Opinion
DOCKET NO. A-3946-13T2
03-30-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABRAHAM HARE, a/k/a ABRAHAM DURRELL, ABRAHAM D. HARE, Defendant-Appellant.
Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lerer, of counsel and on the briefs). John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-07-1968. Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lerer, of counsel and on the briefs). John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief). PER CURIAM
Defendant Abraham Hare appeals his conviction after a jury trial of a single count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a). At sentencing the trial court imposed a discretionary extended term of eight years, with a four-year period of parole ineligibility.
For the reasons that follow, we reverse defendant's conviction and remand for a new trial because of multiple prejudicial errors that were clearly capable of producing an unjust result.
I.
We briefly summarize the factual proofs germane to this appeal, recognizing that the evidence may not be identical on retrial.
Defendant has had a long history of encounters with the victim, John Douris, the owner of a pizzeria in Pleasantville. A few months before the present incident, defendant had been convicted of a lewdness offense for urinating and causing a disturbance outside of the pizzeria, and sentenced to a period of incarceration.
On the afternoon in question, October 3, 2012, defendant was observed by Douris through a surveillance monitor, standing in front of the front window of the restaurant engaging with a couple of women in what appeared to be a simulated sex act. Douris confronted defendant at the front of the restaurant. According to Douris, defendant responded, "shut the fuck up" and to "get the fuck inside," stating "I'll kill you." Defendant continued to yell and scream at Douris, cursing at him and stating that he would "fuck him up." The police arrived and arrested defendant.
Defendant did not contest at trial that he had engaged on October 3 in the conduct described by Douris. Instead, his sole contention was that he lacked the intent required to be culpable under the terroristic threat statute. The State attempted to counter that claim by presenting, over objection, proof of defendant's prior bad acts under N.J.R.E. 404(b) evidencing the previous hostile encounters between defendant and Douris, one of which resulted in his lewdness conviction.
Although the State argued that the most suitable exception under Rule 404(b) to admit proof of these past acts was for proof of motive, the trial court rejected that theory. Instead, the court ruled, sua sponte, that the Rule 404(b) proof was relevant to show a "common scheme or plan," and so instructed the jury. Guided by that evidentiary instruction, the jury convicted defendant of the sole count of the indictment, and this appeal followed.
II.
On appeal, defendant raises the following points for our consideration:
POINT I
EVIDENCE OF OTHER INCIDENTS THAT HAD OCCURRED BETWEEN THE DEFENDANT AND ALLEGED VICTIM SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT SERVED ONLY AS PROHIBITED PROPENSITY EVIDENCE; MOREOVER, THE PREJUDICE WAS NOT MITIGATED BY THE OVERBROAD LIMITING INSTRUCTION AND WAS COMPOUNDED BY THE PROSECUTOR'S MISUSE OF THE EVIDENCE
A. Introduction.
B. The Evidence Of Prior Bad Acts Was Erroneously Admitted As Proof Of A Common Scheme Or Plan And Served Only To Depict Mr. Hare As Having Bad Character, With Great Prejudicial Effect.
C. The Jury Was Not Properly Instructed On The Use Of Prior Acts Evidence Due To An Overly Broad Limiting Instruction And The Prosecutor's Misuses Of That Evidence.
POINT II
THE JURY WAS NOT GIVEN PROPER GUIDANCE ON THE ELEMENTS OF TERRORISTIC THREATS. (Not Raised Below).
POINT III
THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW BY REFUSING TO ALLOW THE JURY TO CONSIDER DISORDERLY CONDUCT AS A LESSER-INCLUDED OFFENSE.
POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
POINT V
UNDER THE CIRCUMSTANCES OF THIS CASE, IMPOSITION BOTH OF A DISCRETIONARY EXTENDED
TERM AND A DISCRETIONARY PAROLE DISQUALIFIER WAS INAPPROPRIATE AND RESULTED IN AN EXCESSIVE SENTENCE.For the reasons that follow, we agree with several of defendant's points and order a new trial.
A.
