate   the    circumstances      in    Cofield"),      to   complete     our
    analysis,   we    merely    note    that   six    years   separated     the   two
    events, a fact that does not strengthen the State's argument.
    See, e.g., State v. Sheppard, 
    437 N.J. Super. 171
    , 200 (App.
    Div. 2014) (observing that a prior offense related to "comments
    made by defendant at least five years before the stabbing, and
    possibly much longer").
    To   the     extent    applicable,     this    second   factor    does    not
    support admission of A.W.'s testimony.
    12                                A-2562-13T2
    C. Clear and Convincing
    Notwithstanding   our   obligation   to   generally   defer   to   a
    trial judge's exercise of discretion in such matters, State v.
    Erazo, 
    126 N.J. 112
    , 131 (1991), the third factor – that the
    other-crimes evidence be "clear and convincing" – does not favor
    admission.   We are mindful the trial judge found A.W. credible.
    And, because he found her credible, the judge         concluded the
    evidence was clear and convincing.   But we find this analysis of
    the third factor to be inadequate because the judge gave no
    weight to defendant's acquittal of the Florida charges based on
    A.W.'s testimony.
    The trial judge was aware of the acquittal but found the
    Florida jury's verdict was not binding for these sole reasons:
    I find her testimony to be very credible and
    I find her to be very credible.    And I do
    find that her testimony, in spite of the
    fact of the acquittal – I don't know what
    happened at the State trial in Florida.    I
    don't know how the case was presented, what
    the jury may or may not have thought.      I
    don't know.
    And it, frankly, has no impact on me because
    I heard the testimony of the witness. I find
    her to be credible, and I find that evidence
    of the conduct to be clear and convincing.
    So the third prong has been met.
    It is conceivable, and perhaps this is what the trial judge
    meant, that the Florida jurors – assuming we could look into
    13                            A-2562-13T2
    their minds or had access to their deliberations – found A.W.'s
    testimony to be "clear and convincing" but not persuasive beyond
    a reasonable doubt.        The superficial logic of such an approach,
    however, is not only based on speculation but largely misses the
    point of the third factor.
    The   argument      that       acquittal-evidence     may     be      admitted
    because it satisfied a judge's application of the clear and
    convincing standard even though a jury found it did not suggest
    the   defendant's   guilt       beyond    a    reasonable   doubt      is    far   too
    expedient and all too conveniently discards the significance of
    the   acquittal.    The   third       factor    was   intended    as   part     of    a
    screening   process,8     not    a    loophole    for   resurrecting         evidence
    found   insufficient      for     a    conviction.       Cofield's          screening
    8
    Previously, courts explained the gatekeeping role as ensuring
    that other-crimes evidence not be "vague" or "uncertain," Baxter
    v. State, 
    110 N.E. 456
    , 458 (Ohio 1914), but must instead be
    "plain, clear, and conclusive," Paris v. United States, 
    260 F. 529
    , 531 (8th Cir. 1919).    In more recent, pre-Cofield cases,
    our courts required that proof of the other crime be
    "substantial."   State v. Garfole, 
    76 N.J. 445
    , 452 n.2 (1978)
    (in which the Court also held that it must be shown "with
    reasonable certainty" that the defendant committed the other
    crime) (internal citations omitted).    This progression toward
    Cofield's codification – which relied on a law review 
    article, 127 N.J. at 338
    (quoting Abraham P. Ordover, Balancing The
    Presumptions Of Guilt And Innocence: Rules 404(b), 608(b) and
    609(a), 38 Emory L.J. 135, 160 (1989)) – does not suggest the
    Court deliberately chose the "clear and convincing" standard
    simply because it fell between the preponderance and reasonable-
    doubt standards but intended to place a heavy burden on the
    proponent in order to eliminate the use of uncertain, un-
    adjudicated allegations.
    14                                  A-2562-13T2
    process occurred when a Florida jury found that what the State
    now claims was a prior criminal offense was not, in fact, a
    criminal offense.9
    D.     The Weighing Process
    The   fourth   Cofield    factor     requires   a   determination     that
    "[t]he probative value of the evidence must not be outweighed by
    its   apparent   prejudice."       
