                                                    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                     State v. Bobby Perry (A-34-14) (075114)

Argued January 26, 2016 – Decided May 17, 2016

SOLOMON, J., writing for a unanimous Court.

         In this appeal arising from a prosecution for aggravated sexual assault, the Court considers the
admissibility, under the New Jersey Rape Shield Law, N.J.S.A. 2C:14-7, of DNA evidence from the victim’s
clothing that did not belong to defendant, which he asserted would support his defense that a third party was
responsible for the victim’s injuries.

         On August 1, 2009, at approximately 10:00 p.m., the victim visited defendant, whom she had been dating
for about three weeks, at his sister’s apartment. She drank with him, his sister and others for several hours. The
others then left, leaving defendant and the victim alone, and they began to argue. During the encounters that
followed, the victim claimed that defendant assaulted her, including hitting her face and causing her to bleed, and
engaged in multiple acts of sexual contact and intercourse with her against her will. The victim further claimed that,
during one of the episodes, defendant’s sister returned home, and he told the victim to get dressed and act as though
nothing had happened. The victim complied, and the parties and defendant’s sister then gathered together and spoke
for some fifteen to twenty minutes.

         When they were alone again, the victim claimed that defendant continued to engage her in sexual contact
against her will, and attempted to assault her. The victim finally left the apartment at approximately 5:00 a.m., and
called her ex-boyfriend. He picked her up and drove to a nearby police station, arriving at approximately 6:20 a.m.
The victim was transported to the hospital where she was treated for her injuries. The victim later gave a sworn
statement to the police, and identified defendant as her attacker.

         Defendant was indicted for first-degree aggravated sexual assault, second-degree sexual assault, and third-
degree aggravated assault. On the eve of trial, defendant filed a Notice of Intent to Assert Evidence of Semen
Source under the Rape Shield Law to admit DNA evidence from the semen stain found on the shorts that the victim
was wearing on the night of the alleged assaults. Defendant contended that the evidence was admissible to support
his defense that the victim had consented to sexual intercourse and left the apartment uninjured, a third party --
allegedly her ex-boyfriend -- then raped and assaulted her, and she falsely accused defendant. He further argued that
admission of the DNA was not precluded by the Rape Shield Law. The trial court denied defendant’s motion,
finding that the evidence was inadmissible under the Rape Shield Law because it was not relevant to the issue of
consensual sex, and its low probative value was substantially outweighed by a danger of prejudice. The trial
proceeded, and defendant was found guilty of second-degree sexual assault and third-degree aggravated assault. He
was sentenced to imprisonment for eight years, with an eighty-five percent period of parole ineligibility.

          Defendant appealed, and asserted that the trial court improperly excluded the DNA evidence, which
prevented him from presenting a complete defense. A divided Appellate Division panel reversed defendant’s
convictions, finding that the semen evidence was relevant to the third-party conduct defense that defendant had
asserted, and was admissible under the liberal approach to the admission of evidence pertaining to third-party guilt
that the courts in New Jersey have utilized. The dissent concluded that the trial court properly applied the Rape
Shield Law to exclude the DNA evidence, stating that it served only to establish that the victim engaged in sex with
an unknown third party.

         The State appealed as of right under Rule 2:2-1(a)(2) based on the dissent in the Appellate Division.

HELD: The semen found on the victim’s clothing constitutes inadmissible evidence of sexual conduct under the
Rape Shield Law, and was not relevant to defendant’s defense of third-party guilt. Any probative value of the

                                                          1
evidence is substantially outweighed by its prejudicial effect.

1. When evidentiary rulings of a trial court are challenged on appeal, the appellate court should uphold the trial
court’s determination absent a showing of an abuse of discretion demonstrating a clear error of judgment. Under
this standard, an appellate court should not substitute its own judgment for that of the trial court unless the trial
court’s ruling was so wide of the mark that a manifest denial of justice occurred. (p. 13)

2. The admissibility of evidence of a victim’s prior sexual conduct is governed by the Rape Shield Law, which was
enacted to restrict a defendant’s ability to present evidence of the victim’s past sexual conduct. The Rape Shield
Law is designed to deter unscrupulous foraging for information about the victim, and does not permit the
introduction of evidence of the victim’s past sexual conduct to cast the victim as promiscuous or of low moral
character. To encourage the reporting of sexual abuse, the law assures victims that they will not be subject to
untoward invasions of privacy through excessive and collateral cross-examination of prior sexual conduct. (pp. 14-
15)

3. While protection of the victim’s privacy interests is a paramount purpose of the Rape Shield Law, the Court has
consistently refused to construe the law in a way that would impair a defendant’s constitutional right to a fair trial.
The Court has therefore departed from the literal language of the Rape Shield Law’s standard for the admissibility of
evidence of a victim’s prior sexual conduct, which requires a showing that the evidence is relevant and highly
material, and that its probative value substantially outweighs its collateral nature or prejudicial effect. Instead, the
Court has held that such evidence is subject to a two-step analysis. First, the trial court must determine whether
evidence within the scope of the Rape Shield Law is relevant and necessary to resolve a material issue in light of the
other available evidence. Second, the court must decide whether, under N.J.R.E. 403, the probative value of the
contested evidence outweighs the prejudicial effect to the victim. The determination whether evidence is admissible
under this test is inherently fact-sensitive and dependent on the particular facts of the case. (pp. 15-20)

4. In asserting that the trial court’s exclusion of the DNA evidence violated his constitutional right to a fair trial,
defendant contends that the ruling impermissibly encroached upon his ability to show third-party guilt, and thereby
deprived him of the ability to present a complete defense. A complete defense includes the right to introduce
evidence of third-party guilt if the proposed proof has a rational tendency to engender a reasonable doubt regarding
an essential element of the State’s case. A defendant cannot seek to introduce evidence of some adverse event and
leave its connection with the case to conjecture. Instead, the evidence must be capable of demonstrating some link
between the third-party evidence and the victim or the crime. (pp. 20-22)

