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 of New Jersey v. J.M., Jr. (A-48-14) (075317)

Argued January 19, 2016 -- Decided May 26, 2016

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers whether the State may introduce in defendant’s trial for sexual assault 

evidence of a prior sexual assault of which defendant was acquitted.

Defendant, a massage therapist, was charged with sexually assaulting a customer (E.S.) while giving her a 

massage. E.S. alleged that after defendant massaged her back, he lifted the privacy cover as E.S. turned beneath it, 

and began massaging her front side. While massaging E.S.’s right thigh, defendant asked if he could continue to 

massage E.S. further up her leg. E.S. told him no. Defendant continued to massage the area, slightly higher than the 

location E.S. had said was high enough. When massaging E.S.’s left leg, defendant did not wait for permission 

before massaging her upper thigh. Instead, he asked aloud “can I get closer?” and immediately answered his own 

question with “I’m [going to] get closer.” Moments later, defendant placed his hand underneath E.S.’s upper thigh 

and digitally penetrated her vagina. Defendant repeated the action, at which point E.S. opened her eyes; defendant 

had one hand on her head, one hand in her vagina, and was exposing himself to her. Defendant asked E.S. to 

perform oral sex on him, which E.S. refused. E.S. later reported the sexual assault to a spa manager.

Defendant was arrested and taken to police headquarters to be interviewed. He denied any sexual contact 

with E.S., stating that “nothing out of the ordinary happened during [the] massage.” A grand jury charged defendant 

with one count of second-degree sexual assault and one count of fourth-degree criminal sexual contact. 

Prior to defendant’s trial, the State moved under N.J.R.E. 404(b) to admit extrinsic evidence of a prior 

incident in which defendant had been charged with, but ultimately acquitted of, sexually assaulting a female spa 

customer in Florida. At the hearing on the State’s motion, A.W., the alleged victim, testified about the alleged prior 

assault. A.W.’s description shared certain similarities with E.S.’s experience, including that defendant lifted the 

sheet as A.W. turned from lying face down to lying on her back, just as defendant did with E.S. The trial court 

found the evidence admissible under N.J.R.E. 404(b), even though defendant had been acquitted of the prior crime.

On leave granted, the Appellate Division reversed the trial court’s decision, finding the evidence 

inadmissible. 438 N.J. Super. 215 (App. Div. 2014). The appellate panel held that the testimony was inadmissible 

because A.W.’s proposed testimony failed to satisfy any of the four factors set forth in State v. Cofield, 127 N.J. 328 

(1992). The appellate further held that, when a defendant has been acquitted of a prior crime, evidence pertaining to 

that crime “should never be admitted pursuant to N.J.R.E. 404(b).” Id. at 230. In addition, the appellate panel held 

that, when other-crime evidence plays a “pivotal role” in the State’s case against a defendant, the jury should be 

instructed that it must find beyond a reasonable doubt that a defendant actually committed the prior offense before 

that evidence may receive any weight. Id. at 237-38.

The Court granted the State’s motion for leave to appeal. 221 N.J. 216 (2015).

HELD: The evidence of defendant’s prior sexual assault in Florida is inadmissible under N.J.R.E. 404(b) because it 

fails to satisfy the four-factor test established in State v. Cofield, 127 N.J. 328 (1992). The Court declines to adopt the 

appellate panel’s bright-line rule that evidence of a prior crime for which a defendant was acquitted is always 

inadmissible. The Court also declines the appellate panel’s reformulation of the instruction provided to jurors 

governing the circumstances under which a jury may give any weight to acquitted-crime evidence.

1. This appeal focuses on the admission of other-crime evidence -- specifically, the testimony of a female spa 

customer who alleged that she had been sexually assaulted by defendant, a crime for which defendant had been tried 
2

and acquitted. In Cofield, supra, this Court established a four-prong test designed to avoid the over-use of extrinsic 

evidence of other crimes or wrongs pursuant to N.J.R.E. 404(b). The Cofield 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. As the Court recently held in 

State v. Willis, ___ N.J. ___ (2016), other-crime evidence may be admissible “in sexual assault cases in which the 

victim’s consent is a genuine and material issue[,]” ___ N.J. at ___ (slip op. at 18), but such evidence should be 

admitted with “restraint[,]” id. at ___ (slip op. at 25). (pp. 12-15)

2. The first Cofield factor requires that the evidence of the prior bad act, crime or wrong be relevant to a material 

issue that is genuinely disputed. Here, the trial court erroneously found that A.W.’s testimony satisfied the first 

Cofield factor as evidence of motive, intent, absence of mistake, or plan. Defendant does not argue that the alleged 

sexual assault of E.S. was consensual or accidental; rather, he maintains that the sexual assault never occurred. As 

such, A.W.’s testimony is inadmissible to establish motive, intent, or absence of mistake because defendant’s state 

of mind is not a “genuinely contested” issue in this case. The testimony is also inadmissible for proof of plan, 

because it is insufficient to establish the existence of a larger continuing plan of which the crime on trial is a part. 