    Cofield, supra
    ,    127   N.J.   at   338.
    Without repeating what has already been stated, we are satisfied
    that even if probative value could be found in A.W.'s testimony,
    it is so greatly outweighed by the prejudicial effect – namely,
    9
    Assuming arguendo acquittal-evidence is not entirely excluded by
    the third factor, we would still conclude in this case that the
    judge's dismissive view of the Florida proceedings warrants
    reversal. In such a circumstance the State, as the proponent of
    the other-crimes evidence, should have at least been required to
    present a full record of the Florida proceedings.       The judge
    expressed that he did not know "what happened" in Florida that
    led to defendant's acquittal.    That is not good enough.    When
    answering in the negative whether a defendant could be tried for
    the robbery of one of six victims when he had been acquitted in
    an earlier prosecution of robbing one of the other victims, the
    Supreme Court held that a court must examine "the record of
    [the] prior proceeding, taking into account the pleadings,
    evidence, charge, and other relevant matter" before it may
    determine "whether a rational jury could have grounded its
    verdict upon an issue other than that which the defendant seeks
    to foreclose from consideration"; the inquiry "must be set in a
    practical frame and viewed with an eye to all the circumstances
    of the proceedings." Ashe v. Swenson, 
    397 U.S. 436
    , 444, 90 S.
    Ct. 1189, 1194, 
    25 L. Ed. 2d 469
    , 475-76 (1970) (internal
    citations omitted). Answers to the judge's rhetorical question
    about what happened in Florida should have been provided by the
    State and – until provided – A.W.'s testimony should have been
    excluded.
    15                               A-2562-13T2
    the jury's inevitable assumption that defendant has a propensity
    to engage in such conduct10 – as to render it inadmissible.
    III
    Although,      as    we     have     demonstrated,      a    routine   Cofield
    analysis leads to the exclusion of this other-crimes evidence,
    we also conclude that in these and other similar circumstances
    acquittal-evidence should never be admitted pursuant to N.J.R.E.
    404(b).
    A
    We start by conceding that our view is not consistent with
    some earlier decisions that have considered the State's use of
    acquittal-evidence as other-crimes evidence.                       In fact, in State
    v. Yormark, 
    117 N.J. Super. 315
    , 337 (App. Div. 1971), certif.
    denied, 
    60 N.J. 138
    , cert. denied, 
    407 U.S. 925
    , 
    92 S. Ct. 2459
    ,
    
    32 L. Ed. 2d 812
    (1972), a panel held that evidence offered,
    pursuant     to    former        Evidence       Rule   55,   against    two   of    the
    defendants in a prior prosecution – at which they were acquitted
    –    was   properly    admitted       in    a     later   prosecution    because     it
    suggested "guilty knowledge, a corrupt intent, and involvement
    by the defendants in a common scheme or plan to defraud the
    10
    Prejudice arises in other forms, as more fully explained in
    Section III of this opinion.
    16                                A-2562-13T2
    insurance company in this case."        The court observed that the
    admission of evidence of "other alleged offenses for which the
    defendant had been previously acquitted, is upheld by the great
    weight   of   authority   throughout   the   country."   
    Ibid. This approach was
    soon after adopted by another panel in 
    Schlue, supra
    , 129 N.J. Super. at 355.11       In addition, Yormark correctly
    11
    The rule to which Yormark and Schlue adhered does appear to be
    the majority rule in this country. See 
    Dowling, supra
    , 493 U.S.
    at 
    349, 110 S. Ct. at 672
    , 107 L. Ed. 2d at 718; Ex Parte Bayne,
    
    375 So. 2d 1239
    , 1241 (Ala. 1979); Ladd v. State, 
    568 P.2d 960
    ,
    968 (Alaska 1977), cert. denied, 
    435 U.S. 928
    , 
    98 S. Ct. 1498
    ,
    
    55 L. Ed. 2d 524
    (1978); People v. Griffin, 
    426 P.2d 507
    , 510
    (Cal. 1967); Kinney v. People, 
    187 P.3d 548
    , 554 (Colo. 2008);
    Moore v. State, 
    333 S.E.2d 605
    , 608 (Ga. 1985); State v.