5. The semen stain fits within the definition of sexual conduct under the Rape Shield Law. Accordingly, the
admissibility analysis turns to the two-prong test stated above. Applying the first prong of the analysis requiring
proof that the evidence is relevant, there is nothing in the record to indicate when the semen was deposited on the
victim’s clothing, and it was also never linked to the victim’s ex-boyfriend. Thus, the proffered evidence fails to
support the defense of third-party guilt, and it is irrelevant to the defense that the parties’ sexual contact was
consensual. The trial court’s exclusion of the evidence therefore did not constitute an abuse of discretion or a due
process violation. (pp. 23-28)

6. Under the second prong of the analysis, which requires that the Court weigh the probative value of the evidence
against its prejudicial effect, the minimal probative value of the evidence is outweighed by its potential for prejudice
to the victim. It would have been an unwarranted invasion into the victim’s privacy to confront her at trial with
evidence of sexual conduct with someone other than the defendant. Allowing such an examination of the victim’s
past conduct, particularly where the probative value of the evidence and its relevance to the defense is insignificant,
is the precise matter that the Rape Shield Law is intended to prevent. (pp. 28-30)

         The judgment of the Appellate Division is REVERSED and defendant’s convictions are reinstated.

        CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA did
not participate.



                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-34 September Term 2014
                                                 075114

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

BOBBY PERRY (a/k/a BOBBY
PENNY),

    Defendant-Respondent.


         Argued January 26, 2016 – Decided May 17, 2016

         On appeal from the Superior Court, Appellate
         Division.

         Sara M. Quigley, Deputy Attorney General,
         argued the cause for appellant (John J.
         Hoffman, Acting Attorney General of New
         Jersey, attorney).

         Elizabeth C. Jarit, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Lawrence S. Lustberg argued the cause for
         amicus curiae Association of Criminal
         Defense Lawyers of New Jersey (Gibbons,
         attorneys; Mr. Lustberg and Joseph A. Pace,
         on the letter brief).


    JUSTICE SOLOMON delivered the opinion of the Court.

    Defendant was charged with sexually and physically

assaulting a woman he had been casually dating.   Prior to trial,

defendant filed a motion under the New Jersey Rape Shield Law,


                                1
N.J.S.A. 2C:14-7 (Rape Shield Law), to admit DNA evidence of an

unidentified semen stain, which did not belong to defendant,

found on the shorts that the victim was wearing on the night of

the assault.   Although it was never determined to whom the semen

belonged or when it was left on the victim’s shorts, defendant

argued that the evidence supported his defense that the victim

was still romantically involved with her ex-boyfriend, providing

motive for the ex-boyfriend to assault the victim and for the

victim to fabricate the charges.

    The trial court denied defendant’s motion, finding that the

DNA evidence was irrelevant to defendant’s theory of third-party

guilt, precluded by the Rape Shield Law, and, in any event,

inadmissible because “the low probative value of the evidence

[wa]s substantially outweighed by a danger of prejudice.”

Following a jury trial, defendant was convicted of second-degree

sexual assault and third-degree aggravated assault.

    In a split decision, the Appellate Division reversed and

remanded for a new trial, holding that the DNA evidence was

relevant to prove defendant’s theory that the victim’s ex-

boyfriend perpetrated the assault and was, therefore, admissible

because “[e]ven if there is no evidence linking another specific

suspect to the crime, ‘courts have recognized that evidence that

tends to create reasonable doubt that someone else, generically,

rather than defendant, committed the offense, is admissible.’”

                                   2
     The dissent, conversely, concluded that “the trial court

properly applied the Rape Shield Law to exclude [the DNA]

evidence proffered by defendant that served only to establish

that the victim engaged in sex with an unknown third party.”

     We conclude that the semen found on the victim’s shorts

constituted inadmissible evidence of “sexual conduct” within the

meaning of the Rape Shield Law, and was not relevant to

defendant’s third-party guilt defense.   We further find that any

probative value of the evidence is substantially outweighed by

its prejudicial effect.   We, therefore, reverse the judgment of

the Appellate Division and reinstate defendant’s convictions.

                                I.

                                A.

     The trial record reveals the following.   In 2009, defendant

met and began dating Sara.1   At the time, defendant lived with

his sister, Byinnah Jones (Jones),2 in an apartment in Union

where Jones’ two children and husband also resided.   Defendant

and Sara dated for about three weeks and had engaged in

consensual sex seven or eight times prior to the incident.




1 Consistent with the Appellate Division, we use a pseudonym for
the victim due to the sexual nature of the crimes.

2 Jones and defendant are not biological siblings, but refer to
each other as brother and sister.
                                 3
    On August 1, 2009, at about 10:00 p.m., Sara went to Jones’

apartment to see defendant.    When she arrived at the residence,

Sara joined defendant, Jones, Jones’ husband, and Jones’ cousin

on the back sun porch.   Around midnight, after being together

and drinking for a few hours, Jones and her cousin left the

apartment to attend a party.    Jones’ husband and children were

asleep in the back of the apartment.    Shortly after Jones and

her cousin left, defendant and Sara began arguing.

    According to Sara, during the argument defendant struck her

from behind on the right side of her face with a closed fist.

After being hit, Sara fell off of the chair she was seated in

and felt her tooth become loose and her mouth fill with blood.

Defendant then grabbed Sara and pulled her into a bathroom where

she saw her bloodied face in the mirror and began to scream.

Defendant muffled and choked Sara and told her that if she did

not stop screaming, he would slam her head against the wall.

