Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5557-17 STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 19, 2022 v. APPELLATE DIVISION KARL SMITH, a/k/a CARL SMITH, Defendant-Appellant. _______________________ Submitted November 8, 2021 – Decided April 19, 2022 Before Judges Messano, Rose and Enright. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 18-01- 0178. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by MESSANO, P.J.A.D. A Camden County grand jury returned a twenty-count indictment against defendant Karl Smith. The judge granted the State's pretrial motion to dismiss six of the first eighteen counts alleging defendant committed sexual offenses against his daughter, K.W. (Karen), born August 2003; the last two counts alleged he committed sexual offenses against S.E. (Sara), the daughter of defendant's girlfriend, born June 2008. 1 The remaining twelve counts involving Karen charged defendant with two counts of first-degree aggravated sexual assault committed between November 2015 and August 2016, N.J.S.A. 2C:14-2(a)(1) (counts one and two); two counts of second-degree sexual assault committed during the same dates, N.J.S.A. 2C:14-2(b) (renumbered counts three and four); two counts of first-degree aggravated sexual assault committed between August 2016 and January 2017, N.J.S.A. 2C:14-2(a)(2)(a) (renumbered counts five and six); two counts of third-degree aggravated sexual contact committed during the same dates, N.J.S.A. 2C:14-3(a) (renumbered counts seven and eight); and four 1 We use initials and pseudonyms pursuant to Rule 1:38-3(c)(9). Apparently the six dismissed counts were added to the original indictment via a superseding indictment. Although insignificant to the issues presented, the judge considered certain pre-trial motions, including defendant's motion to sever, under the original indictment and prior to the filing of the superseding indictment. A-5557-17 2 counts of second-degree endangering the welfare of a child committed between November 2015 and January 2017, N.J.S.A. 2C:24-4(a)(1) (renumbered counts nine, ten, eleven and twelve). The two counts involving Sara alleged defendant committed second-degree sexual assault between October 2015 and August 2016, N.J.S.A. 2C:14-2(b) (renumbered count thirteen); and second- degree endangering the welfare of a child between the same dates, N.J.S.A. 2C:24-4(a)(1) (renumbered count fourteen). Prior to trial, defendant moved to sever the two counts involving Sara for a separate trial. He also sought a ruling that admission of evidence regarding Sara's precocious sexual knowledge did not violate the Rape Shield Law, N.J.S.A. 2C:14-7. The judge denied both motions. At trial, the jury acquitted defendant of counts one through four, could not reach a verdict on the remaining eight counts as to Karen, and found defendant guilty of counts thirteen and fourteen alleging offenses against Sara. After granting the State's motion to impose an extended term of imprisonment on defendant as a persistent offender, N.J.S.A. 2C:44-3(a), the judge sentenced defendant to eighteen years' imprisonment on the sexual assault conviction with an eighty-five percent period of parole ineligibility A-5557-17 3 under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent ten-year term on the child endangerment conviction. 2 Before us, defendant raises the following points for our consideration: POINT I — DEFENDANT'S MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED, AND AS A RESULT OF IMPROPER JOINDER OF OFFENSES HE WAS DENIED THE RIGHT TO A FAIR TRIAL. POINT II — DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE COURT'S ERROR IN PRECLUDING DEFENDANT FROM INTRODUCING EVIDENCE OF THE VICTIM'S PREVIOUS FAMILIARITY WITH SEXUALITY. POINT III — DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO MULTIPLE HEARSAY STATEMENTS OF THE VICTIM ALLOWED INTO EVIDENCE. (Not raised below.) POINT IV — THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS, WHERE THE STATE SUGGESTED THAT THE DEFENDANT HAD THE PROPENSITY TO COMMIT CRIMES. (Not raised below.) 2 Ten days later, defendant entered a conditional guilty plea to renumbered count twelve as amended to charge third-degree child endangerment of Karen, preserving his right to appeal the denial of his severance motion. The State recommended a concurrent five-year term of imprisonment, which the judge imposed, and dismissed the remaining counts of the indictment on which the jury did not reach a unanimous verdict. A-5557-17 4 POINT V — THE SENTENCE OF EIGHTEEN YEARS [IN] NEW JERSEY PRISON WAS EXCESSIVE.