    Paradis, 
    676 P.2d 31
    , 36 (Idaho 1983), cert. denied, 
    468 U.S. 1220
    , 
    104 S. Ct. 3592
    , 
    82 L. Ed. 2d 888
    (1984); People v.
    Kennedy, 
    377 N.E.2d 830
    , 835 (Ill. App. Ct. 1978); Underwood v.
    State, 
    722 N.E.2d 828
    , 833 (Ind. 2000); State v. Thompson, 
    39 N.W.2d 637
    , 640 (Iowa 1949); State v. Searles, 
    793 P.2d 724
    , 732
    (Kan. 1990); Hampton v. Commonwealth, 
    133 S.W.3d 438
    , 442 (Ky.
    2004); State v. Cotton, 
    778 So. 2d 569
    , 575 (La. 2001); State v.
    Dean, 
    589 A.2d 929
    , 932-33 (Me. 1991); Womble v. State, 
    258 A.2d 786
    , 789 (Md. Ct. Spec. App. 1969); Commonwealth v. Barboza, 
    921 N.E.2d 117
    , 119-20 (Mass. App. Ct.), certif. denied, 
    925 N.E.2d 546
    (Mass. 2010); People v. Oliphant, 
    250 N.W.2d 443
    , 454 (Mich.
    1976); State v. Millard, 
    242 S.W. 923
    , 926 (Mo. 1922);
    Koenigstein v. State, 
    162 N.W. 879
    , 882-83 (Neb. 1917); People
    v. Chang, 
    382 N.Y.S.2d 611
    , 616 (N.Y. Crim. Ct. 1976); State v.
    Heaton, 
    217 N.W. 531
    , 536 (N.D. 1927); Patterson v. State, 
    117 N.E. 169
    , 172 (Ohio 1917); State v. Smith, 
    532 P.2d 9
    , 10 (Or.
    1975); Commonwealth v. McCall, 
    786 A.2d 191
    , 195-96 (Pa. 2001);
    State v. Bernier, 
    491 A.2d 1000
    , 1005 (R.I. 1985); Rhodes v.
    Commonwealth, 
    292 S.E.2d 373
    , 376-77 (Va. 1982); State v.
    Russell, 
    384 P.2d 334
    , 335 (Wash. 1963); State v. Mongold, 
    647 S.E.2d 539
    , 549-50 (W. Va. 2007). By no means, however, is this
    approach universally accepted. See State v. Perkins, 
    349 So. 2d 161
    , 163-64 (Fla. 1977); State v. Wakefield, 
    278 N.W.2d 307
    , 309
    (Minn. 1979); McMichael v. State, 
    638 P.2d 402
    , 403 (Nev. 1982);
    (continued)
    17                             A-2562-13T2
    recognized that an earlier decision, State v. Bartell, 15 N.J.
    Super. 450, 459-60 (App. Div. 1951), suggested otherwise.                     And,
    because the Supreme Court was evenly divided when reviewing that
    decision, State v. Bartell, 
    10 N.J. 9
    (1952),12 greater doubt is
    engendered about the current status of our jurisprudence on this
    point.13
    The   rationale    underlying     the   decisions    in   Yormark       and
    Schlue – were we inclined to distinguish them and adopt a more
    nuanced view of this issue – is that although a defendant must
    not again be put to the burden of defending against the same
    charge after having been acquitted, some evidence in the earlier
    prosecution     –    not   necessarily    precluded   by    the   prior    jury's
    verdict – may be admitted if it has relevance to the current
    prosecution.        In other words, evidence from an earlier acquittal
    (continued)
    State v. Scott, 
    413 S.E.2d 787
    , 788-89 (N.C. 1992); State v.
    Holman, 
    611 S.W.2d 411
    , 413 (Tenn. 1981); Kerbyson v. State, 
    711 S.W.2d 289
    , 290 (Tex. Ct. App. 1986).
    12
    No member of the Court wrote an opinion in Bartell.
