                             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                        NOT FOR PUBLICATION WITHOUT THE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-2012-12T3
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GUILERMO SANTAMARIA, a/k/a WILLIAM
SANTAMARIA, GHILERMO SANTAMARIA,

     Defendant-Appellant.
____________________________

              Argued February 3, 2016 – Decided June 30, 2017

              Before Judges Fuentes, Kennedy and Gilson.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Indictment No. 10-10-1436.

              Frank J. Pugliese, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Mr. Pugliese, of counsel and on the brief).

              Nancy A. Hulett, Assistant Prosecutor, argued
              the cause for respondent (Andrew C. Carey,
              Middlesex County Prosecutor, attorney; Ms.
              Hulett, of counsel and on the brief).

PER CURIAM

        On October 1, 2010, a Middlesex County grand jury returned

Indictment No. 10-10-1436, charging defendant, formerly a middle
school science teacher, with various counts of sexual assault and

misconduct in office, based upon his alleged sexual encounters

with a student between 1997 and 2002.          Following a jury trial, he

was   found   guilty   of    first-degree     aggravated       sexual    assault,

N.J.S.A. 2C:14-2(a), (count one), two counts of second-degree

sexual assault, N.J.S.A. 2C:14-2(c), (counts two and three), and

two counts of second-degree official misconduct, N.J.S.A. 2C:30-2

(counts four and five).        Defendant was sentenced to an aggregate

prison term of twenty years with approximately five years and

eleven months of parole ineligibility.            Defendant now appeals.

      For reasons set forth hereinafter, we reverse and dismiss one

of the official misconduct counts (count four), and, further, we

reverse the remainder of defendant's convictions and remand for a

new trial.

                                      I.

      The following facts are gleaned from the testimony elicited

at trial.     We note at the outset that the events that formed the

basis of the charges against defendant are alleged to have occurred

between   September    1,    1997,   and   July   4,    2004,    and    that   the

indictment itself was handed up by the grand jury on October 1,

2010.     Further,     the   trial   record    itself    is     devoid    of   any

substantive    physical      evidence,     including    text    messages,      DNA

evidence, or any admissions from defendant.             The State's case was


                                      2                                   A-2012-12T3
based primarily on the testimony of H.B., who, at the time of

trial, was twenty-seven years of age.1

     In September 1997, defendant was a science teacher at a middle

school, when he met H.B., an eighth-grade student.                 At that time,

H.B., who was born in July 1984, was thirteen years old, and

defendant was forty-three years old.             That same year, after H.B.

gave defendant a picture of herself with her phone number written

on the back, the two began speaking on the telephone "once or a

few times a week."

     In the spring of 1998, H.B. joined defendant's after-school

Greek and Latin club, and H.B. and defendant began conversing

through internet chatrooms.        Defendant also told H.B. around that

time that he "like[d] [her] more than just a friend."                  At no point

before or after H.B.'s involvement with the Greek and Latin club,

was she ever enrolled in a class he taught.

     H.B. graduated from eighth grade in the spring of 1998.                    That

summer, defendant regularly saw H.B. outside of school.                     Shortly

after   H.B.'s   eighth    grade   graduation,          but    prior   to    H.B.'s

fourteenth birthday, H.B. and defendant kissed for the first time.

Around the same time, their telephone conversations became more

"intimate,"   and   H.B.   testified      that    she    and    defendant     would



1
  To protect privacy interests, we use initials to identify the
victim and witnesses.

                                      3                                     A-2012-12T3
masturbate while on the phone.              Shortly after H.B.'s fourteenth

birthday on July 5, 1998, she and defendant had sexual intercourse

for the first time.       According to H.B., that encounter occurred

off school property in a park.

       In   September   1998,    H.B.   entered    high   school,    and     their

relationship continued.          H.B. testified that she knew defendant

was married and that he was dating two other women, R.M. and M.E.

R.M. was also a middle school teacher in the district, while M.E.,

who lived in California, maintained an online relationship with

defendant.

       In January 1999, M.E.'s husband discovered information on

their family computer that referenced defendant and H.B.                          He

contacted New Jersey police to inform them of defendant's apparent

"cyber-relationship" with his wife and defendant's connection with

H.B.   However,   he    called    the   police    again   the    following      day

recanting his previous statement.

       H.B. and defendant continued their relationship throughout

H.B.'s four years of high school.            They spoke nearly every day and

saw each other at least three times per week.                   They kept their

relationship a secret because defendant told H.B. "people would

not understand [it]."            According to H.B., they maintained a

"dominance and submissive relationship," where defendant was the




                                        4                                  A-2012-12T3
dominant partner and she was the submissive partner, and she would

perform whatever sexual acts defendant requested.

       In September 2001, R.M. accessed defendant's e-mail account

without permission, and she discovered a picture of H.B. wearing

a bathing suit top while seated in defendant's car. She confronted

defendant about the picture and, further, notified the police and

the    Division   of   Youth   and    Family       Services   (DYFS)2     about   her

suspicions    that     defendant     and    H.B.    were   having    an   "illicit"

relationship.     R.M. also spoke with H.B., who denied any type of

relationship with defendant.               DYFS contacted school officials,

defendant, and H.B.; however, both H.B. and defendant denied any

type    of   relationship.         DYFS     classified     R.M.'s     referral     as

"unsubstantiated."3

       In the spring of 2002, H.B. graduated from high school.                    She

turned eighteen in early July 2002, and in August 2002, she left

New Jersey to attend an out-of-state university.                    H.B. testified

that she and defendant planned to continue their relationship

while H.B. was at college, and to eventually marry and start a

family.