[3] I. The State contended defendant's sexual abuse of the two children first came to light on August 20, 2016. At that time, defendant lived in a two- bedroom apartment in Camden with Sara, her mother and defendant's girlfriend, K.D. (Kate), Kate's twelve-year old son, A.E. (Anthony), and defendant's and Kate's infant daughter, D.S. (Donna). The charges involving Karen surfaced in early 2017 when doctors examined Karen and discovered she had gonorrhea. During further questioning, Karen said defendant had sexually assaulted her on several occasions beginning in 2015 and continuing until two months before her exam. A. The Pre-trial Severance Motion Defendant moved to sever the two counts charging him with crimes committed against Sara from trial of all other counts in the indictment. He asserted that trying the two sets of charges together would be unduly prejudicial. In her brief opposing the motion, the prosecutor extensively 3 We have deleted the subpoints in defendants' brief. A-5557-17 5 summarized Sara's statement to Detective Daniel Choe on August 21, 2016. 4 She also summarized Kate's statement to the detective, in which Kate said she confronted defendant after Sara's disclosure, and "defendant denied touching [Sara] inappropriately." The prosecutor wrote: "[Kate] stated the defendant said, 'Maybe she might [have] thought I grabbed her when I picked the blanket off of her and put it on [Donna].'" In her brief, the prosecutor sum marized defendant's statement to the detective, also given on August 21, noting defendant "denied intentionally touching [Sara] in a sexual manner and claimed he only touched her to move her over on the bed." The prosecutor then summarized the case regarding Karen's allegations in detail, extensively quoting portions of Karen's statement to Detective Choe. The State argued a single trial was appropriate, because defendant's assaults were against "female children to whom . . . defendant [wa]s a father figure," and the crimes "occurred when the children were staying at . . . defendant's home." Citing State v. Covell, 157 N.J. 554 (1999), the prosecutor contended a wider range of Rule 404(b) evidence is admissible when "motive or intent of the accused . . . is material." Regarding the two counts of the indictment charging offenses against Sara, the prosecutor said, 4 Because the judge cited the briefs in rendering his decision on the motion, we obtained the filed briefs from the trial court record. A-5557-17 6 The State is required to prove defendant's intent and knowledge in touching [Sara's] vagina. The defendant's state of mind is a material issue in dispute. The significance of this material issue is magnified by the fact that the defendant provided a statement to police, and [Sara's] mother provided a statement to police, claiming that [Sara] may have been confused regarding the sexual assault . . . by . . . defendant mistakenly touching her while he was trying to move the blanket covering her. Thus, it is abundantly clear that absence of mistake and defendant's intent are material issues in dispute at trial. [(Emphasis added).] At oral argument, the judge indicated he had read the briefs. 5 Defense counsel began by arguing defendant's "intent or motive" was not material. The judge asked if "intent [was] a question based upon what [defendant] said in his statement," to which counsel responded, "it may very well be." In the colloquy that followed, the judge acknowledged he had not read defendant's statement, but said, Going on what's in the briefs, [defendant] indicated that . . . he was moving the blanket . . . and there was an inadvertent touching if you will — Defense counsel: Correct. Judge: — versus a purposeful act. And that seems to me goes directly to intent. 5 There is no indication that Kate's statement to police was reviewed by the judge, and the statement is not in the appellate record. A-5557-17 7 [(Emphasis added).] Defense counsel changed tack, arguing that trying the counts charging offenses against Karen and those charging crimes against Sara in the same trial would "create an overwhelming . . . prejudice . . . with regard to the other two counts." The prosecutor argued the State had to prove "defendant's intent in touching [Sara]." She said, "Obviously, the fact that he was doing this to his other child during the same time frame and that those behaviors began exactly the same way . . . would obviously go to intent . . . ." The judge asked: "[W]ith reference to [Sara], apparently because she complained immediately[,] . . . it got no further . . . than the first touching incidents. Is that a fair statement . . . [?]" The prosecutor replied, "That is a fair statement." 6 Reviewing the State's proffer, the judge noted that in his statement to Detective Choe, defendant "suggested that [Sara] may have mistakenly thought he grabbed her when he picked the blanket off her and put it on her sister." Applying the Cofield7 analysis, the judge denied the severance motion, concluding as to the first prong, "there [wa]s relevance in the testimony 6 Actually, in her statement to Detective Choe and her later testimony at trial, Sara said defendant sexually touched her vagina more than once and before August 20, 2016. 