    13
    When the Supreme Court is evenly divided, its concurring and
    dissenting opinions are not precedential, Mount Holly Twp. Bd.
    of Educ. v. Mount Holly Twp. Educ. Ass'n, 
    199 N.J. 319
    , 332 n.2
    (2009), and its judgment leaves in place our decision, Abbamont
    v. Piscataway Twp. Bd. of Educ., 
    314 N.J. Super. 293
    , 300-01
    (App. Div. 1998) (quoting Neil v. Biggers, 
    409 U.S. 188
    , 192, 
    93 S. Ct. 375
    , 378-79, 
    34 L. Ed. 2d 401
    , 407 (1972)), aff’d, 
    163 N.J. 14
    (1999).   As a result, the conflict between Yormark and
    Schlue, on the one hand, and Bartell, on the other, persists.
    18                               A-2562-13T2
    may   be    admissible        in     a   later    prosecution         if   offered      not   to
    suggest defendant's guilt in the earlier matter but as evidence
    of a particular event or transaction not necessarily rejected as
    a    fact   by    the    earlier         jury.        Also,    such   evidence        might   be
    admissible       if     the       mere   fact    that     the    defendant       was    facing
    prosecution in the earlier matter is relevant for some purpose
    in the later prosecution.                  For example, in Schlue, we found no
    error in the admission of evidence offered against the defendant
    in an earlier bribery prosecution – at the conclusion of which
    he    was   acquitted         –    to    demonstrate      a     motive     for   obstructing
    justice in that earlier investigation when so charged in a later
    
    indictment. 129 N.J. Super. at 353-55
    .                    The difference between
    those situations and the question presented here is that the
    State in the earlier cases appears not to have been attempting
    to prove motive by showing the defendant's guilt in the earlier
    matter, only that motive was suggested by facts offered during
    the earlier proceeding that may not have been rejected by the
    prior jury.
    The State's proffer is markedly different here.                                  A.W.'s
    testimony has been offered to show that defendant, on an earlier
    occasion,        engaged      in     unlawful         sexual    contact.         Of    course,
    19                                    A-2562-13T2
    defendant cannot now be convicted of sexually assaulting A.W.,14
    but it is the State's desire to prove the very fact the State of
    Florida was unable to prove as a means for convicting defendant
    of the charges in question here.               In short, unlike what appears
    to have occurred in Yormark and Schlue, defendant is again being
    put to the task of defending against A.W.'s allegations.                      Stated
    another way, for the A.W. allegations to have any relevance in
    this   case,    the   jury   would   have      to    conclude      that   what   A.W.
    alleged   had    in   fact   occurred     in   the    face    of   another     jury's
    contrary verdict.       Accordingly, even if we were bound to Schlue
    or Yormark – which, of course, we are not, see Brundage v.
    Estate    v.    Carambio,    
    195 N.J. 575
    ,       593-94   (2008);     State     v.
    Peralta, __ N.J. Super. __, __ (App. Div. 2014) (slip op. at 4-
    5) – we would find that the rule those cases announced has no
    application in the far different circumstances presented here.
    These    troubling    circumstances,         and   others     to   which      we
    shortly turn, further buttress our conclusion that acquittal-
    evidence should not be permitted to show a defendant's guilt on
    the earlier occasion.         In short, we agree with the common-sense
    conclusion reached by the Supreme Court of Tennessee when it
    considered an attempt to prove that the defendant, who operated
    14
    For that reason, double jeopardy and                     collateral       estoppel
    principles are not directly implicated.
    20                                   A-2562-13T2
    a jewelry store, had failed to return a watch to its owner
    (Jenkins) upon the promise to repair, by offering evidence that
    he    had    done   precisely   the     same    thing    to   another    customer
    (Morgan) who brought her watch to the defendant to be repaired;
    the    defendant      had    been   tried      and     acquitted    of   Morgan's
    allegations.        In these circumstances, the Tennessee Court held:
    Having been acquitted of the alleged prior
    crime, the defendant cannot be tried a
    second time for that offense; yet, if
    evidence of such alleged prior crime is
    admitted in the case on trial, the defendant
    is required to do just that; at the second
    trial he must defend himself not only
    against the charge at hand but also against
    inferences that the jury might draw from the
    evidence that he committed the prior crime
    although he has been acquitted of it. . . .