We begin with a discussion of defendant's second and third listed points in his brief regarding the jury instructions. Defendant argues that the trial court erred in the jury charge by failing to define the specific crimes of violence that could support a conviction for terroristic threats. The court's charge defined the threatened crimes as "the violent crime of killing John Douris and/or of inflicting physical injury on him by the use of some form of aggressive, physical force." Defendant contends that one of his threats, "I'll fuck you up," combined with the judge's generalized description of an assault may have led the jury to convict him on the basis of only a simple assault rather than aggravated assault. We agree.
In considering this criticism of the jury charge, we are mindful that defendant's trial counsel did not raise an objection on this subject. However, in assessing whether the alleged flaw in the charge was plain error, we must be mindful that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (citation omitted) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). Due to their fundamental importance to a fair trial, jury charges "are poor candidates for rehabilitation under the harmless error theory." State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998). In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 325 (2005), certif. denied, 205 N.J. 520 (2011); State v. Hipplewith, 33 N.J. 300, 317 (1960). Having done so, we conclude that the charge was materially flawed in this respect and that the verdict must be set aside on this separate basis.
In order to prove the offense of a terroristic threat, the State must show that the defendant threatened "to commit any crime of violence." N.J.S.A. 2C:12-3(a) (emphasis added). In State v. MacIlwraith, 344 N.J. Super. 544, 547-48 (App. Div. 2001), this court ruled that trial courts are required to provide a jury with the "elements and definition[s]" of the violent crimes threatened by the defendant and supported by the evidence. See also Model Jury Charge (Criminal), "Terroristic Threats (N.J.S.A. 2C:12-3(a))" (2004). Such instructions are necessary so that a jury does not erroneously conclude that lesser wrongs such as petty disorderly persons offenses qualify as a "crime of violence." See MacIlwraith, supra, 344 N.J. Super. at 548.
Based on the proofs adduced at trial, defendant's spoken words at the pizzeria could be reasonably construed as either a threat to commit aggravated assault, simple assault, homicide, or some combination of those acts. By describing assault as "inflicting physical injury . . . by the use of some form of aggressive, physical force," the charge provided by the trial court did not distinguish between mere simple assault and aggravated assault, since both offenses involve physical injury that can be caused by "aggressive, physical force." See N.J.S.A. 2C:12-1(a) and (b). The jury could have reasonably viewed defendant's threats to "kill" Douris as mere hyperbole, and that defendant only intended to inflict an act of simple assault, a disorderly persons offense, which is thus by definition not a "crime of violence." Hence, the jury may well have misunderstood that a threat of simple assault could legally suffice to support a connection for terroristic threats. Given that flaw in the charge, the verdict must be set aside, consistent with MacIlwraith.
B.
As a separate charge-related issue, defendant further contends that the trial court erroneously denied his request to include a charge of the lesser-included offense of disorderly conduct. N.J.S.A. 2C:33-2(a) and (b). More specifically, defendant argues that sufficient facts were produced at trial to provide the jury with a rational basis for convicting him of the lesser offense. Defendant further argues that the court impermissibly assumed the jury's role as fact-finder by denying the request based on an impression that the public was "hardly annoyed or alarmed or inconvenienced" by defendant's behavior.
Our Supreme Court has declared that "[t]o give full force to the reasonable doubt standard and to preserve defendants' rights to have the jury consider all defenses supported by the evidence, . . . a defendant is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). The inclusion of appropriate lesser-included offenses in a jury charge addresses, among other things, the concern that "a jury reluctant to acquit defendant might compromise on a verdict of guilt on the greater offense." State v. Sloane, 111 N.J. 293, 299 (1988); see also Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973) ("Where one of the elements . . . remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.").
In deciding whether to charge a lesser-included offense, a court must utilize a two-prong test that requires "(1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). "The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction." State v. Savage, 172 N.J. 374, 397-98 (2002). Nevertheless, "sheer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994).
Here, defense counsel during the charge conference requested that the charge include a lesser-included offense of disorderly conduct as defined alternatively under both N.J.S.A. 2C:33-2(a) and (b). A person is guilty of such an offense under subsection (a):
if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
Alternatively, under subsection (b) of the statute, the defendant must have used offensive language in a public place
[N. J.S.A. 2C:33-2(a).]
with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.
[N. J.S.A. 2C:33-2(b).]