Sara complied, and defendant took her clothes off, cleaned the

blood off of her shoulders and chest, and placed her in the

shower.   While in the shower, defendant repeatedly threatened to

harm her and her family if she did not comply with his

instructions.   She further claimed that before permitting her to

exit the shower, defendant forced her to chug beer and other

alcohol, and digitally penetrated her vagina.



                                  4
     Defendant then forced Sara onto the sun porch, where he

inserted his penis into her vagina against her will.    This

occurred for an estimated twenty to thirty minutes, and ceased

when defendant heard Jones returning to the apartment.3    He then

told Sara to put on some clothes and act like nothing happened.

Sara complied and Jones joined the pair on the porch.     Sara,

defendant, and Jones spoke for about fifteen to twenty minutes

after which Jones left the room.4    Defendant then ordered Sara to

the basement where he washed her clothes and the bath mats.

While in the basement, defendant again vaginally penetrated Sara

against her will.

     Following the assault in the basement, defendant brought

Sara back upstairs and directed her into the shower.    This time,

according to Sara, defendant also got into the shower and

attempted to assault her once more, but she resisted and fell.

When she fell, Sara screamed and hit the side of the bathtub

with her hand.   The noise apparently woke up Jones and prompted

her to knock on the bathroom door to see if everything was okay.

Defendant replied that Sara “had too much to drink” and had

“c[o]me into a spell.”




3 Sara stated that defendant was not wearing a condom during the
assault, and that she was unsure whether or not he ejaculated.

4 Jones stated that when she returned from the party she did not
notice any physical injuries on Sara’s face.
                                 5
     Sara claimed that she finally left the apartment at around

5:00 a.m. and that defendant followed her to the end of the

block.   In order to get away from him, Sara hid in an opening

between a building and a yard.   Once defendant left the area,

Sara called her ex-boyfriend, Hakim Wilkins (Wilkins).   Wilkins,

who was aware that she had been dating defendant, picked up Sara

in his car and took her to the nearby Maplewood Police

Department, arriving at about 6:20 a.m.

     At the station, Sara spoke briefly to a sergeant who

immediately took note of her facial injuries.   Sara then went to

the hospital where she was examined by a sexual assault nurse

and received eleven stitches to her lip.   Upon her release,

Detective Fuentes transported Sara to the Union Township Police

Department.5   Once there, Sara gave a sworn statement detailing

the events of the previous night, and identified defendant as

her attacker using a photo array.

     Thereafter, Detective Fuentes and other investigators went

to Jones’ apartment and searched the back sun porch, bathroom,

and basement, but found no evidence of blood or bodily fluids,

and no evidence that anyone had tried to “clean up” the scene.

After speaking with Sara, investigators returned to Jones’


5 Once Sara told the Maplewood Police Sergeant the location of
Jones’ apartment, the Sergeant realized that the alleged
assaults occurred in the Township of Union, not Maplewood, and
notified the Union Police Department of the incident.
                                 6
apartment the next day and found blood on the back side of a

chair on the sun porch.

       The blood sample from the chair, the DNA evidence from the

sexual-assault kit, and the clothing Sara wore on the night of

the assault were tested.    While no DNA matched defendant,

testing confirmed that the blood from the chair and the blood on

Sara’s t-shirt both belonged to Sara.    There was no evidence of

semen from the samples taken at the hospital.    The only semen

found was on Sara’s shorts and was from an unidentifiable third

party.

       Defendant also gave a statement to police in which he

admitted to having sexual intercourse with Sara, but claimed

that it was consensual.6

                                 B.

       A Union County Grand Jury indicted defendant on one count

each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(3), second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1),

and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).

       On the eve of trial, defendant filed a Notice of Intent to

Assert Evidence of Semen Source under the Rape Shield Law to

admit DNA evidence from the semen stain found on the shorts Sara




6   Defendant’s statement was not introduced at trial.

                                  7
was wearing the night of the assaults.     The following day, the

trial court heard argument on the motion.7

     Defendant argued that the sperm found on Sara’s shorts did

not constitute inadmissible evidence of sexual conduct under the

Rape Shield Law and was admissible to support his defense that

Sara consented to sexual intercourse and left the apartment

uninjured.     Defendant further asserted that the DNA evidence was

relevant to show that a third party -- allegedly Wilkins --

raped and assaulted Sara after she left Jones’ apartment and

that Sara falsely accused defendant in order to appease that

third party.     Without this evidence, defendant claimed, he would

not be able to present a complete defense.     The State,

conversely, argued that the Rape Shield Law precluded admission

of the DNA evidence and that evidence of unidentified semen,

without any indication that it was left on Sara’s shorts the

night of the assault, was neither relevant nor material to

whether Sara consented to having sex with defendant or to

whether her injuries occurred before or after she left Jones’

apartment.

     After hearing argument and reviewing relevant case law, the

trial court determined that the Rape Shield Law prohibited the




7 The trial court also heard argument on the State’s application
to exclude evidence of Sara’s previous consensual sexual
relationship with defendant, which the court later denied.
                                   8
admission of the semen stain because it was not relevant to

whether Sara consented to having sex with defendant, nor did it

support defendant’s third-party guilt defense.     The trial court

further found that the “low probative value of the evidence

[wa]s substantially outweighed by a danger of prejudice,” and,

therefore, denied defendant’s motion.8

     The case then proceeded to trial.    The State called Sara,

who testified that defendant physically and sexually assaulted

her repeatedly at Jones’ apartment.    Several law enforcement

officials also took the stand and testified regarding their

investigation.9   Defendant did not testify and only called one

witness, Jones, who testified that upon returning from the party

she spoke with both Sara and defendant and that Sara left the

apartment uninjured on the night of the assaults.