    [E]vidence that the defendant committed an
    alleged crime other than that for which he
    is on trial should not be admitted when he
    has been acquitted of such alleged other
    crime.
    
    [Holman, supra
    , 611 S.W.2d at 413.]
    This    is    the     only   approach    that        adequately    respects    the
    presumption of innocence and the "particular significance" the
    law attaches to an acquittal.           United States v. DiFrancesco, 
    449 U.S. 117
    , 129, 
    101 S. Ct. 426
    , 433, 
    66 L. Ed. 2d 328
    , 340-41
    (1980); United States v. Scott, 
    437 U.S. 82
    , 91, 
    98 S. Ct. 2187
    ,
    2194, 
    57 L. Ed. 2d 65
    , 74 (1978).               Although such an event does
    not precisely generate a double jeopardy violation, see 
    Dowling, supra
    , 493 U.S. at 
    348-49, 110 S. Ct. at 672
    , 107 L. Ed. 2d at
    21                               A-2562-13T2
    717-18, we do hold that the issue is so instinct with this
    particular constitutional guarantee as to warrant the exclusion
    of this evidence.
    B
    We   also     find   the    order     under    review    troubling     and
    unsustainable because of a dangling question the trial judge did
    not consider: if the evidence is admitted, should the jury be
    told   that   defendant     was    acquitted    of    charges    stemming   from
    A.W.'s allegations?         In this regard, we again disagree with
    Schlue, which held that a jury should not be informed of the
    acquittal     lest    the   door   be      opened    "to   a   full   collateral
    investigation into what transpired at the former trial and why
    the first jury found as it 
    did." 129 N.J. Super. at 356
    .15
    15
    On this point, Schlue adhered to the minority view, since it is
    understood that most jurisdictions would allow the accused to
    respond to the other-crimes evidence with proof of the
    acquittal. See 
    Bayne, supra
    , 375 So. 2d at 1243; Hess v. State,
    
    20 P.3d 1121
    , 1129-30 (Alaska 2001); State v. Davis, 
    619 P.2d 1062
    , 1063 (Ariz. Ct. App. 1980); Philmon v. State, 
    593 S.W.2d 504
    , 507 (Ark. Ct. App. 1980); 
    Griffin, supra
    , 426 P.2d at 511;
    
    Kinney, supra
    , 187 P.3d at 556; State v. Anonymous, 
    389 A.2d 1270
    , 1274 (Conn. Super. Ct. 1978); People v. Bedoya, 
    758 N.E.2d 366
    , 381 (Ill. App. Ct. 2001), appeal denied, 
    766 N.E.2d 241
    (Ill. 2002); Hare v. State, 
    467 N.E.2d 7
    , 18 (Ind. 1984); State
    v. Washington, 
    257 N.W.2d 890
    , 893 (Iowa 1977), cert. denied,
    
    435 U.S. 1008
    , 
    98 S. Ct. 1881
    , 
    56 L. Ed. 2d 390
    (1978); Nolan v.
    State, 
    131 A.2d 851
    , 857-58 (Md. 1957); 
    Millard, supra
    , 242 S.W.
    at 927; State v. Hopkins, 
    219 P. 1106
    , 1109 (Mont. 1923);
    
    Koenigstein, supra
    , 162 N.W. at 883; Walker v. State, 
    921 P.2d 923
    , 927 (Nev. 1996); State v. Calloway, 
    150 S.E.2d 517
    , 518
    (continued)
    22                              A-2562-13T2
    We agree the spectre of re-trying the Florida case within
    the trial of this case is greatly disturbing.           Unlike Schlue, we
    think this complication is a reason for excluding the evidence,
    not   a   reason   for   unfairly   depriving      a   defendant   of    the
    presumption of innocence and the benefit of an acquittal of
    those very allegations.
    C
    Additional   constitutional       concerns   counsel   against     the
    admission of acquittal-evidence.
    At the risk of complicating what a principled application
    of Cofield compels, we believe the same result is warranted by a
    practical analysis of the problem when played out further in the
    (continued)
    (N.C. 1966); 
    Smith, supra
    , 532 P.2d at 11-12; 
    Bernier, supra
    ,
    491 A.2d at 1005-06; State v. Kassahun, 
    900 P.2d 1109
    , 1110
    (Wash. Ct. App. 1995). Only a few jurisdictions, consisting of
    most of the federal courts of appeals, see, e.g., Prince v.
