RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1840-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD M. KNOX, a/k/a EDWARD KNOX,
Defendant-Appellant. ____________________________
Submitted March 25, 2025 – Decided April 14, 2025
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 19-06-1346.
Jardim Meisner Salmon Sprague & Susser, PC, attorneys for appellant (Michael V. Gilberti, on the briefs).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM This one issue direct criminal appeal arises out of the trial court's order
granting the State's motion to admit certain evidence under N.J.R.E. 404(b) at
defendant Edward Knox's jury trial. After being convicted of fourth-degree
criminal sexual contact and sentenced to three-year's probation, defendant
appeals. We affirm.
I.
On January 7, 2019, C.S.1 heard a knock at her door. When she answered,
defendant told her that he was there for a termite inspection. C.S. recognized
defendant from a previous visit and let him in.
Upon entering the home and closing and locking the door behind him, C.S.
testified that defendant asked her "if she was married, . . . had a boyfriend, if
anyone was home, if [she] was sure anyone was home, [and] if [she] liked older
men still."2 At the time of the incident only C.S.'s dog, and her nearly five-year-
old son, were in the home.
1 We employ initials to identify the victim to protect her privacy. R. 1:38- 3(c)(12). 2 She recalled defendant commenting on the age difference between her and her boyfriend at the prior visit; the boyfriend was in the home at that time. A-1840-23 2 C.S. was not expecting a follow-up termite inspection, her boyfriend set
up the inspections, so she had no reason to doubt defendant when he told her he
was there for that reason.
Once defendant was in the home, C.S. brought him to the kitchen area
where the work would be performed; her son came down to the area from the
upstairs and then went back up. C.S. testified that she was wearing pajamas and
a "large fluffy robe," when she answered the door, so after leading defendant to
the kitchen, she informed him she was going to her bedroom to change, and that
after he was done in the kitchen, she would bring him outside to the crawl space
under the house.
C.S. testified that the following events transpired:
I walked away going towards my room cause I thought he was going to go back to the spot that I showed him to check and he kind of followed me and I turned around and he was right there very close, kind of backed me up into like furniture, and he reached around with his right hand, grabbed my butt and pulled me close. And then with his left hand he tried to slip it up into my robe.
C.S. stated that when defendant's hand made contact with her chest, over her
robe, she "pushed him away," and "jabbed him with [her] fingers and pushed
him [in the] opposite direction of where my bedroom was," and the two of them
then "kind of stood there a little awkward."
A-1840-23 3 C.S. then told defendant she was going to change into something
appropriate, but testified she was "planning on getting a gun or getting my phone
and calling somebody." According to C.S., defendant then said she didn't need
to change because what she was wearing was fine. Defendant then told her "[w]e
can talk it out, we can go to your bedroom and work it out."
C.S. testified that she immediately went to her bedroom, grabbed her
handgun out of her bedside table, took the safety off, and went to the bedroom
door where defendant was standing approximately ten feet away down the
hallway. C.S. did not immediately brandish the weapon, but told defendant to
get out, which he refused to do. Defendant then told C.S. they could work things
out, and suggested they go to C.S.'s bedroom and "see what happens." Upon
defendant's refusal to leave, C.S. pulled the weapon in front of her, pointed it at
defendant, and again told defendant to leave. She testified that defendant didn't
seem too startled about it, which made her more uncomfortable. C.S. stepped
towards defendant, asked him to leave several more times, which he again
refused. C.S. then "pointed at the door and told him to get out," and defendant
then unlocked the door and left quickly, driving away in his car.
After defendant left the home, C.S. immediately called her boyfriend and
then called 911. C.S. gave a statement to police, describing defendant's
A-1840-23 4 appearance and vehicle. C.S. told the police she believed defendant worked for
her termite company; the police then contacted the termite company and
determined defendant did not work for them.
