victim. See also State v. Ramseur, 106 N.J. 123, 266
(1987).
H. Prior Crimes - Intent; Absence of Mistake
Evidence of a defendant’s prior crimes, if sufficiently
probative, may be admitted to show his intent with
respect to the offense for which he is being tried. State v.
Garfole, 76 N.J. 445 (1978); State v. Zarinsky, 143 N.J.
Super. 35, 55-56 (App. Div. 1976), aff’d, 75 N.J. 101
(1977); see also State v. Mulero, 51 N.J. 224 (1968); State
v. Zwillman, 112 N.J. Super. 6 (App. Div. 1970), certif.
denied, 57 N.J. 603 (1971). In prosecutions for
possessory offenses which entail proof of an intent to
possess contraband, evidence may be admitted to show
that the defendant possessed other, similar contraband.
See, e.g., State v. Cofield, 127 N.J. 328 (1992); State v.
McMenamin, 133 N.J. Super. 521, 525 (App. Div.
1975); State v. Rajnai, 132 N.J. Super. 530, 537-538
(App. Div. 1975).
One aspect of intent in which other crimes evidence
is often quite probative is the absence of mistake. The
Supreme Court held that if a defense of mistake is
interposed by the defendant, then it is especially
appropriate for the State to rebut this claim with proof of
his commission of other similar crimes. State v. Atkins, 78
N.J. 454 (1979). See also State v. Boone, 154 N.J. Super.
36 (App. Div. 1977), certif. denied, 77 N.J. 493 (1978).
Prosecutions involving child abuse often generate defense
claims of a parental “mistake” that resulted in serious
injury or death of a child. In such cases, it is proper for
the State to present evidence of prior mistreatment of the
victim. State v. Wilson, 158 N.J. Super. 1 (App. Div.
1978), certif. denied, 79 N.J. 473 (1978).
In State v. Cusick, 219 N.J. Super. 452 (App. Div.),
certif. denied, 109 N.J. 54 (1987), the trial court
admitted into evidence testimony that defendant,
accused of the sexual assaults of two children, had
previously sexually assaulted one of the victims and one
of the victim’s friends. The Appellate Division found this
evidence properly admitted under former Evid. R. 55, to
rebut a potential defense of mistake in that the defendant
claimed that any touching of one of the victims was
accidental when he swung and cradled her. The court
further held that the testimony was admissible to prove
intent when the defendant molested the children, since
to prove the crime the State had to prove that the
touching of the victims by the defendant was for the
purpose of sexually arousing or sexually gratifying the
victim.
In such cases, however, there must be a material
factual dispute that the defendant had not acted
accidentally and was seeking sexual gratification. In State
v. G.V., 162 N.J. 252, 259 (2000), the New Jersey
Supreme Court found it “absurd” that the defense of
mistake or accident could be raised in a case involving “an
horrendous course of patent sexual depravity which
continued for years.” Thus, evidence of the defendant’s
prior, similar course of sexual molestation of the victim’s
older sister was not admissible under this theory. The
Court did conclude that the evidence could be admissible
at a retrial to rebut the defendant’s claim that the victim’s
story was fabricated as revenge for the defendant having
abandoned the mother and having come home with a
new girlfriend, if the fabrication defense was renewed,
subject to weighing its probative value against its
potential for prejudice. Id. at 264-65.I. Prior Crimes - IdentityThe most restricted form of other crimes evidence
that may be offered by the State is proof of other crimes
of a defendant for the purpose of proving the identity of
the perpetrator who committed the instant offense as the
defendant. The probative value of the other crimes
evidence in such cases arises from the similarity of the
offenses so that an inference arises that they were
committed by a single person or persons.In State v. Fortin, 162 N.J. 517 (2000), the Supreme
Court reviewed the standard for admission of N.J.R.E.
404(b) evidence on the issue of identity, and approved
the holdings of prior cases that the prior criminal activity
with which defendant is identified must be so nearly
identical in method as to earmark the crime as
defendant’s handiwork. The conduct in question must
be unusual and distinctive so as to be like a signature, and
there must be proof of sufficient facts in both crimes to
establish an unusual pattern. [State v. Fortin, 162 N.J. at
532, quoting State v. Reldan, 185 N.J. Super. 494, 502
(App. Div.), certif. denied, 91 N.J. 493 (1982), citing
State v. Sempsey, 141 N.J. Super. 317, 323 (App. Div.
1976), certif. denied, 74 N.J. 273 (1977)].In describing what constitutes a “signature” crime,
the Court in Fortin repeated what it had stated about
former Evid. R. 55 in State v. Cofield, 127 N.J. 328, 336
(1992):Evid. R. 55 is most easily understood in situations of
signature crimes, in which some distinct feature about
the two crimes clearly allows the jury to make an inference
other than propensity to commit crime. For example, the