(temporarily assigned) delivered the opinion of the Court.
On leave granted, the Appellate Division reversed the trial court’s decision, finding the evidence inadmissible.
State v. J.M.,
438
N.J.Super.
215, 240,
We affirm the Appellate Division’s judgment insofar as it held that the evidence of defendant’s prior sexual assault in Florida is inadmissible under
N.J.R.E.
404(b) because it fails to satisfy the four-factor test established in
State v. Cofield,
127
N.J.
328,
I.
Defendant J.M., Jr., was a massage therapist at a Washington Township spa. On July 5, 2012, E.S. and her aunt went to the spa for massage therapy. This was E.S.’s first massage. When E.S. and her aunt entered the spa, they were directed to the locker room and instructed to remove their clothes, place their belongings in a locker, and don spa-provided robes. E.S. then exited the locker room and was escorted to a private massage room. The spa assigned defendant to perform the massage. E.S.’s aunt received a massage from another massage therapist in a separate room.
Before E.S.’s massage, defendant informed her that he would wait outside the massage room while she disrobed, got under a privacy cover, and laid face down. A couple of minutes later, defendant knocked and, with E.S.’s permission, entered the
While massaging E.S.’s right thigh, defendant asked if he could continue to massage E.S. further up her leg. E.S. became uncomfortable and told him no. Defendant continued to massage the area, rubbing slightly higher than the location E.S. had told him was high enough. E.S. flinched and was “a little freaked out” by defendant’s proximity to her vagina during that portion of the massage, but attributed her discomfort to her own inexperience with massages.
Defendant switched to E.S.’s left leg, and again worked his way progressively from the calf muscles to the thigh muscles. This time, however, defendant did not wait for permission before massaging E.S.’s upper thigh. Instead, he asked aloud “can I get closer?” and immediately answered his own question with “I’m [going to] get closer.” Moments later, defendant placed his hand underneath E.S.’s upper thigh and digitally penetrated her vagina. Defendant repeated the action, at which point E.S. opened her eyes. When E.S. opened her eyes, defendant had one hand on her head, one hand in her vagina, and was exposing himself to her. Defendant asked E.S. to perform oral sex on him, which E.S. refused.
E.S. told investigators that defendant looked puzzled when she refused his advances, and his demeanor indicated that he had propositioned clients on other occasions. Defendant then commenced the standard pleasantries of concluding a massage, telling E.S. that he hoped she enjoyed the massage and would revisit the spa. Defendant then handed E.S. her robe and left the room.
When E.S. exited the massage room, defendant was waiting right outside the door to provide her with a glass of water. Defendant followed E.S. to the reception area, and, as they walked, emphasized his personal relationship with her aunt, who worked for the spa. Defendant then sat in the reception area, preventing E.S. from immediately disclosing the assault to her aunt. Defendant stayed with E.S. while her aunt left for another treatment. At that point, E.S. fled to the women’s locker room. While E.S. was in a dressing room within the women’s locker room, a female spa employee entered and noticed that E.S. had left personal effects unattended. The spa employee asked E.S. if she was all right,'and E.S. said no. Soon thereafter, E.S. reported the sexual assault to a spa manager.
After E.S. reported the sexual assault, her aunt took her to the hospital, where a sexual assault nurse examiner examined her for evidence of sexual assault. The nurse observed trauma to E.S.’s vagina, which she concluded was caused by digital penetration.
II.
Defendant was arrested and taken to the Washington Township Police Headquarters to be interviewed. He denied any sexual contact with E.S., stating that “nothing out of the ordinary happened during [the] massage.”
A grand jury charged defendant with one count of second-degree sexual assault, N.J.S.A. 2C:14 — 2(c)(1), and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). Defendant pled not guilty.
Before trial, the State moved under
N.J.R.E.
404(b) to admit extrinsic evidence of a prior incident in which defendant had been charged with, but ultimately acquitted
A.W. testified that she visited a spa in Orlando, Florida, on August 26, 2006, where she received a massage from defendant. A.W., an experienced spa patron, testified that, during the massage, defendant moved his hand up her thigh higher than was normal, massaged her clitoris, and digitally penetrated her vagina without her consent. After A.W. told defendant to stop, defendant removed his finger from AW.’s vagina and stated that “I just want to make sure the guests are happy.”
AW.’s description of the alleged assault shared certain similarities with E.S.’s experience. For example, A.W. testified that defendant lifted the sheet as she turned from lying face down to lying on her back, just as he did with E.S. A.W. explained that this practice was effective but unique — massage therapists usually “tell you to turn” and the customer “just kind of flip[s] underneath the sheet.”
The trial court found A.W.’s testimony credible and ruled it admissible, finding that the proposed testimony satisfied each prong of the Cofield test. The court stated that the proposed testimony was relevant to establish motive, intent, plan, and/or absence of mistake; that the acts alleged by A.W. were similar in kind and reasonably close in time to the acts alleged by E.S.; and that, despite defendant’s acquittal, A.W.’s testimony clearly and convincingly provided evidence that defendant touched A.W. inappropriately. The court also determined that the probative value of the proposed testimony outweighed the potential for prejudice to defendant, given the need for reliable evidence of defendant’s state of mind.
