STATE OF NEW JERSEY v. OMAR S. IBRAHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR S. IBRAHAM,

Defendant-Appellant.

__________________________________________

May 13, 2015

Submitted March 10, 2015 Decided

Before Judges Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-08-2074.

Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The State appeals from an order precluding the testimony at trial of its expert toxicologist. We affirm.

On December 10, 2010, R.K. was a guest at the Borgata Casino Hotel in Atlantic City. R.K. planned to attend an overnight holiday party sponsored by her employer. R.K. went to dinner around 7:00 P.M., during which she consumed at least four glasses of wine. Following dinner, R.K. and two other female employees went to a club located in the hotel. R.K. met defendant at the club. While at the club, R.K. consumed three tequila shots with defendant after observing the shots poured by a bartender and handed to her directly for consumption.

Around 1:00 A.M., R.K.'s companions told her they were going back to their room. They took R.K.'s purse. According to R.K., defendant attempted to kiss her several times and eventually grabbed her face to kiss her. Feeling disoriented, R.K. left the club and requested defendant help her find her friends.

R.K. later recalled defendant putting her into a taxi, going to defendant's hotel room and denying his requests to have sex. R.K. alleges defendant held her down and had vaginal intercourse with her. R.K. further alleged she fled the room, clothed only in her underwear, and located a security guard who helped R.K. back to the Borgata. A Borgata security guard escorted R.K. to her friends' room where R.K. reported she believed she was drugged.1

The following morning, R.K. returned to her home in Maryland. She sent defendant a text message asking if the two had sex. Defendant responded, "I think so." R.K. went to a hospital in Baltimore where she reported she believed she was drugged. Blood and urine samples were collected. The result of the urine test showed 6.5 mcg/mL of gamma - Hydroxybutyric Acid (GHB). The GHB level was within the 0.1 to 6.6 mcg/mL range of naturally occurring GHB in a healthy adult.2

An Atlantic County Grand Jury returned an indictment charging defendant with aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (Count One) and sexual assault, N.J.S.A. 2C:14-2c(1) (Count Two).

The State retained Edward J. Barbieri, Ph.D., a forensic toxicologist, with the anticipation he would testify at trial. In his report, Dr. Barbieri concluded that he could not form an opinion within a reasonable degree of medical certainty whether GHB was externally administered to R.K.

The report concluded

In summary, based upon the relatively low concentration of GHB measured in [R.K.'s] urine specimen, collected approximately twelve hours after the described assault, it is not possible for me [to] form an opinion or a conclusion within a reasonable degree of scientific certainty . . .

However, I will state that it is possible . . . [R.K.] was under the influence of GHB. However, it is similarly possible that the GHB identified and quantified in her urine specimen was from endogenous production of the compound, and therefore, she would not have experienced GHB-induced CNS depressant effect.

Based upon the report, defendant filed a motion to exclude Dr. Barbieri's testimony. Arguments were heard before Judge Kyran Connor. The judge granted the motion.

The judge held

I think the suggestion implicitly comes down to that the jury should be invited to conclude that the defendant is guilty based on nothing more than a lay person's opinion that she must have been drugged, coupled with an inability on the part of science to say that she wasn't.

I struggle to see how I could allow a case to go to a jury on the question of whether this defendant, in fact, administered GHB to the victim on evidence so sparse. Because to convict, I think they would have to draw inference upon inference upon inference without any hard facts underneath to support them.

So, in any event, let me say that I'm not fully persuaded at any level that Dr. Barbieri's testimony is necessarily relevant to an issue in this case since he's unable to opine on the real issue at hand. But even if I were to perceive some degree of relevance, I'm clearly convinced that the risk of undue prejudice of misleading the jury or confusing the issues substantially outweighs any probative value that the evidence might arguably have. So I'll grant the motion to exclude that testimony.

On appeal, the State raises the following points

POINT I

THE INTEREST OF JUSTICE WARRANTS IMMEDIATE REVIEW OF THE LOWER COURT'S APRIL 14, 2014 ORDER

POINT II

THE PROSPECTIVE TESTIMONY OF THE STATE'S TOXICOLOGIST HAD PROBATIVE VALUE ON A CRUCIAL ISSUE THE JURY HAD TO RESOLVE AND NO POTENTIAL TO PREJUDICE DEFENDANT UNDULY OR TO CONFUSE OR TO MISLEAD JURORS

We review a trial court's evidentiary rulings under an abuse of discretion standard. State v. McGuire, 419 N.J. Super. 88, 135 (App. Div. 2011). A trial court's evidentiary rulings will not be disturbed on appeal absent a showing of clear abuse of discretion, meaning, a clear error in judgment. State v. J.A.C., 210 N.J. 281, 295 (2012); see State v. Fulston, 325 N.J. Super. 184, 192-93 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). In applying this standard, we do not substitute our own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted. Ibid.; State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000); Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 582-82 (App. Div.), certif. denied, 142 N.J. 574 (1995).

Courts are granted broad discretion in determining the relevance of evidence and whether its probative value is substantially outweighed by its prejudicial nature. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); see State v. Nelson, 173 N.J. 417, 470 (2002). Differently stated, it has been pointed out that the trial court is in the "best position to engage in th[e] balancing process" required by this rule. State v. Ramseur, 106 N.J. 123, 266 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993); see also Schaefer v. Cedar Fair, 348 N.J. Super. 223, 239-40 (App. Div. 2002) (noting that "[t]his is an exercise that trial judges perform every day in other contexts").