The trial court, having observed the proofs produced at trial, found that no evidence had been produced to indicate that defendant acted with the "intent or purpose to cause public alarm" necessary to support a charge under subsection (a) of N.J.S.A. 2C:33-2. The court further observed that the evidence regarding the people who had gathered by the pizzeria to watch the spectacle showed that the crowd was there for "the entertainment value" and were "hardly annoyed or alarmed or inconvenienced." We agree with the court's analysis as to subsection (a) of N.J.S.A. 2C:33-2.
Although the trial evidence clearly showed that between twenty to fifty people were present in the vicinity of the pizzeria at the time of defendant's conduct, there was no indication that defendant had acted with the requisite intent under subsection (a), or that the public had been inconvenienced, annoyed or alarmed. See State v. Stampone, 341 N.J. Super. 247, 254-55 (App. Div. 2001) (finding that the elements of N.J.S.A. 2C:33(a) had not been satisfied because there was no evidence the defendant acted with "a purpose to cause such public reactions" and actions had no capacity to cause public harm).
To be sure, defendant's position at trial, as set forth in his counsel's summation, was premised on a theory that he was screaming at Douris in a fit of anger over a perceived slight that Douris had individually committed against him. See State v. Figueroa, 237 N.J. Super. 215, 218-20 (App. Div. 1989) (upholding trial court's decision not to include a disorderly persons offense charge because, in part, it would not have been possible to make out the necessary intent under the State's theory of the case). The testimony from Douris and police officer Antonio Guercioni indicated that defendant was "very loud, very boisterous," and was causing a "ruckus." We agree with the trial court that such proofs were insufficient to reasonably establish that defendant acted with a "purpose to cause public inconvenience, annoyance or alarm."
We reach a different conclusion respecting subsection (b). As to subsection (b), the trial court, citing State v. Rosenfeld, 62 N.J. 594 (1973), observed that the statute requires the offensive language to create a risk of an "immediate breach of the peace." The court concluded that facts to that effect had not been produced at trial. Ibid.
A determination of whether offensive language creates a danger of a breach of the peace is "objective" and does not require proof that the public's "sensibilities" were offended. In re W.E.C., 165 N.J. Super. 161, 169 (App. Div.) ("It is irrelevant that one of [the witnesses] testified he was not offended by the language. The test is objective, not subjective."), rev'd on other grounds, 81 N.J. 442 (1979). A "breach of the peace" has been described as a "violation or disturbance of the public tranquility and order" and "a public offense done by violence, or one causing or likely to cause an immediate disturbance of public order." Camarco v. Orange, 116 N.J. Super. 531, 535 (App. Div. 1971) (quoting Breach of the Peace, Black's Law Dictionary (4th ed. 1968) and Restatement (Second) of Torts § 116 (1965)), aff'd o.b., 61 N.J. 463 (1972).
There was considerable testimony at trial indicating that defendant's behavior was loud and offensive, that it attracted the attention of a large crowd of pedestrians who were "hooting and hollering," and that the police felt it necessary to direct defendant away from the storefront to an alley to defuse the situation. Such evidence is sufficient to provide a "rational basis" to warrant the lesser-included offense charge under subsection (b). Cassady, supra, 198 N.J. at 178. The error was not harmless.
C.
Prior to trial, the prosecution moved to allow Douris to testify about other prior incidents as proof of defendant's motive under N.J.R.E. 404(b), in order to solidify its argument that defendant intended in the October 3, 2012 encounter to terrorize Douris. Although the State conceded that defendant likely did not go to the pizzeria with the intent to threaten Douris, it contended that Douris's involvement in the prosecution that led to defendant's prior conviction explained defendant's hostility. In response, defense counsel argued that there was no evidence of a connection between the past incidents and the October 3 incident, and that discussing any of the incidents — especially any mention of "lewdness" — before a jury would be unfairly prejudicial.
After hearing Douris's proffered testimony in a Rule 104 hearing, the trial court ruled that the evidence of the prior acts was admissible under Rule 404(b), albeit not to show motive but instead "common scheme or plan." The court further instructed the prosecution to avoid providing details of the prior offense, or insinuating that it was in any way sexual in nature.