     At the conclusion of the trial, the jury convicted

defendant of second-degree sexual assault and third-degree

aggravated assault.   The jury acquitted defendant of first-

degree aggravated sexual assault.     Thereafter, the trial court

sentenced defendant to concurrent terms of eight years of




8 Defendant’s emergent application to file an interlocutory
appeal from the denial of his motion to admit the DNA evidence
from the semen stain was denied by the Appellate Division.

9 Sara’s mother also testified, as did the dentist who treated
Sara for her injuries and a DNA analyst employed by the Union
County Prosecutor’s Office.
                                 9
imprisonment for second-degree sexual assault, with an eighty-

five percent period of parole ineligibility pursuant to the No

Early Release Act, N.J.S.A. 2C:43-7.2(a), and three years of

imprisonment for third-degree aggravated assault.   Defendant was

also sentenced to parole supervision for life, pursuant to

Megan’s Law, N.J.S.A. 2C:43-6.4.

     Defendant appealed, claiming, among other things,10 that the

trial court erroneously prohibited him from admitting the

evidence of another man’s semen found on Sara’s shorts the night

of the assaults, which prevented him from presenting a complete

defense, in violation of his federal and state constitutional

rights to confrontation, compulsory process, and due process.

      A divided Appellate Division panel reversed defendant’s

convictions, finding that the semen evidence was relevant to

support defendant’s assertion that Wilkins committed the

assaults and was admissible given New Jersey’s consistently

“liberal approach” to the admission of evidence pertaining to

third-party guilt.   In the majority’s view, because the semen


10Defendant also claimed that: 1) the trial court erred by
allowing the admission of “improper” 404(b) evidence regarding
defendant’s alleged hatred of women and previous gang
membership; 2) the State committed prosecutorial misconduct by
purportedly “elaborating on the virtues of the victim,
disparaging the defense witness, and inflaming the passions of
the jury”; 3) the cumulative effects of the errors denied him a
fair trial; and 4) the trial court failed “to conduct a proper
weighing of the aggravating and mitigating factors” at
sentencing.
                                10
evidence had a “tendency to create a reasonable doubt that

[defendant] committed the crime” and could possibly “discredit[]

Sara, and show[] a possible motive [for her] to lie . . . it

meets the minimum threshold our Court has set for the admission

of [third-party guilt] evidence.”

    Judge Guadagno dissented, finding that the trial court

properly applied the Rape Shield Law in ruling that the evidence

was irrelevant to whether the victim consented and, further,

provided no support for defendant’s claim of third-party guilt.

Noting that “[o]ur case law consistently rejects third-party

evidence that is based on mere conjecture[,]” Judge Guadagno

found that “[s]emen on a victim’s clothing that could have been

deposited by any of her sexual partners during the weeks or even

months prior to the incident does not, as claimed by the

majority, tend to support the assertion that someone other than

defendant committed the assault.”     Moreover, according to Judge

Guadagno, the probative value of the DNA evidence was not only

“negligible and . . . substantially outweighed by its

prejudice,” but also “exactly the type of embarrassing and

unwarranted exploration of the victim’s character and conduct

that the Rape Shield Law was designed to exclude.”

    The Appellate Division subsequently granted the State’s

motion to stay the judgment.   Based on the dissent, the State

appealed to this Court as of right.     R. 2:2-1(a)(2).

                                11
                                  C.

    The State argues that the trial court properly excluded,

under the Rape Shield Law, the DNA evidence from the semen stain

because it was not relevant to whether Sara and defendant

engaged in consensual sexual intercourse on the night of the

assaults or supportive of defendant’s third-party guilt defense.

Here, because the semen was not linked to the third party –-

Wilkins -- and there was no evidence that it was left on the

victim’s shorts at or near the time of the crime, the State

asserts that the evidence shows only that the victim had a

sexual encounter with an unidentified person at some unspecified

time, “leaving its connection to the crime as mere conjecture.”

    Defendant maintains that the trial court prevented him from

presenting a complete defense by improperly excluding evidence

relevant to third-party guilt.    According to defendant, the

Appellate Division correctly held that the DNA evidence of the

semen stain was admissible because it was relevant to his theory

that Wilkins assaulted Sara on the night in question and that

Sara was motivated to fabricate the charges against defendant in

order to protect her relationship with Wilkins.

    Amicus Association of Criminal Defense Lawyers of New

Jersey (ACDL-NJ) argues that the Rape Shield Law does not

mandate exclusion of evidence of past sexual conduct introduced

to establish third-party guilt.    ACDL-NJ contends that the

                                  12
Appellate Division correctly held that a semen stain on the

victim’s shorts, introduced to show that she was in a

relationship with another man and therefore had a motive to lie

about being assaulted by defendant, was sufficiently probative

to require admission under the Confrontation and Compulsory

Process Clauses.

                                II.

                                A.

    We begin by acknowledging our deferential standard for

reviewing a trial court’s evidentiary rulings, which should be

upheld “‘absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment.’”    State v. Brown, 170 N.J.

138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484

(1997)).   An appellate court applying this standard should not

substitute its own judgment for that of the trial court, unless

“the trial court’s ruling ‘was so wide of the mark that a

manifest denial of justice resulted.’”   Marrero, supra, 148 N.J.

at 484 (quoting State v. Kelly, 97 N.J. 178, 216 (1984)); see

also State v. J.A.C., 210 N.J. 281, 295 (2012).   That standard

governs our instant analysis of whether the trial court erred in

excluding evidence of the semen stain on Sara’s shorts pursuant

to the Rape Shield Law and, thereby, deprived defendant of

“[t]he constitutional right to present a defense . . . that

someone else committed the crime.”    State v. Fortin, 178 N.J.

                                13
540, 590 (2004) (citing State v. Jimenez, 175 N.J. 475, 486

(2003), and State v. Koedatich, 112 N.J. 225, 297 (1988), cert.

denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803

(1989)).