All relevant evidence is admissible, unless otherwise excluded. N.J.R.E. 401; N.J.R.E. 402; State v. Burr, 195 N.J. 119, 126 (2008). Relevant evidence has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. To determine relevancy, a trial judge must "focus on the 'the logical connection between the proffered evidence and a fact in issue.'" State v. Covell, 157 N.J. 554, 565 (1999) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule." Burr, supra, 195 N.J. at 127.

The test for relevance is broad and favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976). "Evidence need not be dispositive or even strongly probative in order to clear the relevancy bar." State v. Buckley, 216 N.J. 249, 261 (2013) (citations omitted). Given the focus of our inquiry for determining relevancy, we find that there is arguably a "logical connection between the proffered evidence" the presence of GHB in R.K.'s urine and "a fact in issue" whether defendant's conduct was the cause. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting Hutchins, supra, 241 N.J. Super. at 358).

Notwithstanding its relevancy, we next address whether the testimony is admissible as "expert" testimony.

If 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.

[N.J.R.E. 702]

While Dr. Barbieri could qualify as an expert in the field of toxicology based upon his training, education, and experience, the inquiry as to admissibility of his testimony does not end there. The judge's role is to determine whether the proffered expert testimony "would indeed enhance the understanding of the lay jurors[.]" State v. J.Q., 252 N.J. Super. 11, 26 (App. Div. 1991), aff d, 130 N.J. 554 (1993); State v. Torres, 183 N.J. 554, 567 (2005).

In this context, expert testimony would be of no value to the jurors in understanding whether R.K. may have been "drugged" with GHB. The opinion offered by Dr. Barbieri would be premised on a "possibility" of the introduction of the drug to R.K. rather than a "reasonable probability" or "certainty" of its introduction. See Scully v. Fitzgerald, 179 N.J. 114, 128 (2004) (opinion as to cause of a fire may not be based upon "best guess" of the expert); Germann v. Matriss, 55 N.J. 193 (1970) (medical opinion testimony must be couched in terms of reasonable medical certainty or probability); Gribbin v. Fox, 130 N.J.L. 357, 559 (Sup. Ct. 1943) aff d, 131 N.J.L. 187 (E & A 1944) (Supreme Court held that it was error not to strike testimony of a medical expert which was based on mere possibility; Schrantz v. Luancing, 218 N.J. Super. 434, 438 (Law Div. 1986) (a witness qualified as a medical expert may not offer an opinion not based on reasonable medical probability or certainty); see also Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980).

When we consider the standard by which expert testimony is admissible under N.J.R.E. 702 to assist the juror to understand the evidence or to determine a fact in issue we conclude the proffered testimony was properly excluded.

A court may also exclude relevant evidence if "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Probative value is "the tendency of evidence to establish the proposition that it is offered to prove." State v. Wilson, 135 N.J. 4, 13 (1994) (citations omitted). During the weighing process, however, a court may admit evidence with overwhelming probative value even if highly prejudicial provided the evidence is central to the case. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 496 (1999).

Notwithstanding the relevance of the evidence, a trial court must carefully weigh the expert testimony to determine whether it may be unduly prejudicial. Torres, supra, 183 N.J. at 580. The balancing test of N.J.R.E. 403 requires the State to establish that the probative value of the evidence is not outweighed by its apparent prejudice. State v. Long, 173 N.J. 138, 161 (2002).

N.J.R.E. 403 provides

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

"The mere possibility that evidence could be prejudicial does not justify its exclusion." Long, supra, 173 N.J. at 164 (internal quotations marks omitted). Instead, evidence that is unduly prejudicial is excluded "only when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Generally, "[t]he 'more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it' under N.J.R.E. 403." Thompson, supra, 59 N.J. 396, 569 (quoting State v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied, 102 N.J. 298 (1985)).

We find, as did Judge Connor, the prejudicial value inherent in the proposed testimony far outweighs any prospective probative value. At trial, the State will be unable to produce direct evidence to prove the introduction of GHB to R.K. by defendant. After considering the State's proofs in conjunction with the proffered expert testimony, the judge held the State's evidence was too "sparse" to permit the toxicologist to testify and too prejudicial, misleading and confusing to have the jury "draw inference upon inference[.]" We agree.

Affirmed.

1 The defendant conducted an investigation of R.K.'s allegations. The investigation revealed there was no record of a security guard, or anyone, at defendant's hotel assisting R.K. out of the hotel and to the Borgata. The Borgata has no record of anyone transferring R.K. to Borgata security, nor any record of Borgata security escorting R.K. to her friends' room.

2 This statistic was reported in Dr. Edward J. Barbieri's toxicology findings report. In the report, Dr. Barbieri cites to the following sources for this information: M.A. LeBeau et al., Intra- and interindividual variations in urinary concentrations of endogenous gamma hydroxybutyrate, 26 J. Anal. Tox. 340-46 (2002); N. Shima et al., Urinary endogenous concentrations of GHB and its isomers in healthy humans and diabetics, 149 For. Sci. Int. 171-79 (2005); and, D.T. Yeatman & K. Reid, A study of urinary endogenous gamma hydroxybutyrate (GHB) levels, 27 J. Anal. Tox. 40-42 (2003).