                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3491-18T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

E.C.,

     Defendant-Respondent.
_____________________________

                    Argued May 30, 2019 – Decided June 19, 2019

                    Before Judges Accurso, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 18-03-0633.

                    Michael A. Mink, Assistant Prosecutor, argued the
                    cause for appellant (Mary Eva Colalillo, Camden
                    County Prosecutor, attorney; Michael A. Mink, on the
                    briefs).

                    Eric James Liszewski, Assistant Deputy Public
                    Defender, argued the cause for respondent (Joseph E.
                    Krakora, Public Defender, attorney; Eric James
                    Liszewski, of counsel and on the briefs).

PER CURIUM
      After defendant E.C.'s juvenile charges were involuntarily waived to the

Law Division, Criminal Part, he was indicted for sexual crimes committed

against his younger sisters, J.C. and S.C.: first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A.

2C:14-2(c)(3)(a) (count two); first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1) (count three); second-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1) (count four); second-degree sexual assault, N.J.S.A. 2C:14-2(b)

(count five); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a)(1) (count six); third-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a)(1) (count seven); and third-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a)(1) (count eight). 1      Although the State initially

charged defendant with sexual crimes that began when defendant was eleven

years-old, it agreed to amend the indictment to charge only those crimes that

occurred after his fifteenth birthday.

      The State moved to admit evidence that J.C. and S.C. were sexually

assaulted before defendant's fifteenth birthday as either intrinsic or Rule 404(b)


1
  The juvenile court has exclusive jurisdiction over defendants under the age of
eighteen, N.J.S.A. 2A:4A-24, but jurisdiction can be waived and the case sent
to the Criminal Part for certain enumerated crimes – including sexual assault –
when a defendant commits any such crimes between the ages of fifteen and
eighteen, N.J.S.A. 2A:4A-26.1(c).
                                                                           A-3491-18T3
                                         2
evidence. N.J.R.E. 404(b). The State, by leave granted, appeals from the trial

court's denial of its motion. Under the narrow parameters of the record before

us, we affirm because the trial court did not abuse its discretion in denying the

State's motion. State v. Gorthy, 226 N.J. 516, 539 (2016).

      We are unpersuaded by the State's argument that our holding in State v.

L.P., 338 N.J. Super. 227 (App. Div. 2001), countenances the admission of

evidence of the prior assaults because the evidence in L.P. was admitted under

a disused theory. There we decided that evidence of the defendant's sexual

assaults of the victim prior to the dates charged in the indictment was admissible

as atypical res gestae evidence, id. at 236, to explain to the jury the victim's

inability to report continuing assaults because of helplessness engendered by her

family's reaction to her first complaints: "the callous instruction 'to wear a pad,'"

id. at 238-40. Here, the State argues that the prior acts evidence explains the

entire history of defendant's treatment of the victims who "underwent years of

grooming and sexual abuse."

      Our Supreme Court, however, in State v. Rose, concluded the "continued

use of the moniker of res gestae adds nothing more than an interpretative

descriptor that risks clouding an evidence-rule analysis or, worse, avoiding its

required rigor through invocation of a result-infused term." 206 N.J. 141, 175


                                                                             A-3491-18T3
                                         3
(2011).    The Court disapproved "the further use of res gestae to support

evidential rulings," id. at 182, and, instead, directed trial courts to analyze the

admissibility of uncharged bad act evidence: "The threshold determination

under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is

subject to continued analysis under Rule 404(b), or whether it is evidence

intrinsic to the charged crime, and thus need only satisfy the evidence rules

relating to relevancy, most importantly Rule 403." Id. at 179.

      The trial court properly analyzed the evidence under those discrete lenses

and determined the evidence of the prior acts – described by J.C. generally as

"naked fondling" where defendant would put a belt around her legs and place

his penis between her thighs, in her mouth or on her breasts "two or three times

a week," until she was about eleven or twelve 2 – did not meet the admissibility

criteria of either theory. 3




2
  Defendant was born on March 26, 1990; J.C. on December 6, 1993; and S.C.
on March 28, 1997. When J.C. was twelve, defendant was fifteen years old.
3
   S.C. could not give her exact age when defendant first sexually assaulted her,
but said she was "probably . . . like, maybe nine or ten." Thus, the record is
devoid of any prior acts that were perpetrated against S.C. prior to defendant's
fifteenth birthday.
                                                                           A-3491-18T3
                                        4
      The trial court applied the "workable, narrow description of what makes

uncharged acts intrinsic evidence of the charged crime," adopted from United

States v. Green, 617 F.3d 233 (3d Cir. 2010):

            First, evidence is intrinsic if it "directly proves" the
            charged offense. This gives effect to Rule 404(b)'s
            applicability only to evidence of "other crimes, wrongs,
            or acts." If uncharged misconduct directly proves the
            charged offense, it is not evidence of some "other"
            crime.       Second, "uncharged acts performed
            contemporaneously with the charged crime may be
            termed intrinsic if they facilitate the commission of the
            charged crime."