Subsequently, Douris stated the following during his direct examination before the jury:
A: We had had a previous incident in the parking lot of my restaurant.When asked whether he had any further involvement in the matter, Douris went on to explain:
Q: Do you remember around when that was?
A: It was in December of '11.
Q: And can you describe what that previous encounter was?
A: The defendant was standing in my parking lot with his penis out urinating.
Q: And what did you do in response?
A: Once again, I was at my desk, I saw it on the surveillance, I saw him pulling his pants down and I went running out, I said yo, what are you doing, you can't do that here. He started laughing, he says, I can't stop and he started urinating and waving, winding it all around.
A: Well I had to go to court five or six times to finally, until it was finally absolved [sic]. He ended up getting charged.When asked about other incidents in which the police were called, Douris stated that he had called "[f]ive, six times in the last two, three years" and that defendant had been "escorted away" each time. Douris did not provide any further details regarding Hare's prior bad acts.
Q: Okay. Did you testify?
A: Yes I did.
Q: In relation to that charge do you know if the defendant was told anything?
A: He was told not to come anywhere near my store, me or my store. . . . I thought he was to stay away from the property, because I had had several incidences [sic] with him before with panhandling and bothering customers but . . . I never had to call the police before . . . . And once this whole thing went down his whole attitude toward me changed.
Immediately after this testimony was presented, the trial court informed the jury that "[n]ormally such evidence is not permitted under our Rules of Evidence." The court then explained why the testimony was being offered and provided the following limiting instructions:
However, our rules do permit evidence of these kinds of other bad acts when the evidence is used for certain specific narrow purposes. In this case the evidence of the other alleged bad acts that Mr. Douris told you about has been allowed only in order to demonstrate a common thread that binds the various incidents together and that shows that they were parts of a course of conduct which culminated in the episode which is the subject of this trial.The court also informed the jury that "[b]efore you can give any weight to this evidence of prior bad acts allegedly, you must be satisfied that the defendant committed those prior acts[.]"
And whether the evidence does, in fact, demonstrate a common scheme or course of conduct is for you to decide. Yo[u] may decide that the evidence doesn't demonstrate a common scheme or course of conduct and [that] it is not helpful to you at all. In that case you must disregard that evidence. On the other hand you may decide that it does demonstrate a common scheme or course of conduct and use it for that specific purpose.
However, you may not use that evidence . . . to decide that the defendant has a tendency to commit offenses or that he is a bad person. That is, you may not decide that just because the defendant has committed these other bad acts he must therefore be guilty of this crime.
[(Emphasis added).]
At the conclusion of trial, the judge provided a nearly identical limiting instruction as part of the jury charge. Defense counsel did not object or request a sidebar in response to Douris's testimony or to the court's limiting instruction.
In her closing statement, the prosecutor reminded the jury of Douris's testimony regarding defendant's prior bad acts, doing so within a discussion of N.J.S.A. 2C:12-3's required element of intent:
Now you also heard about a previous time that this defendant and the victim interacted. And we heard that John Douris did not know when he looked at his surveillance camera and when he came outside, he didn't know who this defendant was, he didn't know it was a person that he had been involved with before. . . .
Now the previous time that the victim, that Mr. Douris saw this defendant he called the police on him, he testified against him, he told you that he thought that he would never have to deal with this defendant again. . . .
However, mere months later this defendant was back. And he wasn't urinating on his property, as he did before, and he wasn't laughing when Mr. Douris told him to leave like he had before. . . . This time when John told him to leave it was different. He told him he was going to kill him, that he was going to, in his words, he was going to fuck him up.
Defendant argues that the trial court erred in admitting this proof under its sua sponte theory of "common plan or scheme," and that it essentially allowed the jurors to penalize him for having a "bad character." He further contends that this unfair prejudice to him was compounded by the State's summation.
In evaluating these arguments for reversal, we are mindful of the principle that a trial court's determinations "on the admissibility of 'other bad conduct' evidence" under Rule 404(b) is generally afforded great deference, State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), and are ordinarily reviewed under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483 (1997); State v. Erazo, 126 N.J. 112, 131 (1991) (citing State v. Ramseur, 106 N.J. 123, 265-66 (1987)). However, if the trial court admits such Rule 404(b) evidence for the State without applying the multi-part analysis required under State v. Cofield, 127 N.J. 328, 338 (1992), the trial judge's determinations do not receive such deference and the issue is reviewed de novo. Goodman, supra, 415 N.J. Super. at 228 (citing State v. Darby, 174 N.J. 509, 518 (2002)).
