STATE OF NEW JERSEY VS. MARJORIE ANNA STUBBLEFIELD(13-01-0044, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2112-15T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 9, 2017
v. APPELLATE DIVISION
MARJORIE ANNA STUBBLEFIELD,
Defendant-Appellant.
___________________________
Argued April 4, 2017 — Decided June 9, 2017
Before Judges Reisner, Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 13-
01-0044.
James Patton argued the cause for appellant
(Woolcock Patton, LLC, attorneys; Mr. Patton,
on the brief).
Kayla Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Andrew R. Burroughs, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
Defendant Marjorie Anna Stubblefield appeals from the jury
verdict convicting her of two counts of first-degree aggravated
sexual assault of a physically impaired young man, D.J., 1 who the
State alleged was mentally incapacitated, N.J.S.A. 2C:14-2(a)(7).
The court sentenced defendant to two concurrent twelve-year prison
terms, each with an 85% parole ineligibility period, pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also
sentenced to lifetime parole supervision. Defendant argues that
she was unable to fully present her consent defense given the
restrictive rulings of the trial court. We agree and reverse and
remand for a new trial.
The trial testimony reveals the following facts. Defendant
was a professor and department chair at Rutgers University. D.J.'s
brother, John, was a student in one of defendant's classes. During
the class, defendant showed a movie demonstrating facilitated
communication (FC), a controversial aid for the severely disabled,
where the facilitator enables communication through physical
assistance, such as supporting the arm of the individual to allow
him or her to push a button. Whether the communication is the
product of the facilitator or the disabled person may be unclear
to the lay observer. Defendant was a believer in the process,
1
Initials and pseudonyms are used to protect the privacy of the
victim. R. 1:38-3(c)(12).
2 A-2112-15T1
having been introduced to it by her mother, a psychologist and
retired university professor of special education. Defendant also
had gained personal experience with FC, by studying the technique
for three days at Syracuse University's Institute on Communication
and Inclusion, and was aware of various studies debunking it as
well as other studies she believed supported its efficacy.
John approached defendant, suggesting that FC might assist
his younger brother, D.J., who was severely disabled with cerebral
palsy. D.J. could not speak words, wore a "diaper," and needed
assistance in every area of daily living. He had been adjudicated
as incapacitated and his mother, Daisy, and John were appointed
his joint guardians pursuant to N.J.S.A. 3B:12-25. After first
attempting to obtain other help for D.J. within the family's
limited ability to pay, defendant ultimately agreed to assist him.
Defendant was thirty-nine years old and D.J. was twenty-nine.
Beginning in 2009, defendant had sessions with D.J., originally
with Daisy or John present, but eventually in defendant's office
alone.
Defendant became convinced that D.J. had been misdiagnosed
as having the intellectual ability of a young child. She assisted
D.J. to attend FC conferences, including one in Philadelphia, with
his family. Defendant also arranged for D.J. to audit a course
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at Rutgers with the FC assistance of a college student, Sheronda
Jones.
After two years, at the end of May 2011, defendant revealed
to Daisy and John that she and D.J. had engaged in sexual
intercourse and were in love. D.J. purportedly agreed, as he
indicated through FC, typing on a communication device, called a
NEO.2 Defendant kissed D.J. in front of his family. Although
defendant at that time was married and had two children, a few
weeks after informing the family of her relationship with D.J.,
defendant appeared at D.J.'s family home uninvited and expressed
that her future was with D.J. Daisy and John questioned whether
D.J. was capable of communication and tested his ability by posing
questions, which had answers known only to D.J. The answers,
typed on the NEO, were inaccurate according to D.J.'s family.
Believing D.J. was not communicating with defendant as she claimed,
they told defendant to stop having any contact with D.J. Defendant
persisted in communicating with Daisy and John, asking to see D.J.
She also went to D.J.'s daycare facility and sought to see him,
but was refused. The facility emailed D.J.'s family to report the
attempted contact.
2
A NEO is a small portable keyboard with an LED display board
that shows four lines of type at a time.