Because the proposed testimony does not serve any of the permitted purposes of other-crime evidence set forth in 

N.J.R.E. 404(b), the testimony is inadmissible under the first Cofield requirement. (p. 16-17)

3. For similar reasons, the proposed testimony fails to satisfy the fourth Cofield requirement that “[t]he probative 

value of the evidence must not be outweighed by its apparent prejudice.” Cofield, supra, 127 N.J. at 338. The Court

agrees with the Appellate Division that, even if probative value could be found in A.W.’s testimony, it is so greatly 

outweighed by the prejudicial effect as to render it inadmissible. (pp. 17-18)

4. Having determined that evidence of the Florida sexual assault was not admissible under the Cofield factors, it 

was not necessary for the appellate panel to discuss, much less impose, a bright-line rule prohibiting the admission 

of acquitted-act evidence in other cases. A bright-line bar on acquitted-act evidence is inappropriate, and the Court 

declines to adopt one here. In addition, the Court declines to adopt the panel’s reformulation of the instruction 

provided to jurors governing the circumstances under which a jury may give any weight to acquitted-crime 

evidence. Specifically, the panel directed that, in the event other-crime evidence is admitted, the defendant had been 

acquitted of the charge, and the acquitted-act evidence is pivotal to the State’s case, the jury should be instructed that 

it must be satisfied beyond a reasonable doubt that the defendant actually committed the prior offense. Having 

determined that the other-crime evidence should not have been admitted, the appellate panel addressed an issue that 

had no bearing on the disposition of the appeal, and effectively rendered an advisory opinion. (p. 18-22)

5. The Court emphasizes that N.J.R.E. 404(b) is a rule of exclusion and that the trial judge bears the burden of 

scrutinizing the proffered evidence to determine if it satisfies the Cofield rule. In the end, assuming the trial court 

finds that the proffered evidence is relevant, similar in kind, not remote in time, and does not cause undue prejudice, 

the other-crime evidence cannot be admitted unless the judge finds that the State has presented clear and convincing 

evidence that the defendant committed the offense.

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and 

SOLOMON join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
1

SUPREME COURT OF NEW JERSEY

A-48 September Term 2014

075317

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.M., JR.,

Defendant-Respondent.

Argued January 19, 2016 – Decided May 26, 2016

On appeal from the Superior Court, Appellate 

Division, whose opinion is reported at 438 

N.J. Super. 215 (App. Div. 2014).

Laurie P. Cimino, Chief of Grand Jury 

Section, argued the cause for appellant 

(Sean F. Dalton, Gloucester County 

Prosecutor, attorney).

Jennifer L. Gottschalk argued the cause for 

respondent (Law Offices of Richard Sparaco, 

attorney; Mr. Sparaco, on the brief).

Joseph A. Glyn, Deputy Attorney General, 

argued the cause for amicus curiae Attorney 

General of New Jersey (John J. Hoffman, 

Acting Attorney General, attorney).

Susan C. Green, First Assistant Deputy 

Public Defender, argued the cause for amicus

curiae Office of the Public Defender (Joseph

E. Krakora, Public Defender, attorney; Ms. 

Green and Tamar Y. Lerer, Assistant Deputy 

Public Defender, of counsel and on the 

brief).
2

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.

The Court granted leave to appeal to consider whether the 

State may introduce in defendant’s trial for sexual assault 

evidence of a prior sexual assault of which defendant was 

acquitted. Defendant, a massage therapist, was charged with 

sexually assaulting a customer while giving her a massage. 

Prior to defendant’s trial, the State moved to admit evidence 

that defendant had committed a similar sexual assault while 

working as a massage therapist in Florida. The trial court 

found the evidence admissible under N.J.R.E. 404(b), even though 

defendant had been acquitted of the prior crime. 

On leave granted, the Appellate Division reversed the trial 

court’s decision, finding the evidence inadmissible. State v. 