As a fundamental precept of evidence law, proof of prior bad acts is generally inadmissible to prove a defendant's propensity to commit the crime for which he is being tried. N.J.R.E. 404(b). However, evidence of prior bad conduct 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." Ibid.
In deciding whether to admit the State's evidence of prior bad acts for one of these other Rule 404(b) purposes, the trial court must engage in a "case-by-case" analysis under the four-prong Cofield test:
1. The evidence of the other crime must be admissible as relevant to a material issue;We address these Cofield elements in turn.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
Under the first prong of the Cofield test, the court must determine if the proffered evidence is relevant to "a material issue that is genuinely disputed." State v. Covell, 157 N.J. 554, 564-65 (1999). Evidence is relevant if it has "a tendency in reason to prove or disprove any fact of consequence[.]" N.J.R.E. 401. The analysis "should focus on the 'logical connection between the proffered evidence and a fact in issue.'" Covell, supra, 157 N.J. at 565 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).
One permissible purpose under which evidence of prior bad acts may be considered is to show a "common scheme or plan." See N.J.R.E. 404(b). Evidence may be admissible for this purpose if it tends to "prove[] the existence of an integrated plan, of which the other crimes and the indicted offense are components." State v. Stevens, 115 N.J. 289, 305-06 (1989); State v. Louf, 64 N.J. 172, 178 (1973) ("[W]here such evidence tends to establish the existence of a larger continuing plan of which the crime on trial is a part, it is admissible for such purpose."). It is not enough that there is a "strong factual similarity between the 'other crimes' and the indicted offense." Stevens, supra, 115 N.J. at 305. There must be some "common or higher goal" shared by the charged crime and the prior bad acts. See State v. Lumumba, 253 N.J. Super. 375, 388 (App. Div. 1992) (finding that a prior attempted murder and the murder in question were not a common scheme, reasoning that there was no "common or higher goal" between the two incidents). When admissible, such evidence is generally relevant in proving motive, intent, or identity. McCormick on Evidence § 190(1) (West ed., 7th ed. 2013).
We are persuaded that the prior acts of defendant satisfy these features of a "common scheme or plan" within the meaning of Rule 404(b). Defendant's efforts to disturb Douris at his premises on multiple occasions can be reasonably viewed as part and parcel of an ongoing common goal to irritate him individually and disrupt his business. Although the alternative exception of "motive" under Rule 404(b) would have been an easier pathway for admission under the Rule, we reject defendant's argument that the "common scheme or plan" exception is inapplicable here.
The second prong of the Cofield test requires that the prior bad acts "must be similar in kind and reasonably close in time to the offense charged[.]" Cofield, supra, 127 N.J. at 338. However, the Court has since clarified that the second prong's "usefulness as a requirement is limited to cases that replicate the circumstances in Cofield." State v. Barden, 195 N.J. 375, 391 (2008); see also State v. Skinner, 218 N.J. 496, 515 (2014) ("The second prong . . . is implicated only in circumstances factually similar to Cofield.").
In Cofield, an undercover police informant had purchased packets of cocaine from the defendant. Cofield, supra, 127 N.J. at 331. When he was arrested the following day, the police only found $236 on his person, but not drugs. Ibid. The defendant was released on bail, and a month later was arrested once again for selling cocaine. Id. at 331-32. During the second arrest, a large quantity of cocaine was recovered. Id. at 332. The defendant was first tried for charges stemming from the second arrest, and was convicted of conspiracy to distribute drugs. Ibid.
Charges from the first arrest were then tried, and the State introduced evidence of the earlier conviction in an attempt to prove "constructive possession." Id. at 340. The Supreme Court ruled that the evidence was admissible, observing that the two incidents "were identical in location, similar in kind, and connected closely enough in time to allow the jury to make the 'obvious connection' with possession, not propensity." Ibid.
Defendant contends that his prior bad acts are too dissimilar from the charged offense to be admissible. The State responds that the prior incidents do not need to be factually identical.