            [Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 248-
            49).]

The trial court concluded that the prior acts did not directly prove the indicted

crimes and were not performed contemporaneously with those cri mes in order

to facilitate them. The record fully supports that determination.

      The indictment, amended as proposed,4 avers defendant sexually assaulted

J.C. by having her perform fellatio upon him between March 26, 2005 and

December 5, 2006 when she was under the age of thirteen and by committing

one act of vaginal-penile penetration on her between December 6, 2009 and



4
  We were not provided with an amended indictment that reflects charges only
from defendant's fifteenth birthday.


                                                                         A-3491-18T3
                                       5
December 5, 2010. As to S.C., the indictment charges in separate counts that

defendant committed an act of vaginal-penile penetration, had her perform

fellatio upon him and committed sexual contact upon her between March 28,

2006 and March 27, 2009 when she was less than thirteen.5 As confirmed during

oral argument, the State's evidence of the dates on which the assaults occurred

are not firmly established by the victims' recollection. The prior acts date back

to December 2001 when J.C. recalled being assaulted when she was eight.

Inasmuch as the State has not limited the evidence of prior acts it seeks to

introduce, it is clear that some of the acts predate the indicted crimes by three to

four years. As such, we agree the evidence was not admissible as intrinsic

because the acts were not contemporaneous ones that facilitated the indicted

crimes; nor do they directly prove those discrete crimes.

      We also determine the State's reliance on State v. Santamaria, 236 N.J.

390 (2019), to support the admission of the prior acts as intrinsic evidence to be

misplaced. The State argued to the trial court that, akin to the circumstances in

Santamaria, its proffered evidence explained both the reason J.C. continued to

subject herself to defendant's continued abuse over a long period and defendant's



5
 The indictment also charged defendant with three counts of endangering the
welfare of S.C. for each of those sexual acts.
                                                                            A-3491-18T3
                                         6
comfort level in demanding sex from his sister.          In Santamaria, intimate

photographic evidence sent to the defendant by the victim after her eighteenth

birthday was admitted to show the admittedly consensual relationship between

the victim and defendant began before she was eighteen, id. at 411, and was thus

illegal. As the trial court here observed, that evidence was admitted to prove

the timing of an admitted relationship. Admission of defendant's alleged prior

acts, however, has a much greater propensity to show the existence of a denied

relationship which at no point was legal. In short, the prior acts are not intrinsic

evidence.

      The trial court heeded the Rose Court's adoption of the Green instruction

that if the evidence is not intrinsic, "all else must be analyzed under Rule

404(b)." Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 249). Rule 404(b)

provides, in pertinent part:

            [E]vidence of other crimes, wrongs, or acts is not
            admissible to prove the disposition of a person in order
            to show that such person acted in conformity therewith.
            Such evidence may be admitted for other purposes,
            such as proof of motive, opportunity, intent,
            preparation, plan, knowledge, identity or absence of
            mistake or accident when such matters are relevant to a
            material issue in dispute.

      The State contends that the prior acts were relevant to motive, opportunity,

intent, preparation, plan, knowledge, identification, or absence of mistake or

                                                                            A-3491-18T3
                                         7
accident.6 The State makes no argument in its merits brief to support those

contentions; as such we will not address them, Nextel of N.Y., Inc. v. Borough

of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 45 (App. Div. 2003)

(holding that court will not consider an issue that is based on mere conclusory

statements), except to recognize that none of those purposes for which the

evidence can be admitted under Rule 404(b) is in dispute in this case. Defendant

denies committing the acts; he does not raise any of those factors in his defense

and extrinsic evidence is not required for a jury to determine those issues which

are clear from the manner in which the crimes were allegedly committed. State

v. Beckler, 366 N.J. Super. 16, 28 (App. Div. 2004).