C.S. and her boyfriend discussed where they might know defendant from,
and realized it was the Berlin Mart, and that he worked for a basement
waterproofing company that had a stand in the mart. She remembered defendant
had come to their home in 2017 to provide an estimate. 3 C.S. called the company
and asked for the name of the person who provided them with the estimate .
This information was relayed to Somerdale Detective Howard Dawson.
The detective then looked up defendant's name and found a social media review
written by a woman in Delaware which included defendant's name and a written
description of him. He then ran defendant's name in the automatic traffic
system, which then generated a record for a black Chevy registered to defendant.
This matched C.S.'s description of defendant's vehicle. The detective then
created a photo array.
C.S. went to the Somerdale Police station and identified defendant as the
assailant. As a result, a warrant was prepared, and police arrested defendant.
The next month, a grand jury returned a two-count indictment charging
3 He was not hired to perform the 2017 waterproofing job. A-1840-23 5 defendant with third-degree burglary, N.J.S.A. 2C: 18-2(a)(l); and third-degree
sexual assault, N.J.S.A. 2C:14-3(a)(2). In May 2019, a second grand jury
returned a superseding indictment, charging him with the same two violations.
The State filed a pretrial motion in limine under N.J.R.E. 404(b), asking
the court to admit the testimony of two women at trial. These two women had
previous meetings with defendant regarding estimates for basement work. The
court held a Rule 104 hearing on the State's motion. At the hearing, both women
testified, and the state proffered the testimony of C.S.
The first witness testified that in July of 2015 she made a request for
Basement Waterproofing Specialists to come to her home to provide her with an
estimate. She identified defendant as the employee sent for the estimate. She
stated that after she let defendant inside the home, they went to the source of the
water in the basement. She stated defendant did not seem to be paying attention
when she pointed out the problem areas. Instead, he was looking around,
particularly to a clothesline she had in the basement with her bras hanging on it.
She stated defendant asked her if the bras belonged to her and that defendant
was "just sort of like leering" at her, which made her feel very uncomfortable
and "really skeeved out."
A-1840-23 6 She also testified that while still in the basement, defendant asked her
whom she lived with, to which she answered her sister. Defendant then asked
her if her sister was home at the time, and she answered no. She testified that
defendant next commented on her appearance saying she "would fit in well
where he worked because all the girls there were very pretty." The two then
went to the dining room and defendant gave her the quote for the basement work.
While in the dining room defendant continued making comments about her
appearance telling her she had a "sexy smile." She signed a contract for the
work to be performed, testifying she felt very pressured. She called the company
the next day and cancelled the contract. She also testified that she wrote a social
media review only a few days after her encounter with defendant, and that she
typically does not write such reviews.
On cross-examination defense counsel attempted to frame the comments
made by defendant as awkward, but the witness stated the comments "were more
than awkward," and that "[i]t didn't feel like he was being charming." When
asked if defendant had touched her, she answered no.
The second witness testified that four days prior to the incident with C.S.,
she requested an estimate from Basement Waterproofing Specialists. Defendant
was dispatched to her home. She testified that on the day of the estimate she
A-1840-23 7 was home with her eighty-year-old mother, and her teenage son. She stated she
offered defendant water, and then they sat at her dining room table to discuss
the basement work, where he made statements unrelated to the work, including
that "he has a metal thing in his head," and that she had beautiful eyes and a
smile. She stated when defendant had mentioned the "metal thing" in his head,
she felt she should be "empathetic and shared that [she] had had . . . breast
cancer."
The two went down to the basement, where they spent approximately
thirty minutes, with her son and mom "within ear shot." She testified that while
down in the basement defendant told her she had a pretty figure and "[her]
breasts look[ed] fine to him." Similar to the first witness's testimony, she stated
that while in the basement defendant did not seem to be paying particular
attention to the work he was there to quote. When they left the basement, she
showed defendant the area outside where water was coming into the basement
and testified that upon returning to the dining room table, defendant asked her
out numerous times. She stated defendant never asked her relationship status.
She testified she tried getting defendant to leave for about fifteen or
twenty minutes and eventually told defendant, "[y]ou have to go. It's time for
bed. You have to get out of here and I'll call you tomorrow." On cross-
A-1840-23 8 examination, she testified that defendant did not physically touch her at any
point.
The State argued the prior acts evidence was proof of motive, opportunity,
plan, and absence of mistake, and that they illustrated defendant's actions "were
for the purpose of sexually arousing or gratifying [defendant]," which they
asserted would be at issue during trial. In opposition, defendant argued the
testimony was highly prejudicial propensity evidence that should not be
submitted to the jury. He also argued there were no allegations of defendant
physically touching either woman, only that he made romantic advances, which
both women declined and then he left their homes.
On November 4, 2020, the court granted the State's 404(b) motion,
permitting the use of the testimony of both women at trial subject to a limiting
instruction. The court made findings of fact and conclusions of law and found
that the State had satisfied the four-part test in State v. Cofield, 127 N.J. 328
(1992).
At trial, the victim and the two basement waterproofing customers
testified. Defendant moved for a judgment of acquittal, which the court denied.
Defendant exercised his right not to testify, and the jury returned a verdict
A-1840-23 9 acquitting defendant of the burglary and third-degree sexual assault but
convicting him of fourth-degree criminal sexual contact, N.J.S.A. 2C: 14-3(b).
On January 12, 2024, the court sentenced defendant to three years'
probation with conditions, no contact with C.S., restitution of $4,200.44 and
three-days' jail credit.
On appeal defendant argues,
THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE JURY TO HEAR TESTIMONY ABOUT TWO UNRELATED INCIDENTS -- FACTUALLY UNLIKE THIS CASE -- WHOSE PREJUDICE FAR OUTWEIGHED ANY PROBATIVE VALUE.
II.
Admitting evidence of other crimes, wrongs or acts is left to the discretion
of the trial judge. State v. Marrero, 148 N.J. 469, 483 (1997). "We defer to a
trial court's evidentiary ruling absent an abuse of discretion." State v. Garcia,
245 N.J. 412, 430 (2021). Our Supreme Court has stated that "sensitive
admissibility rulings regarding other-crimes evidence made pursuant to Rule
404(b) are reversed '[o]nly where there is a clear error of judgment.'" State v.
Green, 236 N.J. 71, 81 (2018) (alteration in original) (quoting State v. Rose, 206
N.J. 141, 157–58 (2011)). However, an evidentiary decision is reviewed de
novo "where the trial court fails to apply the proper legal standard in evaluating
A-1840-23 10 the admissibility of evidence . . . ." State v. Trinidad, 241 N.J. 425, 448 (2020);
see also State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010).
III.
Under N.J.R.E. 404(b)(1), "evidence of other crimes, wrongs, or acts is
not admissible to prove a person's disposition in order to show that on a
particular occasion the person acted in conformity with such disposition."
N.J.R.E. 404(b)(2) provides an exception to this rule, stating "[t]his evidence
may be admitted for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident when
such matters are relevant to a material issue in dispute." Other crimes, wrongs,
and acts can be defined as anything for which a defendant is not on trial. See
State v. Darby, 174 N.J. 509, 518 (2002) (finding testimony about a robbery
different from the one the defendant was currently facing charges for constituted
other-crimes evidence). This type of propensity evidence is generally prohibited
because of its "inflammatory characteristic" and thus "mandates a careful and
pragmatic evaluation by trial courts, based on the specific context in which the
evidence is offered, to determine whether the probative worth of the evidence
outweighs its potential for undue prejudice." Cofield, 127 N.J. at 334 (quoting
State v. Stevens, 115 N.J. 289, 303 (1989)). "'[B]ecause N.J.R.E. 404(b) is a
A-1840-23 11 rule of exclusion rather than a rule of inclusion,' the proponent of evidence of
other crimes, wrongs or acts must satisfy a four-prong test." State v. Carlucci,
217 N.J. 129, 140 (2014) (quoting State v. P.S., 202 N.J. 232, 255 (2010)).
"The four-part Cofield test governing the admissibility of other-crimes
evidence is a well-settled feature of New Jersey's evidence jurisprudence."