    The introduction of evidence of a victim’s prior sexual

conduct is governed by New Jersey’s Rape Shield Law, N.J.S.A.

2C:14-7, which was enacted in 1978 to “place[ ] restrictions on

a defendant’s ability to introduce evidence of the rape victim’s

past sexual conduct.”   Assembly Judiciary, Law and Public Safety

Committee, Statement to Assembly Bill No. 677, at 1 (Jan. 20,

1994), reprinted in N.J.S.A. 2C:14-7 (2005).   In this way, the

Rape Shield Law “is designed ‘to deter the unwarranted and

unscrupulous foraging for character-assassination information

about the victim’ and ‘does not permit introduction of evidence

of the victim’s past sexual conduct to cast the victim as

promiscuous or of low moral character.’”   State v. Schnabel, 196

N.J. 116, 128 (2008) (quoting State v. Garron, 177 N.J. 147, 165

(2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed.

2d 1204 (2004)).

    The Rape Shield Law defines “sexual conduct” as “any

conduct or behavior relating to sexual activities of the victim,

including but not limited to previous or subsequent experience

of sexual penetration or sexual contact, use of contraceptives,

sexual activities reflected in gynecological records, living

                                14
arrangement and life style.”   N.J.S.A. 2C:14-7(f).   Thus, in

order “to encourage the reporting of sexual abuse by assuring

victims that they will not be subject to untoward invasions of

privacy through excessive and collateral cross-examination of

their prior sexual conduct,” Garron, supra, 177 N.J. at 165, the

Rape Shield Law proscribes that such evidence is admissible only

if it is “relevant and highly material, meets the requirements

of subsections (c) and (d) of [the statute],” and its probative

value “substantially outweighs its collateral nature or the

probability that its admission will create undue prejudice,

confusion of the issues, or unwarranted invasion of the privacy

of the victim.”   N.J.S.A. 2C:14-7(a).11   Under N.J.S.A. 2C:14-

7(c) and (d), evidence of past sexual conduct is only relevant

if “it is material to proving the source of semen, pregnancy or

disease[,]” N.J.S.A. 2C:14-7(c), or “if it is probative of

whether a reasonable person, knowing what the defendant knew at

the time of the alleged offense, would have believed that the

alleged victim freely and affirmatively” consented.    N.J.S.A.

2C:14-7(d).12




11This statutory standard was later modified by Budis and
Garron, as will be seen.

12These examples of relevance under the Rape Shield Law are
illustrative not exhaustive. State v. Scherzer, 301 N.J. Super.
363, 412 (App. Div.), certif. denied, 151 N.J. 466 (1997).
                                15
    While the protection of the “privacy interests of the

victim” is certainly paramount to its purpose, the Rape Shield

Law also aims to “‘ensur[e] a fair determination of the issues

bearing on the guilt or innocence of the defendant.’”     State v.

P.S., 202 N.J. 232, 261 (2010) (quoting Garron, supra, 177 N.J.

at 165).   As such, we have consistently refused to construe the

Rape Shield Law in a way that would impinge on a defendant’s

constitutional right to a fair trial.   This right includes “a

meaningful opportunity to present a complete defense” as well as

a defendant’s right to confront the witnesses against him and to

have compulsory process for obtaining witnesses in his favor.

See J.A.C., supra, 210 N.J. at 298 (noting that “the

constitutional rights of confrontation and compulsory process

have long been recognized as essential to the due process right

to a fair opportunity to defend against the State’s accusations,

and thus [are] among the minimum essentials of a fair trial”);

Garron, supra, 177 N.J. at 168-69 (same); see also State v.

Budis, 125 N.J. 519, 530-31 (1991).

    In Budis and Garron we addressed “the tension between [a]

defendant’s right to confrontation and the compulsory process of

witnesses, and the victim’s right to be free from an unnecessary

invasion of her privacy” under the Rape Shield Law.     Garron,

supra, 177 N.J. at 153; Budis, supra, 125 N.J. at 531.    In

Budis, we instructed that “[b]ecause confrontation is

                                16
fundamental to a fair trial, . . . its ‘denial or significant

diminution calls into question the ultimate integrity of the

fact finding process and requires that the competing interests

be closely examined.’”   Budis, supra, 125 N.J. at 532 (citing

Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038,

1046, 35 L. Ed. 2d 297, 309 (1986)).   Therefore, to ensure that

application of the Rape Shield Law does not unduly trample on a

criminal defendant’s constitutional rights to confrontation and

compulsory process, this Court in Budis “departed from the

literal language of N.J.S.A. 2C:14-7(a), which requires evidence

of a victim’s previous sexual conduct to be ‘relevant and highly

material,’ and to have probative value that ‘substantially

outweighs’ its collateral nature or prejudicial effect.”

J.A.C., supra, 210 N.J. at 298.    Instead, we held in Budis that

such evidence should be admitted if it is “‘relevant to the

defense . . . [and] its probative value outweighs its

prejudicial effect.’”    Ibid. (quoting Budis, supra, 125 N.J. at

532).

    In Garron, we revisited “the constitutional standard

enunciated in Budis” and, again, emphasized the need to

“construe the [Rape Shield Law] so that its reach does not

exceed constitutional limits.”    Garron, supra, 177 N.J. at 172.

In doing so, “[w]e reaffirm[ed] the test in Budis that evidence

relevant to the defense that has probative value outweighing its

                                  17
prejudicial effect must be placed before the trier of fact”13 and

that “evidence that is relevant and necessary to prove the

defense of consent is not excluded under the [Rape Shield Law].”

Id. at 172-73.