    Lockhart, 
    971 F.2d 118
    , 122 (8th Cir. 1992) and cases cited
    therein, and a few states, People v. Bolden, 
    296 N.W.2d 613
    , 617
    (Mich. Ct. App. 1980); State v. Heaton, 
    217 N.W. 531
    , 536 (N.D.
    1927), have held otherwise.   We further note that while Schlue
    was guided by concerns about confusion over a trial within a
    trial, the principle on which the Michigan court barred evidence
    of   an  acquittal  of   the  prior   offense  springs   from  a
    determination that seems foreign to the manner in which American
    courts value the presumption of innocence. That is, in Borden,
    the court held that once a prosecutor produces evidence
    sufficient to show the defendant "probably committed the act,"
    the jury "should not be confused by the additional information
    of an acquittal which could mislead them into believing that the
    defendant absolutely did not commit the prior similar 
    acts." 296 N.W.2d at 617
    .
    23                             A-2562-13T2
    prosecution.        This is demonstrated by considering how a jury in
    such a situation should be instructed.
    Our Legislature has spoken about the burdens applicable to
    various aspects of a criminal prosecution.                        In N.J.S.A. 2C:1-
    13(a), the Legislature codified In re Winship, 
    397 U.S. 358
    ,
    361, 
    90 S. Ct. 1068
    , 1071, 
    25 L. Ed. 2d 368
    , 373-74 (1970),
    declaring     that     "[n]o   person    may    be    convicted        of     an   offense
    unless     each     element    of     such    offense       is    proved       beyond       a
    reasonable doubt" and that, "[i]n the absence of such proof, the
    innocence of the defendant is assumed."                     In addition, "[w]hen
    the application of the code depends upon the finding of a fact
    which    is   not      an   element     of     an    offense"      –    arguably         the
    circumstance here – and "unless the code otherwise provides" –
    it does not – "[t]he burden of proving the fact" is on the party
    "whose interest or contention will be furthered if the finding
    should be made."        N.J.S.A. 2C:1-13(d).           If A.W.'s testimony were
    admissible, these statutes clearly saddle the State with the
    burden of proving the truth of her testimony and defendant's
    commission of this "other crime."               In defining the rigor of the
    burden of persuasion on that fine point, however, the statute
    declares      only     that    "[t]he    fact        must    be    proved          to    the
    satisfaction      of    the    court    or    jury,    as    the       case    may      be."
    N.J.S.A. 2C:1-13(d)(2).
    24                                        A-2562-13T2
    At first glance, it may be said that this statute begs the
    question     by    failing       to    provide        a    precise        response      to    the
    following: to what degree of certainty must the State prove a
    prior crime offered for a reason permitted by N.J.R.E. 404(b)?
    But the Legislature may have understood the courts were better
    positioned    to     fix     a    burden    of       persuasion         depending       on    the
    particular        circumstances        in   a       given     case.         That     is,      the
    Legislature likely recognized that while the elements of the
    offense, and not every fact relevant to a criminal prosecution,
    must be proven beyond a reasonable doubt, see Patterson v. New
    York, 
    432 U.S. 197
    , 207, 
    97 S. Ct. 2319
    , 2325, 
    53 L. Ed. 2d 281
    ,
    290   (1977);       State    v.       Gross,        
    121 N.J. 1
    ,     15   (1990),        the
    importance of a disputed fact may vary, and the defining of the
    burden of proving that particular fact ought to be adjusted by
    consideration of the fact's importance.                           In other words, where
    the   disputed       fact     has      limited        relevance       a    less    strenuous
    standard may be appropriate, while a heavy standard should be
    imposed    when     the     resolution      of       the    disputed       fact    is     highly
    critical to the jury's determination of the defendant's guilt.