7 State v. Cofield, 127 N.J. 328, 338 (1992). A-5557-17 8 regarding these two incidents." Considering the fourth prong, and quoting State v. Garrison, 228 N.J. 182, 197–98 (2017), the judge concluded, "Some types of evidence . . . require a very strong showing of prejudice to justi fy exclusion. One example is evidence of motive or intent." The judge said "intent is the issue" in this case, and he denied the motion for severance. The Rape Shield Motion Defendant sought to introduce evidence that when Sara was four years old, her teacher notified the Division of Child Protection and Permanency (the Division) that she observed the child on several occasions lying on her back with her legs spread and her hands down the front of her pants. The Division discovered from Kate that Sara had a urinary tract infection and her physician prescribed vaginal cream for relief. Additionally, Sara told a Division caseworker that she and her three- year-old male cousin would play a game wherein whenever she said "ice cream vanilla," her cousin touched her vaginal area with a pen. The Division referred the family to CARES Institute (CARES), described later during trial as "a medical clinic that sees children when there are concerns for abuse or neglect of those children." Dr. Stephanie Lanese examined Sara during the referral and also four years later, when the August 2016 incident arose. Knowing Dr. Lanese was a probable State's witness at trial, defendant sought to question the A-5557-17 9 doctor about Sara's first involvement with CARES and the sexually-related matters the child discussed. Defense counsel argued the evidence was relevant to rebut any "assumption that [Sara] could not possibly know about [sexual conduct] unless . . . defendant . . . committed the act." The prosecutor countered by arguing the evidence was strictly prohibited by the Rape Shield Law. Moreover, she contended Sara was now eight years old, i.e., old enough to know what was inappropriate touching; her complaints about defendant's sexual contact did not demonstrate precocious sexual knowledge. After considering arguments and relying on the Court's decision in State v. P.S., 202 N.J. 232 (2010), the judge barred defendant from questioning the doctor about the earlier incidents. 8 B. Trial Evidence Regarding Sara's Allegations of Abuse Sara was the first witness at trial, which began in February 2018. Late on the evening of August 20, 2016, she was watching television with Donna asleep next to her on the bed in a bedroom defendant shared with Kate and the newborn baby. Sara said defendant came into the bedroom, touched her 8 The judge's oral decision did not specifically bar defendant from calling the Division caseworker who investigated the school's referral, but it clearly barred both defense proffers pursuant to the Rape Shield Law. A-5557-17 10 "private part" in the front and "rubbed it." This happened on other occasions when, before he went to work, defendant would come into the bedroom Sara shared with Anthony and touched her as she slept. Sara said she would "close [her] legs" to try to avoid this. On August 20, after defendant left the bedroom and went into the bathroom, Sara decided for the first time to tell Kate. The jury saw a videotaped statement Detective Choe took from Sara on August 21, 2016. 9 Sara initially said defendant only touched her private part once, but then, as questioning continued, she told the detective it happened "more than once." Showing reluctance to provide any particular dates or times of previous incidents, Sara eventually said defendant "did it today and he do[es] it every time when he go[es] to work." Kate testified she was dating defendant for about one year prior to August 2016, first living together with the children in a different apartment before moving two or three months earlier into the apartment where the incident occurred. Kate was not working at the time, but defendant worked weekdays from 4:00 a.m. to 5:00 p.m. Late on the evening of August 20, Kate and defendant were watching television in the living room; Sara and Donna 9 The statement was admitted pursuant to N.J.R.E. 803(c)(27), the "tender years" exception to the hearsay rule, after the judge held a pre-trial Michaels hearing. See State v. Michaels, 136 N.J. 299, 320–21 (1994) (requiring the State to demonstrate the reliability of the child's statement, and that it was not the product of suggestive or coercive interview techniques). A-5557-17 11 were in Kate's bedroom. When the baby began crying, defendant left the living room to give her a pacifier. Kate heard defendant go into the bathroom; then Sara came out of the bedroom and said defendant touched her private part. Kate immediately took Sara to the hospital. Dr. Lanese, an expert in "child abuse pediatrics," examined Sara on September 1, 2016, at CARES. Sara told her defendant touched her private part over her clothing on more than one occasion. 