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In frustration, the family called Rutgers University to
complain. An administrator called the Essex County Prosecutor's
Office and defendant was ultimately indicted for two counts of
first-degree aggravated sexual assault. Never denying that the
sexual activity took place, defendant's sole claim was that D.J.
had sufficient mental capacity to consent to sexual activity. She
argued that the State did not prove that she knew or should have
known that D.J. was too mentally impaired to consent to sexual
activity. N.J.S.A. 2C:14-2(a)(7). The only evidence that sexual
behavior occurred at all came from defendant's volunteered
statements to her husband and D.J.'s family, as well as her
detailed testimony at trial.
The State introduced three experts to testify to D.J.'s
incapacitation. The first expert, Dr. Howard Shane, who had a
Ph.D. in speech pathology, qualified as an expert in communication
disorders, augmentative and alternative communication means and
speech pathology. He conducted a three-hour assessment of D.J.'s
communication level and testified that D.J. was not a candidate
for augmentative communication devices because of his limited
intellectual capacity. The second expert, a psychologist, first
examined D.J. in 2001 for the Division of Developmental Disability,
Bureau of Guardianship Services and at that time determined that
D.J. required a legal guardian. The psychologist examined D.J. a
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second time in 2011 to determine if D.J. had the intellectual
capacity to give consent to sexual activity. He testified that
D.J. did not appear capable of giving consent to sexual activities.
The third expert, also a psychologist, examined D.J. for the Bureau
of Guardianship Services in 2004. He testified that D.J. required
a full guardian because D.J. did not have the capacity to
independently make meaningful medical, legal, residential or
vocational decisions.
Defendant raises the following issues on appeal:
POINT I: THE COURT ERRED IN PRECLUDING A
DEFENSE COMMUNICATION EXPERT FROM TESTIFYING
ABOUT HER ASSESSMENT OF D.J.
POINT II: THE COURT IMPROPERLY EXCLUDED
EVIDENCE FROM A WITNESS WHO SUCCESSFULLY USED
[FC] WITH D.J.
POINT III: THE COURT ERRED IN PRECLUDING
EVIDENCE INCLUDING DOCUMENTS PRODUCED BY D.J.
THROUGH [FC] IN ANSWER TO QUESTIONS.
POINT IV: THE COURT IMPROPERLY ADMITTED THE
NET OPINIONS OF THE PROSECUTION EXPERTS ON
D.J.'S INTELLIGENCE.
POINT V: THE COURT IMPROPERLY ALLOWED THE
PROSECUTION TO PRESENT AN EXPERT ON
METHODOLOGY TO TESTIFY IN REBUTTAL ABOUT FC.
POINT VI: THE CONVICTION MUST BE VACATED FOR
CUMULATIVE ERROR.
POINT VII: THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE.
POINT VIII: ON REMAND THE CASE SHOULD BE
ASSIGNED TO A NEW JUDGE.
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I
The admissibility of expert testimony is governed by N.J.R.E.
702, which provides that "[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise." The Rule imposes three requirements:
(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to must
be at a state of the art such that an expert's
testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise
to offer the intended testimony.
[Agha v. Feiner, 198 N.J. 50, 62 (2009)
(quoting State v. Kelly, 97 N.J. 178, 208
(1984)).]
"Admissibility of scientific test results in a criminal trial
is permitted only when those tests are shown to be generally
accepted, within the relevant scientific community, to be
reliable." State v. Chun, 194 N.J. 54, 91 ("the Frye standard"),
cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41
(2008); State v. Harvey, 151 N.J. 117, 169-70 (1997) (citing Frye
7 A-2112-15T1
v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)), cert.
denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).3
A defense expert from Australia, Dr. Rosemary Crossley,
defined FC in the N.J.R.E. 104 pre-trial hearing as follows:
[FC] has two meanings, I think, in that in
Australia we talk about [FC] training. And
that involves providing physical support for
someone while they learn to use a
communication aid with their hands and to
encourage the person to improve their skills
and develop independent communication, but
enabling them to use a communication [aid]
while they do so as this can be a very lengthy
process.
In the United States [FC] has been used more
as synonymous with supported typing, providing
support to someone while they use a keyboard.