2
  Effective June 29, 2012, DYFS was renamed the Division of Child
Protection and Permanency (DCPP). N.J.S.A. 9:3A-10.
3
  We do not comment on the admissibility of this evidence, as it
was neither briefed nor argued by the parties.


                                           5                                A-2012-12T3
     In the winter of 2002, however, while at college, H.B. began

dating a fellow college student.         Around the same time, H.B.'s

parents   received   a   letter   from   DYFS   regarding   R.M.'s     prior

allegations.   H.B.'s parents also saw e-mails from defendant when

H.B. was home during college winter break.           Nevertheless, when

confronted, H.B. denied any relationship with defendant.

     H.B. and defendant's relationship was "on and off" during

H.B.'s freshman and sophomore years.        H.B. testified that on one

occasion, while on college recess, she returned to her former

middle school to visit her old teachers, including defendant. H.B.

recalled performing oral sex on defendant inside a room adjoining

defendant's classroom.

     Thereafter, their relationship deteriorated.           In the summer

of 2006, after H.B. had graduated from college, defendant sent

H.B. an e-mail ending their relationship.           Almost three years

later, in the spring of 2009, H.B. told her family about her

relationship with defendant.       H.B.'s mother contacted the police

and Investigator Michael Daniewicz of the Middlesex Prosecutor's

Office called H.B.       H.B. declined to pursue the matter at that

time. However, H.B. had her sister contact Daniewicz a year later,

in the spring of 2010.      At that time, H.B. gave a statement and

agreed to help prosecute defendant.




                                    6                                A-2012-12T3
      Daniewicz obtained a 4C intercept, which authorized him to

record conversations between H.B. and defendant.                     H.B. called

defendant and left him several voice messages on May 17, 2010, and

May 18, 2010.      Defendant returned H.B.'s calls on May 18, 2010,

and they agreed to meet for dinner that night.              Daniewicz obtained

another 4C intercept and equipped H.B. with a body wire to wear

during the dinner.

      During the course of his investigation, Daniewicz interviewed

H.B.'s parents; defendant's co-worker, C.G.; R.M.; M.E.; M.E.'s

husband;    and    defendant's   ex-wife,      B.S.     C.G.    recalled     that

defendant told him that he was in a relationship with H.B. while

she was in college.

      B.S., through her lawyer, provided Daniewicz with a compact

disc (CD) containing seventy-one photographs of H.B. and defendant

that she had discovered in her backyard in 2002.                At trial, the

State admitted more than forty of these photographs into evidence

and presented them to the jury during B.S.'s direct examination.

All   of   those   photographs   were       taken   after   H.B.'s    eighteenth

birthday.     The same photographs, along with several additional

photos, were again presented to the jury during H.B.'s testimony.4



4
  The record is not clear as to exactly how many photographs were
admitted at trial.    However, it is clear that more than fifty
photographs were admitted into evidence and presented to the jury,
with at least ten of those photographs shown twice.

                                        7                                A-2012-12T3
The photographs depicted H.B. naked and engaged in various sexual

acts with defendant inside defendant's marital home.   Based on the

appearance of an air conditioner and a remodeled shower in the

pictures, B.S. estimated that the photographs were taken in late

July 2002.   H.B. agreed that the photographs were taken after her

eighteenth birthday, but before she left for college in August

2002.

                                II.

     Defendant now appeals his conviction and argues as follows:

          POINT I

          THE PHOTOGRAPHS DEPICTING DEFENDANT AND H.B.
          ENGAGED IN SEXUALLY EXPLICIT ACTS AT A TIME
          WHEN H.B. WAS AN ADULT WERE IRRELEVANT TO THE
          CHARGES AGAINST DEFENDANT AND PURSUANT TO
          [N.J.R.E.]    401 AND [] 402 SHOULD NOT HAVE
          BEEN ADMITTED INTO EVIDENCE.      FURTHERMORE,
          WHATEVER    MINIMAL   PROBATIVE    VALUE   THE
          PHOTOGRAPHS MAY HAVE HAD, WAS FAR OUTWEIGHED
          BY THEIR GROSSLY PREJUDICIAL IMPACT AND
          PURSUANT TO [N.J.R.E.]    403 SHOULD NOT HAVE
          BEEN PUBLISHED TO THE JURY.     MOREOVER, THE
          SAME PHOTOGRAPHS WERE AKIN TO THE ADMISSION
          OF BAD ACTS AND SHOULD HAVE BEEN STRICKEN
          PURSUANT TO [N.J.R.E.] 404B.    THE ERROR WAS
          COMPOUNDED BY THE COURT'S FAILURE TO PROVIDE
          A LIMITING INSTRUCTION AND BY THE PROSECUTOR'S
          SUMMATION.   AS A CONSEQUENCE, DEFENDANT WAS
          DENIED HIS FEDERAL AND STATE CONSTITUTIONAL
          RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL.
          (U.S. CONST. AMENDS. V, VI AND XIV; N.J.
          CONST. [], ART. [I], [¶]. 1, 9 AND 10.) (Not
          Raised Below).