      The trial court also considered the State's other proposed purposes for the

admission of the prior acts. The State's principal argument, as set forth in its

merits brief, is

             the victims allege that their parents learned of
             [defendant's abuse from the time he was eleven years-
             old] and failed to notify the authorities. However, the
             abuses continued. If these allegations cannot be
             presented to the jury, they would have only a limited
             understanding of why the [victims] failed to disclose

6
  We note the trial court recognized the State's contention was that the evidence
was relevant only to motive, intent, preparation, plan or absence of mistake.
Although we do not normally consider arguments not made before the trial court,
State v. Robinson, 200 N.J. 1, 20 (2009), we need not, in light of our holding,
base preclusion on that ground.
                                                                         A-3491-18T3
                                       8
            the[] abuse to anyone else for many years. In addition,
            the [victims] felt coerced into performing sexual acts
            upon defendant at his request due to years of prior
            abuse going unpunished. To exclude this evidence
            would be to exclude extremely relevant evidence
            explaining why the victims acted the way they did.

      In reviewing Cofield's7 four prongs, the trial court afforded the second

prong little weight, finding it had limited applicability. It cited to State v.

Williams, 190 N.J. 114, 131 (2007), and confusingly said "the second prong of

Cofield is only necessar[y] in similar situations," which is not the case here, but



7
   In State v. Cofield, the Court articulated a four-part test to determine if
evidence of uncharged acts is admissible at trial:

            1. The evidence of the other crime must be admissible
            as relevant to a material issue;

            2. It must be similar in kind and reasonably close in
            time to the offense charged;

             3. The evidence of the other crime must be clear and
            convincing; and

             4. The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [127 N.J. 328, 338 (1992) (quoting Abraham P.
            Ordover, Balancing The Presumptions Of Guilt And
            Innocence: Rules 404(b), 608(b) And 609(a), 38
            Emory L.J. 135, 160-61 (1989)).]



                                                                           A-3491-18T3
                                        9
then concluded, "pursuant to Williams . . . the evidence in question is arguably

similar in kind and similar in time." The court seemed to follow the same tack

in holding – without conducting an evidentiary hearing – the State proved the

third Cofield prong because, relying on the victims' statements, "it appears that

the State would be able to make a showing by clear and convincing evidence,

therefore giving the State the benefit of the doubt." It attributed moderate weight

to that prong. While we do not sanction that analysis in determining if the State

met Cofield's prongs – especially because the trial court found the victims'

statements about the timing of their disclosures of abuse were "lacking

somewhat in clarity" – this appeal does not involve a challenge to the trial court's

findings that the State met its burden with regard to those Cofield factors.

"[A]ppeals are taken from orders and judgments and not from opinions, oral

decisions, informal written decisions, or reasons given for the ultimate

conclusion." Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (quoting Do-Wop

Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)).

      We discern the trial court carefully assessed proofs relevant to the first

and fourth prongs as they related to the State's argument that the evidence

explained the reason for the victims' delay in reporting defendant's crimes. The

court's careful review of both victims' statements, the only evidence proffered


                                                                            A-3491-18T3
                                        10
by the State, "reveal[ed] that the vast majority of the alleged disclosures by the

two victims occurred after the defendant turned" fifteen, including J.C.'s

disclosure to her mother following the death of her father in 2011 and S.C's

disclosure to her parents about seeing defendant engaged in a sex act with J.C.

when S.C. was eight.

      The trial court found that although the "date information" in the victims'

statements was "not always clear," the "only clear indications of disclosures by

either alleged victim before the defendant turned [fifteen] were first when J.C.

was eight and the defendant about [thirteen when J.C. said] she told her parents

about seeing the defendant and S.C. playing a game together naked. [8] The father

later walked in on the defendant abusing J.C. The parents later yelled at the

defendant." The other disclosure mentioned by the trial court that predated

defendant's fifteenth birthday was not a disclosure by the victim. A former

friend of defendant, Brian Carlton, disclosed to J.C. when she was ten or eleven

that he was no longer friends with defendant, apologized, told J.C. to let him

know if there was anything he could do and hugged her. Thus the record

establishes only one clear disclosure prior to defendant's fifteenth birthday.



8
  A review of the transcript reveals J.C. said S.C. told their mother defendant
and J.C. "were playing a game naked."
                                                                          A-3491-18T3
                                       11
      The trial court considered that if the disclosures before defendant's

fifteenth birthday were excluded, the State still had "multiple disclosures by the

. . . victims . . . to advance." The court added that the State's argument that the

prior acts evidenced defendant's control over the victims was undercut by

"substantially graphic detailed evidence of multiple sexual encounters with the

two alleged victims" after defendant turned fifteen.