Although defense counsel asked defendant to testify before
the jury about her experience with FC and her opinion as to its
effectiveness, defendant does not contest on appeal the court's
ruling that FC is insufficiently reliable to allow into evidence
3
In 1993 the United States Supreme Court abandoned the general
acceptance standard in favor of a more relaxed scientific
reliability standard, Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),
codified in Fed. R. Evid. 702, however, the test in New Jersey
continues to be whether the scientific community generally accepts
the reliability of the proffered evidence. Harvey, supra, 151
N.J. at 169-70. As noted later in this opinion, defendant does
not contest the trial court's application of the Frye standard to
exclude expert testimony about FC.
8 A-2112-15T1
as a scientifically recognized method of communication. Defendant
argues instead that the "trial [c]ourt improperly barred defense
communication expert, Dr. Rosemary Crossley, from testifying about
her evaluation of D.J., and her conclusion that despite severe
physical handicaps, D.J. could communicate and read." Defendant
argues that the court improperly suppressed Dr. Crossley's
assessment because of the court's incorrect finding that the
assessment was based on FC.
Dr. Crossley is an augmentative and alternative communication
(AAC) specialist, with a Ph.D. in the field from Victoria
University in Australia. Since 1985, she has worked as the
director of Australia's first multi-disciplinary center for AAC
and has assessed "thousands" of individuals since the center began
in 1977. She has written books and articles published in a peer-
reviewed journal, taught university-level courses and presented
at international conferences in her field. She has won various
prestigious awards in Australia. The court qualified Dr. Crossley
as an expert in the communication assessment of people with
significant physical impairments and allowed her to testify about
the deficiencies in Dr. Shane's assessment of D.J. The court did
not, however, allow Dr. Crossley to testify as to her own extensive
assessment of D.J.
9 A-2112-15T1
Dr. Crossley, with the assistance of Marilyn Chadwick, a
speech and language pathologist, conducted a lengthy video-
recorded assessment of D.J. over three days,4 which sought to
determine his language and literacy skills and whether he had
communicative intent. The assessment was conducted pursuant to
an order stating: "The experts will not be permitted to render an
opinion based on facilitated communication." Throughout the
assessment, Dr. Crossley asked D.J. questions and introduced
communication devices with answer options such as "yes" and "no"
buttons for D.J. to choose from. Dr. Crossley also used a carpet
board with attached letters, words or pictures, for D.J. to choose
from when answering the questions. Dr. Crossley reported that
D.J. answered forty-three out of forty-five questions correctly,
thirty-nine of which required literacy skills. She testified she
did not provide physical support for D.J. when he answered the
forty-five scored questions.
During the twelve hours that she assessed D.J., Dr. Crossley
provided communication support by using FC: touching D.J. when he
was using a device that he had not used before and if D.J. became
"stuck." Dr. Crossley testified, however, that nothing done with
this FC support was scored as part of her assessment. She did
hold the answering device, but "was very careful to hold the device
4
We have reviewed this videotape.
10 A-2112-15T1
steady so [it] didn't influence D.J.'s responses. That was helped
by the fact that D.J. was using large movements. He wasn't moving
a finger between two tiny targets or anything like that." Dr.
Crossley testified that she was compelled to hold the devices
because she had no stand at the proper height, and it is common
for evaluators to hold the device in these circumstances. The
defense argued that the results of her assessment were sufficiently
reliable to present to the jury, and the court erred by suppressing
Dr. Crossley's evaluation, both her conclusions and the supporting
videotape.
The admissibility of Dr. Crossley's testimony about her
assessment of D.J. hinged on whether or not the techniques employed
during her assessment amounted to FC, which the court had already
ruled inadmissible due to its unreliability. The State alleged
that holding the devices skewed the results and therefore the
entire evaluation was based on FC. Because Dr. Crossley held the
device on which D.J. rendered his answers, the State argued that
she used FC even when she asserted she was not doing so. Dr.
Crossley disagreed with this broad definition of FC. Relying on
the State's cross-examination of Dr. Crossley as well as the
court's own evaluation of the videotape, the court did not allow
the jury to see any portion of the videotape of Dr. Crossley's
11 A-2112-15T1
extraordinarily lengthy evaluation, nor even hear that she had
performed an evaluation.