                                 8                          A-2012-12T3
             POINT II

             THE CONVICTION OF OFFICIAL MISCONDUCT STEMMING
             FROM COUNT FOUR MUST BE VACATED AND THE CHARGE
             DISMISSED FOR LACK OF JURISDICTION. INASMUCH
             AS SOME OF THE DATES ALLEGED IN THE OFFICIAL
             MISCONDUCT CHARGE CONTAINED IN COUNT FIVE ARE
             JURISDICTIONALLY    INFIRM   AS    WELL,   THE
             CONVICTION STEMMING THEREFROM MUST ALSO BE
             VACATED AND THE CHARGE DISMISSED.         (Not
             Raised Below).

             POINT III

             ABSENT A QUID PRO QUO AND NOTWITHSTANDING THAT
             ONE OR BOTH OF THE PARTICIPANTS IS A PUBLIC
             SERVANT, CONSENSUAL SEXUAL CONDUCT BY TWO
             ADULTS ON SCHOOL PROPERTY DOES NOT CONSTITUTE
             THE CRIME OF OFFICIAL MISCONDUCT FOR WHICH A
             POTENTIAL MAXIMUM SENTENCE OF TEN YEARS WITH
             A FIVE YEAR PAROLE BAR COULD BE IMPOSED.
             (Partially Raised Below).

             POINT IV

             THE STATE COMMITTED REVERSIBLE ERROR BY
             COMMENTING IN SUMMATION ON DEFENDANT'S SILENCE
             WHEN H.B., ACTING AS AN AGENT OF THE POLICE,
             CONFRONTED HIM WITH HER ACCUSATIONS DURING
             THEIR RECORDED DINNER CONVERSATION.       U.S.
             CONST., AMENDS. V, XIV. (Not Raised Below).

             POINT V

             THE COURT'S INSTRUCTION TO THE JURY REGARDING
             THE DESTRUCTION OF POLICE NOTES BY M.D. WAS
             INFIRM AND THEREFORE VIOLATED DEFENDANT'S
             CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A
             FAIR TRIAL.

      We first consider the statute of limitations as it relates

to   count   four,     charging   defendant   with   official   misconduct.

Because all the allegations in that count relate to activity that


                                      9                             A-2012-12T3
took place on or before July 4, 2002, and the indictment in this

matter was handed up on October 1, 2010, we conclude that the

applicable     seven-year     statute       of     limitations      requires          the

dismissal    of    that    charge.        Next,    we    consider      the       State's

introduction of more than fifty sexually graphic photographs,

taken after H.B. turned eighteen, for the alleged purpose of

establishing the existence of a sexual relationship between them

when she was a minor.         We conclude that the admission of such a

large number of sexually graphic photographs was substantially

more prejudicial than probative.             Accordingly, we are compelled

to reverse the remainder of defendant's convictions and remand for

a new trial.       Consequently, defendant's remaining arguments are

moot in light of our holding; however, we do add some commentary

to guide the new trial.

      A. The Statute of Limitations for Official Misconduct.

      Defendant argues that count four of the indictment, charging

him   with   official     misconduct,      was    barred   by    the    statute         of

limitations.      We agree.

      A criminal statute of limitations "balances the right of the

public to have persons who commit criminal offenses charged, tried,

and   sanctioned    with    the   right    of     the   defendant      to    a    prompt

prosecution."      State v. Diorio, 216 N.J. 598, 612 (2014) (citing

State v. Zarinsky, 75 N.J. 101, 106-07 (1977)).                  "The statute of


                                      10                                         A-2012-12T3
limitations    for   a   criminal   offense    is   an   absolute   bar    to

prosecution."    Id. at 613 (citing State v. Short, 131 N.J. 47, 55

(1993)).

     The statute of limitations for official misconduct is seven

years.     N.J.S.A. 2C:1-6(b)(3).        "Time starts to run on the day

after the offense is committed . . . ."       N.J.S.A. 2C:1-6(c). Count

four charged defendant with official misconduct from the time H.B.

started eighth grade, September 1, 1997, until the day before she

turned eighteen, in July 2002.      Defendant was indicted on October

1, 2010.     Consequently, none of the acts alleged in count four

occurred within seven years of the indictment.

     Prosecution for official misconduct "must be commenced within

seven years after the commission of the offense . . . ." N.J.S.A.

2C:1-6(b)(3).

            An offense is committed either when every
            element occurs or, if a legislative purpose
            to prohibit a continuing course of conduct
            plainly appears, at the time when the course
            of conduct or the defendant's complicity
            therein is terminated. Time starts to run on
            the day after the offense is committed
            . . . .

            [N.J.S.A. 2C:6(c).]

