State v. M.O., unpublished opinion, App. Div. Docket No. A-4141-06T4 (July 26, 2010) – Convictions reversed.
“The prosecution presented two witnesses: H. and the detective from the Bergen County Prosecutor’s Office who investigated H.’s allegations. During the course of her testimony, H. was permitted to testify in detail about the course of conduct she experienced at defendant’s hands in New York…. It is not entirely clear from the trial transcript under what theory this testimony was offered and accepted. The State argues that it was properly admitted as res gestae. It also contends that if the evidence is deemed evidence of other crimes under N.J.R.E. 404(b), it was properly admitted to show defendant’s motive and intent…. In support of its position that the evidence was properly admitted as res gestae, the State relies upon State v. L.P., 338 N.J. Super. 227 (App. Div.), certif. denied, 170 N.J. 205 (2001), for the proposition that evidence of prior sexual abuse of a child may be admitted as res gestae evidence of the sexual assault at issue. In that case, however, the court was dealing with what was a regular course of conduct against a young victim who was unable to delineate a clear time line of when she had been assaulted. Id. at 238-39. The victim did not report her abuse for a number of years, and when she testified, she was recounting events that had transpired more than fifteen years earlier. We consider L.P. to be clearly distinguishable from the present matter and to provide no support for the admission of this evidence…. When evidence is properly admitted under N.J.R.E. 404(b), it should, however, be “sanitized” so that only so much evidence is presented as is necessary to prove the point; unnecessary details should not be put before the jury…. Here, H. was permitted to testify about details of the assaults committed upon her in New York. Further, when evidence is properly admitted under N.J.R.E. 404(b), the trial court should provide a clear limiting instruction to the jury, explaining how the evidence may be used and how it may not be used…. Here, the trial court did not provide any limiting instruction at all when the evidence was first presented to the jury. While the trial court did provide a limiting instruction in its final charge to the jury, that instruction was, in our judgment, fatally flawed…. Here, the trial court admittedly told the jury that it could not use evidence relating to the New York assaults ‘to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed other crimes, wrongs or wrongful acts he must be guilty of the present crime.’ However, the trial court also clearly instructed the jury that it could ‘decide that the evidence [of the New York assaults] does demonstrate that those acts did occur in Fort Lee and use it for that specific purpose.’ The trial court continued, ‘I have admitted the evidence only to help you decide the specific question of did the alleged acts in Fort Lee occur.’ It is that very use, however, that N.J.R.E. 404(b) is designed to prevent.”