10 Dr. Lanese found no physical signs of sexual abuse. The doctor explained she saw Sara again six months later, in March 2017, because defendant's daughter Karen was "found to be positive for gonorrhea." Dr. Lanese said Sara did not have gonorrhea and could not have contracted the disease from the "touching" she described. Trial Evidence Regarding Karen's Allegations of Abuse The balance of the trial focused on Karen's allegations. On February 13, 2017, Dr. Monica Burton, a pediatrician, saw Karen for a "well child examin[ation]" because an earlier "lab result" was concerning. Dr. Burton told 10 The judge conducted a hearing outside the presence of the jury and ruled Dr. Lanese could testify about statements Sara made to her pursuant to N.J.R.E. 803(c)(27). A-5557-17 12 Karen she had gonorrhea. The doctor said Karen first denied having sexual relations, but ultimately admitted having sex with someone for some time. 11 Dr. Monique Higginbotham, also affiliated with CARES, testified as an expert child abuse pediatrician. She first saw Karen on February 21, 2017. The doctor recounted in exacting detail Karen's descriptions of sexual assaults by "an adult male" that began when she was twelve years old, and last occurred two months earlier. 12 The doctor found nothing "abnormal" when she physically examined Karen, who was then negative for gonorrhea. Karen's mother, K.W. (Kylie) testified. She and defendant dated until approximately one year after Karen's birth in 2003. Kylie and Karen moved to Oklahoma, and defendant was not in his daughter's life until 2015, when she and her mother returned to Camden. Kylie said after they returned, they would 11 At one point, the doctor testified Karen told her it was her "father." However, apparently understanding the hearsay nature of the statement and attempting to forestall any further objectionable testimony, the prosecutor limited her direct examination by asking only a few leading questions. The doctor did not repeat Karen's accusation of defendant. 12 There was an initial hearsay objection by defense counsel. Much of the sidebar that ensued is "indiscernible," but it appears the prosecutor or judge asserted the doctor's hearsay testimony was admissible as a "[m]edical exception." See N.J.R.E. 803(c)(4) (excepting from the hearsay rule, "[a] statement . . . made in good faith for purposes of, and is reasonably pertinent to, medical diagnosis or treatment; and . . . describes medical history; past or present symptoms or sensations; their inception; or their general cause"). This ruling is not challenged on appeal. A-5557-17 13 do things together as a family with defendant's oldest daughter, T.S. (Tara), who lived with defendant along with her children. In October 2015, Karen and her younger brother 13 began overnight visits with defendant at his home, and Karen spent every weekend with defendant, Tara and her children. The visits continued after defendant began living with Kate, but ended after Karen saw Dr. Burton in February 2017. Karen never told Kylie about defendant's sexual abuse. Detective Kevin Courtney testified briefly on direct. On cross- examination, however, defense counsel questioned the detective extensively about the investigation. Courtney acknowledged defendant was not arrested until March 1, 2017, based on Karen's allegations and after the detective spoke with Kylie and Dr. Burton. The detective never spoke with Tara and never secured a search warrant for defendant's home. 14 Karen was fourteen years old when she testified. She stopped visiting defendant and Kate in February 2017, after the doctor told her she had gonorrhea; she told the doctor "it was from" her father. Karen initially 13 Karen's brother was not defendant's child. 14 In her statement to police, apparently Karen alleged defendant forced her to watch pornography at his house using an Xbox video gaming console. The statement is not in the record, but defense counsel asked Karen if she recalled telling detectives that defendant made her watch things on the Xbox; she could not recall. A-5557-17 14 testified she did not remember anything her father did to her. As the prosecutor continued direct examination and asked whether her father "tr[ied] to have sex with [her], Karen responded, "Yes." Karen described how defendant penetrated her vagina with his finger and penis and inserted his penis in her mouth. Karen said this always happened at defendant's house, sometimes when they were alone, but not every time she visited. On