     Criminal    offenses    can    either    be    "discrete   acts"      or

"continuing offenses." Diorio, supra, 216 N.J. at 614. A discrete

act is "one that occurs at a single point in time" while a

continuing offense "involves conduct spanning an extended period

                                    11                              A-2012-12T3
of time and generates harm that continues uninterrupted until the

course of conduct ceases."        Ibid.      "An offense should not be

considered a continuing offense 'unless the explicit language of

the substantive offense compels such a conclusion, or the nature

of the crime involved is such that [the legislative body] must

have assuredly have intended that it be treated as a continuing

one.'"    Ibid. (quoting Toussie v. United States, 397 U.S. 112,

114-16, 90 S. Ct. 858, 860-61, 25 L. Ed. 2d 156, 161-62 (1970)).

     In State v. Weleck, our Supreme Court recognized that an

indictment for official misconduct "may allege a series of acts

spread across a considerable period of time."           10 N.J. 355, 374

(1952).   Because the statute of limitations at that time was two

years, the Court held that "[i]f any of the acts fall within the

two years next preceding the return of the indictment, prosecution

is not barred."     Ibid.

     In   Weleck,   a   borough   attorney    entered   into   an   illegal

agreement with a private citizen on March 2, 1949.             Id. at 364.

The attorney agreed to use his influence and office to help enact

a particular ordinance in exchange for $15,000. Id. at 365. After

the ordinance passed, the attorney made two demands on the citizen

for payment.   Ibid.     The first demand occurred on July 7, 1949,

and the second on July 14, 1949.        Ibid.    An indictment returned




                                   12                               A-2012-12T3
on June 26, 1951, charged defendant with official misconduct.     Id.

at 364-65.

     Though the official misconduct charge encompassed acts that

took place outside the statute of limitations, i.e., the March

2, 1949 agreement, the Court held that prosecution was not

barred.   The Court stated:

          When the defendant demanded money of Lubben
          and entered into a corrupt agreement with him,
          it constituted a breach of those duties and
          the breach continued so long as the defendant
          held office and persisted in his efforts to
          obtain the money from him.          Since the
          indictment alleges that the defendant while
          still borough attorney made a demand upon
          Lubben on July 7, 1949, and again on July 14,
          1949, it is readily apparent that the
          defendant was charged with acts of misconduct
          within two years of the return of the
          indictment on June 26, 1951, and, accordingly,
          that the statute of limitations does not
          preclude prosecution of the offense.

          [Id. at 374.]

     The indictment in this case, as we have noted, was returned

on October 1, 2010.   Count four charged defendant with official

misconduct from the time H.B. started eighth grade, September 1,

1997, until the day before she turned eighteen, in July 2002.

Because none of the acts alleged in count four could have occurred

within the seven years preceding the return of the indictment –

October 1, 2003, to October 1, 2010 – it is barred by the statute

of limitations.


                               13                            A-2012-12T3
      Count five, in contrast, is not barred by the statute of

limitations.         Count       five   charged     defendant       with   official

misconduct for engaging in sexual relations with H.B. in a room

adjoining his science classroom at the middle school during her

freshman or sophomore year of college.                 H.B. entered college in

2002, thus she was a freshman during the 2002-2003 academic year

and a sophomore during the 2003-2004 academic year.                  Since the act

alleged in count five could have occurred within the seven years

preceding the return of the indictment – October 1, 2003 to October

1, 2010 – prosecution is not barred by the statute of limitations.

Though count five is not barred by the statute of limitations, the

trial court erred in denying defendant's motion for a judgment of

acquittal on count four.

      B. Introduction of Photographs

      Defendant contends that the admission of over fifty sexually

explicit photographs of H.B. and defendant, taken after H.B. turned

eighteen years old, denied him a fair trial.                  He argues the trial

court   should   have      sua    sponte    excluded    the    photographs     under

N.J.R.E. 401 and N.J.R.E. 402 as irrelevant.                        Alternatively,

defendant asserts that, even if the photographs were relevant,

they should have been excluded under N.J.R.E. 404(b) or under

N.J.R.E. 403. Defendant also argues that this error was compounded

by   the   absence    of     a   limiting       instruction    at   the    time   the


                                           14                                A-2012-12T3
photographs were admitted into evidence and during the court's

final charge to the jury.

     We examine this issue pursuant to the plain error standard

because appellant did not raise an objection before the trial

court. Under this standard, we reverse only if the unchallenged

error was "clearly capable of producing an unjust result."             R.

2:10-2.

     As we explain hereinafter, we find the admission of over

fifty sexually explicit photographs of defendant and H.B. had

minimal probative value that was substantially outweighed by the

risk of undue prejudice and further, constituted the needless

presentation   of   cumulative   evidence   under   N.J.R.E.   403   and

N.J.R.E. 404(b).    In addition, the failure of the court to give

to the jury clear instructions on the limits of such evidence

compounded the undue prejudice to defendant and requires a reversal

of defendant's convictions and a remand for a new trial.