     Thus, under our case law interpreting the Rape Shield Law,

determining the admissibility of evidence of a victim’s prior

sexual conduct requires a two-step analysis.    Garron, supra, 177

N.J. at 172-73; Budis, supra, 125 N.J. at 532-34.    The first

step requires the trial court to ascertain whether evidence

encompassed under the Rape Shield Law is relevant and necessary

to resolve a material issue in light of the other evidence that

is available to address that issue.    J.A.C., supra, 210 N.J. at

299; Budis, supra, 125 N.J. at 532.    “Relevant evidence” is

defined by N.J.R.E. 401 as “‘evidence having a tendency in

reason to prove or disprove any fact of consequence to the

determination of the action.’”   State v. Jenewicz, 193 N.J. 440,

457 (2008) (quoting N.J.R.E. 401).    This determination focuses

on “‘the logical connection between the proffered evidence and a

fact in issue.’”   Schnabel, supra, 196 N.J. at 130-31 (quoting

State v. Williams, 190 N.J. 114, 123 (2007)).




13This test is nearly identical to the analysis trial courts
employ when determining the admissibility of evidence,
generally, under our evidentiary rules. See N.J.R.E. 403.
                                 18
    If found to be relevant, the court must then, as the second

step, decide whether, under N.J.R.E. 403, the probative value of

the contested evidence outweighs the prejudicial effect to the

victim in the context of the Rape Shield Law.   Budis, supra, 125

N.J. at 532.   Generally, the “probative value” of evidence is

determined by “its tendency to establish the proposition that it

is offered to prove.”   Garron, supra, 177 N.J. at 167 n.2

(citing State v. Wilson, 135 N.J. 4, 13 (1994)).   Under the Rape

Shield Law, the probative value of a victim’s prior sexual

conduct “‘depends on clear proof that [the conduct] occurred,

that [it is] relevant to a material issue in the case, and that

[it is] necessary to a defense.’”    J.A.C., supra, 210 N.J. at

300 (quoting Budis, supra, 125 N.J. at 533).

    The prejudice contemplated by the Rape Shield Law includes

the trauma to the victim, the degree to which the evidence

sought to be admitted would invade the victim’s privacy, the

“impact of a given ruling on a victim reporting sexual abuse,”

as well as the need to guard victims from excessive cross-

examination and prevent undue jury confusion.   Ibid.   Given that

a “trial court must weigh the relevance of the proffered

evidence, its necessity to the defense, and its apparent

veracity against its potential to humiliate the victim, invade

her privacy, and confuse the jury[,]” State v. J.D., 211 N.J.

344, 358 (2012), “[t]here is . . . substantial overlap between

                                19
the relevancy determination [called for] in the first step of

the [analysis], and the measure of the ‘probative value’ for

purposes of the second step.”   J.A.C., supra, 210 N.J. at 300.

    The determination of whether evidence of a victim’s prior

sexual conduct is admissible “is exquisitely fact-sensitive” and

“depends on the facts of each case.”   J.D., supra, 211 N.J. at

358 (citation and quotation marks omitted); see also Budis,

supra, 125 N.J. at 533.   When evidence of prior sexual conduct

satisfies the two-step analysis set forth in Budis and Garron,

it is admissible and courts are required to “impose case-

specific parameters, where appropriate, to any such evidence

admitted.”   J.A.C., supra, 210 N.J. at 301.

                                B.

    Because defendant claims that the trial court’s exclusion

of the DNA evidence impermissibly encroached upon the

presentation of his theory of third-party guilt and thereby

deprived him of “a meaningful opportunity to present a complete

defense,” a brief review of our jurisprudence surrounding third-

party guilt is instructive.

    We have long recognized that “by implication, a complete

defense includes a criminal defendant’s right to introduce

evidence of third-party guilt ‘if the proof offered has a

rational tendency to engender a reasonable doubt with respect to

an essential feature of the State’s case.’”    State v. Cotto, 182

                                20
N.J. 316, 332 (2005) (quoting Fortin, supra, 178 N.J. at 591);

see also State v. Sturdivant, 31 N.J. 165, 179 (1959), cert.

denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).

“That standard does not require a defendant to provide evidence

that substantially proves the guilt of another, but to provide

evidence that creates the possibility of reasonable doubt.”

Cotto, supra, 182 N.J. at 332 (citing Fortin, supra, 178 N.J. at

591).   Indeed, even if there is no evidence linking another

specific suspect to the crime, we “have recognized that evidence

that tends to create reasonable doubt that someone else,

generically, rather than defendant, committed the offense, is

admissible.”   State v. Loftin, 146 N.J. 295, 345 (1996) (citing

State v. Jorgensen, 241 N.J. Super. 345, 351 (App. Div.),

certif. denied, 122 N.J. 386 (1990)).

    The concern, of course, is “the ease in which unsupported

claims may infect the process.”    Ibid.   As such, a defendant

cannot simply seek to introduce evidence of some hostile or

indecent event and “leave its connection with the case to mere

conjecture.”   Sturdivant, supra, 31 N.J. at 179.   Rather, the

evidence a defendant seeks to admit in support of a third-party

guilt defense must be capable of demonstrating “some link

between the [third-party] evidence and the victim or the crime.”

Koedatich, supra, 112 N.J. at 301; see also Sturdivant, supra,

31 N.J. at 179 (“Somewhere in the total circumstances there must

                                  21
be some thread capable of inducing reasonable men to regard the

event as bearing upon the State’s case.”).    The decision to

admit or exclude evidence of third-party guilt is “particularly

fact-sensitive” and rests within the trial court’s discretion.

Loftin, supra, 146 N.J. at 345 (quoting Koedatich, supra, 112

N.J. at 300); see also Cotto, supra, 182 N.J. at 333.

                              III.

                                  A.