J.M., 438 N.J. Super. 215, 240 (App. Div. 2014). The appellate 

panel also held that, when a defendant has been acquitted of a 

prior crime, evidence pertaining to that crime “should never be 

admitted pursuant to N.J.R.E. 404(b).” Id. at 230. In 

addition, the appellate panel held that, when other-crime 

evidence plays a “pivotal role” in the State’s case against a 

defendant, the jury should be instructed that it must find 

beyond a reasonable doubt that a defendant actually committed 

the prior offense before that evidence may receive any weight. 

Id. at 237-38. 
3

We affirm the Appellate Division’s judgment insofar as it 

held that the evidence of defendant’s prior sexual assault in 

Florida is inadmissible under N.J.R.E. 404(b) because it fails 

to satisfy the four-factor test established in State v. Cofield, 

127 N.J. 328 (1992). We decline to adopt, however, the 

appellate panel’s bright-line rule that evidence of a prior 

crime for which a defendant was acquitted is always 

inadmissible. We also decline to adopt the appellate panel’s 

reformulation of the instruction provided to jurors governing 

the circumstances under which it may give any weight to 

acquitted-crime evidence. Accordingly, we affirm as modified 

the judgment of the Appellate Division.

I.

Defendant J.M., Jr., was a massage therapist at a 

Washington Township spa. On July 5, 2012, E.S. and her aunt 

went to the spa for massage therapy. This was E.S.’s first 

massage. When E.S. and her aunt entered the spa, they were 

directed to the locker room and instructed to remove their 

clothes, place their belongings in a locker, and don spaprovided robes. E.S. then exited the locker room and was 

escorted to a private massage room. The spa assigned defendant 

to perform the massage. E.S.’s aunt received a massage from 

another massage therapist in a separate room.
4

Before E.S.’s massage, defendant informed her that he would 

wait outside the massage room while she disrobed, got under a 

privacy cover, and laid face down. A couple of minutes later, 

defendant knocked and, with E.S.’s permission, entered the room. 

Defendant massaged E.S.’s back. When he finished, defendant 

asked E.S. to turn over and lay on her back, lifting the privacy 

cover as E.S. turned beneath it. Defendant then began massaging 

E.S.’s front side.

While massaging E.S.’s right thigh, defendant asked if he 

could continue to massage E.S. further up her leg. E.S. became 

uncomfortable and told him no. Defendant continued to massage 

the area, rubbing slightly higher than the location E.S. had 

told him was high enough. E.S. flinched and was “a little 

freaked out” by defendant’s proximity to her vagina during that 

portion of the massage, but attributed her discomfort to her own 

inexperience with massages.

Defendant switched to E.S.’s left leg, and again worked his 

way progressively from the calf muscles to the thigh muscles. 

This time, however, defendant did not wait for permission before 

massaging E.S.’s upper thigh. Instead, he asked aloud “can I 

get closer?” and immediately answered his own question with “I’m 

[going to] get closer.” Moments later, defendant placed his 

hand underneath E.S.’s upper thigh and digitally penetrated her 

vagina. Defendant repeated the action, at which point E.S. 
5

opened her eyes. When E.S. opened her eyes, defendant had one 

hand on her head, one hand in her vagina, and was exposing 

himself to her. Defendant asked E.S. to perform oral sex on 

him, which E.S. refused.

E.S. told investigators that defendant looked puzzled when 

she refused his advances, and his demeanor indicated that he had 

propositioned clients on other occasions. Defendant then 

commenced the standard pleasantries of concluding a massage, 

telling E.S. that he hoped she enjoyed the massage and would 

revisit the spa. Defendant then handed E.S. her robe and left 

the room.

When E.S. exited the massage room, defendant was waiting 

right outside the door to provide her with a glass of water. 

Defendant followed E.S. to the reception area, and, as they 

walked, emphasized his personal relationship with her aunt, who 

worked for the spa. Defendant then sat in the reception area, 

preventing E.S. from immediately disclosing the assault to her 

aunt. Defendant stayed with E.S. while her aunt left for 

another treatment. At that point, E.S. fled to the women’s 

locker room. While E.S. was in a dressing room within the 

women’s locker room, a female spa employee entered and noticed 

that E.S. had left personal effects unattended. The spa 

employee asked E.S. if she was all right, and E.S. said no. 
6

Soon thereafter, E.S. reported the sexual assault to a spa 

manager.