     N.J.R.E. 401 defines "relevant evidence" as evidence "having

a tendency in reason to prove or disprove any fact of consequence

to the determination of the action."        To be relevant, evidence

must (1) have a tendency to prove or disprove a fact, and (2) the

fact to be proved or disproved must be a fact of consequence in

the matter.    Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 1 on N.J.R.E. 401 (2015).     "Probative value 'is


                                  15                            A-2012-12T3
the tendency of the evidence to establish the proposition that it

is offered to prove.'"    State v. Buckley, 216 N.J. 249, 261 (2013)

(quoting State v. Wilson, 135 N.J. 4, 13 (1994)).                      The second

element refers to materiality.          "A material fact is one which is

really in issue in the case."          Ibid. (quoting State v. Hutchins,

241 N.J. Super. 353, 359 (App. Div. 1990)).                Thus, a relevancy

determination   focuses   on    "the    logical      connection       between   the

proffered evidence and a fact in issue, i.e., whether the thing

sought to be established is more logical with the evidence than

without it."    Hutchins, supra, 241 N.J. Super. at 358 (citing

Manieri v. Volkswagenwerk A.G., 151 N.J. Super. 422, 429-30 (App.

Div. 1977), certif. denied, 75 N.J. 594 (1978); State v. Coruzzi,

189 N.J. Super. 273, 302 (App. Div.), certif. denied, 94 N.J. 531

(1983)). The test for relevance is broad and favors admissibility;

evidence does not have to be dispositive or even strongly probative

to be relevant. Buckley, supra, 216 N.J. at 261; State v. Deatore,

70 N.J. 100, 116 (1976).

     Under   this   broad      test,        the   photographs     -    considered

individually - have some probative value in showing a sexual

relationship existed between H.B. and defendant at some point near

the time-frame alleged in the indictment.               Buckley, supra, 216

N.J. at 261. The material facts at issue in this case were whether

defendant committed any acts of sexual penetration with H.B. when


                                       16                                  A-2012-12T3
she was fourteen, fifteen, sixteen, or seventeen.             The photographs

depicting H.B. and defendant's sexual relationship when she was

eighteen were logically connected to whether they also had a sexual

relationship when H.B. was underage.            It is "more logical" that

defendant engaged in acts of sexual penetration with H.B. when she

was fourteen, fifteen, sixteen, or seventeen, if they also had a

sexual relationship when she was eighteen.            Hutchins, supra, 241

N.J. Super. at 359.

     Nevertheless, the trial judge should not have permitted the

State to introduce over fifty of these photographs under the

circumstances of this case; their minimal probative value was

substantially   outweighed    by   the   risk    of   undue    prejudice   and

constituted the needless presentation of cumulative evidence.

"[R]elevant evidence may be excluded if its probative value is

substantially outweighed by the risk of (a) undue prejudice,

confusion of issues, or misleading the jury or (b) undue delay,

waste of time, or needless presentation of cumulative evidence."

N.J.R.E. 403.     There is a presumption in favor of admitting

relevant   evidence,   so    the   factors   favoring     exclusion     under

N.J.R.E. 403 must substantially outweigh the probative value of

the contested evidence.      State v. E.B., 348 N.J. Super. 336, 345

(App. Div.), certif. denied, 174 N.J. 192 (2002).




                                    17                                A-2012-12T3
      "The 'more attenuated and the less probative the evidence,

the more appropriate it is for a judge to exclude it under N.J.R.E.

403.'"    State v. Covell, 157 N.J. 554, 569 (1999) (quoting State

v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied,

102   N.J.     298     (1985)).      "[A]       court   must    also       consider    the

availability of other evidence that can be used to prove the same

point."        Ibid.     While proffered evidence's probative value is

enhanced by the absence of other evidence, proffered evidence

loses    some    of     its   probative     value       if   there     is   other     non-

inflammatory evidence available to prove the same point.                          Ibid.

      The photographs have minimal probative value due to their

attenuation.      Both H.B. and defendant's wife, B.S., testified that

the photographs were taken in late July or early August 2002,

after H.B. turned eighteen.                Since defendant was charged with

engaging in acts of sexual penetration with H.B. when she was

underage, the photographs were taken at least several weeks, if

not years, after the alleged crimes occurred.                      Further, the State

had other patently less inflammatory evidence to establish the

facts the State now points to as justifying their admission.

      Here, there was a wealth of other evidence to prove that H.B.

and defendant had a sexual relationship after H.B. turned eighteen.

First    and    foremost,     defendant         conceded     the     relationship      and

defense    counsel       mentioned    it    multiple         times    in    his   opening


                                           18                                     A-2012-12T3
statement.5    ("He made a mistake, and his mistake was having a

legal, consensual relationship with the alleged victim, [H.B.]");

("[H.B.'s] allegations come out only after, after she's already

in college, when admittedly they were having a legal consensual

relationship   .   .   .   .");   ("You    got   to   understand   that   those

pictures, those are not a crime, because at that point in time it

was a legal consensual relationship that they were involved in.