The trial court found that Dr. Crossley satisfied the first
and third elements of N.J.R.E. 702, but did not satisfy the second
element because she used FC during the assessment. The court
stated:
In effect, the methods and data Dr. Crossley[5]
relied upon were similar to facilitated
communication rendering her analysis invalid
and indicating that she does not have the
expertise necessary to offer testimony
regarding the methods and principles she
applied to D.J.
. . . .
There is, in short, no showing that the
scientific tests performed by Dr. Crossley
were sufficiently reliable. The tests Dr.
Crossley administered were based on
facilitated communication methods and
principles, which the Court had already ruled
as inadmissible.
. . . .
Portions of the video, which the Court had
viewed in its entirety seems to indicate that
she may have assisted D.J. in moving the
device rendering her methods of testing D.J.'s
ability to communicate invalid. I find that
the methods she used to examine D.J. were
flawed and thus, the conclusion she has drawn
from her flawed examination marks her opinion
not reliable, and thus, a net opinion.
. . . .
5
We have corrected the transcriber's misspelling of Dr. Crossley's
name throughout.
12 A-2112-15T1
Given her testimony and the video tape
proceedings of the method and principles to
assist D.J. in communicating the Court is of
the opinion that the procedures were not
reliable methods. For the foregoing reasons
the Court will deny expert testimony from Dr.
Crossley because the methods and principles
used to assess, whether a means exist for D.J.
to communicate are based upon insufficient and
unreliable data.
Additionally, the Court finds that the
testimony from Rosemary Crossley is
inadmissible since insufficient and
unreliable data forms the basis of her
testimony.
The Court believed Dr. Crossley's reports and
examinations are inadmissible because her
communication assessment is based upon an
unrecognized field of science known as
facilitated communication rendering Dr.
Crossley not an expert and her opinion
inadmissible as a net opinion.
The court did not address the specific forty-five questions
scored by Dr. Crossley, which she testified were answered by D.J.
without the use of FC.
During an April 24, 2014 hearing on defendant's unsuccessful
motion to subject D.J. to additional testing, the court noted that
after viewing the twelve-hour videotape of Dr. Crossley's
assessment, it was incredulous of defendant's claim that D.J. was
responsive and intentionally selected options during the
assessment. The court stated:
[W]hat I have in front of me, are basically
two opposing reports. I have the reports and
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the rebuttals from Marilyn Chadwick and Dr.
Crossley, and I have the report from Dr.
Shane. There are -- I looked at the video for
what both aspects said. And the things that
often they saw as a direct response, I didn't
see it as that. I saw it as you're holding
the device very closely to his right hand, he
tends to favor his right hand and he hit it.
As soon as he hit it, it was pulled away. But
my guess is, and it has happened on other
occasions, if you left it there longer, he
might slip and hit the no also.
. . . .
I think there are instances that it appeared
that he may have responded. And I think there
were instances that I saw that there was
allegedly a positive response in which I saw,
and I just did not -- I didn't see how that
could be a positive response.
The court further noted that even if D.J. was able to
communicate on some level, D.J. was unlikely to have sufficient
intellectual capacity to give consent to sexual activity. The
court said it based its opinion on the parties' submissions, the
videotaped assessment and twenty years of medical specialists'
reports deeming D.J. incapacitated.
We agree with defendant that by preventing Dr. Crossley from
presenting her evaluation of D.J., defendant was precluded from
fully presenting her defense. The jury and not the court should
have ultimately determined whether Dr. Crossley's evaluation was
persuasive, and whether the State proved defendant knew or should
have known that D.J. could not consent.
14 A-2112-15T1
The court's overly exclusionary ruling deprived defendant of
an opportunity to present evidence supporting her defense. See
State v. B.M., 397 N.J. Super. 367, 378-79 (App. Div. 2008)
(stating that it was appropriate for the trial court to allow
defendant latitude in presenting a defense); see also State v.