We conclude that the second prong of Cofield does not apply here as a requirement because defendant's prior bad acts were introduced to show a common scheme. In Cofield, it was necessary for the prior bad acts to be similar because the evidence was essentially being used to show that the circumstances of each incident were so analogous that the presence of drugs could be inferred from the prior conviction. Here, no such factual similarity is necessary to prove a common scheme of disrupting Douris's business. Nor is it necessary to show a motive or an intent to terrorize. See, e.g., State v. Carlucci, 217 N.J. 129, 139, 141 (2014) (declining to apply second prong to evidence of prior drug use admitted to show defendant had knowledge of the contents of a baggie found at scene); Skinner, supra, 218 N.J. at 515 (declining to apply second prong with respect to "violent, degrading" rap lyrics defendant wrote admitted to show motive and intent to kill victim); State v. Gillispie, 208 N.J. 59, 66, 88-89 (2011) (declining to apply the Cofield second prong to evidence of a prior robbery used to prove identity in a homicide case).
The third prong of the Cofield test requires that the prior bad acts be established by clear and convincing evidence. "This factor requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong." State v. G.V., 162 N.J. 252, 275 (2000).
Beyond Douris's testimony, it is unclear from the record what evidence the trial court relied upon in ruling that the prior bad acts satisfied this clear-and-convincing proof requirement. Neither the public urination charge nor the lewdness conviction are reflected in defendant's presentence report, which details his criminal history. The transcript from the Rule 104 hearing does, however, imply that police reports had been provided, and defense counsel seemed to readily acquiesce to the fact that the conviction occurred. Hence, we are satisfied that the "clear and convincing" threshold was met as to this conviction, which had to have been proven beyond a reasonable doubt.
Defense counsel did, however, take issue with the lack of information regarding how a public urination charge ended in a lewdness conviction. But the fact of the conviction itself is not challenged or rebutted by conflicting proof. --------
As to the various calls to police that did not result in charges against defendant on prior occasions, the only evidence presented to the court appears to have been Douris's proffered testimony, which consisted of the following:
A: It was always for either panhandling, or bothering my customers, or, you know, he — he walks the street in front of my place like he's the king, and he — there's a lot of other street people, I guess you would call them, people that, you know, walk up and down, and he's like the king, so they — they think that he's the man. So he constantly bothers customers, asking for money, you know, bothering people coming in the store, and I've told him about it several times, and I called probably in the last three years — it's been three years that he's been hounding me — probably five, six times I've — I ended up calling the police, where he just wouldn't leave.
The lack of documentary evidence in the record, coupled with the lack of specific findings from the court on the subject, make it very difficult to determine whether the prior nonconvicted bad acts were proven by clear and convincing evidence. This is especially the case with respect to the alleged "five or six" calls to the police, where it appears the only support comes from Douris's rather vague testimony. See Carlucci, supra, 217 N.J. at 143 (ruling that the third prong had not been satisfied in a case where a prior uncharged bad act was supported only by a police officer's testimony about the defendant's statements).
The final prong of the Cofield test requires that the "probative value of the evidence must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338. The balancing test under Rule 404(b) is more stringent than that under N.J.R.E. 403, and only requires for exclusion that the prejudice outweigh the probative value, as opposed to substantially outweighing it. State v. Rose, 206 N.J. 141, 161 (2011); State v. Reddish, 181 N.J. 553, 608 (2004).
In addition, "in order to minimize '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). This requires the court to "confine [the N.J.R.E. 404(b) evidence's] admissibility to those facts reasonably necessary" for the probative purpose for which it is admitted. State v. Collier, 316 N.J. Super. 181, 195 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8(d) on N.J.R.E. 404(b) (2015).
Although the trial court did not discuss prejudice and N.J.R.E. 403 in its ruling to admit the prior bad acts, it did acknowledge and address the potential prejudice implicitly by sanitizing certain aspects of the State's proffered evidence. Specifically, the court ruled that the State was prohibited from mentioning that the conviction was for "lewdness," or that there were any sexual connotations to the prior incidents.