      The trial court also concluded the evidence of prior acts had "limited

probative value, especially in light of the other evidence the State possess es to

seek to prove the alleged crimes and to show that the alleged victims disclosed

the events to their parents and numerous others" to no avail.            The court

determined the prior act evidence constituted "piling on" and was "highly

prejudicial" to the extent that it outweighed "the relatively meager probative

value of the [prior bad acts] evidence." According "high weight" to factor four

and "low weight" to the first prong, the court found the balance of all four factors

militated against admission of the evidence.

      We review evidentiary rulings for an abuse of discretion, State v.

Kuropchak, 221 N.J. 368, 385 (2015), and reverse those rulings that "undermine

confidence in the validity of the conviction or misapply the law . . . ." State v.

Weaver, 219 N.J. 131, 149 (2014); State v. J.A.C., 210 N.J. 281, 295 (2012).


                                                                            A-3491-18T3
                                        12
Simply stated, we do "not substitute [our] own judgment for that of the trial

court, unless the trial court's ruling is so wide of the mark that a manifest denial

of justice resulted." J.A.C., 210 N.J. at 295 (quoting State v. Brown, 170 N.J.

138, 147 (2001)). We discern no reason to countermand the trial court's ruling.

      The court's findings are well supported. The State admitted to the trial

court that there was "evidence of disclosures to numerous[] or several people"

after defendant turned fifteen, including one disclosure to a friend that resulted

in an investigation by the police and Division of Child Protection and

Permanency personnel to whom J.C. – in the presence of her mother and

defendant – denied any allegations. Those disclosures, like the one prior to

defendant's fifteenth birthday, went unheeded and can be used to buttress the

State's contention that the victims' late disclosure was based on their feeling of

futility. Further, the court's assessment of the evidence relevant to the indicted

crimes and that related to the prior acts is not wide of the mark. The prior act

evidence, alleging acts against J.C. when she was as young as eight, is highly

prejudicial. See State v. Willis, 225 N.J. 85, 102 (2016) (illustrating "the

restraint that must be exercised in the admission of other-crime evidence in

sexual assault cases"); see also State v. J.M., 225 N.J. 146, 161 (2016)

(discussing the prejudicial effect of other-crimes sexual assault evidence on a


                                                                            A-3491-18T3
                                        13
jury). And, like the trial court, we fail to see high probative value of the prior

act evidence. We are unconvinced the facilitation of the acts against J.C. prior

to defendant's fifteenth birthday differed from the facilitation of the acts after

that birthday so as to warrant their admission; again, all acts allegedly committed

against S.C. occurred after defendant was fifteen. Further, we do not see the

prior act evidence is relevant to grooming. According to the State's allegations,

defendant did not groom his victims; he assaulted them.

      Our decision addresses only the present status of the case. We leave to

the sound gatekeeping discretion of the trial court the shifting evidential issues

that may arise before and during trial, including changes occasioned by

severance of charges against defendant's and the victims' mother for

endangering the welfare of the children and hindering apprehension.

Additionally, defendant may – through the introduction of evidence or

examination of a witness – open the door to an issue, requiring the trial court to

reevaluate a previous ruling or apply an evidential standard with fresh eyes. See

State v. G.V., 162 N.J. 252, 264-65 (2000) (recognizing some prior crime

evidence does not become admissible until the defendant puts the relevant

purpose of that evidence in issue). We consider this caveat to be especially

appropriate in light of the fact that the trial court did not hold an evidentiary


                                                                           A-3491-18T3
                                       14
hearing and relied only on the victims' statements.           The victims' actual

testimony, including that related to the timing of events may impact on

evidential issues; as may any questioning or argument by the defense about

reasons for the victims' late complaints against defendant.

      That possibility was touched upon in part by the parties in their

supplemental briefs in which they addressed the scope of evidence relating to

the reasons for late disclosure as impacted by the Supreme Court's limitation of

child-abuse-accommodation-syndrome expert testimony in State v. J.L.G., 234

N.J. 265 (2018). We note that although J.L.G. was decided before the motion

that is the subject of this appeal was argued, we do not see that the issue was

raised before the trial court. We will not address it here. Robinson, 200 N.J. at

20.

      Affirmed.   We remand the case for proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                          A-3491-18T3
                                      15