cross-examination, Karen admitted telling Dr. Higginbotham some things she failed to tell detectives. Defense counsel probed other inconsistencies between Karen's testimony and her prior statement. After admitting by stipulation defendant's jail medical records for the year after his arrest in February 2017, the State rested. Defense case Tara testified as the first defense witness. She was living with her children and defendant — her father — in his home when she first met Karen, who came to visit defendant on weekends, sometimes with her brother, and stayed in the house. At the time, defendant worked every day except Sunday, and Tara babysat all the children. Before defendant testified, the judge conducted a Rule 104(c) hearing regarding the recorded video statement defendant made to Detective Choe on August 21, 2016, the day after Sara's accusation. The judge ruled the State A-5557-17 15 could use the statement during cross-examination for impeachment purposes. The judge also conducted a Sands/Brunson15 hearing and ruled all of defendant's prior convictions were admissible for impeachment purposes. Defendant's testimony was surprisingly brief; direct examination comprises seventeen pages of transcript and cross-examination only five. There are less than two pages each of re-direct and re-cross. Defendant had six prior convictions and was last released from a halfway house in 2015, when he returned to Camden, his hometown. Defendant described how he met Kate while he was in the halfway house, and how he became reacquainted with his daughter, Karen. Karen began to visit when Tara and her children were living in the house with him. When Tara moved out, and Kate and her children moved in, Karen continued to visit and stay overnight. Defendant said he never lived in a third house since his release and never lived alone in the house. This explicitly rebutted Karen's testimony that defendant sometimes sexually assaulted her on weekends when he was alone in the house, and that she visited him in three different houses. 15 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993). Defense counsel specifically requested that defendant's prior convictions not be "sanitized." Id. at 380. A-5557-17 16 Defendant said on the night of August 20, 2016, he was with Kate watching television when Donna began to cry. He took the pacifier and went into the bedroom where Sara was watching television, pretending to be asleep, next to the baby. After getting the baby back to sleep, defendant told Sara to move over on the bed, but "she didn't move." Defendant "pushed [Sara] over to move her over on the bed and . . . laid [his] daughter down." Defendant put a blanket over his daughter and left for the bathroom. When Kate confronted him at the bathroom door, defendant told her to take Sara to the hospital "[t]o have her checked to prove that she was lying." Defendant denied ever "rub[bing Sara's] vagina" and also denied all of Karen's accusations. On cross-examination, the prosecutor reviewed defendant's prior convictions: two for distribution of CDS in a school zone in 1995; possession of CDS in 2002; resisting arrest and eluding police in 2002; distribution of CDS in a school zone in 2004; and possession of a firearm during a CDS offense in 2012. 16 The prosecutor asked defendant to confirm that he "pushed" Sara on the night of August 20, but asked no further questions about those 16 Only the last conviction was within ten years of the start of trial in 2018. The other convictions were presumptively inadmissible. See N.J.R.E. 609(b). There is no appeal from the judge's ruling admitting all the convictions for impeachment purposes. A-5557-17 17 events or any questions about the accusations made by Karen. She did not confront defendant with his prior statement to Detective Choe. Defendant called Kate as the trial's final witness. She confirmed details about when she and defendant first began living together, where they lived, and when Karen first started visiting. Kate also said she contracted chlamydia, not gonorrhea, from defendant sometime after the birth of their daughter Donna in 2015. Summations Defense counsel stressed that defendant's medical records revealed he tested negative for gonorrhea shortly after his arrest and could not have been the source of Karen's infection. He criticized the lack of investigation of Karen's allegations, noting Detective Courtney "fail[ed] to gather . . . corroborating evidence." Counsel suggested Karen's brief testimony was incredible. As to Sara, defense counsel highlighted that although the events allegedly took place in August 2016, and Sara gave a statement the next day, detectives did not arrest defendant until March 2017, when Karen's allegations surfaced. Counsel acknowledged defendant admitted pushing Sara across the bed, but