After E.S. reported the sexual assault, her aunt took her 

to the hospital, where a sexual assault nurse examiner examined 

her for evidence of sexual assault. The nurse observed trauma 

to E.S.’s vagina, which she concluded was caused by digital 

penetration. 

II.

Defendant was arrested and taken to the Washington Township 

Police Headquarters to be interviewed. He denied any sexual 

contact with E.S., stating that “nothing out of the ordinary 

happened during [the] massage.” 

A grand jury charged defendant with one count of seconddegree sexual assault, N.J.S.A. 2C:14-2(c)(1), and one count of 

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). 

Defendant pled not guilty. 

Before trial, the State moved under N.J.R.E. 404(b) to

admit extrinsic evidence of a prior incident in which defendant 

had been charged with, but ultimately acquitted of, sexually 

assaulting a female spa customer. The trial court conducted a 

hearing on this motion at which A.W., the alleged victim of the 

prior assault, testified. 

A.W. testified that she visited a spa in Orlando, Florida,

on August 26, 2006, where she received a massage from defendant. 
7

A.W., an experienced spa patron, testified that, during the

massage, defendant moved his hand up her thigh higher than was 

normal, massaged her clitoris, and digitally penetrated her

vagina without her consent. After A.W. told defendant to stop,

defendant removed his finger from A.W.’s vagina and stated that 

“I just want to make sure the guests are happy.” 

A.W.’s description of the alleged assault shared certain 

similarities with E.S.’s experience. For example, A.W. 

testified that defendant lifted the sheet as she turned from 

lying face down to lying on her back, just as he did with E.S. 

A.W. explained that this practice was effective but unique --

massage therapists usually “tell you to turn” and the customer 

“just kind of flip[s] underneath the sheet.” 

The trial court found A.W.’s testimony credible and ruled 

it admissible, finding that the proposed testimony satisfied 

each prong of the Cofield test. The court stated that the 

proposed testimony was relevant to establish motive, intent, 

plan, and/or absence of mistake; that the acts alleged by A.W. 

were similar in kind and reasonably close in time to the acts 

alleged by E.S.; and that, despite defendant’s acquittal, A.W.’s 

testimony clearly and convincingly provided evidence that 

defendant touched A.W. inappropriately. The court also

determined that the probative value of the proposed testimony 
8

outweighed the potential for prejudice to defendant, given the 

need for reliable evidence of defendant’s state of mind. 

The Appellate Division granted defendant’s motion for leave 

to appeal and reversed the trial court’s evidentiary ruling. 

J.M., supra, 438 N.J. Super. at 240. The appellate panel held 

that the testimony was inadmissible because A.W.’s proposed 

testimony failed to satisfy any of the four Cofield factors.

Id. at 221-30. Moreover, the panel held that evidence of a 

prior crime of which a defendant was acquitted “should never be 

admitted in a later prosecution when offered to show that the 

prior charged offense actually occurred.” Id. at 240. In so 

holding, the Appellate Division explicitly limited the holdings 

of two previous Appellate Division decisions, State v. Yormark, 

117 N.J. Super. 315 (App. Div. 1971), certif. denied, 60 N.J.

138, cert. denied, 407 U.S. 925, 92 S. Ct. 2459, 32 L. Ed. 2d 

812 (1972), and State v. Schlue, 129 N.J. Super. 351 (App. Div.) 

certif. denied, 66 N.J. 316 (1974), which permitted acquittedact evidence to be used in a subsequent proceeding in certain 

circumstances. J.M., supra, 438 N.J. Super. at 230-33. 

Finally, the panel held that, where “other-crimes evidence will 

play a pivotal role in the adjudication of guilt[,]” the jury 

should be instructed that it must find beyond a reasonable doubt 

that the other crime actually occurred in order for the othercrime evidence to receive any weight. Id. at 237-38.
9

We granted the State’s motion for leave to appeal. State 

v. J.M., 221 N.J. 216 (2015).

III.

A.

The State contends that the Appellate Division opinion 

should be reversed, and the trial court’s ruling reinstated, 

because the proposed testimony satisfies each of the four 

Cofield requirements and is therefore admissible under N.J.R.E.

404(b). The State also argues that the appellate panel’s 

conclusion that acquitted-act evidence is per se inadmissible

“runs far afield of established interpretations of N.J.R.E.

404(b)” because it usurps the third prong of the Cofield test --

that other-crime evidence be established clearly and 

convincingly. 

Defendant maintains that the Appellate Division properly 

determined that the other-crime evidence offered by the State 

constituted propensity evidence expressly barred by N.J.R.E.