    With these standards in mind, we must determine whether the

evidence in this case that defendant sought to be admitted,

notwithstanding the Rape Shield Law, was relevant to defendant’s

third-party guilt defense, and if so, whether its probative

value outweighed its prejudicial effect.   In making this

determination, we are mindful of both the underlying purpose of

the Rape Shield Law and the deferential standard by which we

review a trial court’s evidentiary rulings.    See J.A.C., supra,

210 N.J. at 301 (“We review the trial court’s evidentiary

ruling, entitled to substantial deference under the ‘abuse of

discretion’ standard of review, in light of the Legislature’s

objective in enacting N.J.S.A. 2C:14-7 and this Court’s

construction of the statute.”).

    Here, the trial court denied defendant’s motion to admit

the DNA evidence of the semen stain, finding that it was

irrelevant to prove consent, which was the material issue in

                                  22
this case, and did not support defendant’s theory of third-party

guilt.    The trial court further found that the low probative

value of the evidence was outweighed by the danger of prejudice.

On appeal, the Appellate Division held that the trial court

erred in excluding the unidentified semen evidence because it

was relevant to prove defendant’s theory of third-party guilt.

We disagree.

    Our inquiry begins by determining whether the semen stain

constitutes “sexual conduct” under the Rape Shield Law.

N.J.S.A. 2C:14-7(f) broadly defines “sexual conduct” as “any

conduct or behavior relating to sexual activities of the victim,

including but not limited to previous or subsequent experience

of sexual penetration or sexual contact . . . .”    Here, evidence

of semen found on the victim from an unidentified third party

fits squarely within that broad definition.    Accordingly, we

must turn to the two-pronged analysis for determining the

admissibility of evidence of prior sexual conduct set forth in

Budis, supra, 125 N.J. at 532-34, and Garron, supra, 177 N.J. at

172-73.

    As stated above, the first step of that analysis requires

the trial court to determine whether evidence covered by the

Rape Shield Law is relevant and necessary to resolve a material

issue, taking into account the other evidence that is available

to address that issue.    J.A.C., supra, 210 N.J. at 299; Budis,

                                 23
supra, 125 N.J. at 532.    Defendant contends here, and maintained

at trial, that evidence of an unknown man’s semen deposited on

Sara’s shorts was relevant to support his theory that Sara was

assaulted by her ex-boyfriend, Wilkins, and that she fabricated

the charges against defendant in order to appease Wilkins, to

whom she was “romantically linked.”     To support this theory,

defendant relies, in part, upon the undisputed fact that Sara

left defendant around 5 a.m., did not arrive at the police

station, located a few blocks away, until approximately 6:20

a.m., and was unable to explain what occurred during this period

of time.     In addition, defendant points out that he presented a

witness, Jones, who testified that she did not see any physical

injuries on Sara when Sara left the apartment on the night in

question.

    At trial, defense counsel cross-examined Sara extensively

about her relationship with Wilkins and about the gap in time

between when she left Jones’ apartment and arrived at the police

station.     In response, Sara testified that she had been talking

to Wilkins “[o]ff and on” and that he was a “prior boyfriend”

who was “dating someone else” at the time of the sexual assault.

Sara also acknowledged that Wilkins was the only person who

could corroborate that she was injured when she left defendant’s

apartment.     On redirect, Sara insisted she did not have any

romantic feelings towards Wilkins at the time, but admitted that

                                  24
even though she and Wilkins had broken up, “he was still [her]

best friend.”   Additionally, defense counsel was able to elicit

from Sara’s mother that Wilkins and Sara had resumed their

relationship by the time of trial.   All of this evidence was

relevant to defendant’s third-party guilt defense.   Indeed, it

linked Wilkins to the assaults in both time and place –-

according to Sara’s own testimony, Wilkins was at or near the

scene of the assaults when he picked Sara up by Jones’ apartment

and was the only person with Sara between the time of the

incident and her reporting of the assaults to police.    The same

cannot be said for the DNA evidence of the semen stain.

    Significantly, the semen found on Sara’s shorts was never

linked to Wilkins, the alleged third party.   Moreover, there is

nothing in the record to indicate when the semen was deposited

onto Sara’s shorts; it may have been left weeks or months before

the sexual assault that is the subject of this appeal.    In

essence, all the contested evidence shows is that some unknown

individual engaged in a sexual act with Sara at some unknown

time.   As Judge Guadagno stated in his dissent here, we fail to

see how “[s]emen on a victim’s clothing that could have been

deposited by any of her sexual partners during the weeks or even

months prior to the incident [tends to support] . . . the

assertion that someone other than defendant committed the

assault.”   Surely, without proof that the semen is in any way

                                25
related to the crime here, the DNA evidence of the semen stain

on Sara’s shorts was not relevant to the issue the jury had to

decide –- namely, whether Sara was raped and assaulted by

defendant or whether she consented to having sex with defendant

and was later assaulted by Wilkins.    See Schnabel, supra, 196

N.J. at 130 (stating that relevancy analysis focuses on “the

logical connection between the proffered evidence and a fact in

issue”).   Thus, because the existence of the semen stain on

Sara’s shorts has no “tendency in reason to prove or disprove

any fact of consequence” in the case at bar, N.J.R.E. 401, it

was inadmissible under the N.J.R.E. 401 relevancy standard at

the heart of the first prong of the Garron/Budis analysis.     See

Garron, supra, 177 N.J. at 176.

    Nor do we agree with the Appellate Division majority’s

conclusion that the unidentified semen stain “had a rational

tendency to engender a reasonable doubt with respect to an

essential feature of the State’s case,” Loftin, supra, 146 N.J.

at 345, and was thus admissible under our “liberal approach” on

the admission of evidence pertaining to third-party guilt.