Garron, 177 N.J. 147, 169 (2003) (stating that "when the
mechanistic application of a state's rules of evidence or procedure
would undermine the truth-finding function by excluding relevant
evidence necessary to a defendant's ability to defend against the
charged offenses, the Confrontation and Compulsory Process Clauses
must prevail"), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157
L. Ed. 2d 1204 (2004). "Although a trial court retains broad
discretion in determining the admissibility of evidence, that
discretion is abused when relevant evidence offered by the defense
and necessary for a fair trial is kept from the jury." State v.
Cope, 224 N.J. 530, 554-55 (2016).
The State exacerbated this error by arguing to the jury in
summation:
Now, also with regard to mental defectiveness,
it's important to note that we heard from a
lot of experts, we've heard from many lay
witnesses, we heard from Daisy and John, and
we heard from the defendant. The only person
who came into this courtroom, and took this
stand, and told you -- and testified to you
that he is not mentally defective and that he
has the capacity to consent to sexual activity
15 A-2112-15T1
is the defendant. That's it. Nobody else
came in here from that stand and told you that
he was not mentally defective.
. . . .
[T]he person that comes here to contradict
[Dr. Shane] is Rosemary Crossley from
Australia, who again you didn't hear any
testimony from her about an examination she
conducted; it was a critique again of Dr.
Shane.
The State argued to the jury that the judicial order of
incapacitation, coupled with the four expert witnesses produced
by the State, overwhelmed the lone witness to D.J. having the
capacity to consent, defendant, who did not have the expertise or
objectivity to render such an opinion. The jury was left with no
evidence that any other lay or expert person believed D.J. to have
the intellectual capacity to consent to sexual activity.
In summary, both these errors deprived defendant of a fair
trial. The court erroneously used its own assessment of the
videotaped interaction between Dr. Crossley and D.J. to deny
defendant the opportunity to convince the jury that Dr. Crossley's
evaluation was accurate and not based on FC. The State's
misleading summation stressing the lack of a defense evaluation
exacerbated the harm caused by this ruling. See State v. Bradshaw,
195 N.J. 493, 510 (2008) (stating that a prosecutor "should not
make inaccurate legal or factual assertions during a trial").
16 A-2112-15T1
II
The court also prevented Sheronda Jones from testifying that
D.J. completed his audited course requirements through FC. Because
FC was found scientifically unreliable, the court prevented Jones
from testifying that she assisted D.J. through FC to audit this
course. Thus, the jury did not hear Jones's observations of D.J.'s
communication and intellectual capabilities. She was allowed to
testify only that she turned pages for D.J. Jones was a lay
witness who had spent considerable time with D.J. She could have
testified to her observations of D.J.'s mental capacity without a
scientific endorsement of FC, just as Daisy and John testified to
their experience with D.J.'s incapacity. See N.J.R.E. 701.
III
Finally, in another effort to exclude FC from the facts
presented to the jury, the court unfairly limited defendant's
opportunity to cross-examine John or to rebut portions of his
testimony. The court denied defendant the opportunity to present
evidence of the answers generated when John asked D.J. questions.
After defendant disclosed her sexual relationship with D.J., as a
test of D.J.'s mental ability to communicate, John asked D.J.
certain questions about their family history, the answers to which
were allegedly known to D.J., but unknown to defendant. John's
purpose in asking the questions was to determine whether the
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communication produced by D.J. with defendant facilitating
actually originated from D.J. or defendant. The first question
John posed was: "Who is Georgia?" With defendant facilitating,
D.J. purportedly answered on the NEO: "John, Georgia in high school
worked for mom." The second question was: "Who is Sally?" Again
with defendant facilitating, D.J. purportedly answered on the NEO:
"Georgia in our family circle is mom's little nephew's ki," leaving
the last word unfinished.
John testified that the answers typed were incorrect, but was
not allowed to testify as to the content of the answers. According
to John, Georgia is John's aunt's sister. John testified that
Sally and Georgia are the same person because Georgia was also
known as "Sally." Defendant contends that D.J. correctly answered
the questions with facts that were unknown to her. She asserts
that Georgia did take care of D.J. when he was high school age,
and she is in the "family circle" and is therefore "kin."
