This criminal defendant recently won on appeal, by successfully arguing that the trial court erred by improperly admitting evidence pertaining to the defendant’s sexual proclivity. By doing so, the defendant avoided a lengthy prison term and registration under Megan’s Law.
State v. Kiwanie Salter, unpublished opinion, App. Div. Docket No. A-0502-08T4 (December 24, 2009) – Convictions reversed. “Defendant contends the trial court erred by admitting evidence of ‘other acts’ evidence that (1) defendant engaged in consensual anal intercourse with C.B., (2) defendant whispered during consensual sex with C.B., (3) defendant kissed his daughter on the mouth, and (4) defendant previously was in possession of a gun.
Defendant also contends that the State produced none of this evidence in discovery, nor did the State provide any advance warning that this evidence would be presented at trial. We agree that prejudicial evidence regarding defendant’s preference for anal sex, kissing his daughter on the mouth, and possession of a gun was presented to the jury without meeting the requirements of N.J.R.E. 401, 403, and 404(b)….
First, C.B.’s testimony about defendant’s preference for anal intercourse with her was not relevant and should have been excluded…. Defendant’s state of mind was not a disputed issue at trial. The defense never suggested that defendant was not guilty because he did not have the requisite criminal intent to engage in anal intercourse with T.B.
The defense argued that the incidents never happened, that T.B.’s testimony was a complete fabrication. We also reject the prosecutor’s suggestion that C.B.’s testimony was relevant to prove defendant’s motive for the sexual assaults of T.B. We see no ‘tendency in reason,’ … between a man’s sexual preferences with his adult girlfriend and motivation to engage in sexual activity with a child when the adult relationship has ended….
The prosecutor’s proffer on relevance by its own terms established that the testimony was inadmissible under N.J.R.E. 404(b). In effect, the prosecutor said that she sought to offer C.B.’s testimony to prove defendant’s disposition to act with T.B. in conformity with his preference for anal sex with C.B. Evidence rule 404(b) expressly prohibits admission of ‘evidence of other … acts … to prove the disposition of a person in order to show that such person acted in conformity therewith.’ N.J.R.E. 404(b)….
Also significant in gauging prejudice to defendant under N.J.R.E. 403 and 404(b) is the trial court’s failure to give any limiting instruction with respect to C.B.’s testimony about anal sex.” (Rubin M. Sinins)