404(b). In service of that argument, defendant encourages the

Court to take an exacting approach to the relevance and 

materiality considerations of Cofield’s first prong, and he 

contends that the trial court erred in finding that the proposed 

testimony was admissible to prove motive, intent, plan, or 

absence of mistake. Defendant maintains that the motive and 

intent commensurate with the commission of sexual assault are 
10

obvious, and that the jury does not need the benefit of the 

contested evidence to determine the motivation and intent behind 

the alleged crimes. Defendant also argues that, because he 

flatly denied assaulting E.S. and did not offer mistake as a 

defense, his state of mind is not a contested issue. Defendant 

also argues that two similar instances of alleged conduct, 

separated by six years and over one thousand miles, are 

insufficient to serve as evidence of a plan for the purposes of 

N.J.R.E. 404(b). Defendant urges affirmance of the Appellate 

Division’s holding that acquitted-act evidence should never be 

admissible. 

B.

The Attorney General, as amicus curiae, focuses on two 

portions of the Appellate Division opinion: exclusion of 

acquitted-act evidence when offered to show that the prior 

offense actually occurred; and, when other-crime evidence is 

admitted, the need for a jury instruction that the jury must be 

satisfied beyond a reasonable doubt that the other crime 

actually occurred. The Attorney General argues that the 

Appellate Division’s decision is “destructive and unsound,”

running afoul of well-established precedent regarding the 

admissibility of evidence under N.J.R.E. 404(b).

The Attorney General contends that the appellate panel’s 

ruling deprives the jury of its traditional truth-seeking 
11

function. The Attorney General also argues that the panel’s 

decision to impose new jury instructions when other-crime

evidence will play a pivotal role in the adjudication of guilt 

represents “an improper advisory opinion” because the panel was 

only asked to consider whether the 404(b) evidence at issue was 

admissible. The Attorney General argues that this holding is 

harmful because it will force trial judges to make the 

subjective determination of which evidence is “pivotal,” induce

the State to introduce voluminous proof of other-crime evidence,

and create fertile ground for appeals and reversals.

The Office of the Public Defender, as amicus curiae, 

contends that the proposed testimony fails to satisfy the 

Cofield factors and argues that acquitted-act evidence should 

never be admitted in a later prosecution if it is being offered 

to show that the prior offense actually occurred. Reviewing the 

approaches of other states, the Public Defender identifies

“three schools of thought” about the admissibility of acquittedact evidence: (1) nine states completely bar the admission of 

acquitted-act evidence; (2) twenty-one states follow the federal

rule set forth in Dowling v. United States, 493 U.S. 342, 349-

50, 110 S. Ct. 668, 672, 107 L. Ed. 2d 708, 718-19 (1990), which 

held that acquitted-act evidence may be admissible due to the 

lower standard of proof required under Fed. R. Evid. 404(b); and 

(3) ten states follow a fact-sensitive approach which allows the 
12

admission of acquitted-act evidence in some instances, but bars 

the admission of evidence that was “conclusively rejected by a 

jury in the previous trial.” The Public Defender urges the 

Court to adopt the first approach, because a more fact-sensitive 

approach would be “hyper-technical” and “unworkable,” and would 

fail to recognize the force of an acquittal. 

IV.

The admission or exclusion of evidence at trial rests in 

the sound discretion of the trial court. State v. Gillispie, 

208 N.J. 59, 84 (2011). “That discretion is not unbounded. 

Rather, it is guided by legal principles governing the 

admissibility of evidence which have been crafted to assure that 

jurors receive relevant and reliable evidence to permit them to 

perform their fact-finding function and that all parties receive 

a fair trial.” State v. Willis, ___ N.J. ___, ___ (2016) (slip 

op. at 15-16). 

This appeal focuses on the admission of other-crime 

evidence -- specifically, the testimony of a female spa customer 

who alleged that she had been sexually assaulted by defendant, a 

crime for which defendant had been tried and ultimately 

acquitted. N.J.R.E. 404(b) governs the admissibility of such 

evidence, and provides:

[E]vidence of other crimes, wrongs, or acts is 

not admissible to prove the disposition of a 

person in order to show that such person acted 
13

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.