only to make space on the bed for Donna. A-5557-17 18 The prosecutor recounted Karen's testimony and the findings of Drs. Burton and Higginbotham. She reviewed defendant's medical records, which demonstrated he tested negative for chlamydia and gonorrhea at the jail. She noted the records reflected that defendant kept asking jail officials to administer the test, and she asserted, despite the lack of any evidence, that by then defendant had already been "tested and treated." Defense counsel objected. Although the judge sustained the objection, he only told jurors their recollection of the evidence controlled. The prosecutor picked up the argument immediately, telling the jury: [I]t's clear from the testimony that . . . gonorrhea and chlamydia . . . go hand in hand, there's enough there for you to make the very logical inference that the defendant was treated. That the defendant had chlamydia and gonorrhea. . . . Again, chlamydia and gonorrhea go hand in hand. Even if you test positive for only one the doctors said you get treated for both. Citing testimony that anonymous testing was available in the county, defendant's knowledge as of August 2016 that he was under investigation, and that adult males "experience symptoms more readily than females," the prosecutor urged the jury to "conclude . . . defendant had gonorrhea, gave gonorrhea to [Karen]" and was treated for it prior to his post-arrest negative test. A-5557-17 19 The prosecutor asserted that "just as was the case with [Karen]," defendant's abuse of Sara "was a matter of opportunity." She said that unlike those occasions when defendant molested Sara before going to work, on August 20, 2016, it happened at night, and Sara's mother, Kate, was awake in the next room. In urging jurors to find Sara and Karen more credible than defendant, the prosecutor said defendant was "essentially a career criminal who has six prior convictions, has spent a good deal of his adult life in prison, clearly showing contempt for the balance and rules of society." There were no objections. II. Defendant contends it was reversible error to deny his motion to sever the two counts of the indictment involving Sara's allegations from the remaining counts involving Karen because the evidence regarding Sara would be inadmissible at a separate trial of counts involving Karen "and vice versa." The State contends the severance motion was properly denied because the "charged offenses . . . were the same or similar offenses, and constituted a pattern of ongoing and overlapping criminal activity." We find defendant's argument persuasive. A. A-5557-17 20 Rule 3:7-6 permits the State to charge multiple offenses in a single indictment "if the offenses charged are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together." (Emphasis added). "Although joinder is favored, economy and efficiency interests do not override a defendant's right to a fair trial." State v. Sterling, 215 N.J. 65, 72–73 (2013). Rule 3:15-2(b) provides "[r]elief from prejudicial joinder," and states: "If for any . . . reason it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment . . . the court may order . . . separate trials of counts . . . or direct other appropriate relief." "A court must assess whether prejudice is present, and its judgment is reviewed for an abuse of discretion." Sterling, 215 N.J. at 73 (citing State v. Chenique-Puey, 145 N.J. 334, 341 (1996)). "The test is whether the evidence from one offense would have been admissible N.J.R.E. 404(b) evidence in the trial of the other offense . . . ." Id. at 98. "If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, 145 N.J. at 341 (emphasis added) (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)). To avoid prejudicial joinder, the court must conclude A-5557-17 21 the proffered evidence for each set of charges would be admissible in a separate trial on the other set of charges because the "N.J.R.E. 404(b) requirements [are] met, and the evidence of other crimes or bad acts [is] 'relevant to prove a fact genuinely in dispute and the evidence is necessary as proof of the disputed issue.'" Sterling, 215 N.J. at 73 (first citing Cofield, 127 N.J. at 338; and then quoting State v. Darby, 174 N.J. 509, 518 (2002)). In State v. Green, the Court succinctly explained: Rule 404(b) bars "evidence of other crimes, wrongs, or acts" when used "to show that [a] person acted in conformity therewith." However, evidence of prior "crimes, wrongs, or acts" may be used to show intent, . . . knowledge, . . . or absence of mistake or accident." Because evidence of a defendant's other crimes "has a unique tendency" to prejudice the jury, other-crimes evidence proffered under Rule 404(b) "must pass [a] rigorous test." [236 N.J. 71, 81 (2018) (alterations in original) (first quoting N.J.R.E. 404(b); then State v. Reddish, 181 N.J. 553, 608 (2004); and then Garrison, 228 N.J. at 194).] That "rigorous test" is the four-part Cofield test. Id. at 81–82 (citing Cofield, 127 N.J. at 338). 