The Appellate Division granted defendant’s motion for leave to appeal and reversed the trial court’s evidentiary ruling.
J.M., supra,
438
N.J.Super.
at 240,
We granted the State’s motion for leave to appeal.
State v. J.M.,
221
N.J.
216,
III.
A.
The State contends that the Appellate Division opinion should be reversed, and the trial court’s ruling reinstated, because
Defendant maintains that the Appellate Division properly determined that the other-crime evidence offered by the State constituted propensity evidence expressly barred by N.J.R.E. 404(b). In service of that argument, defendant encourages the Court to take an exacting approach to the relevance and materiality considerations of Cofield’s first prong, and he contends that the trial court erred in finding that the proposed testimony was admissible to prove motive, intent, plan, or absence of mistake. Defendant maintains that the motive and intent commensurate with the commission of sexual assault are obvious, and that the jury does not need the benefit of the contested evidence to determine the motivation and intent behind the alleged crimes. Defendant also argues that, because he flatly denied assaulting E.S. and did not offer mistake as a defense, his state of mind is not a contested issue. Defendant also argues that two similar instances of alleged conduct, separated by six years and over one thousand miles, are insufficient to serve as evidence of a plan for the purposes of N.J.R.E. 404(b). Defendant urges affirmance of the Appellate Division’s holding that acquitted-act evidence should never be admissible.
B.
The Attorney General, as amicus curiae, focuses on two portions of the Appellate Division opinion: exclusion of acquitted-act evidence when offered to show that the prior offense actually occurred; and, when other-crime evidence is admitted, the need for a jury instruction that the jury must be satisfied beyond a reasonable doubt that the other crime actually occurred. The Attorney General argues that the Appellate Division’s decision is “destructive and unsound,” running afoul of well-established precedent regarding the admissibility of evidence under N.J.R.E. 404(b).
The Attorney General contends that the appellate panel’s ruling deprives the jury of its traditional truth-seeking function. The Attorney General also argues that the panel’s decision to impose new jury instructions when other-crime evidence will play a pivotal role in the adjudication of guilt represents “an improper advisory opinion” because the panel was only asked to consider whether the 404(b) evidence at issue was admissible. The Attorney General argues that this holding is harmful because it will force trial judges to make the subjective determination of which evidence is “pivotal,” induce the State to introduce voluminous proof of other-crime evidence, and create fertile ground for appeals and reversals.
The Office of the Public Defender, as amicus curiae, contends that the proposed testimony fails to satisfy the
Cofield
factors and argues that acquitted-act evidence should never be admitted in a later prosecution if it is being offered to show that the prior offense actually occurred. Reviewing the approaches of other states, the Public Defender identifies “three schools of thought”
about the admissibility of aequitted-act evidence: (1) nine states completely bar the admission of acquitted-act evidence; (2) twenty-one states follow the federal rule set forth in
Dowling v. United States,
493
U.S.
342, 349-50, 110
S.Ct.
668, 672,
IV.
The admission or exclusion of evidence at trial rests in the sound discretion of the trial court.
State v. Gillispie,
208
N.J.
59, 84,
This appeal focuses on the admission of other-crime evidence—specifically, the testimony of a female spa customer who alleged that she had been sexually assaulted by defendant, a crime for which defendant had been tried and ultimately acquitted.
N.J.R.E.
404(b) governs the admissibility of such evidence, and provides:
“Because evidence of a defendant’s previous misconduct ‘has a unique tendency’ to prejudice a jury, it must be admitted with caution.”
Willis, supra,
225
N.J.
at 97,
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such 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.
In
Cofield, supra,
this Court established a four-prong test designed “to avoid the over-use of extrinsic evidence of other crimes or wrongs” pursuant to a 404(b) exception. 127
N.J.
at 338,
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;
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.
{Ibid, (citation omitted).]
“[T]he party seeking to admit other-crimes evidence bears the burden of establishing that the probative value of the evidence is not outweighed by its apparent prejudice.”
Reddish, supra,
181
N.J.
at 608-09,
As we recently held in
Willis, supra,
other-crime evidence may be admissible
“in
sexual assault cases in which the victim’s consent is a genuine and material issue[,]” 225
N.J.
at 98,
In a case in which a defendant contends the alleged assault did not occur, intent and absence of mistake are not at issue. In the absence of a genuinely contested fact, other-crime evidence is irrelevant and the first Cofield prong cannot be satisfied. 1
When other-crime evidence, including acquitted-act evidence, is admitted at trial, and before the trial court instructs the jury on the limited and specific purpose for which the evidence has been admitted, the court must advise the jury as follows:
Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he/she has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence, you must he satisfied that the defendant committed the other [crime, wrong, or act]. If you are not so satisfied, you may not consider it for any purpose.
