STATE OF NEW JERSEY VS. J.M., JR. A-2562-13T2

STATE OF NEW JERSEY VS. J.M., JR.
          A-2562-13T2

Defendant, a masseuse, has been charged with second-degree sexual assault and fourth-degree criminal sexual contact based on an allegation that he improperly touched a female customer. After conducting a pretrial hearing, the trial judge held the State would be permitted to elicit testimony at trial, pursuant to N.J.R.E. 404(b), from a woman who claimed she was improperly touched by defendant while receiving a massage in Florida six years earlier. Because defendant was acquitted of the Florida charge, the court reversed the trial judge's interlocutory order, concluding, among other things, that the evidence did not suggest defendant's motive, intent or a plan, and was highly prejudicial. The court also disagreed with earlier Appellate Division decisions that permitted the use of "acquittal evidence," and concluded that the proper respect for the presumption of innocence and the particular significance the law attaches to an acquittal, required exclusion of "acquittal evidence" when offered to show the accused actually committed the prior offense.