“Because evidence of a defendant’s previous misconduct ‘has a 

unique tendency’ to prejudice a jury, it must be admitted with 

caution.” Willis, supra, ___ N.J. at ___ (slip op. at 16) 

(quoting State v. Reddish, 181 N.J. 553, 608 (2004)). “Priorconduct evidence has the effect of suggesting to a jury that a 

defendant has a propensity to commit crimes, and, therefore, 

that it is ‘more probable that he committed the crime for which 

he is on trial.’” Id. at ___ (slip op. at 17) (quoting State v. 

Weeks, 107 N.J. 396, 406 (1987)). 

In Cofield, supra, this Court established a four-prong test 

designed “to avoid the over-use of extrinsic evidence of other 

crimes or wrongs” pursuant to a 404(b) exception. 127 N.J. at 

338. The Cofield 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. (citation omitted).]
14

“[T]he party seeking to admit other-crimes evidence bears 

the burden of establishing that the probative value of the 

evidence is not outweighed by its apparent prejudice.” Reddish, 

supra, 181 N.J. at 608-09. Ultimately, if the party seeking to 

admit the evidence “demonstrate[s] the necessity of the othercrime evidence to prove a genuine fact in issue and the court 

has carefully balanced the probative value of the evidence 

against the possible undue prejudice it may create, the court 

must instruct the jury on the limited use of the evidence.” 

Cofield, supra, 127 N.J. at 340-41 (citation omitted). 

As we recently held in Willis, supra, other-crime evidence 

may be admissible “in sexual assault cases in which the victim’s 

consent is a genuine and material issue[,]” ___ N.J. at ___ 

(slip op. at 18), but such evidence should be admitted with 

“restraint[,]” id. at ___ (slip op. at 25). In many cases, “the 

unrestrained use of evidence of another marginally relevant and 

arguably remote-in-time sexual assault [will have] so clear a 

capacity to distract the jury from the evidence in support of 

the State’s case-in-chief that it should [be] excluded.” Ibid. 

Importantly, “other-crime evidence must be relevant to a 

genuinely contested fact and . . . the probative value of the 

proffered evidence must be critically evaluated in order to 

properly balance the relevance of the evidence and the prejudice 
15

its admission will cause[.]” Id. at ___ (slip op. at 19)

(citing State v. Stevens, 115 N.J. 289, 302 (1989)). 

In a case in which a defendant contends the alleged assault 

did not occur, intent and absence of mistake are not at issue. 

In the absence of a genuinely contested fact, other-crime 

evidence is irrelevant and the first Cofield prong cannot be 

satisfied.1

When other-crime evidence, including acquitted-act 

evidence, is admitted at trial, and before the trial court 

instructs the jury on the limited and specific purpose for which 

the evidence has been admitted, the court must advise the jury 

as follows:

Normally, such evidence is not permitted 

under our rules of evidence. Our rules 

specifically exclude evidence that a defendant 

has committed other crimes, wrongs or acts 

when it is offered only to show that he/she 

has a disposition or tendency to do wrong and 

therefore must be guilty of the charged 

offenses. Before you can give any weight to 

this evidence, you must be satisfied that the 

defendant committed the other [crime, wrong, 

or act]. If you are not so satisfied, you may 

not consider it for any purpose.

 

1 We can envision certain circumstances in which motive evidence 

may be admissible in the face of a denial by the defendant that 

the charged act did not occur. A fact-sensitive evaluation of 

the proffered evidence would be required to determine if the 

defendant’s motive is a genuine issue in the case. See State v. 

Rose, 206 N.J. 141, 162-63 (2011) (permitting evidence of 

earlier attempt to kill victim as evidence of motive in 

defendant’s trial for purposeful murder as accomplice and felony 

murder of same victim).
16

[Model Jury Charges (Criminal), “Proof of 

Other Crimes, Wrongs, or Acts (N.J.R.E.

404(b))” (June 4, 2007) (emphasis added).]

V.

A.

We affirm the Appellate Division’s determination that 

A.W.’s testimony is inadmissible under N.J.R.E. 404(b) 

substantially for the reasons asserted in its opinion. J.M., 

supra, 438 N.J. Super. at 221-30. We add the following 

comments.

The first Cofield factor requires that “the evidence of the 

prior bad act, crime or wrong . . . be relevant to a material 

issue that is genuinely disputed.” State v. Covell, 157 N.J.