    This    subject        has       garnered           little    attention           in    our
    decisions.        Noteworthy is State v. Wilson, 
    158 N.J. Super. 1
    , 10
    (App. Div.), certif. denied, 
    79 N.J. 473
    (1978), where it was
    held that an instruction that a jury find the prior offense to
    25                                       A-2562-13T2
    have occurred by clear and convincing evidence was a "higher
    burden of proof than was necessary" and placed "an unnecessary
    burden on the State's case."16                It would appear to us that Wilson
    was essentially overruled by Cofield; that is, if other-crimes
    evidence       must   be    found   by    the      gatekeeper     to   be    "clear       and
    convincing" then the jury should, at the very least, be required
    to find that the other crime occurred by clear and convincing
    evidence.       We find no logic in allowing a jury to find a fact on
    a lesser standard than applied when its admission was sought.
    We observe that the model jury charges utilized in our
    criminal courts also beg the question, stating only that a jury
    cannot     give       any     weight     to        other-crimes     evidence       unless
    "satisfied" of the other crime's commission.                      Model Jury Charge
    (Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E.
    404(b))" (2007).            The model charge does not suggest whether the
    jury     has    to    be    satisfied     the       other   crime      occurred      by     a
    preponderance,        by    clear   and    convincing       evidence        or   beyond     a
    reasonable doubt.
    16
    In Wilson, the defendant argued the trial judge erred in
    instructing the jury not to consider evidence of prior alleged
    episodes of child abuse by the defendant in the prosecution of
    charges that he murdered the same child unless the jury
    determined the State proved these earlier instances by "clear
    and convincing evidence." 
    Id. at 8-10.
    26                                  A-2562-13T2
    To be sure, not every piece of evidence offered by the
    prosecution need be scrutinized by use of the reasonable-doubt
    standard.   See 
    Patterson, supra
    , 432 U.S. at 
    207, 97 S. Ct. at 2325
    , 53 L. Ed. 2d at 290; 
    Gross, supra
    , 121 N.J. at 15.              We
    would, however, suggest that consideration of the constitutional
    ramifications of such instructions must be carefully weighed in
    instances, such as this, where the State seeks to convict in
    large measure because of the accused's alleged commission of a
    prior offense.17   In many instances, and we believe this is one,
    the admission of other-crimes evidence without an instruction to
    the jury that the prior offense be proven beyond a reasonable
    doubt would invite a conviction in violation of the principles
    discussed in 
    Winship, supra
    , 397 U.S. at 
    363-64, 90 S. Ct. at 1072-73
    , 25 L. Ed. 2d at 375, and State v. Hill, 
    199 N.J. 545
    ,
    558-59 (2009).
    At oral argument in this court, the State insisted upon the
    importance of A.W.'s testimony, referring to the case without it
    as a classic "he said/she said" circumstance; we interpret this
    to   mean   that   the   State   questions   its   ability   to   prove
    defendant's guilt beyond a reasonable doubt without this other-
    17
    We base this conclusion not on our own view of what is revealed
    by the limited record in this interlocutory appeal but on the
    State's own strenuous insistence upon the importance of this
    evidence.
    27                          A-2562-13T2
    crimes evidence.      Considering the crucial role A.W.'s testimony
    would play in this prosecution if permitted, we would be hard-
    pressed, in light of Winship and Hill, to approve of any jury
    instruction that would permit the jury to find that what A.W.
    asserts actually occurred by anything less than proof beyond a
    reasonable doubt.      Cf. State v. Yough, 
    49 N.J. 587
    , 601 (1967)
    (requiring that trial judges apply the reasonable-doubt standard
    in   determining    the     voluntariness     and    admissibility      of     a
    confession "in the overall [] sound administration of justice").
    To be clear, we do not suggest all other-crimes evidence
    must be proven beyond a reasonable doubt.                  Our comments are
    limited to the present case, and cases like it, where there is
    little question that other-crimes evidence will play a pivotal
    role in the adjudication of guilt.18
    D
    The reasonable-doubt standard, which breathes life into the
    presumption   of   innocence,    is   vital   to     our   criminal   justice
    system.    Standing    as   a   bulwark    against   criminal   convictions
    based on factual error, the reasonable-doubt standard prevents
    18
    This conclusion brings us full circle. If, as we have
    determined, this other-crimes evidence, if admissible, must be
    proven beyond a reasonable doubt, then defendant's acquittal of
    the alleged prior crime would end the inquiry because the jury
    here would be asked to decide the exact question conclusively
    decided by the Florida jury.