{Model Jury Charges (Criminal), “Proof of Other Crimes, Wrongs, or Acts CN.J.R.E. 404(b))” (June 4,2007) (emphasis added).]
V.
A.
We affirm the Appellate Division’s determination that A.W.’s testimony is inadmissible under
N.J.R.E.
404(b) substan
tially for the reasons asserted in its opinion.
J.M., supra,
438
N.J.Super.
at 221-30,
The first
Cofield
factor requires that “the evidence of the prior bad act, crime or wrong ... be relevant to a material issue that is genuinely disputed.”
State v. Covell,
157
N.J.
554, 564-65,
Here, the trial court erroneously found that AW.’s testimony satisfied the first
Cofield
factor as evidence of motive, intent, absence of mistake, or plan. Defendant does not argue that the alleged sexual assault of E.S. was consensual or accidental; rather, he maintains that the sexual assault never occurred. As such, A.W.’s testimony is inadmissible to establish motive, intent, or absence of mistake because defendant’s state of mind is not a “genuinely contested” issue in this case.
Id.
at 98-99,
For similar reasons, the proposed testimony fails to satisfy the fourth
Cofield
requirement that “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.”
Cofield, supra,
127
N.J.
at 338,
B.
Having determined that evidence of the Florida sexual assault was not admissible under the
Cofield
factors, it was not necessary to discuss, much less impose, a bright-line rule prohibiting the admission of aequitted-act evidence in other cases. A bright-line bar on acquitted-act evidence is inappropriate, and we decline to adopt it here. As illustrated by the Appellate Division’s decisions in
Schlue, supra,
129
N.J.Super.
351,
In
Schlue, supra,
the defendant was charged with obstruction of justice for attempting to induce a member of an alleged bribery scheme to conceal the scheme from police. 129
N.J.Super.
at 352-53,
In
Yormark, supra,
four defendants were convicted of a conspiracy to obtain money under false pretenses. 117
N.J.Super.
at 323,
As
Schlue
and
Yormark
reflect, there are limited circumstances in which acquitted-act evidence is both highly probative and not unduly prejudicial to a defendant, and therefore may be admissible. As with all other-crime evidence, acquitted-act evidence may only be admitted after a vigorous
Cofield
analysis. With respect to the third prong of the
Cofield
test — the “clear and convincing evidence” requirement — the fact that a defendant was acquitted of the prior crime will often weigh heavily against a finding that the evidence of that crime is “clear and convincing.”
See Cofield, supra,
127
N.J.
at 338,
C.
In the third section of its opinion, the appellate panel directed that, in the event other-crime evidence is admitted, the defendant had been acquitted of that charge, and the acquitted-act evidence is pivotal to the State’s ease, the jury should be instructed that it must be satisfied beyond a reasonable doubt that the defendant actually committed the prior offense. We do not adopt this portion of the opinion. Having determined that the six-year-old other-crime evidence should not have been admitted, the appellate panel addressed an issue that had no bearing on the disposition of the appeal. It effectively rendered
Furthermore, as illustrated in
Willis, supra,
were we to require a jury to determine whether the State established beyond a reasonable doubt that a defendant committed the other alleged crime, we would effectively require a trial-within-a-trial, with its attendant capacity to distract the jury from the ease-in-chief and to inject the prohibited inference of the defendant’s propensity to commit similar offenses. 225
N.J.
at 101-02,
We emphasize once again that
N.J.R.E.
404(b) is a rule of exclusion and that the trial judge bears the burden of scrutinizing the proffered evidence to determine if it satisfies the
Cofield
rule. In the end, assuming the trial court finds that the proffered evidence is relevant, similar in kind, not remote in time, and does not cause undue prejudice, the other-crime evidence cannot be admitted unless the judge finds that the State has presented clear and convincing evidence that the defendant committed the offense.
State v. Koskovich,
168
N.J.
448, 483-85,
VI.
For the foregoing reasons, the judgment of the Appellate Division is affirmed as modified.
For modification and affirmance — Chief Justice RABNER and Justices LaVECCHIA, ALBIN, PATTERSON, SOLOMON and Judge CUFF (temporarily assigned) — 6.
Not Participating — Justice FERNANDEZ-VINA — 1.
Notes
We can envision certain circumstances in which motive evidence may be admissible in the face of a denial by the defendant that the charged act did not occur. A fact-sensitive evaluation of the proffered evidence would be required to determine if the defendant’s motive is a genuine issue in the case.
See State v. Rose, 206 N.J.
141, 162-63,
In the limited circumstances in which acquitted-act evidence is admissible, a defendant should have the option to request that the trial court inform the jury that a jury had acquitted the defendant of that charge.
In addition, conditioning the text of a jury instruction on whether acquitted-act evidence is "pivotal” to the State’s case introduces an unacceptable measure of unpredictability into the task of formulating a jury instruction that must contain a correct statement of the law. We anticipate many instances in which the parties and/or the trial court will disagree on the significance of the proffered evidence to the State's case.