554, 564-65 (1999). Under N.J.R.E. 401, evidence is relevant if 

it “[has] a tendency in reason to prove or disprove any fact of 

consequence to the determination of the action.” “[T]he primary 

focus in determining the relevance of evidence is whether there 

is a ‘logical connection between the proffered evidence and a 

fact in issue.’” Willis, supra, ___ N.J. at ___ (slip op. at 

18) (quoting Covell, supra, 157 N.J. at 565). “Moreover, the 

material fact sought to be proved must be one that is actually 

in dispute[.]” Ibid. (citing Cofield, supra, 127 N.J. at 338). 

Here, the trial court erroneously found that A.W.’s 

testimony satisfied the first Cofield factor as evidence of

motive, intent, absence of mistake, or plan. Defendant does not 
17

argue that the alleged sexual assault of E.S. was consensual or 

accidental; rather, he maintains that the sexual assault never 

occurred. As such, A.W.’s testimony is inadmissible to 

establish motive, intent, or absence of mistake because 

defendant’s state of mind is not a “genuinely contested” issue 

in this case. Id. at ___ (slip op. at 19) (citing Stevens, 

supra, 115 N.J. at 302). The testimony is also inadmissible for 

proof of plan, because it is insufficient to “establish the 

existence of a larger continuing plan of which the crime on 

trial is a part[.]” Stevens, supra, 115 N.J. at 306 (quoting 

State v. Louf, 64 N.J. 172, 178 (1973)). A “strong factual 

similarity” between the two sexual assaults is not enough to

reveal a plan. Id. at 305. Because the proposed testimony does 

not serve any of the permitted purposes of other-crime evidence 

set forth in N.J.R.E. 404(b), the testimony is inadmissible 

under the first Cofield requirement. 

For similar reasons, the proposed testimony fails to 

satisfy the fourth Cofield requirement that “[t]he probative 

value of the evidence must not be outweighed by its apparent 

prejudice.” Cofield, supra, 127 N.J. at 338. As we explained

in Willis, supra, N.J.R.E. 404(b) is “a rule of exclusion rather 

than a rule of inclusion.” ___ N.J. at ___ (slip op. at 20)

(quoting State v. Marrero, 148 N.J. 469, 483 (1997)). Given the 

“inflammatory characteristic of other-crime evidence[,]” the 
18

trial court must conduct a “careful and pragmatic 

evaluation . . . to determine whether the probative worth of the 

[other-crime] evidence outweighs its potential for undue 

prejudice.” Ibid. (quoting Stevens, supra, 115 N.J. at 303). 

We agree with the Appellate Division that, “even if probative 

value could be found in A.W.’s testimony, it is so greatly 

outweighed by the prejudicial effect -- namely, the jury’s 

inevitable assumption that defendant has a propensity to engage 

in such conduct -- as to render it inadmissible.” J.M., supra, 

438 N.J. Super. at 229-30. 

B.

Having determined that evidence of the Florida sexual 

assault was not admissible under the Cofield factors, it was not 

necessary to discuss, much less impose, a bright-line rule 

prohibiting the admission of acquitted-act evidence in other 

cases. A bright-line bar on acquitted-act evidence is 

inappropriate, and we decline to adopt it here. As illustrated 

by the Appellate Division’s decisions in Schlue, supra, 129 N.J. 

Super. 351, and Yormark, supra, 117 N.J. Super. 315, there are

certain limited circumstances in which such evidence should be 

admitted. 

In Schlue, supra, the defendant was charged with 

obstruction of justice for attempting to induce a member of an 

alleged bribery scheme to conceal the scheme from police. 129
19

N.J. Super. at 352-53. In an earlier proceeding, the defendant 

had been acquitted of the underlying bribery charge, but the 

State sought to admit evidence of the alleged bribery in order 

to prove the defendant’s motive for obstruction. Id. at 353.

The Appellate Division held that the evidence of the alleged 

bribery was admissible, even though the defendant had been 

acquitted of that crime, because “none of the issues of ultimate 

fact in the prosecution for obstruction of justice were involved 

or decided in the trial on the bribery charge[.]” Id. at 355. 

Therefore, the acquitted-act evidence could be admitted as 

evidence of the defendant’s motive for obstruction without 

raising collateral estoppel or double jeopardy concerns. Ibid.

In Yormark, supra, four defendants were convicted of a

conspiracy to obtain money under false pretenses. 117 N.J. 

Super. at 323. At trial, the State produced evidence of a 

previous conspiracy with many similar characteristics, even 

though two of the defendants had been acquitted of the prior

conspiracy. Id. at 334-35. The Appellate Division held that 

the evidence of the prior conspiracy was admissible, 

notwithstanding the acquittals, as evidence of the defendants’

plan, motive, prior course of dealing with each other, and 

knowledge relevant to committing the conspiracy with which they 

were presently charged. Id. at 336-37. The panel also found 

that the acquitted-act evidence did not implicate double 
20

jeopardy or collateral estoppel because the underlying 

conspiracies arose from separate operative facts. Id. at 333-

34. 