    28                              A-2562-13T2
    "the moral force of the criminal law" from being "diluted" by a
    standard "that leaves people in doubt whether innocent men are
    being    condemned,"     and    contributes     to   "our    free   society"        the
    confidence     that    "every    individual      going      about   his       ordinary
    affairs" may possess that the government "cannot adjudge him
    guilty    of   a   criminal      offense      without    convincing       a    proper
    factfinder of his guilt with utmost certainty."                 
    Winship, supra
    ,
    397 U.S. at 
    363-64, 90 S. Ct. at 1072-73
    , 25 L. Ed. 2d at 375;
    see also 
    Hill, supra
    , 199 N.J. at 558-59.                      These principles
    inform our conclusion that acquittal-evidence, in a setting like
    this, could never be admitted in a subsequent prosecution.                        When
    such evidence cuts so close to the heart of the adjudication of
    guilt, the jury would have to be instructed to find that the
    prior alleged crime occurred beyond a reasonable doubt.                           And,
    because in that circumstance another jury would have found the
    prior    offense   did    not    occur     beyond    a   reasonable       doubt,       a
    subsequent jury would be foreclosed from reaching a different
    result.
    Ultimately, acquittal evidence should not be admitted in
    the present circumstances because the process envisioned by the
    order under review gives insufficient weight to the particular
    significance assigned to an acquittal, 
    DiFrancesco, supra
    , 449
    U.S. at 
    129, 101 S. Ct. at 433
    , 66 L. Ed. 2d at 340-41, and
    29                                   A-2562-13T2
    because    of   the    many   dangers    inherent    in    its   use.      In    this
    regard,    we   agree    with   Justice       Brennan's   cataloging      of    these
    inherent vices in his dissenting opinion in Dowling.                            Among
    others, Justice Brennan emphasized these two chief concerns:
    First, "[o]ne of the dangers inherent in the
    admission of extrinsic offense evidence is
    that the jury may convict the defendant not
    for   the   offense   charged   but   for   the
    extrinsic     offense.    This     danger    is
    particularly great where . . . the extrinsic
    activity   was    not   the   subject    of   a
    conviction; the jury may feel the defendant
    should be punished for that activity even if
    he is not guilty of the offense charged."
    Alternatively, there is the danger that the
    evidence "may lead [the jury] to conclude
    that, having committed a crime of the type
    charged, [the defendant] is likely to repeat
    it."   Thus, the fact that the defendant is
    forced to relitigate his participation in a
    prior criminal offense under a low standard
    of   proof   combined   with   the   inherently
    prejudicial    nature    of    such    evidence
    increases the risk that the jury erroneously
    will convict the defendant of the presently
    charged offense.
    [
    Dowling, supra
    , 493 U.S. at 361-62, 110 S.
    Ct. at 
    679, 107 L. Ed. 2d at 726
    (citations
    omitted).]
    And, in this same context, we lastly recognize the applicability
    of   the   concept      of    fundamental      fairness,    which       "require[s]
    procedures to protect the rights of defendants at various stages
    of the criminal justice process even when such procedures [are]
    not constitutionally compelled."              Doe v. Poritz, 
    142 N.J. 1
    , 108
    (1995).         Even    if    N.J.R.E.    404(b)      could      be     expansively
    30                                A-2562-13T2
    interpreted as authorizing the order under review, we conclude
    that    admitting   the    evidence        in    question    is   nevertheless
    tantamount to having one jury render a verdict at odds with the
    verdict of another – a consequence odious to the presumption of
    innocence and the fair administration of our criminal justice
    system.
    IV
    To   summarize,    we   conclude         that   a   principled   Cofield
    analysis bars admission of this evidence, and the trial judge's
    contrary ruling constituted an abuse of discretion.                     We also
    conclude that acquittal-evidence should never be admitted in a
    later prosecution when offered to show that the prior charged
    offense actually occurred.
    The order permitting the admission of A.W.'s testimony is
    reversed, and the matter remanded for further proceedings.                      We
    do not retain jurisdiction.
    31                                A-2562-13T2