17 17 "The evidence of the other crime must be admissible as relevant to a material issue . . . similar in kind and reasonably close in time to the offense charged; . . . clear and convincing; and [its] probative value . . . must not be outweighed by its apparent prejudice." Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: A-5557-17 22 We apply a deferential standard of review to the trial judge's evidential rulings. Id. at 81. "In addition, sensitive admissibility rulings regarding other- crimes evidence made pursuant to Rule 404(b) are reversed '[o]nly where there is a clear error of judgment.'" Ibid. (alteration in original) (quoting State v. Rose, 206 N.J. 141, 157–58 (2011)). However, "[t]hat deferential approach does not fit in cases where the trial court did not apply Rule 404(b) properly to the evidence at trial; in those circumstances, to assess whether admission of the evidence was appropriate, an appellate court may engage in its own 'plenary review' to determine its admissibility." Rose, 206 N.J. at 158 (quoting State v. Barden, 195 N.J. 375, 391 (2008)). With these guideposts in mind, we consider the trial evidence here. B. Construing the State's proffer as admissions by defendant to Kate and Detective Choe of "inadvertently" touching Sara's vaginal area when he "pushed" her to make room for Donna on the bed, the judge seemingly concluded evidence that defendant sexually assaulted Karen by vaginally penetrating her with his penis and finger, and orally penetrating her with his ______________________ Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160–61 (1989) (footnote omitted)). See State v. Gillispie, 208 N.J. 59, 88–89 (2011) (noting second Cofield prong need not receive universal application). A-5557-17 23 penis, was admissible to prove defendant intended to touch Sara's vagina for his sexual gratification or to disprove a potential defense that the touching was "inadvertent" or by mistake. See, e.g., P.S., 202 N.J. at 256 ("In determining whether 404(b) evidence bears on a material issue, the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede." (citing State v. Stevens, 115 N.J. 289, 301–02 (1989))); State v. Cusick, 219 N.J. Super. 452, 465–66 (App. Div. 1987) (admitting evidence of the defendant's sexual abuse of two different victims to rebut his claim of inadvertent sexual contact). The judge never explained, however, why the alleged touching of Sara's vagina was relevant to prove a material fact in dispute regarding Karen's allegations. More importantly, defendant's intent in rubbing Sara's vaginal area, or that it did not occur by mistake, was never an issue because defendant denied touching Sara's vaginal area at all, inadvertently or otherwise. In State v. J.M., the defendant, a massage therapist, was charged with sexually assaulting a client during a massage. 225 N.J. 146, 151–53 (2016). The defendant denied any sexual contact occurred when interviewed after his arrest. Id. at 153. The trial court ruled the State could introduce evidence that the defendant was accused of similar conduct with a massage client in Florida six years earlier. A-5557-17 24 Id. at 153–54. We granted leave to appeal and reversed, finding the evidence was inadmissible under Cofield. Id. at 150–51 (citing State v. J.M., 438 N.J. Super. 215, 240 (App. Div. 2014)). 18 The Court agreed, clearly stating: "In a case in which a defendant contends the alleged assault did not occur, intent and absence of mistake are not at issue. In the absence of a genuinely contested fact, other-crime evidence is irrelevant and the first Cofield prong cannot be satisfied." Id. at 159 (emphasis added). 19 The Court explained: Defendant does not argue that the alleged sexual assault of [the victim] was consensual or accidental; rather, he maintains that the sexual assault never occurred. As such, [the Florida victim's] testimony is inadmissible to establish motive, intent, or absence of mistake because defendant's state of mind is not a "genuinely contested" issue in this case. The testimony is also inadmissible for proof of plan, because it is insufficient to establish the existence of a larger continuing plan of which the crime on trial is a 18 We also concluded that because defendant was acquitted of the Florida charges, that evidence was always inadmissible under Rule 404(b) unless the jury was convinced beyond a reasonable doubt the other crimes occu rred. Id. at 153. The Court specifically refused to adopt that "bright-line" rule. Id. at 151. 19 The Court tempered this by noting that it could "envision certain circumstances in which motive evidence may be admissible in t