Using the court's adopted theory that defendant's prior bad acts establish a "common scheme or plan," we are satisfied that the probative value of the evidence under that particular theory was not outweighed by the prejudice. The primary issue at trial in this case was whether defendant intended to terrorize Douris, or whether his words were merely an expression of anger over a perceived slight. Under the trial court's interpretation of the prior bad acts evidence, the probative value of the prior incidents, as sanitized by the court, outweighed the prejudicial impact.
"In criminal prosecutions, New Jersey courts generally admit a wider range of evidence when the motive or intent of the accused is material." Covell, supra, 157 N.J. at 565. This includes proofs that "tend to shed light" on motive or intent, or "tend fairly to explain" a defendant's actions. Ibid. See also Collier, supra, 316 N.J. Super. at 193 (allowing such proof of prior bad acts to be admitted to establish motive for a subsequent robbery and shooting of the same victim); Id. at 193; see also State v. Baker, 400 N.J. Super. 28, 32-46 (App. Div. 2008), aff'd o.b., 198 N.J. 189 (2009) (allowing evidence of a prior bank robbery to prove intent and lack of mistake in a subsequent robbery).
Here, the State initially sought to introduce defendant's prior bad acts to show that his alleged "motivation" was Douris's involvement in his prior arrest and conviction. Motive was a material — indeed, a central — issue at trial because it shed light on the element of intent. It was disputed, given defendant's position at trial that his threats were mere hyperbole in response to being "disrespected" a few minutes before. While the trial court may have concluded that defendant likely did not arrive at the pizzeria on October 3, 2012 with the intent to make terroristic threats, it does not follow that the circumstances of the prior bad act could not have served as his motive once he was confronted by Douris.
It is entirely plausible, as the State originally argued, that defendant intended to frighten Douris by threatening him because of Douris's role in the prior urination incident. This conclusion is amplified when contrasted with defendant's less intense reactions to the "five or six" prior confrontations with Douris, and tends to disprove Hare's defense. The Rule 404(b) evidence, when framed in this way, is directly relevant to the contested element of intent.
In addition, the trial court rightly sanitized the evidence to remove any unnecessarily prejudicial and irrelevant components of Douris's testimony. See Rose, supra, 206 N.J. at 161. During trial, Douris only testified that defendant urinated in public, that he was arrested for it, that he was "charged," and that Douris testified at the ensuing trial. Douris also testified that he had called police on several occasions to address defendant's "panhandling and bothering customers," but that those incidents only led to the police escorting him away. Thus, the prejudicial effect of the prior acts, as sanitized, does not overcome the probative force of that evidence under either a common scheme or motive theory.
Defendant further argues that the trial court's limiting instructions were inadequate in explaining the concept of a common scheme or plan. Defendant did not object to the instruction at trial.
Defendant contends that the instruction "was so broad that it was akin to no limitation at all." We disagree.
Due to defendant's failure to object to the limiting instructions during trial, this issue is subject to review under the "plain error" standard. State v. Townsend, 186 N.J. 473, 498 (2006). In the context of a trial court's limiting instructions, plain error is a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Id. at 498-99 (quoting State v. Torres, 183 N.J. 554, 564 (2005)).
When evidence of prior bad acts is properly admitted at trial, the trial court must provide limiting instructions "to inform the jury of the purposes for which it may, and for which it may not, consider the evidence[.]" Rose, supra, 206 N.J. at 161. Those instructions must be provided "when the evidence is first presented and again as part of the final jury charge," and must explain "precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Ibid. (quoting and citing Barden, supra, 195 N.J. at 390).
In sum, we conclude that the trial court had a sufficient conceptual basis to admit the sanitized prior act evidence under a theory of "common scheme" and provided sufficient instruction to the jurors. On a retrial, such sanitized proof may be admitted as proof of a common scheme or under an alternative theory of motive, provided that the jury is so instructed and that there is "clear and convincing" proof adduced of the prior nonconvicted acts.
D.
The impact of these identified trial errors, whether considered singularly or cumulatively, warrants a new trial. See State v. Wakefield, 190 N.J. 397, 538 (2007) (recognizing the predicates for relief under concepts of cumulative error). We therefore reverse defendant's conviction and remand for that purpose, with the guidance of this opinion. In light of this disposition, there is no need to address defendant's argument that his sentence was excessive.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION