Reversed: Denial of Defendant’s Motion to Sever Sexual Abuse Allegation Trial

State v. Karl Smith

Appellate Docket No.: A-5557-17

Decided April 19, 2022

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

In a recent published decision, the Appellate Division reversed the denial of defendant’s motion to sever trials, pertaining to sexual abuse allegations against his daughter and defendant’s girlfriend’s daughter on separate occasions.

In State v. Smith, defendant faced allegations of sexual offenses against his daughter, K.W. (Karen), and against S.E. (Sara), the daughter of defendant’s girlfriend. The remaining twelve counts involving Karen charged defendant with two counts of first-degree aggravated sexual assault committed between November 2015 and August 2016, N.J.S.A. 2C:14-2(a)(1) (counts one and two); two counts of second-degree sexual assault committed during the same dates, N.J.S.A. 2C:14-2(b) (renumbered counts three and four); two counts of first-degree aggravated sexual assault committed between August 2016 and January 2017, N.J.S.A. 2C:14-2(a)(2)(a) (renumbered counts five and six); two counts of third-degree aggravated sexual contact committed during the same dates, N.J.S.A. 2C:14-3(a) (renumbered counts seven and eight); and four counts of second-degree endangering the welfare of a child committed between November 2015 and January 2017, N.J.S.A. 2C:24-4(a)(1) (renumbered counts nine, ten, eleven and twelve). The two counts involving Sara alleged defendant committed second-degree sexual assault between October 2015 and August 2016, N.J.S.A. 2C:14-2(b) (renumbered count thirteen); and seconddegree endangering the welfare of a child between the same dates, N.J.S.A. 2C:24-4(a)(1) (renumbered count fourteen).

Defendant filed a motion to sever the trials. He asserted that trying the two sets of charges together would be unduly prejudicial. In her brief opposing the motion, the prosecutor extensively summarized Sara’s statement to Detective Daniel Choe on August 21, 2016.  She also summarized Kate’s statement to the detective, in which Kate said she confronted defendant after Sara’s disclosure, and “defendant denied touching [Sara] inappropriately.” The prosecutor wrote: “[Kate] stated the defendant said, ‘Maybe she might [have] thought I grabbed her when I picked the blanket off of her and put it on [Donna].'” In her brief, the prosecutor summarized defendant’s statement to the detective, also given on August 21, noting defendant “denied intentionally touching [Sara] in a sexual manner and claimed he only touched her to move her over on the bed.” The prosecutor then summarized the case regarding Karen’s allegations in detail, extensively quoting portions of Karen’s statement to Detective Choe.

Reviewing the State’s proffer, the judge noted that in his statement to Detective Choe, defendant “suggested that [Sara] may have mistakenly thought he grabbed her when he picked the blanket off her and put it on her sister.” Applying the Cofield analysis, the judge denied the severance motion, concluding as to the first prong, “there [wa]s relevance in the testimony regarding these two incidents.” Considering the fourth prong, and quoting State v. Garrison, 228 N.J. 182, 197–98 (2017), the judge concluded, “Some types of evidence . . . require a very strong showing of prejudice to justify exclusion. One example is evidence of motive or intent.” The judge said “intent is the issue” in this case, and he denied the motion for severance.

Defendant appealed the denial of severance and the Appellate Division reversed, finding that it was inappropriate for the trial court to use defendant’s statements regarding his inadvertent touching of Sara in order to convict him in Kate’s case. The trial court should have severed the cases, as using this evidence against defendant was highly prejudicial.

Severance is an important tool for defendant’s, when appropriate. The Cofield test is a four part test to allow evidence of other crimes into a current trial:

“The evidence of the other crime must be admissible as relevant to a material issue . . . similar in kind and reasonably close in time to the offense charged; . . . clear and convincing; and [its] probative value . . . must not be outweighed by its apparent prejudice.” Cofield, 127 N.J. at 338.

The Appellate Division found that this case did not meet the Cofield test and reversed and remanded for a new trial.

If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today.

At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Borough of Clayton, Township of Elk, East Greenwich Township, Township of Logan, Township of Mantua, Township of Monroe, Borough of National Park, Township of Harrison, Borough of Paulsboro, Borough of Pitman, Township of Greenwich, Township of South Harrison, Borough of Swedesboro, Township of Franklin, Borough of Newfield, Township of West Deptford, Township of Washington, City of Woodbury, Borough of Woodbury Heights, Borough of Westville, Borough of Glassboro, Township of Woolwich, Township of Deptford, and Borough of Wenonah.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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