Green, 236 N.J. at 82. Under that standard:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged; [4]
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, 127 N.J. at 338.]
To satisfy the first prong of Cofield, the evidence must have "a tendency
in reason to prove or disprove any fact of consequence to the determination of
the action." See N.J.R.E. 401 (defining "[r]elevant evidence"). The evidence
must also concern a material issue, "such as motive, intent, or an element of the
4 In a subsequent case, the Court stated that "[t]emporality and similarity of conduct is not always applicable, and thus not required in all cases." Rose, 206 N.J. at 160. A-1840-23 12 charged offense . . . ." Rose, 206 N.J. at 160 (quoting P.S., 202 N.J. at 256).
Under Cofield, an issue is material if "the matter was projected by the defense
as arguable before trial, raised by the defense at trial, or was one that the defense
refused to concede." Ibid.
The second Cofield factor "requires that the 'other acts' be 'similar in kind
and reasonably close in time to the offense charged.'" Green, 236 N.J. at 83
(quoting Cofield, 127 N.J. at 338). However, that factor is "limited to cases that
replicate the circumstances in Cofield." State v. Williams, 190 N.J. 114, 131
(2007); see also Cofield, 127 N.J. at 342 (holding a past conviction of conspiracy
to distribute drugs was admissible in a subsequent case for conspiracy, unlawful
possession and unlawful possession with intent to distribute).
The third prong requires clear and convincing proof that the person against
whom the evidence is introduced actually committed the other crime or wrong.
Carlucci, 217 N.J. at 143. "[T]he prosecution must establish that the act of
uncharged misconduct . . . actually happened by 'clear and convincing'
evidence." Rose, 206 N.J. at 160 (quoting Cofield, 127 N.J. at 338).
Lastly, the fourth prong is "generally the most difficult part of the test."
State v. Barden, 195 N.J. 375, 389 (2008). "Because of the damaging nature of
such evidence, the trial court must engage in a 'careful and pragmatic evaluation'
A-1840-23 13 of the evidence to determine whether the probative worth of the evidence is
outweighed by its potential for undue prejudice." Ibid. (quoting Stevens, 115
N.J. at 303). The analysis incorporates balancing prejudice versus probative
value required by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that
the prejudice substantially outweigh the probative value of the evidence. State
v. Reddish, 181 N.J. 553, 608 (2004). Rather, the risk of undue prejudice must
merely outweigh the probative value. Ibid.
A.
First, defendant posits that because he was charged with making an entry
under false pretenses while in the other matters he was in the witnesses' homes
on legitimate service appointments, the circumstances were different and not
relevant to his burglary charge. He also contends that because he was charged
with sexual assault, the other encounters were not relevant because there were
no allegations of improper touching, and he only made "awkward and
inappropriate comments."
Evidence is relevant when it has a "tendency in reason to prove or disprove
any fact of consequence to the determination of the action." N.J.R.E. 401.
"Relevancy consists of probative value and materiality." State v. Buckley, 216
N.J. 249, 261 (2013). "Probative value concerns the tendency of evidence to
A-1840-23 14 establish the proposition that it is offered to prove," and "[m]ateriality concerns
the relation between the propositions for which the evidence is offered and the
issues in the case." State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990)
(citations omitted). Evidence need not be dispositive, or even strongly
probative, to be relevant; rather, "the primary focus in determining the relevance
of evidence is whether there is a 'logical connection between the proffered
evidence and a fact in issue.'" State v. Willis, 225 N.J. 85, 98 (2016) (quoting
State v. Covell, 157 N.J. 554, 565 (2016)). However, to satisfy Cofield's first
prong, "the material fact sought to be proved must be one that is actually in
dispute and cannot merely be offered to indicate that because the defendant is
disposed toward wrongful acts generally, he is probably guilty of the present
act." Ibid. (first citing Cofield, 127 N.J. at 338; and then citing State v. Nance,
