RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3491-18T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

E.C.,

Defendant-Respondent.

_____________________________

Argued May 30, 2019 – Decided June 19, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 18-03-0633.

Michael A. Mink, Assistant Prosecutor, argued the 

cause for appellant (Mary Eva Colalillo, Camden 

County Prosecutor, attorney; Michael A. Mink, on the 

briefs).

Eric James Liszewski, Assistant Deputy Public 

Defender, argued the cause for respondent (Joseph E. 

Krakora, Public Defender, attorney; Eric James

Liszewski, of counsel and on the briefs). 

PER CURIUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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After defendant E.C.'s juvenile charges were involuntarily waived to the 

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

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

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

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

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

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

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

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

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

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

charged defendant with sexual crimes that began when defendant was eleven 

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

occurred after his fifteenth birthday.

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

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

 

1

 The juvenile court has exclusive jurisdiction over defendants under the age of 

eighteen, N.J.S.A. 2A:4A-24, but jurisdiction can be waived and the case sent 

to the Criminal Part for certain enumerated crimes – including sexual assault –

when a defendant commits any such crimes between the ages of fifteen and 

eighteen, N.J.S.A. 2A:4A-26.1(c).
3

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evidence. N.J.R.E. 404(b). The State, by leave granted, appeals from the trial 

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

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

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

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

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

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

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

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

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

inability to report continuing assaults because of helplessness engendered by her 

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

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

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

grooming and sexual abuse."

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

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

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

required rigor through invocation of a result-infused term." 206 N.J. 141, 175 
4

A-3491-18T3

(2011). The Court disapproved "the further use of res gestae to support 

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

admissibility of uncharged bad act evidence: "The threshold determination 

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

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

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

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

The trial court properly analyzed the evidence under those discrete lenses 

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

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

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

a week," until she was about eleven or twelve2 – did not meet the admissibility 

criteria of either theory.3

 

2

 Defendant was born on March 26, 1990; J.C. on December 6, 1993; and S.C. 

on March 28, 1997. When J.C. was twelve, defendant was fifteen years old. 

3

 S.C. could not give her exact age when defendant first sexually assaulted her, 

but said she was "probably . . . like, maybe nine or ten." Thus, the record is 

devoid of any prior acts that were perpetrated against S.C. prior to defendant's 

fifteenth birthday.
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The trial court applied the "workable, narrow description of what makes 

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

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

First, evidence is intrinsic if it "directly proves" the 

charged offense. This gives effect to Rule 404(b)'s 

applicability only to evidence of "other crimes, wrongs, 

or acts." If uncharged misconduct directly proves the 

charged offense, it is not evidence of some "other" 

crime. Second, "uncharged acts performed 

contemporaneously with the charged crime may be 

termed intrinsic if they facilitate the commission of the 

charged crime."

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

49).]

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

crimes and were not performed contemporaneously with those crimes in order 

to facilitate them. The record fully supports that determination. 

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

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

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

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

 

4

 We were not provided with an amended indictment that reflects charges only 

from defendant's fifteenth birthday.
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December 5, 2010. As to S.C., the indictment charges in separate counts that 

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

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

2006 and March 27, 2009 when she was less than thirteen.

5

 As confirmed during 

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

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

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

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

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

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

because the acts were not contemporaneous ones that facilitated the indicted 

crimes; nor do they directly prove those discrete crimes. 

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

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

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

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

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

 

5

 The indictment also charged defendant with three counts of endangering the 

welfare of S.C. for each of those sexual acts.
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comfort level in demanding sex from his sister. In Santamaria, intimate 

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

birthday was admitted to show the admittedly consensual relationship between 

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

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

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

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

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

evidence. 

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

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

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

provides, in pertinent part:

[E]vidence of other crimes, wrongs, or acts is not 

admissible to prove the disposition of a person in order 

to show that such person acted in conformity therewith. 

Such evidence may be admitted for other purposes, 

such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity or absence of 

mistake or accident when such matters are relevant to a 

material issue in dispute.

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

intent, preparation, plan, knowledge, identification, or absence of mistake or 
8

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accident.

6 The State makes no argument in its merits brief to support those 

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

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

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

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

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

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

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

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

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

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

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

merits brief, is 

the victims allege that their parents learned of 

[defendant's abuse from the time he was eleven yearsold] and failed to notify the authorities. However, the 

abuses continued. If these allegations cannot be 

presented to the jury, they would have only a limited 

understanding of why the [victims] failed to disclose 

 

6

 We note the trial court recognized the State's contention was that the evidence 

was relevant only to motive, intent, preparation, plan or absence of mistake.

Although we do not normally consider arguments not made before the trial court, 

State v. Robinson, 200 N.J. 1, 20 (2009), we need not, in light of our holding,

base preclusion on that ground. 
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the[] abuse to anyone else for many years. In addition, 

the [victims] felt coerced into performing sexual acts 

upon defendant at his request due to years of prior 

abuse going unpunished. To exclude this evidence 

would be to exclude extremely relevant evidence 

explaining why the victims acted the way they did.

In reviewing Cofield's7four prongs, the trial court afforded the second 

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

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

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

 

7

 In State v. Cofield, the Court articulated a four-part test to determine if 

evidence of uncharged acts is admissible at trial:

1. The evidence of the other crime must be admissible 

as relevant to a material issue;

2. It must be similar in kind and reasonably close in 

time to the offense charged;

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

convincing; and

4. The probative value of the evidence must not be 

outweighed by its apparent prejudice.

[127 N.J. 328, 338 (1992) (quoting Abraham P. 

Ordover, Balancing The Presumptions Of Guilt And 

Innocence: Rules 404(b), 608(b) And 609(a), 38 

Emory L.J. 135, 160-61 (1989)).] 
10 A-3491-18T3

then concluded, "pursuant to Williams . . . the evidence in question is arguably 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

court's careful review of both victims' statements, the only evidence proffered 
11 A-3491-18T3

by the State, "reveal[ed] that the vast majority of the alleged disclosures by the 

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

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

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

when S.C. was eight. 

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

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

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

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

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

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

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

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

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

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

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

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

 

8

 A review of the transcript reveals J.C. said S.C. told their mother defendant 

and J.C. "were playing a game naked."
12 A-3491-18T3

The trial court considered that if the disclosures before defendant's 

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

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

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

"substantially graphic detailed evidence of multiple sexual encounters with the 

two alleged victims" after defendant turned fifteen.

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

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

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

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

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

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

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

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

militated against admission of the evidence.

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

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

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

Weaver, 219 N.J. 131, 149 (2014); State v. J.A.C., 210 N.J. 281, 295 (2012). 
13 A-3491-18T3

Simply stated, we do "not substitute [our] own judgment for that of the trial 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(discussing the prejudicial effect of other-crimes sexual assault evidence on a 
14 A-3491-18T3

jury). And, like the trial court, we fail to see high probative value of the prior 

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

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

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

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

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

defendant did not groom his victims; he assaulted them.

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

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

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

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

endangering the welfare of the children and hindering apprehension. 

Additionally, defendant may – through the introduction of evidence or 

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

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

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

evidence does not become admissible until the defendant puts the relevant 

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

appropriate in light of the fact that the trial court did not hold an evidentiary 
15 A-3491-18T3

hearing and relied only on the victims' statements. The victims' actual 

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

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

reasons for the victims' late complaints against defendant.

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

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

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

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

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

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

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

20. 

Affirmed. We remand the case for proceedings consistent with this 

opinion. We do not retain jurisdiction.