[H.B.] . . . was [eighteen].").           Further, H.B. testified that her

sexual relationship with defendant continued after she turned

eighteen and went off to college.                C.G. also testified that

defendant told him that he had a relationship with H.B. while she

was in college.    In light of the wealth of other, non-inflammatory

evidence available to prove that H.B. and defendant had a sexual

relationship after H.B. turned eighteen, the introduction of more

than   fifty   sexually      explicit      photographs     was     a   needless




5
  Since defendant conceded having a sexual relationship with H.B.
after she turned eighteen, the State cannot justify the
introduction of the photographs as rebutting defendant's trial
strategy or defense. C.f. State v. Jenkins, 356 N.J. Super. 413,
431 (App. Div. 2003) (if defendant stipulated to the contents of
the murder victim's testimony there would be no need to show the
potentially prejudicial videotape of the testimony), aff'd on
other grounds, 178 N.J. 347 (2004); State v. L.P., 352 N.J. Super.
369, 378 (App. Div.) (defendant could have avoided any prejudicial
impact caused by the admission of nude photographs of his body by
stipulating that the victim's description of his body features was
accurate), certif. denied, 174 N.J. 546 (2002).


                                     19                                 A-2012-12T3
presentation of cumulative, inflammatory evidence.                           Davis, supra,

116 N.J. at 366.

     The      photographs         were   also     unduly     prejudicial.           Although

graphic       or     sexually      explicit       photographs          are    not    per     se

inadmissible, State v. Micheliche, 220 N.J. Super. 532, 544 (App.

Div.), certif. denied, 109 N.J. 40 (1987), they should be excluded

when "their probative value is so significantly outweighed by

their inflammatory potential as to have a probable capacity to

divert    the      minds    of    the    jurors      from    a    reasonable        and    fair

evaluation of the basic issue of guilt or innocence."                               State v.

Abdullah, 372 N.J. Super. 252, 270-71 (App. Div. 2004) (quoting

State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif.

denied, 111 N.J. 653 (1988)), aff'd in part rev'd in part on other

grounds, 184 N.J. 497 (2005).

     In State v. Taylor, we found a videotape of a homicide victim

to be cumulative and redundant, but also that "[t]he probative

value    of    such     cumulative       evidence      was       far   exceeded      by    its

prejudicial effect."             350 N.J. Super. 20, 36 (App. Div.), certif.

denied,    174       N.J.   190    (2002).      We   explained,        "the    potentially

prejudicial effect of observing the victim struggling for life is

enormous       and     substantially       outweighs         whatever         residual       or

collateral evidential value there remained to the tape's depiction

of [the victim's] last words."               Id. at 37. The first three minutes


                                             20                                       A-2012-12T3
of the tape "lacked any intrinsic relevance whatsoever," causing

the dramatic effect of the last few seconds to further inflame the

jury's passion.       Id. at 38.       We also noted that the prosecutor

described the tape as "compelling," the trial judge found it to

be "graphic" and depicting the victim in the "throes of death,"

and at least one or two members of the jury were moved to tears.

Id. at 36. "And lest any of them forget the impression made during

the State's case-in-chief, the tape was again played for the jurors

in summation . . . ."        Ibid.

     In State v. Slattery, we considered a case analogous to this

case.   239 N.J. Super. 534 (App. Div. 1990).                 In Slattery, the

defendant    was     charged   with     aggravated        sexual    assault   for

committing acts of sexual penetration on a child less than thirteen

years old.     Id. at 537.           The child testified that after her

thirteenth birthday, the defendant had forced her to perform oral

sex on him approximately fifty times.             Id. at 540.        Because the

evidence    showed    that   defendant's      acts   of    sexual    penetration

occurred after the child turned thirteen, the trial court reduced

the charge and instructed the jury to ignore that portion of the

child's testimony.      Id. at 537.         On appeal, we found plain error

in the admission of "a substantial quantity of inadmissible and

highly prejudicial evidence," which could not have be cured by the

trial court's instruction.       Ibid.


                                       21                                A-2012-12T3
     In   this   case,   the   State    introduced   over   forty   of   the

photographs during defendant's wife's testimony.                Since the

photographs were taken in the home defendant shared with B.S., the

State asked her to identify items in each of the photographs and

estimate when they were taken.         During H.B.'s testimony the next

day, the State introduced the remainder of the photographs, many

of them for a second time.     H.B. was asked to identify herself and

defendant in each of the pictures.         Many of the pictures were of

H.B. naked, while others were of H.B. and defendant engaged in

various sexual acts.     H.B. was asked to identify defendant's penis

and her vagina in some of the pictures.

     Clearly, the photographs were extremely prejudicial.                The

jury was shown over fifty sexually explicit pictures, many of them

two days in a row.       The photographs showed an eighteen-year-old

H.B. naked and engaged in various sexual acts with defendant, a

man thirty years her senior.      Though the record does not indicate

the jury's reaction to the photographs, the trial judge recalled

the photographs at defendant's sentencing five months after the

trial.    The judge stated:

           Oh my God, those pictures. I can't get one
           of those pictures out of my head.     For the
           rest of my life I will have to die with one
           of those pictures that was done in your
           bedroom. I'll never forget your wife's face,
           I'll never forget it, when she identified her
           own bedroom that she was in. Oh the bathroom
           that had just been finished, and she had to

                                   22                               A-2012-12T3
           say that's the bathroom we just finished.
           That's physical evidence of something, it's
           not just out of thin air. There's something
           there.