148 N.J. 376, 386 (1997)).
For the first prong, the court found the testimony of the two waterproofing
customers "[had] a 'tendency in reason' to prove that the defendant's purpose in
going to and gaining entry to [C.S.'s] home was to interact with her in a sexually
oriented way including allegedly going beyond what he had done before by
making unwanted sexually oriented physical contact." The court found that for
this case, "the purpose of sexual gratification is not self-evident" and that "no
A-1840-23 15 alternative source of evidence about [defendant's] purpose in allegedly touching
[C.S.'s] buttocks that would render the evidence regarding his contact with the
other female homeowners unnecessary." The court also found the evidence was
relevant to the State's absence of mistake argument since defendant contended
the touching was a "misunderstanding."
In State v. Stevens a police officer used his position of authority to get
two women, that he had taken into custody on two separate occasions, to remove
articles of clothing, under the pretext that he was looking for evidence. 115 N.J.
at 294. Our Court allowed the use of evidence from three other instances in
which the officer had allegedly used his authority to get other women to either
remove articles of clothing, or to engage in sexual relations in exchange for his
assistance with evidence he had on them. Id. at 297. The Court reasoned that
if the jury found the defendant had made the contact, then the testimony was
relevant to show "[defendant's] conducted the searches to gratify his sexual
desires and did so knowing that such conduct was unauthorized." Id. at 306-07.
Further, the Court found the evidence went to the material issues of the officer's
"purpose for conducting the searches and his knowledge that such conduct was
an unauthorized exercise of his official position—evidence of the circumstances
A-1840-23 16 in which defendant had previously used his office to intimidate women into
disrobing or providing sexual favors was highly probative." Ibid.
Here, the trial court did not abuse its discretion in allowing this testimony
to be admitted for the limited purpose of motive, intent, and absence of mistake.
When the testimony is relevant to motive, and intent "a 'wider range of
evidence,'" is admissible to shed light on motive or intent when these issues are
material. Covell, 157 N.J. at 565 (citing State v. Rogers, 19 N.J. 218, 228
(1955)). The testimony given by the waterproofing customers could lead to the
finding that defendants' purpose was for sexual gratification. This is evidenced
by defendant's comments to the first woman about her bras, and "sexy smile,"
along with his leering at her, and lack of attention to the work he was there to
quote, coupled with his comments about the second woman's breasts and figure.
It is also relevant to show absence of mistake concerning defendant's purpose
for touching C.S.
B.
Defendant also argues the trial court erred by discounting the second
Cofield prong by stating the "requirement is generally not applicable when the
proffered evidence goes to motive," and then noting the testimony of both
customers involve defendant "allegedly using an ostensible . . . legitimate
A-1840-23 17 business purpose" to gain entry to their homes in order to make sexual comments
and advances. Defendant argues the two waterproofing customers called to
request an estimate, and he gave them estimates. According to defendant, the
inappropriate comments he made during these visits "should not, in any way
transform his lawful and invited entry and or alter the legitimate purpose [for
which] he was there."
The second prong—whether the proffered evidence is similar in kind and
close in time to the charged offense—is typically not applicable if the proffered
evidence goes to intent or motive. State v. Collier, 316 N.J. Super. 181, 194
(App. Div. 1998), aff'd. o.b. 162 N.J. 27 (1999) (indicating that similarity should
not be a requirement for admissibility where motive is sought to be shown);
State v. Nance, 148 N.J. 376, 389-390 (1997).
Although defendant did not enter the other homes by using false claims,
the court did not abuse its discretion in determining that the events were similar.
