                   NOT FOR PUBLICATION WITHOUT THE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




                            3                               A-2112-15T1
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.
                                  4                                      A-2112-15T1
     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


                                    5                                     A-2112-15T1
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.

                                6                                      A-2112-15T1
                                        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

                                13                                   A-2112-15T1
          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


                            17                             A-2112-15T1
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.




                             22                             A-2112-15T1