The   photographs'   inflammatory   potential   undoubtedly   had   the

"probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation of the basic issue of guilt or

innocence."     Abdullah, supra, 372 N.J. Super. at 270-71; accord

State v. Thompson, 59 N.J. 396, 421 (1971).      As the photographs'

probative value was substantially outweighed by the risk of undue

prejudice, their introduction by the State was improper under

N.J.R.E. 403.

       Though the totality of the photographs should have been

excluded under N.J.R.E. 403 as cumulative and unduly prejudicial,

they could have also been excluded under         N.J.R.E. 404(b) as

evidence of other crimes, wrongs, or acts. N.J.R.E. 404(b) states:

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

"[T]he underlying danger of admitting other-crime [or bad-act]

evidence is that the jury may convict the defendant because he is

a bad person in general."     State v. Skinner, 218 N.J. 496, 514

                                 23                            A-2012-12T3
(2014) (quoting State v. Cofield, 127 N.J. 328, 336 (1992)) (second

alteration in original).

     In Cofield, our Supreme Court established a four-part test

to "avoid the over-use of extrinsic evidence of other crimes or

wrongs" pursuant to N.J.R.E. 404(b).          Supra, 127 N.J. at 338.        The

four-part test requires that:

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

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

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

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

            [Ibid. (quoting Abraham P. Ordover, Balancing
            The Presumptions Of Guilt And Innocence: Rules
            404(b), 608(b), And 609(a), 38 Emory L.J. 135,
            160 (1989) (footnote omitted).]

Though the photographs arguably satisfy the first three prongs of

the Cofield test, they fail the fourth prong.

     The    fourth    prong   of   the    Cofield    test   incorporates     the

balancing of prejudice versus probative value as required by

N.J.R.E. 403.        State v. Hernandez, 170 N.J. 106, 127 (2001).

However, it does not require, as does N.J.R.E. 403 that the

prejudice   substantially      outweigh     the     probative   value   of   the

evidence before it is excluded.          The risk of undue prejudice must

simply outweigh the probative value.              Biunno, Weissbard & Zegas,

                                     24                                 A-2012-12T3
supra, comment 8 on N.J.R.E. 404(b) (citing State v. Rose, 206

N.J. 141, 161-62 (2011)).      As discussed in further detail above,

the photographs' probative value was substantially outweighed by

the risk of undue prejudice.      Since the photographs should have

been excluded under the higher standard of N.J.R.E. 403, it follows

that they also fail to meet the more lenient fourth prong of the

Cofield test.

     If N.J.R.E. 404(b) evidence is found to be admissible, "the

court must instruct the jury on the limited use of the evidence."

Cofield, supra, 127 N.J. at 340-41.         "[T]he court's instruction

'should be formulated carefully to 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.'"   Id. at 341 (quoting Stevens, supra, 115 N.J. at 304).

     Appellate review gives "great deference" to a trial judge's

determination   on    the   admissibility    of   "other   bad   conduct"

evidence.   State v. Goodman, 415 N.J. Super. 210, 228 (App. Div.

2008) (citing State v. Foglia, 415 N.J. Super. 106, 122 (App.

Div.), certif. denied, 205 N.J. 15 (2010)), certif. denied, 205

N.J. 78 (2011).      Thus, there must be a "clear error of judgment"

to overturn the trial court's determination.         State v. Castagna,




                                  25                              A-2012-12T3
400 N.J. Super. 164, 183 (App. Div. 2008), certif. denied, 217

N.J. 286 (2014).

    Initially, it is important to recognize that the photographs

in this case were not evidence of the crimes for which defendant

was charged and convicted.        The evidence established that the

photographs were all taken after H.B. turned eighteen and, thus,

she was a consenting adult.       The State argues that it introduced

the photographs for the purpose of establishing the existence of

an ongoing sexual relationship between defendant and H.B., and

further   argues   that   under   a    N.J.R.E.   404(b)   framework,   the

photographs were "intrinsically" relevant to the charged crime.

Rose, supra, 206 N.J. at 176-77.

    Evidence is intrinsic if it directly proves the crime charged

or if the acts in question are performed contemporaneously with,

and facilitate, the commission of the crime charged. Id. at 180

(adopted the test in United States v. Green, 617 F.3d 233, 248-49

(3d Cir.), (internal quotations omitted), cert. denied, 562 U.S.

942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).              Courts use a

case-by-case approach in making an intrinsic determination.             Id.

at 179.

    Here, the photographs depict acts that occurred after H.B.'s

eighteenth birthday.      Thus, the photographs do not directly prove

that defendant had sex with H.B. when she was a minor.                  The


                                      26                           A-2012-12T3
photographs    also   do   not       depict    acts        that    were     performed

contemporaneously     with,    nor    did     they    facilitate,         defendant's

alleged prior sex with H.B.           Consequently, the photographs were

not admissible as intrinsic evidence.

       Instead, the photographs were only admissible as other bad

acts under N.J.R.E. 404(b).          In that regard, as we have already

explained,    the   photographs      were     marginally          relevant    to   the

material issue of whether defendant sexually assaulted H.B. when

she was a minor.      They have a tendency to prove that a sexual

relationship    existed       between       H.B.     and    defendant,        thereby

constituting evidence of opportunity.                Buckley, supra, 216 N.J.

at 261; see also Hutchins, supra, 241 N.J. Super. at 358 (stating

that a relevancy determination focuses on "the logical connection

between the proffered evidence and a fact in issue, i.e., whether

the thing sought to be established is more logical with the

evidence than without it") (citing Manieri, supra, 151 N.J. Super.

at 429-30).     Accordingly, prong one of the Cofield test was

satisfied.