Defendant obtained knowledge about and accessed the homes of the two
waterproofing customers based on their requests to obtain estimates. Once
inside, he made sexually related comments to each of them. Similarly, in the
present case, defendant first provided an estimate to C.S., in 2017, gaining
knowledge about and access to her home at that time. Subsequently, in 2019,
A-1840-23 18 upon entering C.S.'s home, defendant asked if anyone else was home. Defendant
also posed the same question to one of the other witnesses, while leering at her
undergarments in the basement. While there may have been no physical contact
in the other acts, they were sufficiently similar to be highly probative of
defendant's intent. Moreover, one of the waterproofing estimate incidents took
place only four days prior to C.S.'s incident, clearly close in time.
C.
Under the third prong, defendant concedes the trial court determined the
testimony evidence was "clear and convincing that [he] had these encounters,"
but that those "facts were never at issue." Here, the court determined it was
satisfied because the testimony of both women was "credible and compelling,"
and consistent with prior statements they had given. Therefore, the trial court
did not abuse its discretion in finding this prong.
D.
Lastly, defendant asserts the testimony given by the two waterproofing
customers had "no probative value to any element of either charge," and even if
some tendency existed, the testimony was "sufficiently dissimilar" to the claims
in the present case, as such, it should have been excluded by the trial court. He
argues the testimony of the two women, when viewed in the context of this case,
A-1840-23 19 was "minimally relevant," but "highly prejudicial," and likely viewed as
"propensity evidence."
"Prior-conduct evidence has the effect of suggesting to a jury that a
defendant has a propensity to commit crimes, and, therefore, that it is 'more
probable that he committed the crime for which he is on trial.'" Willis, 225 N.J.
at 97 (quoting State v. Weeks, 107 N.J. 396, 406 (1987)). For that reason, "[i]f
other less prejudicial evidence may be presented to establish the same issue, the
balance in the weighing process will tip in favor of exclusion." Green, 236 N.J.
at 84 (quoting Rose, 206 N.J. at 161). However, evidence that goes to motive
or intent requires "a very strong showing of prejudice to justify exclusion."
Covell, 157 N.J. at 570. Particularly when the State has no other independent
proof. See e.g., id. at 570-72 (holding the trial court did not abuse its discretion
in admitting defendant's prior statement regarding a prior act of lewdness
involving a young girl because it was the only evidence the State had to prove
defendant's motive or intent to the nature of the charged crime of luring an eight-
year-old girl who was riding her bike); see also Stevens, 115 N.J. at 308 (holding
the trial court did not abuse its discretion in finding the probative value of the
other crimes evidence outweighed its capacity for undue prejudice, because the
A-1840-23 20 State lacked any other "independent proof tending to establish that defendant's
purpose in searching the victims was to gratify his sexual desires.").
The court found this prong was satisfied because the probative value of
the evidence was not outweighed by the prejudice to the defendant. The court
reasoned that in the present case "[t]he probative value of the evidence . . . is
significant as it is material to the mental state requirements of . . . the criminal
sexual contact defenses," noting there were no alternative evidence sources that
would be "less prejudicial." Further, the court determined that any prejudicial
effect "is not especially inflammatory," particularly when compared to State v.
Cusick, 219 N.J. Super. 452 (App. Div. 1987), where the court allowed evidence
of defendant's prior convictions for the sexual assaults of young girls, in order
to prove defendant's acts "were done for purposes of sexual arousement or
gratification." (Cusick 219 N.J. Super. at 465).
The trial court did not abuse its discretion in determining there was a
"slight prejudicial effect," which was not outweighed by "the significant
probative value of the evidence at issue" especially when compared to Cusick.
The testimony by both women went to the mental state of both the burglary and
the criminal sexual contact. Here, the State needed to prove that defendant's
purpose in touching C.S. was for sexual gratification. Outside of C.S.'s
A-1840-23 21 testimony there was no alternate evidence for the State to use to meet its burden
in proving its case. Considering defendant had defended himself by saying this
was a misunderstanding, the trial court did not abuse its discretion in finding
this evidence was slightly prejudicial, and its prejudicial effect did not outweigh
its "significant probative value."
To the extent we have not specifically addressed any remaining
arguments, it is because we find them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1840-23 22