Defendant argues that the test was powerful evidence that D.J. was
actually communicating with FC. The court allowed defendant to
testify generally that she believed D.J. answered correctly, but
did not permit introduction of the printout answers.
Defendant argues on appeal that the trial court erred by not
allowing John and Daisy, two witnesses to the questions and
answers, to testify to the answers given. She also argues that
18 A-2112-15T1
the court erred by ruling that the printout of the typed answers
was inadmissible because it was hearsay and produced through FC.
Hearsay is defined as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." N.J.R.E.
801(c). The answers typed on the NEO are not hearsay, as the
type-written printout is proof of what was typed at that moment
in response to the posed questions. "As a general proposition,
'[w]here statements are offered, not for the truthfulness of their
contents, but only to show that they were in fact made and that
the listener took certain action as a result thereof, the
statements are not deemed inadmissible hearsay.'"
Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007)
(quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super.
445, 456-57 (App. Div.), certif. denied, 142 N.J. 452 (1995)).
Defendant sought to introduce the printout to prove that it was
produced at that time, not for the accuracy of its contents. The
witnesses, defendant, John and Daisy, would have to testify whether
what was typed was accurate or not. The jury could then determine
whether or not the printout lent credibility to defendant's claim
that D.J. could communicate with her.
19 A-2112-15T1
IV
Unfortunately, the court, in its attempt to cleanse the record
of controversial FC methodology, limited the evidence to the extent
that defendant was not given a fair opportunity to present her
defense.
When defendant testified about FC as an expert would,
contrary to the court's express direction, the court allowed a
fourth State's expert, another psychologist, to testify in
rebuttal about the fallacy of such purported communication. The
State's fourth expert enhanced the impression that defendant alone
claimed to believe in FC, without any expert or lay witness in
agreement, just as the State argued in summation. The court's
prime responsibility is to ensure a fair trial, and here the court
should have allowed some latitude to defendant in presenting her
defense. "[I]f evidence is relevant and necessary to a fair
determination of the issues, the admission of the evidence is
constitutionally compelled." Garron, supra, 177 N.J. at 171.
The factual setting here was extraordinary, and it called
for a liberal admission of evidence supporting defendant's defense
to allow her the opportunity to convince the jury of the reasons
for her unorthodox perception of D.J.'s capabilities. The jury
was not presumptively gullible. It did not have to be shielded
from employing its common sense to fairly evaluate the testimony
20 A-2112-15T1
from both sides.6 See Cope, supra, 224 N.J. at 553. The court's
observations of Dr. Crossley's videotaped evaluation were no
better than the jury's observations would have been. Without
objection, the State displayed D.J. to the jury, presumably so it
could better understand the extent of his disabilities. Reviewing
the videotape, or at least the portions of it Dr. Crossley
testified did not involve FC, would have been a better way to
allow the jury to assess D.J.'s communicative skills.
In conclusion, based on our careful consideration of the
trial record, we are persuaded that due to cumulative error,
defendant did not receive a fair trial. State v. Weaver, 219 N.J.
131, 155 (2014). Defendant's remaining arguments, regarding the
State's experts, are without sufficient merit to discuss in this
opinion. R. 2:11-3(e)(2).
We thus reverse these convictions. When sentencing
defendant, the court stated: "I find that the actions of the
defendant are the perfect example of a predator preying on their
prey." In an excess of caution, we remand for a new trial before
a different judge. At the new trial, the court should allow Dr.
Crossley to testify regarding her evaluation of D.J. and play the
6
In making these observations, we do not intend to suggest our
own view of the evidence. Our purpose is to emphasize that,
regardless of a trial judge's view of the weight a party's evidence
deserves, the judge should trust the jury to evaluate witness
credibility and decide what weight to give each side's evidence.
21 A-2112-15T1
relevant portions of the videotape covering the scored questions
and answers. Jones should also be permitted to testify as to her
interactions with D.J. and her general observations of D.J. If,
after defendant is given the chance to fully explain her position,
it then becomes appropriate, the State may present rebuttal, as
it did in the first trial.
Reversed and remanded for a new trial. We do not retain
jurisdiction.
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