       Prongs two and three of the Cofield test were also satisfied.

The photographs were taken just after H.B. turned eighteen and,

thus, were close in time to the offenses charged.                   The photographs

were also clear and convincing because they were authenticated by

H.B.


                                       27                                     A-2012-12T3
     The introduction of such a large number of photographs,

however, fails the fourth prong of the Cofield test.     While the

photographs had a tendency to prove that a sexual relationship

existed between H.B. and defendant, one or even a few photographs

would have established that relationship.     The introduction of

more than fifty sexually graphic photographs outweighed their

probative value.   Indeed, introducing so many photographs had the

probable effect of inflaming the jurors.

     In final analysis, while these photographs had some small

degree of relevancy to show the presence of an ongoing sexual

relationship between defendant and H.B., the high risk of prejudice

to defendant substantially outweighed any limited probative value,

and therefore they should have been sua sponte excluded by the

trial judge.

     This error was further compounded by the lack of a limiting

instruction.   Accordingly, the jury was not given any guidance on

how they could and how they could not use this other bad-conduct

evidence.   See Stevens, supra, 115 N.J. at 304 ("[A] limiting

instruction addressed to the use of other-crime evidence . . .

should be formulated carefully to 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




                                28                          A-2012-12T3
and appreciate the fine distinction to which it is required to

adhere.").

     In   summation,   the   prosecutor   implied   that   the   graphic

photographs provided proof that defendant and H.B. maintained a

sexual relationship prior to her eighteenth birthday, despite them

being taken in late July 2002, commenting:

           [I]f this relationship didn't happen until it
           was legal, do you think that [H.B.] would be
           that comfortable - - those pictures, if you
           recall, I think you saw them twice, that she
           would be that comfortable in the way she's
           posing and that sexual, if this relationship
           - - you don't go from zero to sixty in a month,
           ladies   and   gentlemen.   That's   just   not
           reasonable. That's not rational.

           What's more credible? That this relationship
           started well before that, well before [H.B.]
           hits that certain number, before he knew when
           he couldn't cross the line.

In just this short passage, the prosecutor opened the door for the

jury to view and evaluate the photographs in the exact manner a

N.J.R.E. 404(b) limiting instruction would have warranted, had one

been given by the trial judge.

     Again, the wholesale introduction of all the photographs

clearly carried with it the potential to divert the minds of the

jurors from a reasoned and fair evaluation of the basic issue of

guilt or innocence.    The emphasis of the salacious aspect of this

evidence also supports our conclusion that their admission, in the

context of this case, constituted reversible error and therefore

                                  29                             A-2012-12T3
the use of all these photographs should have been excluded under

both N.J.R.E. 404(b) and 403.

     C.    Defendant's Other Arguments

     In light of our decision to reverse and remand for a new

trial, defendant's remaining arguments are moot.             We do, however,

offer the following guidance for the new trial.

     First,    we    observe   that   our     opinion   regarding   the     undue

influence caused by the admission of all the photographs does not

address the State's proffer of one or two of the photographs at a

new trial.    The question of whether the State can, in the future,

introduce one or two of the less lurid photographs subject to a

limiting instruction by the court, is left to the sound discretion

of the trial judge.

     Defendant also contends that the State committed prejudicial

error by commenting in summation on defendant's silence when

confronted     by     H.B.     during        their   audio-recorded        dinner

conversation.       We add this comment to guide the court on retrial.

     The prosecutor's obligation is to ensure that justice is

done.     State v. Smith, 167 N.J. 158, 177 (2004); State v. Land,

435 N.J. Super. 249, 272 (App. Div. 2014).              "[A] prosecutor must

refrain from improper methods that result in wrongful conviction,

and is obligated to use legitimate means to bring about a just

conviction."     State v. Ingram, 196 N.J. 23, 43 (2008) (quoting


                                        30                                A-2012-12T3
State v. Jenewicz, 193 N.J. 440, 471 (2008)).        The prosecutor in

a criminal case is expected to make vigorous and forceful closing

arguments to a jury.        Nevertheless, a prosecutor must avoid

comments that invade the rights bestowed on defendants, including

the right to remain silent.    State v. Muhammad, 182 N.J. 551, 568-

69 (2005) (holding that a prosecutor may not use at trial a

defendant's silence when that silence arises "at or near" the time

of arrest, during official interrogation, or while in police

custody).    Prosecutorial "[r]emarks that 'skirt the edges' of

impermissible comment are neither desirable nor worth the risk."

State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif.

denied, 130 N.J. 393 (1991).

                                 III.

      The conviction on count four is reversed and that count is

dismissed.    Defendant's   convictions   on   the   other   counts   are

reversed and the matter is remanded for a new trial.

     Reversed and remanded.    We do not retain jurisdiction.




                                 31                             A-2012-12T3