As Schlue and Yormark reflect, there are limited 

circumstances in which acquitted-act evidence is both highly 

probative and not unduly prejudicial to a defendant, and 

therefore may be admissible. As with all other-crime evidence, 

acquitted-act evidence may only be admitted after a vigorous 

Cofield analysis. With respect to the third prong of the 

Cofield test -- the “clear and convincing evidence” requirement

-- the fact that a defendant was acquitted of the prior crime 

will often weigh heavily against a finding that the evidence of 

that crime is “clear and convincing.” See Cofield, supra, 127 

N.J. at 338. On the other hand, an acquittal will not always 

vitiate the “clear and convincing evidence” requirement,

especially when the State is not seeking to prove that a 

defendant actually committed the prior crime. For example, when

the State seeks to prove that a prior criminal trial of a 

defendant provides a motive for subsequent criminal conduct,

whether the defendant committed the prior act has no bearing on 

his motive. The mere fact that he was subject to a criminal 

charge suffices.2

 

2 In the limited circumstances in which acquitted-act evidence 

is admissible, a defendant should have the option to request 
21

C.

In the third section of its opinion, the appellate panel 

directed that, in the event other-crime evidence is admitted,

the defendant had been acquitted of that charge, and the 

acquitted-act evidence is pivotal to the State’s case, the jury 

should be instructed that it must be satisfied beyond a 

reasonable doubt that the defendant actually committed the prior 

offense. We do not adopt this portion of the opinion. Having 

determined that the six-year-old other-crime evidence should not 

have been admitted, the appellate panel addressed an issue that 

had no bearing on the disposition of the appeal. It effectively

rendered an advisory opinion. See G.H. v. Twp. of Galloway, 199 

N.J. 135, 136 (2009) (declining to reach question of limits of 

statutory preemption of municipal action in context of challenge 

to viability of existing ordinances).

Furthermore, as illustrated in Willis, supra, were we to 

require a jury to determine whether the State established beyond 

a reasonable doubt that a defendant committed the other alleged

crime, we would effectively require a trial-within-a-trial, with 

its attendant capacity to distract the jury from the case-inchief and to inject the prohibited inference of the defendant’s 

propensity to commit similar offenses. ___ N.J. at ___ (slip 

 

that the trial court inform the jury that a jury had acquitted 

the defendant of that charge.
22

op. at 23-24). Such an instruction also minimizes the role of 

the trial judge, who is charged in the first instance with 

determining whether such evidence should be admitted. See

Gillispie, supra, 208 N.J. at 84 (holding that admission or 

exclusion of other-crime evidence “is left to the sound 

discretion of the trial court”).3

We emphasize once again that N.J.R.E. 404(b) is a rule of 

exclusion and that the trial judge bears the burden of 

scrutinizing the proffered evidence to determine if it satisfies 

the Cofield rule. In the end, assuming the trial court finds 

that the proffered evidence is relevant, similar in kind, not 

remote in time, and does not cause undue prejudice, the othercrime evidence cannot be admitted unless the judge finds that 

the State has presented clear and convincing evidence that the 

defendant committed the offense. State v. Koskovich, 168 N.J.

448, 483-85 (2001).

VI.

For the foregoing reasons, the judgment of the Appellate 

Division is affirmed as modified.

 

3 In addition, conditioning the text of a jury instruction on 

whether acquitted-act evidence is “pivotal” to the State’s case 

introduces an unacceptable measure of unpredictability into the 

task of formulating a jury instruction that must contain a 

correct statement of the law. We anticipate many instances in 

which the parties and/or the trial court will disagree on the 

significance of the proffered evidence to the State’s case.
23

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, and SOLOMON join in JUDGE CUFF’s opinion. JUSTICE 

FERNANDEZ-VINA did not participate.
 SUPREME COURT OF NEW JERSEY

NO. A-48 SEPTEMBER TERM 2014

ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

J.M., JR.,

Defendant-Respondent.

DECIDED May 26, 2016

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff (temporarily assigned)

CONCURRING/DISSENTING OPINION BY 

DISSENTING OPINION BY 

CHECKLIST AFFIRMED AS 

MODIFIED

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