Testimony concerning third-party guilt is not admissible unless

there is evidence linking a third party to the crime.    Ibid.    In

other words, we will not upend a trial court’s decision to

exclude purported third-party guilt evidence when, as here, the

evidence proffered did no more than “prove some hostile event

                                  26
and [left] its connection with the case to mere conjecture.”

Koedatich, supra, 112 N.J. at 301 (citation omitted).     Indeed,

it bears repeating that the semen had no apparent connection to

this case other than the fact that the victim was wearing those

shorts on the night of the incident.

    While defendant maintains that “[e]vidence that Sara and

Wilkins [were romantically linked and] had sex within a

considerable window of time prior to the incident would have

been relevant to Sara’s motive to fabricate the charges, and to

Wilkins’ motive to assault Sara,” there is no evidence of record

that the semen stain is connected to the time period in

question, or the alleged third party, Wilkins.    Thus, the

proffered evidence was irrelevant to defendant’s consent

defense, fails to support the defense of third-party guilt, and

was, therefore, properly excluded.     See Fortin, supra, 178 N.J.

at 598 (“Reasonable doubt cannot arise from pure conjecture.”);

see also Koedatich, supra, 112 N.J. at 305 (finding that it is

insufficient for defendant’s proffered evidence of third-party

guilt to simply advance “possible ground of suspicion against

another person”).

    In sum, because the evidence was not relevant to whether

Sara consented to have sex with defendant, or whether a third

party perpetrated the assaults, it follows that it was not

“necessary to a fair determination of the issues” and, thus, its

                               27
exclusion by the trial court did not amount to an abuse of

discretion or a due process violation.   Garron, supra, 177 N.J.

at 171.

                                B.

    For the sake of completeness, we will briefly discuss the

second prong of the analysis set forth in Budis and Garron,

which requires the trial court to weigh the probative value of

the contested evidence against its prejudicial impact.    Here,

the trial court found that, notwithstanding the irrelevancy of

the semen evidence to the defense, “the low probative value of

the evidence is substantially outweighed by a danger of

prejudice.”   The Appellate Division, conversely, determined that

the evidence of another man’s semen on Sara’s shorts has a

tendency to establish that someone else committed the assault,

and if offered for that limited purpose, the likelihood of

prejudice to the victim is outweighed by its probative value.

Again, we disagree.

    First, as previously discussed, the mere existence of a

semen stain on Sara’s shorts, without proof of when it was

deposited or who deposited it, is irrelevant to the issue of

consent and insufficient to support defendant’s third-party

guilt defense.   See J.A.C., supra, 210 N.J. at 300 (noting that

“[t]he probative value of sexual conduct covered by N.J.S.A.

2C:14-7 ‘depends on clear proof that [the conduct] occurred,

                                28
that [it is] relevant to a material issue in the case, and that

[it is] necessary to a defense’” (quoting Budis, supra, 125 N.J.

at 533)); see also Garron, supra, 177 N.J. at 167 n.2

(reaffirming that the “probative value” of evidence is “its

tendency to establish the proposition that it is offered to

prove” (citing Wilson, supra, 135 N.J. at 13)).

    Moreover, it would have been an unwarranted invasion into

Sara’s privacy to confront her at trial with evidence of sexual

conduct with someone other than defendant.   Indeed, a ruling

permitting examination of the existence of semen on Sara’s

shorts would inevitably have led to an impermissible inquiry

into Sara’s sexual encounters with an unknown third party.

Allowing such free examination into Sara’s past, especially

where the probative value of the evidence and its relevancy to

the defense is so insignificant, is precisely what the Rape

Shield Law sought to prevent as it would have effectively put

Sara on trial and diverted the jury’s attention from the conduct

at issue in this case.   See Statement to Assembly Bill No. 677,

supra, at 1 (“It is in the public interest to protect the

privacy of the victim, as opposed to allowing the defendant to

freely examine the victim’s past when the examination serves no

material or relevant evidentiary or constitutional purpose.”);

see also J.A.C., supra, 210 N.J. at 297 (“It is clear from this

series of amendments progressively strengthening N.J.S.A. 2C:14-

                                29
7, that the Legislature’s policy is to direct the focus of

sexual assault trials toward the alleged crime, and away from

the lifestyle of the victim.”); see also Garron, supra, 177 N.J.

at 165 (“The [Rape] Shield [Law] is intended to deter the

unwarranted and unscrupulous foraging for character-

assassination information about the victim.   The Statute does

not permit introduction of evidence of the victim’s past sexual

conduct to cast the victim as promiscuous or of low moral

character.”).

    Accordingly, we find the trial court’s determination that

the minimal probative value of the evidence was significantly

outweighed by its potential for prejudice is in line with the

Legislature’s intent in enacting the Rape Shield Law, and proper

under the second prong of the Budis/Garron analysis.

                               IV.

    The judgment of the Appellate Division is reversed and

defendant’s convictions are reinstated.



     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA did not participate.




                               30
                       SUPREME COURT OF NEW JERSEY


NO.    A-34                                        SEPTEMBER TERM 2014
ON APPEAL FROM              Appellate Division, Superior Court




STATE OF NEW JERSEY,

Plaintiff-Appellant,

               v.

BOBBY PERRY (a/k/a BOBBY PENNY),

Defendant-Respondent.




DECIDED                May 17, 2016
                Chief Justice Rabner                         PRESIDING
OPINION BY          Justice Solomon
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY


  CHECKLIST                            REVERSED
  CHIEF JUSTICE RABNER                         X
  JUSTICE LaVECCHIA                            X
  JUSTICE ALBIN                                X
  JUSTICE PATTERSON                            X
  JUSTICE FERNANDEZ-VINA              --------------------
  JUSTICE SOLOMON                              X
  JUDGE CUFF (t/a)                             X
  TOTALS                                       6
